Restoring Justice

An Introduction to Restorative Justice

Daniel W. Van Ness, Karen Heetderks Strong, Jonathan Derby, L. Lynette Parker

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000567489
• Edition: 6
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Restoring Justice: An Introduction to Restorative Justice, Sixth Edition, offers a clear and convincing explanation of restorative justice, a movement within criminal justice with ongoing worldwide influence. The book explores the broad appeal of this vision and offers a brief history of its roots and development as an alternative to an impersonal justice system focused narrowly on the conviction and punishment of those who break the law. Instead, restorative justice emphasizes repairing the harm caused or revealed by criminal behavior, using cooperative processes that include all the stakeholders. The book presents the theory and principles of restorative justice, and discusses its four cornerpost ideas: Inclusion, Encounter, Repair, and Cohesion. Multiple models for how restorative justice may be incorporated into criminal justice are explored, and the book proposes an approach to assessing the extent to which programs or systems are actually restorative in practice. The authors also suggest six strategic objectives to significantly expand the use and reach of restorative justice and recommended tactics to make progress towards the acceptance and adoption of restorative programs and systems.

Part 1 THE CONCEPT OF RESTORATIVE JUSTICE

1 HOW PATTERNS OF THINKING CAN OBSTRUCT JUSTICE

DOI: 10.4324/9781003159773-2

Key Concepts

• Patterns of thinking—their strengths and limitations
• An ancient pattern of thinking about justice: Justice is relational
• Historical shifts in thinking about crime
• Current pattern of thinking: Justice is impersonal
• Restorative Justice: An alternative pattern

Patterns of Thinking

The young woman watched intently as the man who raped her was sentenced to prison. But as the person convicted of rape was escorted from the courtroom, it was clear to Justice John Kelly that she was no less distraught than she had been throughout the court proceedings. So, before the next case was called, Justice Kelly asked the woman to approach the bench. He spoke with her briefly and quietly about what had just happened, and he concluded with these words: “You understand that what I have just done here demonstrates conclusively that what happened was not your fault.” At that, the young woman began to weep and fled from the courtroom. When Justice Kelly called her family several days later, he learned that his words had been words of vindication for the woman; they marked the beginning of her psychological recovery. Her tears had been tears of healing.

A short time later, this Australian judge spoke at an international conference on criminal law reform held in London. Speaking to 200 judges, legal scholars, and law reformers from common law countries, he laid aside his prepared comments and spoke with great feeling about the need for criminal law practitioners to view themselves as healers. A purpose of criminal law, he said, should be to heal the wounds caused by crime—wounds such as those of the woman who had been raped. For her, even the conviction and sentencing of the man who had done this to her had not been enough.

The rehabilitation model of criminal justice has been the most influential school of thought in criminology in the past 200 years. Although the model fell into disrepute among criminal justice policymakers in the latter decades of the twentieth century, opinion surveys suggest that the desire to rehabilitate people who have harmed others through crime remains strong among members of the general public and even many people who have been harmed.¹ At a fundamental level, we recognize that criminal justice should consider not only whether those accused of committing crimes have violated the law but also why they have done so. However, even when rehabilitation programs are helpful in addressing the underlying problems that led to the decision to commit a crime, those programs fail to address all the harm surrounding the crime. Crime is not simply lawbreaking; it also harms others. In fact, that is often why those activities have been criminalized—to prevent those injuries from happening.

Crime is not simply lawbreaking; it also harms others. That is: the reason for criminal laws to prevent those injuries from happening.

As we will see, these injuries exist on several levels and are experienced by those who were directly harmed, by their communities, and even by the persons who caused the harm. However, the current policies and practice of criminal justice focus almost entirely on the lawbreaker, filtering out virtually all aspects of crime except questions of legal guilt and punishment. This is because a set of assumptions, or a pattern of thinking, structures our perception of crime and, consequently, our sense of what a proper response should be. Howard Zehr’s description of paradigms is pertinent here: “They provide the lens through which we understand phenomena. They shape what we ‘know’ to be possible and impossible. [They] form our common sense, and things which fall outside … seem absurd.”²

Patterns of thinking are necessary because they give meaning to the myriad bits of data we must deal with in life. Edward de Bono uses the example of a person crossing a busy road:

If, as you stood waiting to cross the road, your brain had to try out all the incoming information in different combinations in order to recognize the traffic conditions, it would take you at least a month to cross the road. In fact, the changing conditions would make it impossible for you ever to cross.³

To avoid this problem, the brain uses “active information systems” to organize data into patterns of thinking that allow us to quickly make sense out of the chaos of information that would otherwise overwhelm us. A pattern of thinking is like the collection of streams, rivulets, and rivers formed over time in a particular place by the rainfall; once the pattern of water runoff is established, rainwater will always flow there, and nowhere else.

A fundamental weakness of patterns of thinking is that they limit what we perceive; we see only what makes sense in the pattern.

However, the reason for their usefulness is also a fundamental weakness of patterns. They limit the data we perceive. We see only what makes sense in the pattern; we simply do not recognize “absurd” information. Therefore, one sign that a pattern of thinking has become deficient is that we increasingly encounter troublesome data that do not fit. We are then forced to make a choice either to disregard that evidence or to seek a new pattern. For example, at one time, scientists believed that the Earth was flat, and that the universe revolved around it. However, as astronomers recorded the actual movement of heavenly bodies, this model became increasingly less satisfactory. When Copernicus proposed that the Earth revolves around the sun—not the other way around—his model offered a much more satisfactory explanation of observable data.

It is normal to think that the way we understand or do something is not only the right way but also the only way, until we encounter other approaches and recognize that they present alternatives. We may not adopt those alternatives, but the benefit to having encountered them is that we realize we have choices. The idea of neuroplasticity has emerged from a recent change in scientific understanding of how the brain works. It is not, as was thought for 400 years, a machine whose parts have pre-assigned, specific functions. Rather, the brain not only shapes mental activity, but it is shaped by mental activity. Patterns of thought need not be static, but can change.⁴ When people travel abroad, read, watch television programs, go to museums, listen to podcasts or music, they discover that other people in other times and places have made different choices, and that those choices have had consequences. And even as they experience differences, they also notice things they have in common and may come to a changed understanding of what it means to be human.

Exposure to other ways of doing things helps us recognize patterns of thinking, allows us to reflect on alternative approaches, and offers us the opportunity to make choices.

In other words, exposure to other ways of doing things helps us recognize patterns of thinking, allows us to reflect on alternative approaches, and offers us the opportunity to make choices.

Consider criminal justice. When we hear about a crime, we “know” that someone has been charged with breaking a law. That law may be justified on the grounds that it protects individuals (like laws about burglary), the community (like laws about drug dealing), or the government (like laws about paying taxes). We also “know” that there are laws to protect those who have been harmed, and that the person responsible for the crime should be caught and held accountable for breaking those laws. We “know” that criminal cases involve government prosecution of people accused of causing criminal harm to determine whether they did in fact break the law. We also “know” that those who are guilty are sent to prison as punishment or may be “given a break” and placed on probation. We may have opinions about whether the person was actually guilty, or about whether the sentence was just, but we seldom, if ever, question the underlying assumptions of the process. Crime is lawbreaking; the focus after crime should be on the person we believe did it, and once found guilty they should be punished, such as by having their liberty taken away or curtailed in some way.

Yet, nagging questions surface from time to time, prompted by events or intuitions that do not fit neatly within the pattern. Perhaps the most profound and obvious ones have to do with the people who were harmed. Why are some so dissatisfied with how the criminal justice system treats them? Is it wrong when they want to have a say in how the police conduct the investigation, or how the prosecutor presents the case, or what sentence the judge gives the person convicted of harming them?

If the criminal justice system is fair, why are people of color and other marginalized groups so disproportionately impacted when compared to their representation in the population? Imprisonment has a long-lasting negative relationship to the ability of those who have been locked up to reestablish themselves when they return to society. Instead of reducing crime, imprisonment results in high rates of repeat offending among those who did time before. Yet, US incarceration rates increased fivefold between the early 1970s, when it was less than 100 people per 100,000, until it peaked in 2007 at 762 people per 100,000. Only then did policymakers take notice of the financial impact of this practice, and incarceration rates began a slight decline. As we will see, the institutions of criminal justice were developed in large part to achieve rehabilitation. For two centuries, Americans and Europeans have experimented with a succession of programs to accomplish this purpose. Every attempt has ended in disappointment. Is there anything we could do differently that might get better results?

We suggest in this book that the way we think about crime is inadequate. By defining crime as lawbreaking and then concentrating on the adversarial relationship between the government and the defendant, we fail to address—or even recognize—certain fundamental reasons for, and results of, criminal behavior. Moreover, we fail to recognize the fruits, or outcomes, our justice systems produce. Adding new programs to an inadequate pattern of thinking is not enough if what is needed is a different pattern. That is what this book proposes.

Adding new programs to an inadequate pattern of thinking is not enough if what is needed is a different pattern.

It is not as though our current approach to criminal justice is the only one. There have been times and places when crime was viewed far more comprehensively—as an offense against the people harmed, their families, the community, and society. The goal of justice was to satisfy the parties, and the way to do that included making things right by repairing the damage to those parties, whether the damage was physical, financial, or relational. This is different from an approach that defines crime solely as an offense against the government, and whose goal is crime prevention through rehabilitation, incapacitation, and deterrence.

Let us explore these patterns more closely.

An Ancient Pattern: Justice Is Relational

The legal systems that form the foundation of Western law did not view crime solely as a wrong to society. Although crime breached the common welfare so that the community had an interest in—and responsibility for—addressing the wrong and punishing the person who caused these harms, the offense was not considered a crime against the state, as it is today. Instead, it was also an offense against the persons harmed and their families. Consequently, those who caused harm and their families were required to settle accounts with the persons harmed and their families in order to avoid cycles of revenge and violence. This was true in small non-state societies, with their kin-based ties, but attention to the interests of people harmed by crime continued after the advent of states with formalized legal codes. The Code of Hammurabi (ca. 1700 BCE) prescribed restitution for...