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With the emergence of the restorative justice movement in the 1980s, it appeared that crime victims had gained an important ally in their quest for reform. Restorative justice, after all, was seeking many of the reforms crime victims had sought: greater involvement in the criminal justice process, compensation for losses and a path to healing the emotional wounds of crime. One could scarcely have imagined a more natural alliance of interests, and yet, despite its early promise, the relationship between the victim’s advocacy movement and restorative justice has been and continues to be tenuous at best. (Amstutz 2004, p. 85). In the most extensive survey of victims’ advocacy groups conducted to date, widespread dissatisfaction was uncovered concerning restorative justice programs in the United States, including concerns about injustice, disrespect, exclusion, lack of empathy, and irrelevance of the programs (Mika et al. 2002). A number of respondents believed that restorative justice was created primarily for the benefit of offenders in search of reducing punishment and avoiding responsibility and that the needs of victims were merely an afterthought. Some respondents reportedly felt they were manipulated into participating by restorative justice “in order to promote and rationalize its agenda” and argued that the characterization of crime as mere interpersonal conflict “trivializes the nature of deep harms and the character of their relationship to the offender” (2004, p. 34). Despite the promises of healing, “little victim relief” was actually attained, and crime victims asked: “What is the compelling proof that it works?” Without proof of the effectiveness of its programs, the report maintained, “there will continue to be resistance to their blanket implementation and reluctance in the victim community to embrace them” (2004, pp. 33–34).
What went wrong? Can this relationship be mended? What are the prospects for future relations as both the victims’ movement and the restorative justice movement continue to evolve? In this chapter, these questions will be explored, beginning with a brief historical overview of both the victims’ movement and the restorative justice movement, followed by a critical assessment of the benefits to victims claimed by restorative justice advocates, and an analysis of several key policy issues that have impeded the growth and public acceptance of restorative justice. In the final section, we shall consider how a more expansive conception of restorative justice that has emerged in recent years may make restorative justice available to a wider variety of crime victims and become of greater importance in their advocacy for increased public support.
The Restorative Justice Movement
Restorative justice arose in the 1980s as a radical alternative to a conventional criminal justice system that many had regarded as dysfunctional, morally deficient, and neglectful of the legitimate needs of victims, offenders and communities. Not only was the criminal justice system seen by many critics as ineffectual, unable to stem the epidemic of drug use, and, through its “get tough” tactics, the cause of further alienation and rebellion in the inner cities, the system was increasingly deemed unresponsive to the needs of crime victims and their communities. Social critics from the Left renewed their attacks on the criminal justice system as a means of social control exercised by a repressive state, and proposed decentralized, informal alternative means of resolving conflicts. Prisoners’ advocacy organizations that stressed the need to reintegrate, rather than permanently exclude, offenders obtained support from Christian Mennonites who advocated healing, repair and reconciliation in place of retributory justice. The 1980s also saw a rise in interest in community-based problem solving and indigenous justice. During this period, the “just deserts” theory, initially embraced by legislators as a principled solution to the problem of sentencing disparities that resulted from unbridled discretion, came under strenuous attack for being rigid, obsessed with punishment, retrospective, and more concerned with uniformity rather than conflict resolution. (Bazemore and Walgrave 1999, p. 46).
Out of this amalgam of critiques of the existing criminal justice system grew an interest in a new conception of justice based on healing injuries rather than the assignment of blame and punishment for legal transgressions. These “restorative justice” theorists sought an informal, non-punitive alternative to a system in which many victims felt they were treated as little more than a “piece of evidence” and who were “twice victimized, first by the offender and then by an uncaring criminal justice system that doesn’t have time for them” (Umbreit et al. 1994, p. 196.)
Because restorative justice arose from a diversity of sources, there has never been an “official version”, or even a commonly agreed-upon definition. What has been achieved has been not so much a set of principles as a set of shared values:
- Viewing crime as a source of harm, not simply as a transgression of law, and, consequently, specifying the mission of the criminal justice system as the repair of harm instead of only the determination of guilt and imposition of punishment;
- Providing compensation for the victim and achieving social reintegration of the offender; and
- Involving the victim, the offender, and relevant community members to the fullest extent possible in voluntary dialogue in order to devise restorative solutions.
The Victims Movement
Beginning in obscurity in the 1960s as a scattering of neglected and abused “outsiders” to the criminal justice system, victims’ advocacy groups, within a few decades, became a powerful influence on criminal justice policy and practice throughout the world.
Their demands that the voices of crime victims be heard in court, that the full extent of their suffering be acknowledged, and that their expectations of appropriate justice be considered by the courts in sentencing fell upon the receptive ears of law enforcement officials and politicians in the 1970s who seized upon the incipient victims’ rights movement as a means to secure the cooperation and political support of crime victims. Crime victims’ advocacy achieved a number of significant criminal justice reforms including the establishment of victims’ assistance units within prosecution offices that provided court information, protective services, and assistance to victims as well as procedural changes that permitted victims to be heard in court at sentencing and parole hearings. Along with these and other procedural reforms, support for victims’ welfare reform also developed. Overturning centuries of legal impediments to obtaining fair compensation for their material losses within the traditional criminal justice system, victims’ advocates achieved the remarkable goal of establishing court ordered restitution as a standard component of criminal prosecutions in court systems throughout the world. As the full extent of victims’ losses was brought to light both in court and through the news media, it soon became apparent that the prospect of payment for these losses solely through the financial resources of criminal defendants was woefully inadequate. Therefore, advocates of victims’ welfare looked to the state for compensation, whether or not the offender could pay restitution, and indeed, whether or not the offender was even brought to justice. Many of these programs, therefore, operated independently of the criminal justice system altogether. Despite these gains, however, there were persistent concerns from victims’ advocates that state compensation programs were either flawed or insufficient, and riddled with exceptions, exclusions and limitations. (Dignan 2005, pp. 54–55).
Benefits To Victims Offered By Restorative Justice
While restorative justice advocacy has not been significantly involved in assisting victims groups to obtain increased government support and compensation, it has offered an intriguing new way to fulfill victims’ emotional and psychological needs in 100s of innovative programs implemented throughout the world during the last 3 decades.
Restorative justice, indeed, may very well be the first major criminal justice reform that has focused on repairing both the material and psychological harm suffered by crime victims. Besides their physical need for safety and the economic need for restitution of their material losses, crime victims endure emotional and psychological losses as a consequence of the crime. Emotional reactions reported by victims include anger, anxiety, depression, overall physical distress, resentment, and hostility. Psychological harms to victims include a sense of isolation, loss of faith, shock, enmity, loss of control, self-blame, denigration, and fear (Lurigio and Resick 1990, pp. 55–57). Restorative justice advocates have primarily stressed three vehicles for emotional and psychological recovery: apology, receipt of restitution and victim participation.
The central mechanism for emotional and psychological healing cited by virtually all restorative theorists is apology (Strang 2002, pp. 18–23). The demonstration of respect inherent in apology is thought to counteract the message of disrespect that often underlies the feeling of injustice, thus lessening the victim’s demands for punishment. Because crime devalues the self-worth and denigrates the status of the victim, proper balance is restored by (1) the offering of an apology by the offender and (2) the communication of condemnation and reproach by society. Through expressive acts, rather than through physical punishment, it is believed that the victim is vindicated and the psychological harm of the crime is repaired.
Additionally, the requirement of restitution is not only a means of material compensation, but also a means of accountability–a symbolic gesture of penance and a corroboration of the sincerity of apology. “Restitution,” it has been contended, “serves both the emotional and practical needs of the victim and the idea of social justice–as opposed to punishment, which instead satisfies the rather archaic requirements of retribution” (Sessar 1999, pp. 287–288). Finally, restorative justice theorists have contended that the disempowerment, loss of control, and sense of isolation experienced by many victims can be ameliorated by greater involvement and more respectful treatment in the criminal justice system itself.
Empirical Testing Of Restorative Justice Claims
Overall, the results of victim surveys from dozens of programs throughout the world have been very positive, indicating a high degree of satisfaction on the part of both victims and offenders (Umbreit et al. 2003, pp. 25–28). Victims involved in restorative justice sessions have reported higher levels of satisfaction than their counterparts in the traditional criminal justice system concerning their experience of fairness, receipt of restitution and reduction in fear and anxiety. In his meta-analysis of seven studies screened for statistical comparison, Poulson found significant positive results from victims including their satisfaction with the handling of the case, their opportunity to tell his or her story, their belief that the offender was held accountable, whether apology was offered, and whether the victim was still upset about the crime (Poulson 2003). These studies also indicate that the material and emotional benefits to victims were achieved via a non-punitive restorative alternative while decreasing, or, at least without increasing, the recidivism rate of the offenders who participated.
Not all findings are uniformly positive, however. In her survey of Australian programs, Kathleen Daly found that, contrary to the goal of eliciting empathy and remorse from offenders, most offenders were fixated on negotiating a better sentence and reported that the victim’s story had “little or no effect on them” (Daly 2002, p. 70). Correspondingly, only 27 % of the victims who attended these sessions regarded the offender’s apologies as sincere. Indeed, Maxwell and Morris’ 1997 study found that 25 % of victims who participated in a restorative justice family conference program actually felt worse after attending due to, among other reasons, the perceived insincerity of the offender’s apologies. Even in the limited context of victim satisfaction, researchers have found that victims were the least satisfied of the participants at restorative justice conferences, and that their negative feelings were linked to dissatisfaction with the leniency of the outcome (Maxwell and Morris 1994, p. 119).
Compounding the problem of assessing the success of restorative justice programs are methodological issues including low response rates to questionnaires, problems in identifying and standardizing key variables, the inability of research designs to randomly assign sentencing variables, and difficulties in measuring victims’ emotional and psychological reactions. Studies, for example, that have focused on victim satisfaction have not assessed the victims’ emotional and psychological recovery, and even when attempted, the goal of measuring satisfaction is singularly elusive: “It is virtually impossible to disentangle the multitude of variables which together determine how satisfied people are with any social service” (Johnstone 2011, p. 20).
Moreover, the limitation of restorative justice programs to those victims willing to personally meet with their offenders restricts the scope of the conclusions that can be drawn from the victim satisfaction studies conducted to date. In contrast to the claim that victim participation is, in itself, a source of personal empowerment and a means of repairing the emotional harm of crime, the fact remains that most victims, after being offered the opportunity to engage in dialogue with offenders, have failed or refused to do so. The largely positive results of these surveys, therefore, were very likely obtained from a small, self-selected group of victims who were amenable to the process to begin with and saw a positive benefit in face-to-face encounters with offenders.
Notwithstanding these qualifications and limitations, there is little reason to doubt the largely positive effect of restorative justice practices on the emotional well-being of those crime victims who choose to participate in restorative justice programs. What remains highly controversial, however, is the claim that the benefits to the material, psychological and emotional wellbeing of crime victims achieved though restorative justice programs result from its informal, non-punitive approach to criminal justice in contrast to conventional prosecution of crimes. Unfortunately, empirical researching into this critically important issue has been impeded by an underlying selection bias toward relatively minor offenses that are eligible for diversion away from formal prosecution. These “divertible” cases are necessarily of a different character than those that law enforcement officials refuse to divert. The criteria for diversion typically includes the stipulation that diversion away from prosecution will not jeopardize the safety of the victim or the larger community, nor will it offend community norms of justice. Even if it were possible to randomly assign cases to either restorative justice or conventional prosecution, the most one could conclude would be that, for cases eligible for diversion, restorative justice conferencing achieves better outcomes for the victim, the offender and society.
But no such claim could be made about the other, more serious cases, that are not eligible for diversion. As to these serious cases – those that are of greatest concern to victims and to society-the many claimed advantages of restorative justice lack firm empirical support, especially the highly controversial claims regarding the use of punishment and the role of the state in administering criminal justice.
The Relevance Of Punishment To The Emotional Well-Being Of Victims
The fact that victims respond positively to apology, greater involvement when desired and receipt of restitution is neither surprising nor controversial. On the other hand, the contention that healing the emotional wounds of crime victims can be better achieved without punishing the person responsible for their suffering is undoubtedly the most controversial claim advanced by restorative justice advocates, and vividly contrasts with the retributory approach to justice held by many, if not most, members of the public, especially for serious crime.
The non-punitive approach of restorative justice has been primarily advanced not on moralistic or religious grounds, but rather on the strength of the claim that it offers victims a better path to healing their emotional wounds than the path offered by retributive justice. The prospect of healing is put forward not merely as an incidental benefit to victims. It is, rather, the primary inducement to their involvement in restorative justice programs and is inextricably linked with the concept of restoration itself. “Restorative justice,” it is claimed “is about healing (restoration) rather than hurting. Responding to the hurt of crime with the hurt of punishment is rejected.. .” (Braithwaite and Strang 2001, p. 1.) If crime is about harm suffered by victims, and if the goal is to repair that harm, merely punishing offenders, restorative justice advocates have claimed, “does not help the injuries caused by crime and simply creates new injury–now both the victim and the offender are injured” (Van Ness and Strong 1997, p. 38). They have asked “How can still more suffering undo the pain of crime?” (Kaptein 2004, p. 83) and have claimed that the “personal needs of those offended are not met by revenge, but by addressing the feelings behind the [victims’] anger” (McCold 2000, p. 361). What all these observations have in common is the claim that, whatever benefits punishment may have in maintaining social order, it is not necessary for the restoration of a victim’s well-being and, in fact, may be counterproductive.
Unfortunately, these claims are far from proven by research conducted to date. Despite 2 decades of implementation in programs throughout the world and scores of studies on various aspects of restorative justice programs, no study has shown that the emotional recovery of crime victims can be improved by removing the option of punishment (London 2011, p. 99). Perhaps the best evidence to date for a positive effect of a non-punitive restorative justice approach upon the emotional recovery of crime victims can be found in Strang’s study of the Reintegrative Shaming Experiments (RISE) Project in Canberra, Australia (Strang 2002). This study had the methodological advantage of random assignment of cases between conventional court processing and restorative justice conferencing, but the limitation of the research to cases deemed eligible for diversion restricts the scope of its conclusions. Punishment of the offender may indeed have been irrelevant to the emotional well-being of these victims but, then again, in these cases, the need to punish the offender was judged by law-enforcement officials to be so minimal as to warrant diversion from prosecution. Additionally, unless similar procedures are compared-with and without the option of punishment-one cannot discern whether any resulting emotional benefits to victims arose solely from their opportunity for greater involvement, their better treatment by criminal justice staff and, perhaps most saliently, their receipt of an apology, rather than the presence or absence of punishment as an available sanction.
In reviewing the literature, one researcher concluded that most theories concerning the therapeutic effects of punishment on the emotional losses of victims are based on anecdotal evidence and still wait valid empirical testing (Shuman and Smith 2000, p. 103). Indeed, as Parsons and Bergin noted in their 2010 review of the psychological outcomes of restorative justice programs: “there has been no research to date contrasting the mental health impact of restorative justice with that of conventional trials” (Parson and Bergen 2010, p. 186). Remarkably, therefore, the central claim of restorative justice concerning its power to heal the emotional wounds suffered by victims without punishing their victimizers undoubtedly its most controversial claim as well as its primary attraction to victimsremains unproven by empirical research.
The eligibility of a case to diversion is important to consider when assessing the victims’ safety concerns as well. Although restorative justice advocates have cited the greater ability of restorative justice programs to satisfy the victims concerns about his or her safety following the proceedings, it is doubtful whether victims of serious crime would be similarly assured of their safety if their victimizers faced no prospect of punishment for re-offending. Many victims, indeed, would not want “to trade off the protection of the current system for an opportunity to meet with the offender” (Achilles, p. 70). Similarly, even if recidivism rates are unaffected-or lowered-by diverting petty offenses away from prosecution toward non-punitive alternatives, it is unlikely that re-offending by violent criminals would be unaffected or diminished by removing the threat of incarceration. On the contrary, Levrant and her colleagues concluded, “a fundamental weakness of restorative justice is its failure to provide a plausible blueprint for how to control crime” (Levrant et al. p. 22).
Restorative Justice And State Prosecution
A key feature of restorative justice advocacy has been its criticism of the state’s control over criminal proceedings. “There is no denying” one author claimed, “the fundamental incompatibility between the state system of doing justice and the principles of restorative justice” (Boyes-Watson 2004, p. 215). By using the state as the offended party in criminal cases, it has been argued, the needs of the actual victims are virtually ignored. Restorative justice has been proposed as an alternative that stands apart from any state-sponsored system of criminal justice, returning the conflict to its rightful owners. Yet justice freed from control by state authorities has thus far failed to engage the support of many victims’ advocate for a number of reasons.
First, the rejection of state prosecution in favor of personal conflict resolution would make unavailable to participants the power of the state to compel compliance with the law adequate to ensure their personal safety, and would make unavailable the resources of the state necessary to compensate victims for their losses when the personal resources of the offender are insufficient. Second, personalized justice in the form of victim-offender conferencing is not subject to any standards of procedural fairness, equality of treatment or safeguards against biased or arbitrary decision-making. Unlike criminal justice professionals, participants at these sessions are untrained in the law, are subject to no standards of performance, and are accountable to no reviewing authority. Therefore, in contrast to the advantages claimed for “deprofessionalized justice,” there are legitimate concerns that restorative justice conferencing can deliver a higher quality of justice than that available under the conventional system (Ashworth 1993).
Third, even with respect to the purely private concerns of the victim, victim – offender conferencing, offered as a substitute for state prosecutions, may be an inherently inadequate means for victims to satisfy their demand for public vindication. Rather than accusing the offender of a criminal offense against the victim, the goal of the restorative justice mediator is “the creation of a safe or even sacred space to foster dialogue”, and for this to happen, the mediator must have an “attitude of unconditional positive regard and connectedness with all parties, while remaining impartial (e.g. not taking sides)” (Umbreit et al. 2003, p. 17). There is no dominant “narrative” imposed on the event as in state prosecutions of a crime, but rather an exchange of viewpoints. The admonition to mutuality thus may burden the victim with the expectation of empathizing with the offender, acknowledging the validity of the offender’s needs as well as her own, and providing support for the offender’s rehabilitation (Achilles 2004, pp. 69–70). Finally, in those cases in which the crime was made possible by a power imbalance between the parties, the same power in imbalance that gave rise to the crime are likely to persist during the conference.
The danger is that the very vulnerability of the victim that was exploited in the crime will also be exploited at the conference, thereby undermining the validity of the victims’ moral assessment of the crime and the appropriateness of the sanction he or she seeks. The victim, lacking the support of the state as the complaining party, is now expected to stand up for herself and demand justice.
To sum up, the claims advanced by restorative justice advocates concerning its unique power to heal the emotional wounds of crime and its even more controversial claims rejecting retributory justice in favor of non-punitive personalized dialogue between victim and offender are best substantiated in minor matters that may be safely diverted away from prosecution without impairing the public interest in safety and justice. This limitation to diversionary programs for petty crimes by youthful offenders falls very short of the sweeping claims that restorative justice represents an entirely new paradigm that transforms the way we administer criminal justice. In fact, if restorative justice continues to function merely as a diversionary strategy, it would not be significantly different from other types of diversionary strategies employed by the conventional criminal justice system, including face-to-face conflict resolution, counseling and non-punitive means of holding offenders accountable, and therefore will continue to be of limited assistance to crime victims.
Despite its present isolation as an exotic alternative to conventional criminal justice practice, a more expansive view of restorative justice has emerged in recent years that would make restorative justice applicable to a greater diversity of victims and a wider variety of cases-from the least to the most serious.
In contrast to the early proponents of restorative justice who conceived of it as a radically different alternative to criminal justice, a growing number of restorative justice scholars and advocates have proposed a “maximalist” view of restorative justice which, uncoupled from its former anti-penal and anti-statist positions, “does not require abandoning deterrence, retribution or the adversarial process” (Bibas and Bierschbach 2004, p. 112). Rather than creating an either/or choice between restoration and other essential objectives, the maximalist version of restorative justice would attempt to achieve restorative goals for crime victims without forfeiting the advantages offered by state resources and mechanisms of enforcement. Bazemore and Walgrave’s definition of restorative justice stresses its unique goal rather than its opposition to conventional practices: “restorative justice is every action that is primarily oriented towards doing justice by repairing the harm that is caused by crime” (1999, p. 48).
Despite a diversity of maximalist positions, what is shared is an interest in paring down restorative justice to its essential mission repairing the harm of crime–that is capable of application in diverse settings. These applications might include:
- Diversionary programs
A maximalist version of restorative justice would continue to offer a diversionary option for appropriate cases, but unlike the purist model, using this diversion strategy would not entail rejecting state resources or coercive power. On the contrary, agreements reached by the victim and the offender would be fully enforceable by the state.
- Applications with victim involvement
For more serious cases that are not eligible for diversion, opportunities may be presented to victims who wish to meet the offender and participate in fashioning a restorative solution, including sentencing recommendations within a range of penalties prescribed by law. The involvement of victims in sentencing recommendations would not be an alternative to judicial sentencing authority, but rather would be an alternative to sentencing recommendations by prosecutors and defense attorneys in the context of plea bargains.
- Applications without victim involvement Because the maximalist model of restorative justice is based on the attainment of a new criminal justice goal rather than any particular procedure, it may be applied as a guide to sentencing in a multitude of different settings, including cases in which the parties fail to agree to participate in restorative justice conferencing and in “victimless crimes” and crimes affecting the population in aggregate such as tax evasion and environmental offenses, in which victim-offender encounters are clearly inapplicable.
The advantages of an expanded view of restorative justice which utilizes rather than rejects the coercive power of the state may be seen in many current post – conviction restorative justice programs that take place within prisons. In these programs, victims who wish to meet the offender to express their feelings, obtain answers to their questions and be offered an apology need not renounce their demand and for justice as a precondition for participation since the offender has already been convicted and sentenced. In one such program analyzed by Susan Miller, “the victims … felt strongly that the offender needed to be held accountable by the criminal justice system. They did not wish to sidestep that aspect of justice and punishment but rather, the victims wanted the opportunity to meet with the offenders after the conclusion of the criminal justice process .. .” (Miller 2011, p. 12). Miller concluded that this post-conviction format for restorative justice offers victims the opportunity for healing and empowerment beyond those available either through conventional criminal justice or diversionary programs: “Since the process begins after guilt is established and punishment impose, victims… perhaps for the first time since the abuse and violence began – felt empowered by the process” (2011, p. 198).
Example Of Application: Domestic Violence Cases
An example of how a more expansive approach to restorative justice can serve the needs of a wider variety of victims may be seen in domestic violence cases. Restorative justice, since its inception, has had an uneasy relationship with advocates of victims of domestic violence. The approach of peacemaking, reconciliation, and conflict resolution that is offered as an alternative to prosecution has been seen by feminist critics as a regression to the time when domestic violence was considered a private matter between partners, best dealt with by counseling and cooling-off periods. The idea of reprivatizing domestic violence by the use of restorative justice as an alternative to the state’s punitive powers has been viewed as a form of “cheap justice” (Coker 1999, p. 85) that, by diverting these cases from prosecution de-criminalizes violence and devalues the seriousness of the offense. Other feminist advocates, however, have cautioned that insisting upon arrest and prosecution is no panacea for victims of domestic violence, given the low participation rates of victims, low conviction rates of offenders and poor treatment of victims often associated with conventional prosecution. The use of restorative justice in cases of domestic violence, it is therefore argued, is at least an alternative to an adversarial system that still isn’t working for victims of intimate violence (Curtis-Fawley and Daly 2005).
But must there be a choice between the “hard option” of criminal prosecution and the “soft option” of restorative justice diversion? A number of feminist advocates have recognized that this dualistic choice is unnecessarily self-limiting. As Barbara Hudson recognized nearly a decade ago, it is not restorative justice conferencing per se, but it is rather the diversionary nature of privatized, non-punitive restorative justice conferencing that renders it inappropriate for cases of gendered violence (Hudson 2002). Curtis-Fawley and Daly have similarly argued that restorative justice programs should include, but should not be limited to nonpunitive diversions. Instead of setting itself apart as a radical alternative to prosecution, they propose that restorative justice should be regarded as a flexible concept, capable of being integrated into the existing criminal justice system (2005, pp. 632–633).
The kind of integration of criminal justice and restorative justice envisioned by these feminist advocates is precisely the goal of a maximal version of restorative justice. Rather than confining itself to diversions from state persecution, the coercive power of the state would be available to enforce agreements designed to safeguard victims’ safety and to mandate compliance with the law. Instead of an either/or choice between prosecution or diversion, a maximalist version of restorative justice would accommodate a number of procedural options, both formal and informal, that are deemed appropriate to the individual case, backed up by the coercive power of the state to compel compliance.
Extending Aid To Victim Beyond Criminal Justice Reforms
Finally, an expansive view of restorative justice opens opportunities for engagement in advocacy on behalf of victims for increased public support. Victims’ advocates have long noted that victims’ needs exceed the capabilities of the conventional criminal justice system. Given the extent of victims’ losses including medical, psychological and rehabilitation expenses, property damage and loss of income, few offenders can be expected to fully compensate their victims from their own resources. If the conventional system cannot adequately address the needs of victims, victim advocate Susan Herman argues, restorative justice, despite its “commendable effort to humanize the justice system” (Herman 2004, p. 78) cannot expand upon these capabilities if it is dependent on the personal resources of those who participate in restorative justice programs. Clearly, the “purist” version of restorative justice offers no rationale for increased public spending since, on the basis of its foundational claim that crime is a personal, not a public harm, it limits redress to measures undertaken by the offender individually to repair the damage he or she has caused.
On the other hand, a maximalist version of restorative justice may very well offer a constructive role in such advocacy because it is unencumbered by an anti-state ideology which, in regarding crime as a personal harm, ignores the public dimension of crime. The simplicity of the maximalist approach gives it its flexibility to extend beyond the confines of criminal justice case administration to reach even those victims whose offenders are unknown or unprosecuted. According to this view, if a person is harmed by crime, the work of restorative justice is to repair that harm in any way possible, utilizing both the resources of the state and the resources of the individual offender. An expanded view of restorative justice, therefore, can play a positive role in advocacy for an expanded view of victims’ rights.
The evolution of restorative justice from a diversionary strategy to the mainstream of criminal justice practice, made possible by acknowledging the public dimension of crime, paradoxically contains within itself an important limitation; for once the public dimension of crime is acknowledged, it is no longer sufficient for restorative justice to be responsive only to the interests of the victim and the offender. Their interests, in fact, may very well conflict with the public interest in safety, justice and equality of treatment (Ashworth 1993).
This is a topic that cannot adequately be pursued within the confines of this chapter. Suffice it to say, however, that, even as restorative justice continues to evolve and continues to outgrow its original conception as a criminal justice diversion and thereby becomes more responsive to the needs of crime victims, those personal needs of victims must, in the end, remain subordinate to the needs of the public. The challenge to future legislation will be to permit victims the widest latitude in pursuing their personal interests without thereby impairing the public good.
Restorative justice began as a vision of a better way to do criminal justice and, in 100s of programs throughout the world, it has proven to be just that. It has helped victims feel more satisfied with the process and more secure in their personal safety. It has increased offenders’ compliance with restitution orders without adversely affecting recidivism rates. Yet it has not nearly reached its potential for transforming the conventional criminal justice system because it has failed to articulate a theory or set of policies applicable to the kinds of cases that most concern us: serious crime and adult offenders. Whether or not restorative justice can effectively deal with serious cases and adult offenders represents its primary challenge today because, unless it can do so, it shall remain on the sidelines of criminal justice practice, “doomed to irrelevance and marginality” (Dignan 2002, p. 179).
The growing trend of restorative justice toward a maximalist version of its mission, however, disassociated from its early insistence on an anti-penal and antistatist ideology, holds the promise of restorative justice becoming a significant influence on criminal justice policy for a full range of casesboth divertible and non-divertible. Assuming this evolution from insularity to universality continues, the long-hoped-for alliance between restorative justice and the victims’ movement may finally come to fruition.
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