An excerpt from An Anarchist Theory of Criminal Justice:
The current legal system’s fundamental purpose is to resolve conflict. However, the power to find resolutions is given to individuals that do not have an interest in the matter, which ultimately prevents the individuals involved from determining their own form of justice. Additionally, obedience to this system is enforced under duress. Rather than using force to achieve compliance, the anarchist approach to resolving conflict is voluntary, and believes justice can only be determined by the involved parties through dialogue. A justice system based on these principles exists, and is called restorative justice.
Restorative justice is a form of conflict resolution, used by different indigenous groups throughout the world, to settle disputes between individuals. According to restorative justice co-director of facilitation, Matthew Johnson, “[r]eliance on the state to achieve justice or security goes against the idea that people are fully equipped to deal with their own conflicts — an idea that is at the core of restorative justice principles.”# In contrast to the current criminal justice system, where the state is viewed as the primary victim in criminal acts, and victims, offenders, and the community are given passive roles, restorative justice views crime as being directed against individual people.# This means conflicts and disputes are settled entirely by members of the community. The framework restorative justice uses, allows it to be applied in any circumstance in which a conflict is deemed to exist. At its core, it is a form of community justice that recognizes the interconnectedness of communal living, and that harm and conflicts are symptoms of communal inadequacies. Therefore, if everyone’s needs are being met, then consequently the causes for conflict can be prevented.
Howard Zehr, a leading advocate and visionary for restorative justice, says that it has three primary pillars: harms and needs, obligations, and engagement.# In regards to harm, Zehr writes, “[w]hile our first concern must be the harm experienced by victims, the focus on harm implies that we also need to be concerned about the harm experienced by offenders and communities.”# The restorative approach tries to uncover the causes of conflicts in a manner that respects the perspectives of the people involved. Behind this is the belief that conflicts are created by misunderstandings and needs not being met for individuals. This method prevents individuals that have caused harm from being vilified, which encourages participation, and also reveals any inadequacies within the individual’s community.
The second pillar is that restorative justice “emphasizes offender accountability and responsibility.”# This means, rather than sending offenders to jail, they confront the people that have been harmed by their actions, and take responsibility for rectifying the situation. Offenders are permitted to tell their side of the story, but must also listen to how and why their actions led to the harm. Then together, the individuals work towards an agreeable solution. All this fits within the third pillar of engagement, which suggests that the primary parties affected by crime be given significant roles in the justice process.# An example of how the process works is as follows:
We [an organization that coordinates restorative justice conferences] would get a referral, call each principal actor in the conflict, interview them carefully and empathetically…making sure they are aware of the process as well as their own feelings…and get their consent to participate in the process. We would then repeat the process with everyone else involved and schedule a time that worked for everyone and an appropriate, neutral location. If it were a Victim-Offender Dialogue, it would likely take place at the correctional institution. The preparation process, where a trained facilitator would talk to each person individually, is generally the most important part and will determine the success of the conference. At the end of the conference, dialogue, etc., the facilitator(s) would help the participants generate a consensus agreement, that might include restitution, an apology, community service, etc., and follow up with participants after an established amount of time to ensure that they were satisfied with the agreement and that it was being followed as agreed.#
Thus, the restorative justice process function of compassionately helping individuals learn from their mistakes.
Restorative justice practices are gaining traction and being applied throughout the country in a variety of contexts.# Its success and continued use is dependent upon a continuing shift in societal values, and the strengthening of communal ties. In some instances, forms of restorative justice are being used in conjunction with the criminal justice system for misdemeanor crimes. Defendants are given the choice of pleading guilty and going through a process in which they admit guilt, and discuss what caused them to commit the crime, and are then required to perform community service. While this is a step in the right direction, the process still operates under the power of the state, meaning force is still applied, still making it involuntary. Additionally, it creates a problematic incentive for defendants to plead guilty to crimes just to escape accountability. Accountability is important in ensuring justice through the restorative method, as well as the participants being involved with the process voluntarily. A dilemma then is, without the force of the state, how can society change the prevailing fear of punishment that the criminal justice system creates, and encourage people to participate and be held accountable for their actions? Matthew Johnson believes:
. . . that accountability comes naturally with community and interdependent relationships. We tend to not view ourselves as connected in Western culture; we see ourselves primarily as individuals. In this context, accountability is not as important as escaping blame or harm. However, if I value my relationship with you more than my own willingness to avoid pain/consequences, I will tell you that I broke your favorite possession, etc., because I would want the same done for me, and we are interconnected. Also, accountability comes much easier when there is no expectation of punishment. If I knew you weren’t going to sue me, hit me, or shun me for admitting my wrongdoing, I would have much more of an incentive to tell the truth and be accountable. The current criminal justice system, along with the capitalist economic system, assumes that we act within our own self-interests, and this is just the way of things. Therefore, we incentive behavior that maximizes self-interest. Yet we turn around and criticize people for being selfish, etc. The principles of restorative justice go against this paradigm. Its practitioners have a much less cynical view of humanity, but nonetheless it’s quite possible that RJ (restorative justice) won’t reach its full potential without a radical re-evaluation of societal values.#
Thus, in order for restorative justice to operate in the state-less and purely community driven fashion it is intended to, there needs to be an evolution in the way we live our lives, and the way we view one another. Thankfully, this process has already started, it just needs more support, creative thinking, and hope.
Sandra L. Bloom, M.D., writes in The Psychotherapy Review on the difference and importance of restorative and retributive justice:
Reformers in the field of penology are looking at alternative forms of achieving justice and reviewing the history of how our present system has come to dominate such an important part of our world view (Zehr 1990, Bianchi 1995). The existing criminal justice system is based largely on the idea of retribution, seeking to answer three questions: 1) What laws were broken?; 2) Who “done”it?; 3) What punishment do they deserve? Crime is breaking the rules, breaking the rules is a violation of the state, and the state is the victim. The real victims are not even a significant part of the equation. Retributive justice is preoccupied with blame and pain and is primarily negative and backward? looking.
Howard Zehr, Professor of sociology and restorative justice at Eastern Mennonite University’s Conflict Transformation Program, has described the differences between retributive and “restorative” justice. In a restorative system of justice, the fundamental questions are entirely different and focus on the restoration of relationship as well as individual and social healing. The first question is “Who has been hurt?”. Once established, the next consideration is “What are the needs of victims, offenders, and communities?” The last consideration is “What are the obligations and whose are they?” Under such guidelines the aim of justice is to meet needs and promote healing of a) victims, b) the community, c) offenders, and d) of relationships between them.
