Restorative Justice and De-Professionalization

Restorative justice is a process where all the stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have afflicted the harm must be central to the process. Empirically it happens to be the case that victims of crime are more concerned about emotional than material reparation (Strang, 2003). Lawyers are obviously not well placed to give an account of these emotional harms and how they might be healed. Hence, the practice of restorative justice has become a de-professionalizing project. Yet we will see that lawyers still have an important, though decentred, place in a restorative justice system.

Restorative justice comes in many forms. The most common in Europe and North America is victim-offender mediation. But the movement, inspired by New Zealand conferring and Canadian circle innovations, has been toward widening the circle to include supporters of the offender, supporters of the victim and sometimes other kinds of stakeholders from the community such as representatives of the school community when a crime occurs at school, or a congregation where it occurs within a church. So the first stage under most conferencing models is to approach the victim and offender to ask them not only to participate in a meeting with each other, but also to ask them to nominate who they would most like to have support them during the conference. When lawyers prepare for a court case, they invite people who, as witnesses, can inflict maximum damage on the other side; restorative justice facilitators empower stakeholders, both victims and offenders, to invite the people who will provide maximum support to their own side.

Conferrees discuss what happened and who was harmed by it. Sometimes the offender will be asked to summarize all the harms that have been mentioned by the participants. Then the conversation turns to what might be done to right the wrong. A plan with specific commitments on the part of the offender will be agreed upon and then this agreement will be signed by the victim, the offender and other stakeholders who have obligations under the agreement. Some programs have follow-up conferences to check implementation of the agreement and some even hold a celebration circle when implementation is completed.

Citizens beyond the victim and the offender might also sign the agreement because they assume responsibility for some aspect of the agreement. For example, the victim of a violent crime might ask that the offender attend an anger management program. A supporter of the offender says that after a previous offense the judge ordered attendance at an anger management program. The offender attended a couple of times and then just stopped bothering to attend. An uncle chimes in and offers to pick the offender up every Tuesday evening at 7 pm to ensure that this time he attends. The offender agrees that attendance would be good for him, but the program is confronting and an emotional struggle for him. So he would like the weekly support of his uncle to make him attend. Thus the uncle signs the agreement as well.

Note how restorative justice involves a shift from passive responsibility to which offenders are held by professionals for something they have done in the past to citizens taking active responsibility for making things right into the future. Active responsibility is a virtue of civic participation. As in the anger management example, restorative justice is about creating participatory spaces where active responsibility might be taken by offenders, but not only by offenders. Active responsibility is sometimes shared by victims. Occasionally burglars will explain to victims in a conference why their house is such an attractive target for practitioners of their craft. The burglar will assist the victim, perhaps with help from a police officer who is also in attendance, to design a target hardening strategy for which the victim voluntarily decides to take responsibility.

The evaluation literature now...