Reformulating and Modifying the Theory and Practice of Restorative Justice
The social movement known as Restorative Justice traces its modern inception to Elmira, Ontario in 1974. At the center of the Restorative Justice story is the account of Russell Kelly who, as a teenager, went on a two-hour booze-soaked rampage with a friend slashing car tyres, smashing car windows and overturning boats. In all, 22 pieces of property were destroyed in a small town in Ontario, Canada.
The “Elmira Case”, as it came be known, drew widespread attention not for the sensational crimes committed, but for the precedent setting actions of a the local probation officer, Mark Yantzi, and the Judge, Gordon McConnell. Yantzi attached an addendum to the back of Kelly’s pre-sentence report recommending that the offending juveniles be ordered to knock on the doors of their victims, apologize for their crimes, listen to what the victims had to say to them, determine the amount of restitution, and ask for forgiveness.
Judge McConnell saw no precedence in law to allow the idea and could not order the juveniles to knock on doors, apologize, listen, agree to restitution and ask for forgiveness. Officer Yantzi convinced the juveniles that volunteering to perform these acts of restoration would allow the Judge to include them as part of a probation order. This marks the beginning of Kitchener’s Victim Offender Reconciliation Program and is celebrated by many practitioners as the birthplace of the global movement known today as Restorative Justice.
This paper will examine and evaluate contemporary criticism of this social movement drawing on recent essays from two Restorative Justice scholars: Howard Zehr’s “Evaluation and Restorative Justice Principles” and Gerry Johnstone’s “Critical Perspectives on Restorative Justice.” In asking if restorative justice is as victim-oriented as it claims and whether the needs of offenders are being adequately addressed, Zehr calls for evaluation in what he calls “critical issues” in the Restorative Justice field. Johnstone urges the Restorative Justice movement to review and respond to critical discourse arguing that doing so will strengthen the movement even as it goes through “. . . a painful rejection of familiar and much loved themes.”
Zehr, widely regarded as a pioneer of restorative justice, identifies the following “critical issues” facing the restorative justice field: a lack of self-evaluation and accountability to its results, the importance of dialogue between the various sectors of restorative justice – including the movement’s critics, and the need to maintain a “principled practice” – becoming clear about restorative justice’s principles, values and philosophies. Zehr urges the movement to transcend what some critics have labelled the “butterfly collecting” methodology some practitioners display when gathering and publishing restorative justice reports. abstracted from their environments. (Adam Crawford, for example, sees some restorative justice practitioners abstracting methodology from the participant’s environment, touting “family group conferencing” with little reflection or regard to the importance of cultural setting.)
Johnstone identifies “critical perspectives” he perceives in current restorative justice discourse: an incoherence in defining restorative justice; an exaggeration of what restorative justice can achieve; the possibility that restorative justice may be undermining the policy of deterrence and may result in a failure to do justice; and that restorative justice, rather than being a radical alternative to retributive justice, simply extends the reach of conventional systems of penal control.
Neither Zehr nor Johnstone are critical of the restorative justice movement itself. Their criticism is directed at the way restorative justice practitioners represent and promote their claims. Zehr, for example, sees a selectivity in the telling of the restorative justice story and a reluctance to submit to evaluation or to listen to its results. Zehr sees multi-method evaluation as an important component of the maturation of restorative justice as a social movement. He sees such an evaluation, with its processes and outcomes, goals and accomplishments, as necessary to measuring what the movement is in fact doing against what it thinks it is doing. Johnstone sees the movement as operating in a benevolent atmosphere that fails to provide a coherent account of what restorative justice is and what it seeks to achieve. He cites the work of Andrew von Hirsh and others who see this failure in at least four ways:
1. Vague formulations of outcomes, replete with sentimental vocabulary, in which various participants in restorative justice procedures are to be “restored,” “healed,” “reassured” and “made whole.”
2. Failure to identify precise methodology for achieving such goals beyond the basic criteria that both victim and offender take part in the process.
3. Few or no “dispositional criteria” for decision-making bodies in restorative justice. Decision-makers, von Hirsch argues, are “. . . free to choose nearly any means of achieving such aims.”
4. “Dangling standards of evaluation,” von Hirsch suggests, do not help to explain how the criteria used to evaluate restorative justice programs is appropriate or meaningful.
Johnstone suggests that these are not merely aesthetic objections; incoherent goals, he suggests, can lead to unjust sentencing. To guard against bias and distortion, Zehr calls for a structured accountability where victims are “. . . look[ing] over [restorative justice’s] shoulders, auditing [their] programmes . . . on [their] boards and . . . start-up committees.”
Both Zehr and Johnstone see the need for a widening of the discourse surrounding restorative justice. In particular, Johnstone argues for a change in the way the restorative justice movement responds to discourse critical of its methods and aims. “Even the most fervent critics,” Johnstone offers, “tend to regard restorative justice – suitably reformulated and modified – as an extremely valuable contribution to the ongoing debate about how we should understand, relate to and handle the problem of wrongdoing.” One immediate challenge to the restorative justice movement, Johnstone argues, is the lack of agreement amongst its practitioners about how restorative justice is to be conceived.
Some scholars, most notably Carrie Menkel-Meadow, asks the movement to begin to “operationalize” its methodology through the following questions:
Are processes that work on smaller scales (juvenile criminal offenders, for example) suited to national and international conflict settings?
Does restorative justice require shared values to be effective?
Does restorative justice’s informality threaten legal rights?
Should restorative justice be supplemental or substitionary to more conventional processes?
Does restorative justice privilege some over others – the verbal, the willing, the manipulative?
Is authentic participation in restorative justice possible in multi-valued, diversely constituted communities?
Is restorative justice’s basic philosophy of separating “bad acts from bad people” an effective notion for dealing with modern, group and mass-level harmful acts?
Despite these challenges, Menkel-Meadow notes that restorative justice has made remarkable advances in reducing recidivism and reoffense rates in many programs. She sees the movement in need of rigorous evaluation as to how these programs work with comparisons to conventional processes. The process of codifying how these restorative and reparative philosophies work through a process of evaluation — which includes restorative justice’s proponents and critics — should result in a reformulation and modification of the theory and practice of restorative justice. Doing so, Zehr suggests, may ” . . . prevent the restorative approach to justice . . . from being a burden or even a weapon to be used against others, as has happened so often with the reforms of the past.”
Entry filed under: Restorative Justice.