discursive essay on restorative justice

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Restorative justice at the crossroads: politics, power, and language

• Northwestern University School of Law

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In “Neither Boat Nor Barbeque,” Schiff and Hooker create analytic space and discursive context aimed at developing a more nuanced understanding of how the language of “restorative justice” hinders its transformative potential for achieving right and equitable relationships. Despite what may appear to be a more narrowly tailored focus on linguistic constructions, their desire to grapple with the practical and imaginative limits of language establishes a broad container for exploration of multivariate tensions within the field. As such, they place restorative justice—as a movement, project, theory, or practice—at a crossroads. We enter into that crossroads in the following conceptual manner. First, we contend that simultaneous to a call for, and ultimately development of, a new language of restorative justice there must be a close interrogation of the politics of restorative justice. Specifically, we call for scrutiny of individuals who have shaped the framing, transmission, and institutionalization of the pre-existing restorative justice language (e.g., values, philosophies, and ideas). We believe this is essential to guard against replication of a conversational domain dominated by speakers that constrain a new language’s end goal, and this will ultimately address the concern Schiff and Hooker raise about the inability for restorative justice to remain inside the current justice discourse and produce a new possibility for right relationship. Our second objective is to bring distinct attention to the need for any new restorative justice language to shift away from defining itself in relationship to systems. Grounding restorative justice within or adjacent to systems will continuously plague any efforts to achieve a movement building vision or to realize change for those most impacted by injustice. We introduce these ideas to invigorate a new conversation and enrich the conventional restorative justice discourse by highlighting the possibility for new lines of theoretical and empirical analysis, which may in turn redefine the lexicon of restorative justice.

• Restorative justice
• framing processes
• linguistic constructions
• narrative frames
• norm theory

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• 10.1080/10282580.2019.1644172

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T1 - Restorative justice at the crossroads

T2 - politics, power, and language

AU - González, Thalia

AU - Buth, Annalise J.

N1 - Publisher Copyright: © 2019, © 2019 Informa UK Limited, trading as Taylor & Francis Group.

PY - 2019/7/3

Y1 - 2019/7/3

N2 - In “Neither Boat Nor Barbeque,” Schiff and Hooker create analytic space and discursive context aimed at developing a more nuanced understanding of how the language of “restorative justice” hinders its transformative potential for achieving right and equitable relationships. Despite what may appear to be a more narrowly tailored focus on linguistic constructions, their desire to grapple with the practical and imaginative limits of language establishes a broad container for exploration of multivariate tensions within the field. As such, they place restorative justice—as a movement, project, theory, or practice—at a crossroads. We enter into that crossroads in the following conceptual manner. First, we contend that simultaneous to a call for, and ultimately development of, a new language of restorative justice there must be a close interrogation of the politics of restorative justice. Specifically, we call for scrutiny of individuals who have shaped the framing, transmission, and institutionalization of the pre-existing restorative justice language (e.g., values, philosophies, and ideas). We believe this is essential to guard against replication of a conversational domain dominated by speakers that constrain a new language’s end goal, and this will ultimately address the concern Schiff and Hooker raise about the inability for restorative justice to remain inside the current justice discourse and produce a new possibility for right relationship. Our second objective is to bring distinct attention to the need for any new restorative justice language to shift away from defining itself in relationship to systems. Grounding restorative justice within or adjacent to systems will continuously plague any efforts to achieve a movement building vision or to realize change for those most impacted by injustice. We introduce these ideas to invigorate a new conversation and enrich the conventional restorative justice discourse by highlighting the possibility for new lines of theoretical and empirical analysis, which may in turn redefine the lexicon of restorative justice.

AB - In “Neither Boat Nor Barbeque,” Schiff and Hooker create analytic space and discursive context aimed at developing a more nuanced understanding of how the language of “restorative justice” hinders its transformative potential for achieving right and equitable relationships. Despite what may appear to be a more narrowly tailored focus on linguistic constructions, their desire to grapple with the practical and imaginative limits of language establishes a broad container for exploration of multivariate tensions within the field. As such, they place restorative justice—as a movement, project, theory, or practice—at a crossroads. We enter into that crossroads in the following conceptual manner. First, we contend that simultaneous to a call for, and ultimately development of, a new language of restorative justice there must be a close interrogation of the politics of restorative justice. Specifically, we call for scrutiny of individuals who have shaped the framing, transmission, and institutionalization of the pre-existing restorative justice language (e.g., values, philosophies, and ideas). We believe this is essential to guard against replication of a conversational domain dominated by speakers that constrain a new language’s end goal, and this will ultimately address the concern Schiff and Hooker raise about the inability for restorative justice to remain inside the current justice discourse and produce a new possibility for right relationship. Our second objective is to bring distinct attention to the need for any new restorative justice language to shift away from defining itself in relationship to systems. Grounding restorative justice within or adjacent to systems will continuously plague any efforts to achieve a movement building vision or to realize change for those most impacted by injustice. We introduce these ideas to invigorate a new conversation and enrich the conventional restorative justice discourse by highlighting the possibility for new lines of theoretical and empirical analysis, which may in turn redefine the lexicon of restorative justice.

KW - Restorative justice

KW - framing processes

KW - linguistic constructions

KW - narrative frames

KW - norm theory

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Student Spotlights

Redressing harm through restorative justice.

Harvard Negotiation Law Review 2019 Symposium explores implementing restorative practices within communities

By Victoriya Levina and Basil Williams

Sydnee Robinson, a 2L at Harvard Law School and chair of the 2019 Harvard Negotiation Law Review symposium, and Shannon Schmidt, a Harvard Divinity School student, first came together to discuss their shared interest in restorative justice in summer of 2018. They were drawn to the topic because of the ways in which it represents a paradigm shift in how to view and respond to harmful behavior. An evolving concept and growing field of practices, restorative justice focuses on responding to harm through facilitated dialogue. By the fall, Robinson and Schmidt had teamed up to help organize HNLR’s three-day event.

The 2019 Harvard Negotiation Law Review (HNLR) symposium, “Redressing Harm Through Restorative Justice,” held February 5-7 at Harvard Law School, brought together students, faculty, staff, ADR practitioners, attorneys, and members of the greater Boston community to explore various applications of restorative justice within the criminal justice system in the United States and in post-conflict systems around the world. The symposium, which focused on the challenges of addressing power imbalances and trauma through implementation of restorative practices within communities, featured remarks, panel discussions, an interactive workshop, and a film screening.

As a journal, the Harvard Negotiation Law Review (HNLR) has long been interested in exploring creative methods of addressing harm, particularly those that go beyond punitive justice and attempt to restore relationships and communities. In 2015, HNLR hosted a symposium on the theory and practice of restorative justice.

“The HNLR Symposium felt like a special opportunity to bridge the gap between experts and community members,” said Schmidt. “While our speakers taught us about the powerful work they are doing in fields related to restorative justice, members of the audience actively engaged in these topics on the level of their own experiences in their own communities.”

The symposium opened with remarks from Dr. Carl Stauffer, whose transitional justice work has taken him to 20 African countries and 15 other countries in the Caribbean, Middle East, Europe, Asia, Central America, and the Balkans. Stauffer recalled his experience working with refugees who fled the civil war in Sierra Leone. “Stories of trauma were heavy and hard to carry,” he said while discussing how a formal justice process was driving a wedge in the civilian population instead of facilitating healing and reconciliation. He described the power of a ground-up restorative process that, since 2008, has created a meaningful change in Sierra Leone by harnessing the social, cultural, and spiritual power of the affected communities. Restorative justice “is evolving into a social movement,” he said. It has inspired participants to work toward a “cultural shift of how restorative justice can be used in the future,” he added.

The first panel focused on restorative justice in the U.S. criminal context. One of the central questions was: To what extent should the state be involved in restorative justice processes? Stauffer moderated the panel, which featured Pierre Berastain , the director of the Office of Sexual Assault Prevention and Response at Harvard University; Erin Freeborn , the executive director of Communities for Restorative Justice; Chris Moser , of counsel to Henrichsen Siegel, which focuses on employment discrimination, sexual harassment, Title IX, whistle-blower retaliation, and civil rights violations; and Kaia Stern , the co-founder and director of the Prison Studies Project. The four panelists drew from their diverse experiences and educated attendees about pioneering movements to address harm through restorative processes in the U.S. criminal justice context. The majority of the discussion was led by questions from the audience.

“It was inspiring to see so many people from the local community come and share their experiences and excitement over implementing restorative justice here in Massachusetts,” observed Amy Weintraub ’19. Weintraub added, “The presentations clearly resonated with a lot of guests and provoked thoughtful dialogue.”

An interactive workshop led by the Symbolic Reparations Research Project provided an opportunity for attendees to work in teams and design a strategy for implementing symbolic reparations. Attendees learned about the 2009 judgment of the Inter-American Court of Human Rights in González et al. v. Mexico , a case in response to a “pattern of gender-related violence” anchored in a “culture of discrimination” against women. Attendees had the opportunity to imagine and design reparatory procedures before contrasting their ideas with (and critiquing) the approach actually taken in the case’s aftermath.

The second panel explored case studies in using restorative practices to address large-scale, communal conflict and harm. The three panelists shared insights from their experiences in the contexts of Sierra Leone, Northern Ireland, and the United States (particularly the Greensboro Truth and Reconciliation Commission and the Maine Wabanaki-State Truth and Reconciliation Commission ). Moderated by Andrew Mamo , a clinical instructor at the Harvard Negotiation and Mediation Clinical Program and a lecturer on law at Harvard Law School, the panel featured  Libby Hoffman , the founder and president of Catalyst for Peace; Dr. Ronán Feehily , a practicing arbitrator and mediator, and senior lecturer at University of Canterbury; and Thalia González , a nationally recognized expert in restorative justice and associate professor at Occidental College. One of the central questions involved fit: what makes restorative justice appropriate, and what might make it inappropriate, in the face of communal and historical harm? The panelists also discussed how various dispute resolution practices—including mediation—might address deep-seated power dynamics within communities.

“What resonated with me was the way that mediation plays such a natural role in supporting and enhancing restorative justice,” recalled Ysabelle Reyes ’19, a mediator with Harvard Mediation Program. Feehily’s discussion of mediation during and after the Troubles in Northern Ireland stood out for Reyes. Hearing about how young people remember the past reminded Reyes “of the complicated relationships that people can have with their national history and individual identities, and of the role that restorative justice plays in understanding those relationships. Restorative justice is not, and was never intended to be, a cure-all, but it can be used to own our narratives.”

The symposium concluded with a screening of the award-winning film “Fambul Tok” (Family Talk), which documents the efforts of a locally owned and led reconciliation program in Sierra Leone. The discussion was led by Libby Hoffman, producer of “Fambul Tok.” In the film, both victims and perpetrators of Sierra Leone’s brutal civil war come together for locally led, post-war truth-telling and forgiveness ceremonies, which are rooted in indigenous traditions. Through this process, Sierra Leoneans began to build sustainable peace at a grass-roots level and create opportunities for healing and restoring dignity within local communities in the aftermath of the nation’s civil war—achievements that similar efforts, including those led by the country’s own Truth and Reconciliation Commission, were unable to reach.

Robinson, HNLR’s Symposium Chair, noted that the film and discussion highlighted how restorative justice “focuses on restoring the harmed parties and the relationship that was severed in the way that those involved need to be restored.” Robinson added: “Learning more about the criteria of when a dispute is ready for restorative justice was incredibly helpful and really aligned with the idea that this type of process should depend upon the parties involved and truly revolve around that timeline, not one imposed by people not involved in the dispute or by the State.”

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A different path for confronting sexual assault

What is restorative justice? A practitioner explains how it works.

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“When I was crying, that was no,” Sofia yelled. “When I pushed your hands away, that was no! And when I said, ‘I’m not that kind of girl,’ that was NO! I want to know what you were thinking. What were you thinking?”

I was sitting with Sofia, 15 years old, as she directly addressed Michael, her 18-year-old schoolmate who had sexually assaulted her. This face-to-face dialogue was the conclusion of a month-long process during which I’d been helping these young people practice restorative justice.

Michael’s eyes darted between mine and Sofia’s. “I don’t want to say anything that makes it your fault,” he said. “I don’t want to say what I was thinking ’cause it was stupid.”

He looked at me again. I nodded to encourage him to share what he’d shared with me earlier. He took a deep breath, pulled out the sheet of paper he’d written his notes on, and began.

A solution for justice outside of the legal system

As a survivor of child sexual abuse, sexual assault, and rape, I’ve often wondered what justice would look like for the sexual violence I’ve endured. I, like professor Christine Blasey Ford and the vast majority of survivors, never reported any of the men who violated me. Even as a child, and later, as a young woman, I knew what I needed could not be delivered by a school expulsion hearing or a court proceeding.

I wanted what Ana María Archila Gualy, the survivor who confronted Sen. Jeff Flake when he stated he planned to vote to confirm Brett Kavanaugh to the Supreme Court, described: “The way that justice works is that you recognize harm, you take responsibility for it, and then you begin to repair it.”

But for this to happen, everyone impacted by sexual violence needs to feel they can speak openly. Expulsion hearings, tribunals, or courts of law are not designed to do this; rather, these forums disincentivize truth-telling because those who harmed us know they’ll be punished if they admit what really happened. The risks are also high for survivors, who face social stigma for coming forward about their experiences and are often forced to undergo painful questioning.

We are seeing this play out on the national stage today. After Ford testified about the violent sexual assault she remembers enduring as a teenager, she continues to receive death threats against her family and has been forced to leave her home for safety reasons. She also underwent a painful cross-examination-style questioning in front of Congress and the entire country. The president of the United States mocked her testimony at a rally, and his audience cheered and laughed. All of this is surely why her opening remarks before the Judiciary Committee included the words, “I am here today not because I want to be.”

Those words made me remember why, 12 years ago, I left the practice of law and its winner-takes-all approach for the field of restorative justice. Restorative justice brings those who have harmed, their victims, and affected families and communities into processes that repair the harm and rebuild relationships. This can take several forms, such as peacemaking circles and conferencing models . Restorative justice can help resolve nearly any kind of wrongdoing or conflict, including serious harms such as robbery, burglary, assault — even sexual and intimate partner violence, and even murder .

The process invites truth-telling on all sides by replacing punitive approaches to wrongdoing in favor of collective healing and solutions. Rather than asking, “What law was broken, who broke it, and how should they be punished?” restorative justice asks, “Who was harmed? What do they need? Whose obligation is it to meet those needs?” At its best, restorative justice produces consensus-based plans through face-to-face dialogue that meets the needs of everyone impacted, beginning with the crime survivor.

Sexual violence could be addressed through restorative justice in many formats. Some schools have restorative justice alternatives to suspension and expulsion, with restorative justice coordinators on school sites. A handful of district attorneys divert cases to nonprofits who are trained in facilitating restorative justice processes (that’s how Michael and Sofia’s case came to me). Sometimes rape or sexual assault survivors who hear of my work call me directly and ask me to facilitate a dialogue with the person who harmed them.

What is restorative justice? Here’s how it works.

As a restorative justice facilitator, my work begins with asking what survivors want from meeting with the person who harmed them. While their answers vary, in sexual violence cases there is a common thread — they want to hear the person who assaulted them say, “You’re telling the truth. I did that to you. It’s my fault, not yours.” They often want this admission to happen in the presence of both of their families and friends. Most survivors are also looking for some indication that the person who harmed them truly understands what they’ve done and that they won’t do it again. Some request to never have to see that person again.

The length of the process and the number of meetings required to get us there varies from case to case. Sometimes a circle or conference happens within days or weeks of the harm, while others can take months for everyone to feel prepared. Because sexual violence occurs and continues through shame and secrecy, restorative interventions are most effective when family and/or close friends of both parties are included. Given that personal and often humiliating details are often shared, survivors have final say over who can attend.

A quick note: In restorative justice, we avoid defining people by their behaviors and experiences with labels like “victim,” “offender,” and “perpetrator” because those terms deny that all people are capable of growth and change. Instead, we use the word “survivor” because it honors that a person is in the process of transcending something painful or unjust. We also use phrases like “the responsible person” or “the person who assaulted the survivor” to show that people are more than the worst thing they have ever done.

At the end of the process, which typically ends with one or more face-to-face sessions with the entire circle, a plan to meet the survivor’s self-identified needs is made by consensus of everyone present. The responsible person is supported by family and community to do right by those they’ve harmed. For example, if joining a sports team is a part of the responsible person’s plan to help them stay out of trouble after school, people in his circle agree to take him to practice, or pay for the enrollment fees.

Ideally, root causes of the harm are also addressed, such as the impact of growing up in a home where people witnessed domestic violence. Many men I’ve met in restorative justice circles in prisons speak about the sexual abuse they endured as children and how that unresolved trauma gave rise to their offending. In those discussions, we are clear about the distinction between explanation and excuse. Some restorative justice practitioners encourage addressing structural inequities that gave rise to the offending behavior as well.

Restorative justice in practice

What does restorative justice look like in practice? Let’s return to Sofia and Michael, a case I facilitated a few years ago (all names and some details have been changed to protect anonymity). Not only was Sofia suffering from the aftermath of the assault itself, but Michael’s friends had posted on social media that Sofia had lied about the assault. Michael was a well-liked kid, and there were no witnesses to the sexual assault, so people were quick to believe his initial denials.

With the help of her friends, Sofia told a teacher, which led to Michael being arrested. The district attorney diverted the case to a nonprofit I’d trained in restorative circles and conferencing, who asked for my guidance. The first step was to reach out to Michael to assess his willingness to work with us. Our first meeting with Michael focused on building trust, answering questions, and, without pressuring him, determining his willingness to participate. He quickly agreed, saying he wanted to “make this right.”

This was possible, in part, because we’d assured Michael that by agreement with the district attorney and the school district, nothing Michael or Sofia said could be used against them in school discipline or juvenile justice processes. Once Michael agreed to participate, we contacted Sofia and her family to determine her interest. While people were surprised to learn such a program existed, everyone, including parents on both sides, felt like the process would be a good thing for Michael and Sofia.

In advance of the big meeting, my co-facilitator and I met separately several times with Sofia, Michael, and the supporters they planned to bring to the dialogue. First, I helped them both choose who should be part of the meeting. At first, there was resistance — Michael initially didn’t want anyone there to support him, but over time he opened up to the idea of his mother and sister being present. Sofia decided that she was too embarrassed to have any men from her or Michael’s family present, and both families accepted this. The meeting ended up including Sofia, Michael, both of their mothers, and Michael’s younger sister.

In my prep meetings with Sofia and her mother, we discussed what she wanted to say to Michael about the impact of the assault. We worked with Michael to understand the implications of what he did and where that behavior came from. We shared information about when and where the meeting will be held, who will enter the room first, who will sit where, who will speak first, and who will be present. These details are primarily driven by the safety needs of the survivor but can occasionally be impacted by the desires of the person who caused the harm. The key is to set things up so that both parties know what to expect and feel safe to share freely and openly.

Sometimes, it’s hard for people to imagine speaking directly to the person who harmed them. While preparing for the meeting, Sofia expressed her desire to stay silent and have her mother speak for her. But the moment Michael entered the room, Sofia’s demeanor instantly changed from timid to emboldened, and a powerful dialogue ensued about the impact of the assault on Sofia’s life and on her family. Sofia told the group she had lost weight, was sleeping in her mother’s bed, woke up with nightmares, and had stopped going to school because of the rumors that she was lying for attention. As they worked through the details of the assault and its aftermath, Michael finally answered Sofia’s question about what he was thinking at the time of the assault.

“I know you’re a good girl, and I thought all good girls have to fight a little the first time,” he said.

Michael’s sister gasped, and the room went silent for a little while. Even as the words came out of his own mouth, we could all see Michael realize how wrong this was. He bent over and put his face in hands, and when he looked up, Sofia’s mother squinted at him in disbelief, shaking her head. After what felt like an eternity, Michael’s mother finally broke the silence, saying to her own daughter, “See? I brought you so you’d know even nice boys like your brother can think things like this, do things like this.”

Upon hearing Michael’s mother take Sofia’s “side,” both Sofia and her mother broke down in tears, and Michael’s mother stood up and hugged them. Then she sat back down, placed her hand gently on her son’s arm, and shared stories of sexual violence endured in the past by members of her own family.

As the women and girls spoke of the impact of daily street harassment and other sexual harm they’ve seen or experienced, Michael alternated between silence and occasional thoughtful questions. He also spoke honestly about what he’s learned from media representations of consent and how his friends talk about girls they have been intimate with. He confessed his own struggle to understand the line between expressing interest and being creepy. He talked about how his ex-girlfriend broke up with him, in part because, according to her, he didn’t “chase her enough.”

At that point, Michael confessed that he thought that what he did was okay because he felt that Sofia had expressed interest in him. Sofia looked him directly in the eyes and told him that this had no bearing on his choice to assault her when she said no. When she said this, Michael paused. Everyone could see that her point was sinking in.

Sofia’s transformation was breathtaking — she found her voice that day. And by the end of our time together, it felt like Michael had gained an understanding of consent. As we moved into creating a plan to repair the harm, Michael offered to clear up Sofia’s reputation by posting on social media a public apology to her, which included the words “she didn’t lie.” Michael also agreed with Sofia’s request for him to spend a month of school at home to give Sofia space. Afterward, everyone except for Michael and Sofia hugged.

In the weeks that followed, Sofia’s mother reported that her daughter had even more self-confidence than she’d had before the assault; not only had she moved back into her room and stopped wearing the baggy clothes she’d started wearing after the assault, she also spoke up more about her feelings and opinions, including with the men in the family. And after graduation, Michael sent me a copy of a research paper he’d chosen to write on sexual violence.

Restorative justice in the real world

Restorative justice processes aren’t always this satisfying. In other cases, when legal or other punitive consequences have hung over the heads of the young people (i.e., school expulsion, Title IX hearings, immigration consequences, etc.), admissions were couched in exculpatory language and the assault was minimized. The stakes remain too high for the truth to come out, and restorative justice’s core work — recognizing harm, taking responsibility for it, and beginning to repair it — cannot happen under these circumstances.

While this is extremely frustrating for survivors, some choose to engage in a dialogue nonetheless. Even without an admission of guilt from the person who harmed them, a survivor may still find some benefit from being able to say, face to face, “I don’t care if you deny it; I know you did this to me.” This is something that those who give victim impact statements might also experience in a court of law, even though victim impact statements rarely alter the outcome of a case, especially when survivors are asking for sentences that go above or below what the law prescribes. Hopefully, Ford experienced some portion of catharsis by telling her story in a public arena, even though the outcome of this hearing did not validate her bravery.

Restorative justice practices have been primarily applied to youth who’ve caused harm. In Baltimore, Nashville, Oakland, and several other cities across this nation, people under the age of 18 can be diverted before charges are filed to a nonprofit that is trained to facilitate restorative circles and conferences. School districts in many major cities have adopted some form of it as an alternative to more punitive approaches. Our growing understanding of the changing brains of youth, coupled with our rejection of the “superpredator” myth that there are (primarily African-American) youths predisposed to a life of senseless violence, has made us more open to approaches that give kids “a second chance.” But restorative justice offers equal benefits when applied to adults, and when parties are willing, it should be as readily available to them as well.

While restorative justice is nothing new — the theory and practice can be traced to many indigenous communities the world over — it has yet to genuinely circumvent or replace punitive systems in any meaningful way, despite its greater efficacy on several fronts. In a recent study of the first 100 felony cases diverted to restorative justice in Alameda County, California — including some sexual violence cases — 91 percent of survivor-participants reported they would participate in another conference, and an equal number (91 percent) stated they would recommend the process to a friend. Moreover, youth who participated in the program were 44 percent less likely to commit future crimes than those whose crimes were addressed through the county’s juvenile justice system. The cost savings, as compared to adjudicating youth delinquents, are enormous.

Some jurisdictions have thought to make restorative justice an add-on to court proceedings. But for restorative justice to be effective, it must remain outside the purview of the courts or other punitive measures. Restorative justice’s beauty and effectiveness flow from people feeling free to tell the truth, and being welcomed to do so.

Another key effective aspect of restorative justice is the way power is rebalanced through dialogue. Crime survivors define their own needs rather than remaining at the mercy of a court’s legitimation. Survivors often state that simply being asked questions like, “How do you define the harm? What do you need now? What will make this right?” is the most important part of the process because it allows them to reconnect with their power after experiencing trauma that made them feel powerless.

As I’ve watched this Supreme Court battle unfold, I’ve wished I had met Ford and Kavanaugh decades ago when they were teenagers. Restorative justice might have been able to help Kavanaugh and his friends process the impact of the behavior they’ve been accused of. And it could have provided an opportunity for Ford, Deborah Ramirez, and others to find their voices in more supportive environments. We would all be better off for it.

sujatha baliga directs the Restorative Justice Project at Impact Justice. She is currently working on a book about her life and work.

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Restorative Justice

• First Online: 03 March 2020

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• Christopher D. Marshall 3  

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Restorative justice has been described as one of the most significant innovations in the administration of criminal justice to have arisen in the modern era. From small scale experimental beginnings in the early 1970s, it has since grown into a global social movement for change, embracing a diversity of discursive and peacemaking practices in a wide range of settings. While the story behind the emergence of the modern restorative justice movement is contested, there is good reason not to discount the contribution of religious faith to the genesis, theory and practice of restorative justice. In fact, without the influence of core Christian values and beliefs, the central tenets of restorative justice might not emerge with such clarity and conviction.

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The quote continues, “The more we are emotionally drawn to a religious ethic of love, the more we will be motivated to make restorative justice work. The more we have both a longing for some conflation of love or compassion and justice (and some theoretical framework within which to situate the possibility of that conflation), the more we will be motivated to persist in the project of justice-as-repair. The more we are committed to an ethic of nonviolence, the more we suffer at the thought of inflicting suffering on others. The more we are drawn to the value of harmony, the more the aspirations of restorative institutions will appear worthwhile to us.”.

Zehr’s explanation is cited in full in Gade ( 2018 , 30).

There is a vast literature on the use of restorative practices in education. For a recent stocktake by some of its pioneers, see Thorsborne et al. ( 2019 ).

“To refer to restorative justice as a social movement is not to say that restorative justice programs comprise a unified body of actors or that restorative justice philosophies form an undifferentiated body of ideas…this is clearly not the case for restorative justice, but this is also not true for most, if any, social movements. Social movements are networks in which actors with varying interpretations of what the movement is about, and different levels of commitment to the movement, negotiate the meaning of a linked set of ‘big ideas’ as well as their ideal application in everyday life…Thus a social movement is not a single group or organization but rather a host of individual and collective agents engaged in a process of movement definition, issue or grievance articulation, activism and program implementation.” (Woolford 2009 : 19).

Highly influential in inspiring this new wave of Anabaptist peace activism was John Howard Yoder’s The Politics of Jesus ( 1972 ), along with his many other publications, such as The Original Revolution ( 1971 ). See further Koontz and Alexis-Baker ( 2009 ).

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Marshall, C.D. (2020). Restorative Justice. In: Babie, P., Sarre, R. (eds) Religion Matters. Springer, Singapore. https://doi.org/10.1007/978-981-15-2489-9_7

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Beyond Intractability

The Hyper-Polarization Challenge to the Conflict Resolution Field: A Joint BI/CRQ Discussion BI and the Conflict Resolution Quarterly invite you to participate in an online exploration of what those with conflict and peacebuilding expertise can do to help defend liberal democracies and encourage them live up to their ideals.

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By Michelle Maiese Originally published October 2003, Updated June 2013 by Heidi Burgess and Sarah Cast, Current Implications added by Heidi Burgess in July, 2020.

Current Implications

After the May, 2020 police killing of George Floyd in Minnesota, calls for "racial justice" were voiced around the world.  What the protestors meant by "justice," however, was seldom stated, and now, two months later, I still haven't heard anything that sounds much at all like a call for restorative justice. But it is worth considering whether restorative justice has a role in this situation.  Certainly there is a need for other types of justice as well.  American society is too familiar with and committed to retributive justice to abandon that approach.  The calls for holding the officers involved to account should certainly be headed, lest there be even more outrage that the officer, again,"got away with murder."   So too should there be procedural changes, so that finally, this kind of event becomes less frequent.   More...

The Aims of Restorative Justice

Restorative justice is concerned with healing victims' wounds, restoring offenders to law-abiding lives, and repairing harm done to interpersonal relationships and the community. It seeks to involve all stakeholders and provide opportunities for those most affected by the crime to be directly involved in the process of responding to the harm caused.

A central premise of restorative justice is that victims, offenders, and the affected communities are all key stakeholders in the restorative process.[1] Victims include not only those directly affected by the offense, but also family members and members of the affected community. The safety, support, and needs of these victims are the starting points for any restorative justice process. Thus a primary objective is to attend to victims' needs: material, financial, emotional, and social.[2] Addressing these needs and the needs of the community is necessary if public demands for severe punishment are to be quelled.

This requires the assumption that crimes or violations are committed against real individuals, rather than against the state. Restorative justice, therefore, advocates restitution to the victim by the offender rather than retribution by the state against the offender. Instead of continuing and escalating the cycle of violence, it tries to restore relationships and stop the violence.[3]

A restorative justice process also aims to empower victims to participate effectively in dialogue or mediation with offenders. Victims take an active role in directing the exchange that takes place, as well as defining the responsibilities and obligations of offenders. Offenders are likewise encouraged to participate in this exchange, to understand the harm they have caused to victims, and to take active responsibility for it. This means making efforts on their parts to set things right, to make amends for their violations, by committing to certain obligations, that may come in the form of reparations, restitution, or community work. While fulfilling these obligations may be experienced as painful, the goal is not revenge, but restoration of healthy relationships between individuals and within communities that have been most affected by the crime.

Restorative justice is a forward-looking, preventive response that strives to understand crime in its social context. It challenges us to examine the root causes of violence and crime in order that these cycles might be broken.[4] This approach is based on the assumption that crime has its origins in social conditions, and recognizes that offenders themselves have often suffered harm. Therefore, communities must both take some responsibility for remedying those conditions that contribute to crime and also work to promote healing.[5]

Healing is crucial not just for victims, but also for offenders. Both the rehabilitation of offenders and their integration into the community are vital aspects of restorative justice. Offenders are treated respectfully and their needs are addressed. Removing them from the community, or imposing any other severe restrictions, is a last resort. It is thought that the best way to prevent re-offending is re-integration.[6]

The justice process in this way strengthens the community and promotes changes that will prevent similar harms from happening in the future. It is generally thought that restorative justice should be integrated with legal justice as a complementary process that improves the quality, effectiveness, and efficiency of justice as a whole.[7] Because they focus on the needs of the victim, the offender, and the community, restorative processes can help to determine how the law should be applied most fairly.

Processes in the United States

Restorative justice in the United States takes on various forms. Victim-offender mediation is perhaps the most common, and involves face-to-face dialogues between victims and offenders. Victims' needs, including the need to be consulted, are the focus. In victim-offender meetings, offenders have a chance to take active steps to make reparation to their victims. This extends further than monetary compensation, and includes an apology and an explanation of how the crime occurred. The offender might also do some work for the victim, or for some community cause selected by the victim.

In addition, offenders have to listen to victims' stories and face up to the reality of what they have done. They are often deeply affected by this experience, and have positive motivation to make reparations. Because this process brings victims and offenders together and enables them to talk to one another, it can allow them to see the other as a person rather than a stereotype . For this process to be effective, a skilled mediator should facilitate these meetings.

Group conferencing is an extension of victim-offender mediation and includes more parties, such as family members of the victim or offender, community contacts, teachers, neighbors, or counselors. The involvement of extra parties can make conferencing more forceful than one-on-one mediation.

Community victim-support organizations work to provide victims with material, psychological, and social support and aid in the healing process. Other organizations offer support services for offenders, including literacy education, relationship counseling, drug counseling, and housing accommodation. Some agencies assist in reintegration for offenders and help them to find employment. Still other groups work to help communities as a whole become less prone to crime.[8]

U.S. school districts plagued by segregation and gang violence are increasingly implementing restorative justice programs for students to develop mutual empathy and address past wrongs through meaningful reparations. An Oakland, California school program that facilitates student conversations by hosting talking circles, for example, is offered as an alternative to "zero tolerance" policies like expulsion.[9] The program thus seeks to replace punitive responses to violence with opportunities to address the root causes of school and community-wide disputes.

Restorative Justice Around the World

Restorative justice might also have an important role in responding to severe human rights violations or cases of genocide . A crucial step toward restorative justice is taken when governments tell the truth about past atrocities carried out by the state.[10] It is thought that true healing requires three steps:

• Remembering the atrocities committed,
• Repenting , and
• Forgiving .

War crimes inquiries and truth commissions can aid in the process of memory and truth telling, and help to make public the extent to which victims have suffered.

Restoration often becomes a matter of restitution or war reparations. In cases where clear acts of injustice have taken place, some type of compensation can help to meet the material and emotional needs of victims and begin to remedy the injustice. Repentance can also help to re-establish relationships among the conflicting parties and help them to move toward reconciliation . In some cases, conflicts can end more peacefully when parties acknowledge their guilt and apologize than when formal war crimes adjudication or criminal proceedings are used.

In cases of civil war, because the line between offenders and victims can become blurred, a central goal of peacebuilding is to restore the community as a whole. In Northern Ireland, for example, the adoption of restorative justice techniques and practices helped transform destructive practices of punishing various actors into more constructive, non-violent mechanisms of dispute resolution.[11] Restoration often becomes tied to the transformation of the relationship between the conflicting parties. However, such restoration cannot take place unless it is supported by wider social conditions and unless the larger community makes restorative processes available.

Restorative justice in the international context is therefore linked to social structural changes , reconstruction programs to help communities ravaged by conflict, democratization , and the creation of institutions of civil society .

After the May, 2020 police killing of George Floyd in Minnesota, calls for "racial justice" were voiced around the world.  What the protestors meant by "justice," however, was seldom stated, and now, two months later, I still haven't heard anything that sounds much at all like a call for restorative justice. But it is worth considering whether restorative justice has a role in this situation.  Certainly there is a need for other types of justice as well.  American society is too familiar with and committed to retributive justice to abandon that approach.  The calls for holding the officers involved to account should certainly be headed, lest there be even more outrage that the officer, again,"got away with murder."   So too should there be procedural changes, so that finally, this kind of event becomes exceedingly rare, rather than all too common. 

However, it seems to me that there is also a role for restorative justice, the goal of which is to restore relationships between the victim(s) and the offender(s). There, obviously, is no way to restore relationships between Derek Chauvin (the officer who killed George Floyd) and Floyd himself. It is conceivable to restore the relationship between Chauvin and the Floyd family—restorative justice has been used effectively in the case of violent crime, although usually years after the event when the offender is still incarcerated as a result of retributive justice. [12]

Of more immediate interest is how it might be used to restore the relationship between the citizens of Minneapolis and the Minneapolis police department, and/or how it might be used in other cities nationwide or even worldwide to address the tension between the police and the communities that they serve. Consider the description of restorative justice from Maiese's original article.

A central premise of restorative justice is that victims, offenders, and the affected communities are all key stakeholders in the restorative process.[1] Victims include not only those directly affected by the offense, but also family members and members of the affected community. The safety, support, and needs of these victims are the starting points for any restorative justice process. Thus a primary objective is to attend to victims' needs: material, financial, emotional, and social.[2] 

Retributive justice, which is what will happen when Derek Chauvin and the other involved officers are tried (and, presumably convicted), doesn't address the needs of the community.  It doesn't even address the needs of the Floyd family, except perhaps for giving them the sense that "[retributive] justice" was done.  Defunding (or significantly scaling back) the Minneapolis police department also seems unlikely to address the needs of the community.  Crime is unlikely to go away when there aren't police around; indeed, the opposite is likely to occur.  (See, for example, this story of what happened to Baltimore's police pulled back from their law-enforcement efforts. [13]) But if the community and the police were to sit down in an extended series of dialogues about citizens' emotional and social needs (the police most likely can't influence material and financial needs), meaningful changes might well occur.  Maiese continues:

This paragraph was written assuming the offenders are private citizens, not police, but it takes on particular power when the offenders are the police and the victim is not seen as just George Floyd or the Floyd family, but the entire city of Minneapolis, or more broadly, citizens of all U.S. cities where relations between the police and the citizens are strained.  If this paragraph came to pass, police would come to understand the harm they are causing their cities, and would take active responsibility for it, making amends for their violations and making efforts to "set things right." In this context, restorative justice would also include an opportunity for police to tell their side of the story and for the public to better understand the difficult positions in which officers are commonly placed. This seems to be a much more promising approach than the one that was taken in Baltimore and described in the MacGillis article—where the reforms were ordered from the top down (by the U.S. Department of Justice) without input from local police.  According to that article, the reforms did not make sense in the Baltimore context and weren't seen as appropriate by the police. And, they did not diminish violent crime--it has been on the increase since the reforms were imposed.

Again quoting Maiese:

This, too, is interesting when read from the point of view of the police being the offender.  It suggests that police violence "has its origins in social conditions" and that the police "themselves have often suffered harm. Therefore, communities must both take some responsibility for remedying those conditions that contribute [to police violence] and also work to promote healing." This has a lot of truth in it.  Most police aren't violent and they took the job really hoping to help their communities stay safe.  But the hostility of the community can frighten police and make them over-estimate the chances of them being harmed or killed.  As a result, particularly over time, police can begin to over-react and to increasingly view themselves as "the good guys" in a constant battle with "the bad guys," a highly stressful us-versus-them relationship where all citizens become "the bad guys." With restorative justice, this us-versus-them relationship gets transformed into a "we" relationship where all sides together work to remedy harms and promote healing of the relationship and the people themselves.

Finally, the original article said:

Read from the point of view of the police being the offender, "the rehabilitation of the police and the integration into the community are vital aspects of restorative justice. The police are treated respectfully and their needs are addressed.  Removing them from the community (i.e, defunding the police) or imposing any other severe restrictions, should be a last resort.  It is thought that the best way to prevent more police violence is re-integration.  

Restorative justice, thus, has the potential to help accomplish the needed procedural justice much more effectively than if the changes are imposed by one side on the other.  If the victims are enabled to work directly with the police—instead of against the police—to design crime-fighting units and actions that will actually meet community needs, restorative justice theory and research suggests that the outcome is likely to be much more effective.

--Heidi Burgess, July 23, 2020

Back to Essay Top

[1] Howard Zehr and H. Mika. 1997.  "Fundamental Concepts of Restorative Justice." Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice, Volume 1, Issue 1, pp. 47-56. < http://www.beyondintractability.org/library/external-resource?biblio=14829 >.

[2] Tony F. Marshall. "Restorative Justice: An Overview," (Home Office Research Development and Statistics Directorate, 1999). < http://webarchive.nationalarchives.gov.uk/20110218135832/http://rds.homeoffice.gov.uk/rds/pdfs/occ-resjus.pdf >.

[3] Peggy Hutchison and Harmon Wray. "What is Restorative Justice?" (New World Outlook, 1999). < http://gbgm-umc.org/nwo/99ja/what.html >.

[4] Hutchison and Wray.

[5] Marshall, 6.

[6] Zehr and Mika, 2.

[7] Marshall, 7.

[8] See section on "The Cornerposts of Restorative Justice" in Daniel W. Van Ness and Karen Heetderks Strong, Restoring Justice: An Introduction to Restorative Justice . ( Elsevier, 2010). < http://books.google.com/books?id=AZv2MVkHBTcC >.

[9] Patricia Leigh Brown. "Opening Up, Students Transform a Vicious Circle" The New York Times . April 3, 2013. < http://www.nytimes.com/2013/04/04/education/restorative-justice-programs-take-root-in-schools.html >.

[10] Hutchison and Wray.

[11] Graham Ellison and Peter Shirlow, "From War to Peace: Informalism, Restorative Justice and Conflict Transformation in Northern Ireland," in Restorative Justice: From Theory to Practice . (Emerald Group Publishing, 2008). < http://books.google.com/books?id=4sttqCszsngC >.

[12] Mark S. Umbreight, William Bradshaw, and Robert B. Coates "Victims of Severe Violence Meet the Offender: Restorative Justice Through Dialogue"  International Review of Victimology . September 1, 1999.  https://journals.sagepub.com/doi/abs/10.1177/026975809900600405?journalCode=irva

[13] Alec MacGillis. "The Tragey of Baltimore." New York Times and ProPublica. March 12, 2019.  https://www.nytimes.com/2019/03/12/magazine/baltimore-tragedy-crime.html

Use the following to cite this article: Maiese, Michelle. "Restorative Justice." Beyond Intractability . Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: October 2003 < http://www.beyondintractability.org/essay/restorative-justice >.

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What is “Restorative Justice” and How Does it Impact Individuals Involved in Crime?

By Lindsey Pointer, Ph.D., Associate Director, National Center on Restorative Justice, Assistant Professor, Center for Justice Reform, Vermont Law School

A question that we are often asked at the National Center on Restorative Justice (NCRJ) is “how does restorative justice differ from more mainstream approaches to justice-making in the criminal justice system and beyond?”

At its core, restorative justice defines “justice” in a radically different way than conventional criminal justice responses. Rather than justice as “punishment,” restorative justice conceives of justice as “repair” to the harm caused by crime and conflict. Understanding and responding to the needs of each involved party and the broader community is central to the collective creation of a just outcome.

In order to better understand this shift, we ask that you engage in a quick reflective exercise that we often facilitate with our students.

First, we ask that you reflect for a moment on a time that you became aware of a crime having been committed in your community. What were your needs as a community member? What was most important to you in that moment?

When we pose this question to students in our courses and trainings, we receive remarkably consistent responses. We hear, “I needed to feel safe again” or “I wanted to feel like I can trust the people in my community.” Some also express a need to understand why the crime took place or what led to the incident and to form a plan for how the community can prevent this sort of thing from happening in the future.

Next, we ask you to think back on a time that you experienced significant harm. Maybe you were the victim of a crime or maybe it was an instance in your personal life where you were wronged by another person. What were your needs at that time?

Again, responses to this question are generally consistent. We hear answers such as “I needed the person who harmed me to know how it had impacted my life. I needed to know that he wouldn’t do it again to me or anyone else” or “I wanted to know that she understood what she had done and that she was sorry.” Some also express a need to have their questions answered. We also hear many practical needs for reparations, such as “I needed someone to fix the damage to my property.” Rather than a need for the person who caused the harm to be punished, what we hear are needs for information, validation of their experience and pain, assurance that it will not happen again, repairs, and an apology.

Finally, we ask that you think back on a time that you caused harm to another person. Maybe you committed a crime, or maybe you hurt someone, intentionally or not, through your words or actions. What were your needs?

When we ask this question, we again hear remarkably consistent responses. Many people say, “I needed to be able to apologize and do something to try to make it right.” Others express, “I needed to know that this one incident wouldn’t define me. That I would be seen as a whole person outside this one harmful behavior” or “I needed to share with the person I hurt about what was going through my mind at that time. I wanted to be understood.”

What we glean from this exercise is that there are some common human needs experienced in the wake of crime—needs for safety, understanding, validation, information, apology, and repair. These are needs that so often go completely unmet by our mainstream punitive justice responses, which are concerned primarily with assigning guilt and doling out punishments.

By bringing the involved parties together in a safe and voluntary dialogue with well-trained facilitators, restorative justice creates an opportunity for those human needs following crime to be met. It offers a more holistic and humanizing view of what it means to pursue justice.

The impact of this approach is evident in its outcomes including reduced recidivism and increased satisfaction on the part of all involved parties, particularly the harmed party or victim. Because of this positive impact, the use of restorative justice is rapidly expanding in criminal justice systems around the United States and the world.

Of course, restorative justice will not be an appropriate option for all incidents of harm. It is a voluntary process and both the harmed party and responsible party need to engage willingly. Furthermore, it is only effective when the responsible party is taking responsibility. It does not have a mechanism for determining guilt. Restorative justice processes should always be guided by well-trained facilitators who first take the time to meet individually with all involved parties and determine that no further harm will be caused by bringing those involved together in dialogue.

Restorative justice can be used across the spectrum of criminal justice interventions. It is often used as a diversion, with cases being referred directly by police officers or judges. It is also sometimes used alongside conventional criminal justice procedure, including during a prison sentence or upon reentry from incarceration. Many restorative justice programs also accept direct community referrals, allowing the criminal justice system to be bypassed entirely. 

We encourage you to learn more about this promising approach to justice reform. NCRJ is a partnership between Vermont Law School, the University of Vermont, the University of San Diego, and the U.S. Office of Justice Programs, Bureau of Justice Assistance. NCRJ is funded by a federal grant to serve as the premier education, training, and research location for the advancement of restorative justice. If you are interested in learning more about restorative approaches to justice-making, please be in touch and consider one of our educational or training offerings.

Visit the NCRJ Art Gallery to view art created by individuals who have participated in NCRJ’s “Reimagining Justice” virtual restorative justice art show. These art submissions are depictions of what restorative justice means to them.

If your jurisdiction is in need of training or technical assistance, or if you know of a community that would benefit from this type of assistance, please contact BJA NTTAC at  [email protected]  and we can connect you to the appropriate training, assistance, TTA partner, and/or resources.

If you are interested in submitting the work of your organization or jurisdiction for consideration in a future  TTA Today  blog post or in obtaining information related to a particular topic area, please email us at  [email protected] .

Points of view or opinions on BJA NTTAC’s  TTA Today  blog are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice, BJA, or BJA NTTAC.

“Enough Already!”: The Challenges of Restorative Justice in War Crimes

“Because crime hurts, justice should heal” – John Braithwaite

The history of the world is marked by violence. Yet, this pattern of constant struggle has taught humanity the importance of creating institutions that can punish offenders and heal victims. Restorative justice was born to help address conflicts under special judicial procedures. According to the University of Wisconsin Law School,  restorative justice “ seeks to examine the harmful impact of a crime and then determines what can be done to repair that harm while holding the person who caused it accountable for his or her actions.” Restorative justice looks not to punish, but to arrive at reconciliation between the victims and the perpetrators by supporting victims in the process of sharing their experiences and giving them a voice to influence how the reparations should look. The restorative justice process seeks to understand the causes of the conflict and tries to repair the damage and prevent new conflicts. The processes of restorative justice include the victim, the offender, and the broader community. From each of these actors, there are key expectations that allow for a successful judicial process, which, ideally, results in community safety, competency development, and accountability.

Restorative justice has been primarily discussed in academia , trying to understand how to address “colonial/indigenous” crimes and ongoing conflicts. However, there are not many countries that have actually implemented it. One supposedly successful case is Germany which has used restorative justice to address the crisis of juvenile detention systems since the 1970s. Yet, its impact in addressing civil war crimes is yet to be determined. This article explores restorative justice in countries that have suffered from internal armed conflict and analyzes its challenges. It focuses on civil wars because they encompass a more significant sector of the population—their effects mostly do not discriminate by either gender or age. In Bosnia and Herzegovina , the claim to propose restorative justice initiatives has increased due to the 1990s genocides that were carried out during the Yugoslav Wars and have not been recognized by the government. In comparison, Colombia’s restorative justice program began just five years ago. It has attempted to address the demobilization of guerrillas and heal the most affected communities by the armed conflict, which lasted for almost seven decades. The pain runs deep across many of these communities. Its outcomes are still unclear, however, they do not seem as promising as what the government had initially envisioned.

Even though both countries have different records of restorative justice programs, researchers believed in their importance to clarify the events for the victims and avoid repetition. What are the challenges that restorative justice faces when trying to be implemented, even if they follow standards advised by the international community?

Bosnia and Herzegovina: Crime Recognition to Avoid Repetition

During the 1990s, the Balkans experienced a mass wave of violence due to the struggle between nations in the region. The conflict between the different ethnic factions inside Yugoslavia killed almost 100,000 and displaced two million people from their homelands. During the fight, Bosniaks—term for Bosnians that practice Islam—were targeted by the Yugoslav army and expelled from their territories. In 1995, 7,000 Bosniak men were killed in the Srebrenica massacre, and in the Bikavac Fire case, 70 Muslim civilians were burned alive. The Dayton Accords helped settle the conflict between Croatia, Serbia, and Bosnia. Yet, the European Islamophobia Report argues that “the [accords] entrenched the results of ‘ethnic cleansing,’ cementing the divide in the country.” The genocides perpetuated in Bosnia and Herzegovina against the Muslim population were not recognized by the new government nor published in the OSCE Office for Democratic Institutions and Human Rights which recollects information about hate crimes against Muslims in member countries.

Bosnian activists are clamoring for the construction of historic memory —the process of creating a common narrative about past events, usually with a contemporary focus. One of the key challenges restorative justice faces in Bosnia and Herzegovina is the fact that many of the leaders of the genocide have still not faced war crimes tribunals. Many of them are still considered national heroes. When the Muslim victims share their stories, they are not heard by the rest of the Bosnian population. Instead, they are attacked. For example, in Doboj , slogans have condemned the presence of Islam, and, in Prijedor , local authorities have obstructed the construction of a memorial of the ethnic crimes perpetrated in the zone. They are still manifested through violent acts and widespread beliefs throughout society. In an article published by Humanity in Action, it is said that “not only that the crimes and harms done are not acknowledged, but they are denied, which makes restorative justice impossible to achieve.” The denial of crimes across protests, the lack of testimonies, and the glorification of the genocide leaders have undermined activist efforts to prevent further conflicts from arising within the population.

Colombia: Historic Memory to Heal Society

The armed conflict between the drug dealers, the guerrillas, the paramilitary groups, and the state has deeply scarred Colombian society. According to the National Center for Historic Memory , almost every single person in Colombia has had some kind of contact with the armed struggle that has taken place for almost seven decades now. In response to this ongoing crisis, the government set out to find a way to close up fronts of the conflicts that can help heal and forgive. In 2016, the government signed a peace treaty with the oldest guerilla group in the country, the Colombian Revolutionary Armed Forces (FARC), pushing for a new set of justice reforms to introduce demobilized soldiers into civil society while paying reparations to the thousands of victims. Steven Pinker, psychology professor at Harvard University, and Juan Manuel Santos, ex-president of Colombia, called this treaty a “ milestone ” for peace across the world. From this treaty was born the Special Jurisdiction for Peace (JEP). An entity that would be in charge of the transitional justice of integrating guerillas into civil life while ensuring restorative justice toward the victims for the next 20 years.

The JEP has been in charge of addressing many of the promises made by the peace treaty, such as creating special courts where the peasants who were displaced from their lands can come back to them with guarantees and protections from the State. It has also been in charge of creating spaces of conversation for the victims to tell their stories and share their vision for reconciliation. However, many people in the country feel that restorative justice was not enough to punish the amount of pain and fear the FARC spread across the territory. There is public discontent with the transitional justice system because it gives guarantees to guerrillas and militias that have deeply wounded Colombian society. Legal researcher Luis Fernando Vélez Gutiérrez explains that transitional justice has become part of the conversation across the Colombian public sphere. Yet, it feels like a conversation dominated by the newspapers and foreign to the masses. He still mentions that one of the biggest distrust is the leniency towards the perpetrators of massacres and child violence. However, he believes that there are more advantages than disadvantages to the system.

Building Restorative Justice in a Conflicted World

Restorative justice has been recognized as a preferable alternative to traditional justice systems. In 2002, the United Nations Economic and Social Council formalized the Basic Principles for Restorative Justice as a step-by-step plan when implementing restorative justice programs. A key idea is that countries that have carried out restorative justice processes should share their experiences with fellow countries on the same path. As has been explored in the Bosnian case, restorative justice faces challenges of implementation because the resentment from the civil war still runs deep across the territory. Due to the political and institutional divisions left by the Dayton Accords, restorative justice has been unworkable. The denial of historic memory for Bosniaks and other ethnicities in the country keeps the anger intertwined in Bosnian society.  

Even though Colombia’s case is still in the making, we can start to see how the construction of historic memory through the education system and places like museums has opened the conversation about the conflict’s events; how to grieve and remember the losses, while presenting hope and recognition that a nation needs to stand together and forgive. Its base presents a hopeful look for preventing the repetition of conflicts with roots that are still alive in society. Nevertheless, a challenge resides around the concept of historic memory to avoid repetition. Some questions have been raised in previous research about how much we should remember, which stories should be shared, how they generate a historic consciousness, and how to portray a massacre for the families of the deceased in an honorable way and not open wounds again. It also questions how restorative justice can help cement peace and give closure to the conflict—should the government opt for transitional justice or put the whole weight of the law on the perpetrators? At this point, restorative justice encounters a struggle between the victims and the communities, which often have different meanings of closure in mind. Due to this, restorative justice still faces a lot of skepticism. One possible answer to this challenge is to start implementing restorative practices in schools where children learn in small environments what restorative justice could do on a bigger scale.  

Restorative justice should not expect to return everything as it was before. The goal is to address what happened and create solutions that can redeem the victims while setting communities up for better futures. Despite the challenges, the progressive use of restorative justice has demonstrated its potential to heal society—an effort to move on while not forgetting the weight of what happened.

Isabela De los Rios Hernández

Isabela is a staff writer originally from Colombia. She is a Government Concetrator interested in international development and public policy.

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Revisiting the Relationship between Retributive and Restorative Justice

2017, Restorative Justice

Related Papers

Philip N Pettit

Internet Journal of Restorative Justice

Theo Gavrielides , Lorenn Walker

The editor of The Internet Journal of Restorative Justice, Professor Theo Gavrielides, is pleased to announce the publication of a Special Issue in 2018 of the Internet Journal of Restorative Justice on “Restorative Justice and Complex Cases”. Despite lack of formal national and international strategies for the use of restorative justice in many jurisdictions worldwide, we have witnessed a global push for further integration of restorative practices with complex crimes. For example, remarkably, the Province of Nova Scotia in Canada has developed a restorative justice programme for adults and young offenders and advocated for the use of the process in the context of serious crimes when appropriate. In Australia, the ACT’s restorative justice programme has been extended to provide support for victims of family violence and sexual assault. The readiness and suitability of restorative justice in cases of complex and serious crimes remain largely unexplored and in-depth research is required. The identification and involvement of stakeholders is imperative. Particularly, research on the identification and involvement of stakeholders; the entitlement of stakeholders of complex and serious offences; the stage of the criminal justice system at which restorative justice processes and how sentences are distributed; the conditions at which restorative justice would be advantageous to all parties; and clarity on the consistent application of theoretical frameworks of restorative justice, among other issues, are key for further integration of restorative justice for complex and serious crimes.

John Braithwaite

Ministry of Justice …

Joanna Shapland

… : ISBN 978-1-935049-33-3

Ross London

The intent of this book is to provide guidance for bringing restorative-justice principles from the margins to the mainstream of the criminal justice system by building on the core values of restorative justice and extending their reach. ... * A link to the full-text document is provided ...

Zauhkun Awng

Kathleen Daly

gareth addidle

This quote is emblematic of the position victims of crime once held as the ‘forgotten actors’ or the ‘Cinderella’ (Schafer, 1960) of the criminal justice process. The purpose of this article is to examine how victims and restorative justice have come to prominence recently in the UK, drawing upon the author’s reflections of attending the ‘Creating a more transparent, responsive and effective Criminal Justice System’ conference hosted by ‘Inside Government’ on 14 June 2012 in Central London. As originally set out by Schafer (1960), the author will utilise the story of ‘Cinderella’ as a metaphor to examine such changes, when referring to his reflections of the conference attended.

André Myburgh

RESTORATIVE JUSTICE is conceived of in this essay as a process in which all the stakeholders affected by an injustice have the opportunity to discuss the consequences of the injustice and what might be done to put them right. This is a process conception of restorative justice by which what is to be restored is left open. Rather, the form of restoration of victims, of offenders and of communities that count are those found to be important in such a restorative justice process. Beyond the process conception, there is also a values conception of restorative justice. The key value is that because injustice hurts, justice should heal. Responding to pain with 'another spoonful of pain' 1 is seen as a less satisfactory response than responding with healing or repair. A reason is that hurt tends to beget hurt, creating a vicious spiral of retribution and feuding. Alternatively, it is possible to flip this dynamic into one of healing begetting healing — a virtuous circle. I have argued that the key value of restorative justice is non-domination. 2 The active part of this value is empowerment. Empowerment means preventing the state from 'stealing conflicts' 3 from people who want to hang on to those conflicts and learn from working them through in their own way. Empowerment should trump other restorative justice values like forgiveness, healing and apology, important as they are. This means that if stakeholders in

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Discursive Justice in and With Future Generations

Michael Blake is Professor of Philosophy and Public Affairs, and former Director of the Program on Values in Society, at the University of Washington. He writes on international distributive justice, the ethical foundations of foreign policy, and on the ethics of migration. He is the author of Justice and Foreign Policy (OUP 2013) and, with Gillian Brock, of Debating Brain Drain: May Governments Restrict Emigration? (OUP 2015). He is currently finishing a book on the relationship between justice, mercy, and migration.

• Published: 12 May 2021
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Most discussions of intergenerational justice focus on distributive justice between generations. Much of contemporary thinking about justice, though, focuses on how people might reason together in a respectful and egalitarian manner—with, that is, justice in political discourse. This chapter seeks to apply this latter sort of theorizing to the intergenerational context. It identifies two ways in which discursive justice might be applicable to that context. First, the present generation might wrong future generations by making discursive justice more difficult in the future; it might, for instance, create a future in which political agents must display greater virtue—both intellectual and moral—than present generations have had to demonstrate. Second, if we accept that agents may have interests that outlive themselves, then one generation might wrong another by failing to listen to the claims that persist through time and across generations. This discussion is compatible with the conclusion that moral claims generally diminish in importance over time; as the world in which a given generation’s moral commitments were made changes, so too does the moral pull of those commitments diminish.

1. Introduction

Most contemporary conversations about intergenerational justice are conversations about distributive justice, about fairness, that is, in the allocation of good things (such as money or natural resources) or bad things (such as pollution or environmental damage more generally). This is an important topic for political philosophy. It is, however, not the only topic that might be discussed. Many of our conversations about justice within a particular generation, moreover, do not center around the distribution of goods. Indeed, many theorists have thought that we ought to focus much more than we do upon aspects of justice that are poorly described as distributive; as early as 1990, Iris Marion Young critiqued the “distributive paradigm” she felt deformed much current thinking about justice. Much practical activism, she noted, focused not on the allocation of things in the world but on whose claims were taken seriously in public speech and whose were misinterpreted, minimized, or simply ignored. The thought that discourse can itself be a source of injustice is most fully developed in the thought of Miranda Fricker (2007) , whose concept of hermeneutic injustice insists that public discourse can wrong people when it refuses to allow them the conceptual and linguistic tools needed to make sense of their oppression. Fricker forces our attention to the thought that discourse itself might be unjust—regardless of whether or not that discourse leads to injustices in the world of things.

In this chapter, I will simply assume that there can be injustices that relate to how we speak, listen, and understand. I do not want to defend any particular vision of what such justice would look like; that task is a complex one and would require engagement with more topics than I can address here. I want, instead, simply to note that something we might call discursive justice is often felt to be a key part of our thinking about social justice. Many of us are concerned, in short, that much injustice emerges not simply from how we allocate goods but also from the character of our political conversation. We can treat people unjustly by making them poor, but we can wrong them just as easily by grounding politics on conversations from which they are unjustly excluded or in which their claims are ignored.

How, though, could such ideas be applied to the intergenerational context? Is there any way in which these ideas might help guide our thinking about justice and future generations? Could we imagine respectful and fair discourse, over matters on which people’s interests are opposed, between the members of non-overlapping generations? There are a number of reasons to think such an application might be unlikely. An intergenerational conversation between non-overlapping generations would, by necessity, involve discourse between the dead and the living; and there are several reasons to think we might find it difficult to use conventional philosophical tools to evaluate the justice of that sort of conversation. Barry Lam (2019) offers a vivid example of these difficulties. He asks us to imagine perpetual voting—a system in which the dead are able to register their voting preferences, to be deployed even after their deaths. This, argues Lam, would be unjust in the extreme. The votes would not emerge from the right sort of political discussion, in which all voters are able to hear and evaluate the arguments of others. The votes would not reflect knowledge of the material circumstances in which policy must be applied going forward. And, most centrally, the votes would reflect the will and desire of those who can be neither harmed nor benefited by the policies at issue. Lam concludes that we would be right to reject any such proposal and, therefore, that we ought to reject current law which—like individual control over bequests and estates—comes uncomfortably close to this sort of perpetual grant of political voice.

These are powerful worries. What I want to do in this chapter, though, is to vindicate the possibility that there are meaningful constraints on current policy that emerge from thinking about how the concept of discursive justice might apply in the intergenerational context. We can, that is, engage in practices that are wrong, not because they will lead to an impoverished polity but because they will lead to an impoverished sort of political discourse. I will focus upon two possible ways in which this might be true. The first focuses upon the intergenerational effects of what we do now on discursive justice in the future; the second focuses upon the possibility of discursive injustice in the conversation, if it can be so called, between the living and those yet to be born.

2. Discursive Justice in Future Generations

I want to discuss intergenerational justice by drawing an analogy with international justice. I have argued, elsewhere, that there are at least two ways to wrong another country; one is to do things to that country which are contrary to what that country deserves—to treat that country badly, in whatever space (resources, respect) it is entitled to be treated well. Another way of wronging that country, though, is to make it harder for that country to do justice within its own borders. The first way of doing injustice involves acting unjustly toward the country; the second, in contrast, involves incentivizing or coercing that country into acting unjustly toward those individual persons over whom that country has a duty to do justice ( Blake, 2013 ). The first sort of injustice—which I have called a first-order injustice —involves a wrong done to the country; an unjust invasion, for example, is a wrong done to that country, given that country’s right to be free from that sort of injustice. The second sort of injustice—which I have called, naturally, a second-order injustice —involves making it harder for the country in question to do the sorts of justice it is morally required to do. If I flood that country’s airwaves with propaganda, ensuring the election of an authoritarian party, I may or may not have wronged individuals within that country; but I have certainly made it more likely that the country in question will itself commit injustice. Indeed, if authoritarianism is unjust—which seems fairly likely—then I have committed injustice, simply by setting that country back on whatever journey toward justice we hope it to have been on.

I think there is a parallel to be made in the world of intergenerational justice. We might wrong future generations by refusing to listen to their claims—as, I will make clear, they might wrong us by refusing in the future to hear our own. But we might also wrong the future by making justice in that future less likely. To make things simpler, I will assume that a liberal state is entitled to hand down to future generations liberal political ideals and institutions; even if it were intolerant for a liberal state to seek to make other states liberal, there seems to be no good reason why it should not try to perpetuate liberalism for itself. So let us imagine that a given state is liberal and seeks to hand down its liberal methods to future citizens of that state. Could that state treat future generations wrongly by making it more difficult for future generations to deploy these methods? Is it possible that the inhabitants of the present might wrong the future not by directly ignoring the claims of future agents but by denying those agents the ability to use liberal principles in the design and criticism of political institutions?

I think there might be three ways, at least, in which the answer here is “yes.” All of these involve a consideration of the circumstances of justice—with the factual backdrop, as it were, against which liberal principles are taken to be applicable. The first of these is the most simple: liberalism, we often assume, involves moderate scarcity. We do not have so much that all are able to have everything they want, so that justice has little to do; and we do not have so little that we must make tragic choices, in which some individuals will find vital interests necessarily sacrificed. Rawls (1971) , for one, explicitly identifies his theory as having an empirical range of applicability; there are some conditions of human development, he argues, in which his view simply fails to apply. Rawls is imagining here that development is a historic process of continual improvement; but we may, increasingly, be seeing the empirical failure of that assumption. If, for instance, current policies lead to ecological collapse in the future, then the very precondition for the applicability of liberal theory might fail to hold—as is noted in the work of Timothy Mulgan ( 2011 , 2015 ). If all this is true, however, we might be taken to have wronged future generations in two ways, in having radically altered the ecological circumstances to be faced by those generations. First, of course, we have visited upon those generations the particular evils that are part of ecological change and dislocation—as is noted in contemporary analyses of climate ethics. Second, however, we have done this while failing to provide those generations with the tools needed to do justice—to treat claims fairly—in the future.

Timothy Mulgan argues well that we may be failing to provide future generations with the philosophical and political resources they need to do justice. What I want to emphasize here begins with the idea that we might be wronging the future even if we do not literally fail to provide them with the tools needed to do justice in the future. I want to argue that there can be a mismatch between principle and material reality, such that the principle is not rendered inapplicable but such that the one deploying that principle might have to do a great deal more work in the process of doing so. To see this, we might take an example not from politics but from personal ethics. Theravada Buddhists tend to regard the eating of meat as impermissible—when it is known, or suspected, that the animal in question was killed for the individual in question:

Jıvaka, I say that there are three instances in which meat should not be eaten: when it is seen, heard, or suspected [that the living being has been slaughtered for oneself]. I say that meat should not be eaten in these three instances. I say that there are three instances in which meat may be eaten: when it is not seen, not heard, and not suspected [that the living being has been slaughtered for oneself]. I say that meat may be eaten in these three instances. ( Ñānamoli and Bodhi, 1995 , p. 474)

The sayings codified in the Majjhima Nikāya emerged from the third century BCE to the second century CE and are likely capable of providing fairly good moral guidance for Buddhists in that context. In the absence of refrigeration or the complex production webs of modern commerce, we might be able to find out fairly easily whether or not a given animal was killed for us and whether or not a given dish involved the flesh of an animal. The principle, however, becomes rather more difficult to follow in the 21st century. A Theravada Buddhist in the supermarket must ask a variety of difficult questions. Was this animal actually killed for me? It would have been killed had I not shopped here today, but my action in shopping is part of the causal story that gave rise to the killing. For that matter, can I be confident about what products contain animal flesh? Parmesan cheese, for instance, often contains animal rennet from cattle; Romano cheese generally replaces it with microbial rennet—but not always. If the rennet was not the reason for the killing of the cow, can I eat the Parmesan? For that matter, do I trust that the cheese company listing “microbial rennet” is telling the truth?

And so on. The modern Theravada Buddhist has to ask a lot of questions that their ancestors didn’t need to ask. Many of these questions require fairly sophisticated philosophy about counterfactuals. Many of them open up empirical inquiry that require effort to figure out. And all of them open up space for moral corruption, in which the Buddhist might find it likely to gravitate not to the ethically right answer but to the one which (for instance) permits the cheese to be eaten. I want to insist, however, that none of this impugns the principle given by the Majjhima Nikāya; that principle is right or wrong depending upon a variety of factors, but contextual ease of use is likely not among them. To be a good Theravada Buddhist is harder now than it once was. And it is this very hardness that might undergird some considerations about intergenerational justice.

To move from the personal to the political, much of our thinking about political justice is done against a backdrop of assumptions of what is up for alteration. We apply our notions of political morality against a set of assumptions about what sorts of institutions are likely to exist and what ones will not. The notions of territorial integrity and political sovereignty, for instance, tend to be assumed rather than argued for in political practice. Politicians respond to local electoral pressure and are disciplined by voting behavior; the set of voters does not include all human persons but only those linked in the right way to the political authority of the state; that state’s political authority does not extend throughout the world but is limited by (among other things) geographic borders; and so on. These are the assumptions with which political discourse generally begins, and if philosophers are willing to challenge them—as they should—it should not be forgotten that it is far from clear how easy it will be to build a world in their absence.

I think, therefore, that we might be charged with at least this much discursive injustice as regards future generations: We have made it the case that they will have to be vastly better at some tasks—better able to innovate, to examine evidence, to listen well to even those whose words do not offer us advantages—than those of us now alive often thought ourselves obligated to be. In 1971, Rawls’ A Theory of Justice devoted a mere three pages to global issues and assumed that all global problems could be dealt with by states otherwise concerned with domestic justice. This was, perhaps, never entirely true; even in 1971, the rectification of colonial history was a matter of public concern, as were the widespread facts of global poverty and underdevelopment. Those who came after Rawls, though, argued that global political innovation was a necessary part of doing justice. Stephen Gardiner (2014) , for instance, has argued in favor of a global constitutional convention in response to climate changes (see also González-Ricoy & Gosseries, 2016 ); such a convention, he notes, would necessarily involve a global conversation about how to constrain the risks involved in global coercive power. Gardiner is, I think, quite right, about both the convention and what questions it would have to answer; I am, however, convinced that such a convention would require the existence of people who are motivated to answer such questions, willing to pursue the answers in a spirit of open-minded fairness, and intellectually capable of responding to what such answers might be. Liberal people—and liberal peoples—might, in short, have a harder job in Gardiner’s world than in that assumed by Rawls himself.

It therefore seems at least possible that being a good liberal might be as demanding as being a good Theravada Buddhist. Our descendants will—as with the participants in Gardiner’s global convention—have to figure out what is right about democracy and how that concept could be operationalized in a transnational context. Who gets to vote in local elections when local policy affects global environmental outcome? Should there be states at all or something more radical than that? How can we build systems in which political agents are responsive to the right sort of concern? I do not think that these questions are insoluble—any more than I think the Buddhist’s questions in the supermarket cannot be answered. But I do want to assert that these questions will have to be asked, and answered, and then lived and that we have been throughout our lives blessedly free from any obligation to do that—or, at the very least, any felt obligation, for most of us, to do the work required.

Our descendants will thus have to be better philosophers than ourselves. They will also have to be better empirical reasoners, capable of understanding and adequately responding to complex institutional facts at both the global and local levels. They will have to be, in short, smarter than we are, in order to avoid global catastrophe. These facts are relevant, from the standpoint of justice, because placing future people under this sort of burden might seem to wrong them—in precisely the same way that Rawls thought that it would wrong someone to make their society less well ordered. If we make it the case that our descendants will have to be better than us to do politics well, we thereby make it harder for them to do politics well; and making someone else’s political community less responsive seems to be a morally wrongful thing to do. 1

I want to highlight one final way in which those who follow us face a harder task than most of us thought we faced. Our descendants might have to display more intellectual virtues than those of us now alive. I want, as well, to highlight something else: they may have to be better people, too—more moral, more willing to listen, less mean.

Return, one last time, to Rawls’ theory. Rawls argued that people in a democratic society can be counted upon to be motivated by something like a sense of justice in setting up and following a law for all. But he was keenly aware of the fragility of morality as a motive for political life and argued that we ought to be aware—in setting up our institutions—of the ways in which we could not count on an unlimited supply of altruism. Rawls’ notion of the strains of commitment, in particular, acknowledges and reflects the idea that people are not unlimited in the extent to which they will take the goods of others as adequate explanation for their own holdings of goods ( Rawls, 1989 ). Rawls was, I believe, right to notice the fact that people are limited in their willingness to sacrifice for the good of others. The problem, however, is that the years since 1971 have seen two diametrically opposed trends among the citizens of wealthy societies. The first is an increased recognition that the inhabitants of those societies might be expected to sacrifice some of their current standard of living in the name of future sustainability. The second is a significant decrease in the willingness to sacrifice, even in the name of the local poor—let alone the global, or future, poor ( Sides et al., 2019 ).

We cannot, of course, say with any specificity what any particular pattern of resource consumption will bring about; but it is plausible that, if all people use the same resources as the typical American, the world might face global catastrophe within relatively short order. Inhabitants of other societies, however, are aware of the standard of living that such profligate use of resources brings with it and would rather like to duplicate this form of life for themselves. Achieving something like a global consensus on greenhouse gas reduction, then, could require current overusers of carbon to restrain themselves from doing so—and it would require them to do this, ultimately, in the interest of those who are distant from themselves, whether geographically or in time. It should not be surprising that there has often been resistance to this. 2 In order to adequately respond to climate change, then, our descendants will have to overcome two related forms of self-interest—and perhaps therefore two sources of moral corruption ( Gardiner, 2006 ). They will have to abandon some advantages, and do so voluntarily, by choosing to accept institutions that will eventually have the power to discipline overconsumption of global resources. They will, further, have to abandon these advantages in favor of the goods of people perceived as outsiders—in favor, that is, of the goods of foreigners and those not yet born. They will have to be, in short, extraordinarily good people—better, I would say, than most of us who might be able to hold our heads up high under the liberal morality present in 1971. 3

The second trend, finally, makes all this rather worse. The degree of trust felt within a society might be taken to predict, to some degree, the degree of trust available for those outside; and the degree of trust felt within most societies is currently under dramatic decline. Even taken in domestic terms, Americans do not trust their government to do the right thing; 77% of Americans thought government officials were trustworthy in 1958, while only 17% do today ( Pew Research Center, 2019b ). A global rise of right-wing populism has taken advantage of increased economic and racial anxiety; the election of Donald Trump is often explained with reference to the increased dissatisfaction of poorly educated white Americans with the future of their country ( Sides et al., 2019 ). The number of democratic societies has been declining steadily since the mid-1990s, with no end in view. These circumstances, we might think, make it difficult for us to assume the widespread obedience to domestic law that Rawls envisioned in the 1970s. They make it even more unlikely, I believe, for us to imagine the voluntary sacrifices that will have to be made by Americans—or, if not by Americans, then by America—to adequately build a global response to global environmental issues.

We might, then, have bequeathed to those who come after us the following: a set of global problems that can only be solved through significant alterations to our political institutions. We have provided them with a set of ideals that could only help address those problems—and guide those alterations—if our descendants possess more intellectual and moral virtue than we ourselves felt it necessary to display. And we have done this precisely at the time that what limited trust we have had in existing democratic institutions has begun to wane. We have, in short, given our descendants a set of circumstances under which their ability to do justice, politically speaking, is going to be enormously difficult. We have impaired the ability of future people to do discursive justice among themselves; and this, in the end, ought to be taken to constitute an injustice in its own right. Certainly, if we were willing for the moment to use the terminology associated with the distributive paradigm, something seems unfair here, if virtue or intellectual skill is understood as something like a duty or a burden. If it is a burden, it is a burden we are resolutely shifting onto those who come after us. We have required them to be better people than we found it necessary, or indeed possible, to be; and that seems, if nothing else, to count as a sort of unfairness toward those who will do politics together after we ourselves are dead. 4

3. Discursive Justice With Future Generations

All that we’ve discussed so far in this chapter has sought to emphasize that we need not solve the metaphysical strangeness of postmortem interests in order to think that discursive justice might have a role to play in intergenerational justice. That role might involve a second-order site of justice, in which we can now do injustice by making it harder for discursive justice to be done later—but this, nonetheless, counts as constraint of justice, as stringent as any other. What I want to do now, though, is to assume that some solution to the strangeness problem has been found and ask what intergenerational discursive justice might look like.

I begin by noting that, although the metaphysical issue might seem daunting, most of us seem to act as if some solution were available to it. We act, that is, as though our interests will not and do not expire with the extinction of our particular consciousness. In particular, many of us have strong interests in what happens to and in particular places, people, and institutions after our death. Samuel Scheffler gets at this point nicely: If we were to learn that the world would end shortly after our own death, very few of us would treat that news with calm equanimity—even though the world’s destruction would, by necessity, not be an event that would be experienced as a bad thing. Scheffler argues that we are not wrong to think that our interests might extend, temporally, past our own annihilation; he uses the notion of an afterlife (albeit one that does not have the implications of the theological afterlife) to articulate this sense that we might continue to have interests even after our deaths (Scheffler, 2013 , 2018 ). I will assume that something like Scheffler’s afterlife can be granted, although I will take here no position on how we might solve the various philosophical puzzles associated with the concept. I will, instead, just assume that we have solved them and then ask, if our interests can extend after our deaths, what would discursive justice look like, when claims that emerge from those interests conflict with the interests of the living? How can the living hope to do justice with those who have ceased to exist?

To start on this task, I want to return to Lam’s idea of perpetual voting rights. I share Lam’s conviction that this would be a bad policy, but I think it might be bad for more contingent reasons than he imagines. The fact that we cannot engage in literal conversation with the dead, for one thing, might be less salient than we think; children, nonhuman animals, and those in persistent vegetative states, after all, are largely unable to formulate claims without something like representation or translation—and if these are available to the living, it is hard to see why they might not be available to the dead as well. The fact that the dead will not be coerced by the proposals on which they vote, similarly, is not necessarily a dispositive reason to reject their vote; the childless are capable of voting on school taxes, after all, and if we are willing to assume that the dead have some interests that survive after death, then it is also plausible to assert that they have some claim on being able to speak for or against policies that affect those interests. The fact that the dead are likely not all that knowledgeable about particular factual circumstances giving rise to the need for legislation, however, is a bit more difficult to dispel. Whereas Lam takes this to be a reason to regard postmortem voting as obviously unjustified, I will take this to be an invitation to consider how the dead might be distinct in how their interests might be rightly considered by a given political community. In particular, the passage of time might prove to be relevant here, in that those long dead might seem to have a less weighty claim to have their interests considered, simply in virtue of how much the world has changed since the time of their death.

I want to consider these ideas as a way of getting some considerations on the table about what a theory of intergenerational discursive justice might be. As a way of introducing this, I want to consider the example of Kanji Watanabe, the protagonist of Akira Kurosawa’s 1952 film Ikiru . Watanabe is a low-level functionary in the municipal Tokyo government, who never questions the bureaucratic absurdities he administers. When he discovers he will soon die from stomach cancer, he begins finally to note that his life has been wasted in the rigorous application of meaningless rules. “It is as if,” notes the narrator, “he has never lived.” Watanabe devotes his last weeks to shepherding a proposed park—one that would otherwise have been doomed to failure—through the byzantine hurdles of his organization. He sacrifices everything, and makes something of a fool of himself within his department, to ensure that the park is built. He is last seen on the park’s swing set, gentling singing gondola no uta —a song from his own childhood—to himself. After his death, his colleagues remark upon the change brought on by his terminal illness:

The point is, the world is a dark place if his dedication was pointless. … [S]eeing him at that construction site. How can I put it? The way he gazed out over the site, like a father or grandfather tenderly watching a favorite child. ( Kurosawa, 1989 )

I believe that Watanabe’s care for the park was capable of transforming the moral nature of that site—so much so that we might, in a slightly poetic vein, think that the line between park and Watanabe began to blur a bit. Margaret Jane Radin notes a similar phenomenon for objects and places that are given moral status within a person’s life. The wedding ring in the jeweler’s hand, she notes, just is a different thing than the wedding ring that has been worn on the same finger for 50 years ( Radin, 1993 ). That this is somewhat mysterious does not negate the fact that it seems, to most of us at least, somewhat true. But if this is true within a human life and if someone’s interests might continue to have some moral weight even after the death of that individual, then it seems to be no great leap to imagine that a place or object can be imbued with moral significance simply in virtue of the ways in which the dead cared about that place or that object. Even if we are not obliged to provide the vote to the dead, then—and Lam and I agree that it would be bad policy to extend the franchise to the deceased—we might wrong the dead were we to set their posthumous interests at zero in understanding what is to be done now with that place or that object.

It is easier to come up with some example of this than it is to come up with a full theory—and in the present context I will restrict myself to providing some thoughts about how intergenerational conversations about places and objects might be constrained by justice. I want to start with some conclusions. The first is that to set Watanabe’s interests at zero would, indeed, be to wrong him. It is his interests that we are considering, not those of the individuals who come after him. (It is worth noting that, in the film, Watanabe’s son has no interest whatsoever in the park, and indeed has no particular interest in Watanabe himself.) Again, if this seems somewhat mysterious, it should be noted that we assume in our law that this mystery is not an incoherence. The law surrounding bequests and inheritance assumes that the primary purpose of that law is the realization of the intent of the decedent. According to Frances Foster (2001) , the courts have held the intent of testator’s to be their lodestar in inheritance law. But if this conclusion is defensible, so too is a second conclusion, which is that insisting that Watanabe’s interests must always defeat those of the living seems impermissible as well. This, too, is assumed in some American law; Thomas Jefferson, rather famously, fought to have fee tail abolished in Virginia, on the grounds that it involved the tyranny of the dead over the living ( Hart, 2001 ). To insist that Watanabe’s park must be given eternal existence, or at any rate an indefinite one, would seem to give too much power to the dead to override the needs and interests of those who will come after.

These conclusions, of course, merely set up the possibility that we ought to take seriously the notion of discursive justice between the dead and the living, such that the dead and the living ought to have their claims justly administered by existing political authority. These conclusions, however, do not provide us with much guidance in figuring out how that justice is to be understood. We might do better, I think, by returning to the idea that the dead cannot be counted upon to understand the material reality in which current political controversy is operable. I have noted that this is a state of affairs that generally deepens as time passes; it is undoubtedly true that Richard Nixon would find much of modern politics unfamiliar, but it is also undoubtedly true that he would find more of it familiar than would Abraham Lincoln. I imagine, then, that one way of seeking to do justice between the claims of the dead and the claims of the living is by examining exactly how the claims of the dead change as time passes.

To do this, I want to argue that the interests that most concern us are rarely merely emotive; I like chocolate more than vanilla but cannot offer you any reasons to think that your contrary ranking is an error. What I want to build in the world, however—as grandiose as that sounds—often reflects a bit more cognitive material than that. I believe that we generally can take our interests, at least as regards the presence of certain places or things in the world, as reflecting a particular conception of meaning and of value . I use the former term to refer to what the thing is that I want to build—whether that is a literal thing, as a park would be, or something more amorphous such as a marriage or an institution. There is something I want to make, something I want to leave behind—and I generally have a particular conception about what that thing actually is and how it works. But there is also a reason I want that thing to be in the world, and this is what I understand the notion of value to mean. I want to preserve my university’s Department of Philosophy, for instance, and that is because I think philosophy has a certain sort of value (even if it isn’t quite as much as some of us pretend). I think both of these are true of Watanabe’s decision to build the park. He has, in his mind, some notion of what a park is and what it isn’t; and, just as centrally, he has some particular vision of why it is that parks matter and why they are worth pursuing.

All this might be regrettably vague, but I think it might suffice to start our discussion. If our interests have this character, such that they can be understood as having cognitive content of a certain kind, then our ability to make sense of that interest—and, therefore, to respect it in our current political negotiation—might change, as the world changes. Time, that is, might make a difference in how and when we are required to acknowledge and respect the interests of the dead. I want to discuss three possible ways in which this might be so. The first deals with the discursive backdrop of particular interests, the second with the material reality in which those interests are asserted, and the third deals with the ethical framework within which those interests are evaluated. We can deal with these in order.

We can start by looking at the discursive background of interests. Watanabe lived in a society in which the notion of a park was a comprehensible one. He had a particular vision of what a park must be and felt, quite strongly, that this particular vision is one that made a difference in the lives of people who came after him. All this is unexceptional—but it means, we might think, that as the conceptual landscape changes over time, so too does the strength of the claim made upon the living after Watanabe’s death. If the particular reason for Watanabe’s pursuit of the park is no longer one that is taken seriously—perhaps individuals have started to see nature as hostile, rather than beautiful; perhaps, in a more optimistic vein, opportunities to experience nature are so available that the notion of a park starts to seem antiquated—then the more those left alive might have the permission to regard Watanabe’s interest in his park as ceasing to create obligation. It is hard to know exactly how to ground this link between what is comprehensible to us and what is obligatory for us—but I am convinced that there is some link and that as comprehensibility fades, so too does obligation. Take, for instance, the bequest of Henry Budd, who in 1842 left a sum of money to his sons on condition that they grew no mustaches. The best understanding of his request depends upon a context in which mustaches mean something—as, indeed, they did in 1842. But if the meaning ceases to hold—and, after the Crimean War, mustaches no longer brought with them a connotation of disreputability—then it seems that the obligation here might fade somewhat as well ( Peterkin, 2012 ). If the meaning and value of the thing in question have begun to change, then that thing now lives in a world that does not take it to have the value assumed by the one who loved it (whether Watanabe’s park or Budd’s clean-shaven world). Our interests, if they reflect this vision of meaning and value, are necessarily reduced in power as the world changes around them; and this, in turn, means that the obligation of the living to those particular interests begins to fade as well.

We can extend these ideas to look not simply at the conceptual background of the interest in question but at the material background as well. Watanabe lived in a city, in which there were particular needs—such as a place to encounter nature and a place in which children might play. We can imagine any number of ways in which that city might change. A city might begin to age so that there are fewer children to use its playgrounds. Travel technology might make easy travel outside the city’s borders more available. Nature itself might be better integrated into a variety of (non-park) spaces within Tokyo. All of these would, presumably, make it the case that the current inhabitants of Tokyo have less interest in the preservation of parks than previous generations might have been thought to have. But I would put forward that these changes would also make Watanabe’s interest in that park less powerful. Watanabe wanted that park, after all, because he felt it would be of use to the people who came after him. If the world changes such that this is no longer a live possibility, then it is not simply that their interests outweigh his interest in the park; I think Watanabe’s interest in that park might be taken to have failed to some degree as well. His interest, once again, is not simply a personal preference but something that can be taken to be a particular statement of what the world ought to have in it. As the world changes, so that the park is no longer a comprehensible means to a comprehensible end, so too does that interest—and its hold upon the living. An example from Harvard’s professoriate might be useful here. The Hollis Professorship, instituted in 1721, brings with it the right to graze one’s cattle on Harvard Yard ( Cow in the Yard, 2009 ). In 1721, this was a powerful incentive, and the donor bequeathing the right to graze was providing something of great benefit. In 2009, however, the geography of Harvard (and Cambridge) had changed significantly—as had the economics of being a faculty member there. When theologian Harvey Cox began bringing his cow Faith to graze on the lawns of Harvard, it was widely understood that this was as much a prank as a vindication of the rights of the professorship. Certainly, the world had changed between 1721 and 2009 so that there would be no thought that the interests of the donors would have been wrongly overlooked had the police thought that day to bar Faith from entering into Harvard Yard.

The final way in which the contextual nature of human interests might be thought to enter into our discussion here relates to ethics and how they change. Our interests, I have said, reflect values—which, I assert, are cognitive and say something about how the world might be. But ethical values do much the same, and one of the functions of ethical norms is to constrain what sort of personal value we might want to make the focus of our lives and our work. And the ethical norms we are willing to defend in public change over time; empirically, the Pew Research Center (2019a) has recorded an extraordinary change, in the past two decades, on matters such as interracial marriage and same-sex marriage. Many of us hope that these changes reflect progress—that we are now closer to ethical truth, whatever that might mean, than we previously were. But that means that we are also within our rights to accord less weight to the interests of the dead, when those interests reflect visions of the world we now hold morally impermissible. If Watanabe insisted upon racial criteria for admission to his park, for instance, we might take his interest now to reflect something morally reprehensible rather than morally comprehensible; we might, accordingly, start to care that much less about his interest in that park and much more about the (permissible) interests that now argue about how that park is to be administered going forward. Something similar to this is reflected in the law surrounding racist covenants and racist bequests. To take a surprisingly recent example, in 2013, Columbia University admitted that it had been administering—since 1920—a scholarship intended for the benefit of those born in Iowa and “of the White race” ( Trotter, 2013 ). Lydia C. Chamberlain had donated half a million dollars to Columbia in 1920, for the purposes of creating this scholarship. Columbia University sought to use the legal doctrine of cy-pres to obtain the right to administer the money, while refraining from abiding by Chamberlain’s wishes about the target of that money. What is noteworthy isn’t the use of cy-pres, which is often invoked in such contexts to make the case that the donor’s interest ought to be adjusted in light of moral progress. It is, instead, that it took them 77 years to think to make the case.

We can, at this point, put these ideas together and use them to vindicate the earlier conclusions. There might be something wrong—and wrong to Watanabe—about bulldozing Watanabe’s park the morning after his death; and yet there seems to be nothing wrong about taking Watanabe’s interests to fade, gradually, with the passage of time. Time, though, is not the dispositive factor here. What matters is that the world in which Watanabe’s interests are defended and made will change, gradually or quickly, after his death—and the extent to which his interests can be understood as capable of being vindicated must change, too. If the dead are capable of being wronged, then we wrong them when we refuse to take their interests seriously and respect the values and meaning that have led them to build places and institutions they hope to survive them. But we are not called upon to preserve anything human forever; or, at least, I cannot imagine what could ground any claim to eternal preservation. (Even those things that might seem to have some claim on indefinite preservation—the Mona Lisa , say, or Stonehenge—have that because we love them, or at any rate desire their preservation, not because of the interests of their creators.) The interests of humans reflect a particular vision of the world and how it might be improved upon. As the world itself begins to change, the intervention humans make in that world becomes less comprehensible and its weight upon us less significant. Jeremy Waldron (1992) has noted how the passage of time makes it difficult to imagine any adequate response to colonial evil; if an adequate undoing of that evil would require unmaking the world we have built, then we might find ourselves unable to respond to past atrocity except at the cost of committing atrocities in the present. I am unsure about Waldron’s conclusions, as regards colonialism; but I think he is right to note that the vindication of human interests is made vastly more difficult as the world in which those interests are expressed changes. Some interests, perhaps, endure, regardless of cultural and linguistic change; I confess, though, that I cannot think of many human interests which do not in some way rely upon the context in which they are made and which are not therefore subject to diminution as the world moves on. We might be said to wrong Watanabe, then, by refusing to accord his interests the respectful hearing they deserve. But the power of these interests changes, as the world changes for us—and does not change, after his death, for Watanabe himself.

All this is, of course, regrettably sketchy; but it might suffice to provide us with some broad conclusions. If what I have said here is correct, then it might be possible for the present to wrong the future, by somehow insisting that the interests of the present generation will be dispositive into the indefinite future. But it is equally possible for the future to tyrannize us, by refusing to provide our interests with the sort of weight appropriate to them. This weight will diminish, as I have said, as the world ceases to resemble the world we knew during our lives. But if we can make sense of interests that exist apart from the existence of the one holding that interest—and so much of our practice assumes we can—then respectful discourse seems to be a demand of justice between the present and the future, as much as it is in politics as done between members of the same generation.

4. Conclusion

I have, I hope, at least motivated the thought that there could be some meaningful sense in which discursive justice has a role to play in intergenerational justice. In the first instance, we are obliged to at least provide our descendants with the tools needed to practice discursive justice in their own political lives. We wrong the future when we make this impossible; we might, indeed, be felt unjust when we make that sort of justice impossible, by making our descendants display more virtue and intelligence than we demanded of ourselves. If we are willing to consider interests that survive after the death of the interest-holder, though, then we might stand in need of principles of discursive justice between generations—on which the interests of those who are no longer alive must be given appropriate weight in the consideration of how to balance interests in the present. What I have said here, of course, is in no way adequate to solve these issues. But I hope it will at least demonstrate that these issues are worth solving.

I will conclude with one way in which these two sorts of argument might intersect. I have argued that the interests of the dead might lose their power on the living as the world in which those interests are put forward changes. I have also argued that we might have wronged those who will come after us by forcing them to display greater virtue and intelligence than ourselves—and by forcing them to innovate, as regards the nature and type of political institutions generally. I think these two arguments might combine in a rather poignant way. We have forced those who come after us to experiment and to change the world dramatically before they will be able to enjoy the same sorts of lives we enjoyed ourselves. As they do so, they will of necessity change the world that forms the backdrop against which you and I find meaning in our own lives. Having forced our descendants to change the world from what we have built, we cannot complain when they do so—and, in so doing, ascribe our own interests less weight than we might otherwise have hoped. Put most simply, we have created a world in which our descendants’ best hope might be to forget much of what we have built; we have no right to resent our descendants when they choose—as they now must—to move on from the world in which our own lives gained whatever meaning they had.

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Stephen Gardiner has urged me to be clear, at this juncture, about whether or not I accept that the problem will be solved by individual agency—a position he has termed climate anarchism . I emphatically do not; if the issues we face are to be solved, they will be solved at the collective level and not at the individual level. My own point, instead, is that the collective solution requires the voluntary participation of individual agents, in any tolerable political regime; stable governments are responsive to people as they are, and governments are unlikely to reflect virtues that are neither present nor prized among the people. Good institutions require good people, to put things most simply; and vicious people are unlikely to either form or obey global institutions that can do the job Gardiner has given them.

President Donald Trump, most famously, argued that his loyalty was to Pittsburgh, and not to Paris, when he abandoned the minimal reductions mandated by the Paris Accord.

Stephen Gardiner has suggested that the global institutions in question might well produce their own support. I think he is right—although I would also note that what works in a domestic political community does not necessarily work in the global one; it might, but we do not yet know and are imposing these risks upon our descendants. More to the point, though, for a democratic country to voluntarily set up such a global institution—which would, of necessity, have a role in disciplining the excesses of that country and its citizens—there must already be the will to abide by the institution created; and that cannot be created by the global institutions, which after all do not yet exist. The existence of the will to become liable to coercion by such institutions is, I think, a necessary part of the story and demands the will—on the part of both individuals and the state governments that are responsive to such individuals—to become so bound.

The discussion of this section, I think, might tell against the will and ability to do any sort of justice—discursive and otherwise—in the future; if we make the doing of justice harder, while making people meaner, that might make justice less likely to take hold, whether or not that justice has anything to do with speech. Nevertheless, I think the problems discussed in this section have particular weight when we examine the specific case of discursive justice, given the ways in which discursive justice requires the will to listen well to the claims of others—and the particular ways in which we are increasingly willing to ignore both science and ethics in dismissing the claims of outsiders. The mean and the selfish are unlikely to do justice, full stop; but they are especially unlikely to do that sort of justice which demands an openness to the speech of those who do not share our particular national identity and whose speech insists upon claims that tell against our own individual and national self-interests.

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Restorative Justice in the Criminal Justice Process Essay

Restorative justice, proposed implementation method, supporting restorative justice: conceptual framework.

Many leaders and policymakers in the United States acknowledge that the country’s criminal justice system faces numerous challenges, including mass incarceration, erroneous incarcerations, racial disparities throughout the process, the school-to-prison pipeline, and increased recidivism rates. Members of the public are worried since the existing zero-tolerance programs and retributive sentencing have triggered numerous problems in this country.

Such developments have compelled American citizens, politicians, and human rights coalitions to offer evidence-based measures to transform the situation. The purpose of this paper is to present, define, and propose restorative justice as the best model for addressing the challenges affecting the effectiveness of the United States’ criminal justice process.

The gaps associated with the United States’ criminal justice and judicial systems have led to superior concepts for addressing the problems of crime. The term “restorative justice” refers to an evidence-based model that focuses on the most appropriate initiatives to rehabilitate and empower offenders and make them successful members of society (Pavelka, 2016). This initiative is achievable through constant reconciliation with the identified victims and all other community members. The guiding aspects of restorative justice have managed to deliver desirable results in different working environments and learning institutions in the United States.

Implementation

Restorative justice takes a simple approach to initiate or implement. Those involved will arrange for a conference whereby the offender and victim meet regularly. Letters and videos are resourceful when such individuals are unable to interact. Since each society has its unique expectations, norms, and challenges, the model creates the best opportunity for providing culturally sensitive and personalized services to all stakeholders (Wood, 2015). Such a model can deliver better results since all persons will feel confident, engaged, empowered, and comfortable.

The proposed option is informed by this principle: crime is capable of harming human beings and any form of justice should be aimed at repairing this kind of injury (Curtis, 2016). Another guideline is that all persons affected by different offenses should be part of the resolution process. A neutral venue is essential to facilitate forgiveness and make it possible for the facilitator to record positive results. From this analysis, it is evident that implementing restorative justice supports a deviation from the standard procedures of the criminal justice system (Karp & Frank, 2016). This initiative will empower more people and societies, thereby making it possible for them to overcome most of the above challenges affecting different citizens.

Participants and stakeholders can consider various approaches to implement restorative justice in their respective regions. Some of them include community engagement, promotion and presentation of superior guidelines, the involvement of judicial services and experts, and consideration of cultural aspects. This section identifies the most appropriate strategy that is capable of making this practice part of the judicial system (Beckett & Kartman, 2016). This initiative follows four key steps that are applicable and evidence-based.

The first one is to formulate guidelines for empowering facilitators and monitoring offenders. Such attributes will be presented to become part of the entire system. The second phase is building capacity through continuous training (Beckett & Kartman, 2016). This should be done locally or nationally depending on the targeted region. The third stage is ensuring that all stakeholders are aware of the nature and importance of restorative justice (Pavelka, 2016). The last step is to implement the proposed concept of restorative justice and meet the expectations of the greatest number of community members and offenders.

Sociologists propose or use various theories and ideologies to explain why communities should function efficiently, create the best environment for empowering all citizens, and address challenges that might emerge. Experts in this field have gone to consider the current relationships existing between the state and its citizens and the relevance of creating policies that can serve people instead of victimizing them (Pavelka, 2016).

Although no standard or recognizable theory is describing the relevance of restorative justice, sociologists focus on various societal problems and propose strategies that can improve people’s lives and experiences.

The traditions of criminal justice have informed the current direction or movement towards restorative justice. For example, Karp and Frank (2016) indicate that this practice is a response to “acts of genocide, gross violations of human rights, transitional justice in post-conflict societies, and the repairing of historical injustices such as slavery” (p. 51). This assertion explains why there is a need for populations and countries to embrace the power of restorative justice. Such an initiative will ensure that citizens who have faced discrimination within the criminal justice system record positive experiences or outcomes.

Within the past two decades, learning institutions and workplaces have benefited from this idea of restorative justice. Many students and employees have managed to address specific issues and challenges affecting them. They have also presented superior solutions to most of the problems affecting performance (Beckett & Kartman, 2016). Using this knowledge, some sociologists have indicated that restorative justice is applicable in the wider criminal justice system to meet the needs of more people and make it easier for them to achieve their goals in life.

Different scholars in the field of criminology present evidence-based guidelines to ensure that the United States reform their policies aimed at providing judicial services to different citizens. Both left and right wings continue to propose similar ideas since they are capable of minimizing all forms of discrimination. They can also deal with the predicament of crime and do away with punitive measures associated with the current criminal justice system (Karp & Frank, 2016). Consequently, more Americans will achieve their potential and eventually lead high-quality lives.

The restorative justice movement has become a superior model for the United States to record evidence-based practices and eventually create a new model for tackling crime. In different states, legislators and administrators have proposed new approaches for pursuing juvenile justice goals or agendas (Beckett & Kartman, 2016). Such initiatives revolve around the implementation of restorative policies.

Consequently, it has been possible for government agencies to balance the unique needs of all offenders, community members, and victims. Such measures continue to address the gaps catalyzed by wrongdoings and delinquent acts (Karp & Frank, 2016). When more American societies embrace this movement, chances are high that a new program will emerge whereby the government will find it easier to address the challenge of crime.

The other aspect many sociologists present whenever supporting the power and importance of restorative justice is that of race relations. If implemented effectively, the RJ movement can promote partnerships among ethnic groups across this country (Karp & Frank, 2016). Such measures have the potential to decrease disparities in the wider criminal justice system. The final result is that the country will address historical injustices and any form of marginalization that has existed in the United States for many years.

From the above discussion, it is agreeable that there is adequate evidence to support the role and importance of restorative justice. Nonpartisan individuals and associations will embrace the idea since they can overcome all issues associated with punitive practices. The move will minimize cases of inequality and support the delivery of exemplary support to all wrongdoers instead of convicting them (Curtis, 2016).

This approach will create a superior strategy that addresses the problem of congestion in American courts, improves the speed of justice delivery, and empowers more citizens to achieve their potential. Unfortunately, researchers are unable to predict the future of this country’s criminal justice system since different groups do not appreciate the importance of restorative approaches. For example, Wood (2015) asserts that such measures will never minimize the problem of incarceration. Sociologists and experts in this field should, therefore, present evidence-based ideas and concepts to support restorative justice and tackle most of the issues many citizens encounter.

The discussions and conceptual framework presented above have revealed that restorative justice is a powerful model that can transform and improve the nature of America’s criminal justice system. This initiative is supported by evidence-based practices that have delivered numerous benefits in different learning institutions and companies. According to the described theoretical concepts, restorative justice will overcome most of the challenges many citizens experience in this country. This new approach will promote the engagement of different stakeholders, reduce the negative implications of crime, and eventually empower Americans with diverse backgrounds to achieve their potential.

Beckett, K., & Kartman, M. (2016). Violence, mass incarceration and restorative justice: Promising possibilities . Web.

Curtis, C. (2016). Anti-social behaviour: A multi-national perspective of the everyday to the extreme. Thousand Oaks, CA: Sage Publications.

Karp, D. R., & Frank, O. (2016). Anxiously awaiting the future of restorative justice in the United States. Victims & Offenders, 11 (1), 50-70. Web.

Pavelka, S. (2016). Restorative justice in the states: An analysis of statutory legislation and policy. Justice Policy Journal, 2 (13), 1-23.

Wood, W. R. (2015). Why restorative justice will not reduce incarceration. The British Journal of Criminology, 55 (5) , 883-900. Web.

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IvyPanda . 2024. "Restorative Justice in the Criminal Justice Process." February 4, 2024. https://ivypanda.com/essays/restorative-justice-in-the-criminal-justice-process/.

1. IvyPanda . "Restorative Justice in the Criminal Justice Process." February 4, 2024. https://ivypanda.com/essays/restorative-justice-in-the-criminal-justice-process/.

Bibliography

IvyPanda . "Restorative Justice in the Criminal Justice Process." February 4, 2024. https://ivypanda.com/essays/restorative-justice-in-the-criminal-justice-process/.

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Youth Today

Breaking walls, building bridges: A call for restorative justice in school discipline

This story   was originally produced by The Hechinger Report , a nonprofit, nonpartisan news outlet focused on education.

Imagine waking up each morning with no hope for the day ahead, navigating a minefield of potential conflicts with your body on high alert. That was my reality as a marginalized youth — misunderstood, labeled as a troublemaker and cast out without a chance to reconcile and evolve. Growing up with anxiety in school is an all-too-common experience that perpetuates a cycle of fear and resentment. It’s time to acknowledge and address this narrative that adversely affects our youth’s learning experiences and the education system.

Moving away from suspensions can help students become more engaged members of their schools.

Negative labeling of students can severely impact their confidence and sense of self. As a former “troublemaker,” I know firsthand how difficult it can be to overcome such labeling.

Participating in a restorative justice program allowed me to take responsibility for my actions, repair relationships and gain the confidence I needed to succeed. By providing restorative justice programs, we can help students become positive and engaged members of their school communities.

Restorative justice is an alternative to suspension that involves having those in conflict talk through their issues with a mediator. The goal is for students who have misbehaved to understand any harm they’ve caused and work to repair it and restore relationships. It offers a beacon of hope, a transformative approach prioritizing connection over isolation and understanding over punitive discipline.

Students need to feel that those with power see their life experiences. They should not be subjected to pointless punishment that has no value other than the punishment itself.

Restorative justice empowers students to take responsibility for their actions. Providing a safe dialogue space helps students learn how to communicate effectively, build empathy and establish trust with their peers and teachers. By embracing restorative justice, schools can create a culture of accountability, healing and growth that benefits everyone involved.

[Related: What does restorative justice look like?]

But restorative justice is not just about addressing behavior problems; it’s also about addressing the underlying issues driving those behaviors, often stemming from trauma, neglect or systemic injustices. Restorative justice recognizes that everyone has unique circumstances and challenges and deserves personalized support to address their needs.

It’s about breaking the cycle of fear and punitive discipline.

Many students do not have access to the resources needed to address their mental and emotional concerns, and they do not have the proper tools to deal with everything they go through in their lives. Instead, they manifest their struggles through misbehavior. They need someone to recognize their lived experiences and help them confront the sources of their actions.

Responding to misbehavior in this supportive way is a paradigm shift from punitive measures that only serve to alienate and perpetuate cycles of violence and incarceration.

In marginalized communities, where access to  mental health support is often limited and stigmatized , restorative justice can be a lifeline. Instead of funneling youth into the school-to-prison pipeline, we must invest in their potential by providing access to counseling, therapy and other resources that address the root causes of their behavior. This process starts at the ground level: Those who see students daily need to be the first ones to help them address their issues.

[Related: Restorative justice isn’t a panacea, but it can promote better relationships among students]

Restorative justice provides students the tools to go forth into the world as optimistic, encouraged and emotionally intelligent individuals — allowing them a greater chance to reach their goals.

Implementing restorative justice requires a concerted effort from educators, administrators and policymakers. It starts with training in restorative practices, creating safe spaces for dialogue and conflict resolution and collaborating with mental health professionals to provide holistic support.

Challenges and resistance are inevitable. Skepticism and fear of change are formidable barriers, as are entrenched policies and funding allocations that prioritize punishment over rehabilitation. However, the  success stories  of restorative justice programs nationwide prove that change is possible and necessary.

[Related: Giving first-time juvenile offenders avenues away from detention in New York]

Reflecting on my journey from fear to advocacy, I am reminded of the transformative power of restorative justice. It’s not just about breaking down walls; it’s about building bridges of understanding and compassion. It’s about breaking the cycle of fear and punitive discipline.

Seeing the positive impact of restorative justice on our school community motivated me to become certified in restorative justice. Now, I’m able to help others in my community find ways to resolve conflicts and build stronger, more meaningful relationships through restorative practices.

It won’t happen overnight, but with perseverance and collective effort, we can create school systems in which every student feels seen, heard and valued. It’s time to tear down the walls of injustice and build bridges to a brighter future for all.

Jully Myrthil is a high school senior in Rhode Island and a passionate advocate for fostering understanding, inclusion and justice for all. She is a co-founder of  Shades of Knowledge , a nonprofit dedicated to making education and literature accessible to all youth worldwide.

Keira Boxell, fellow co-founder of Shades of Knowledge, contributed to this piece.

The Hechinger Report is a nonprofit, independent news organization focused on inequality and innovation in education .  Sign up for   Hechinger’s newsletter . 

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