25 May, 2020
Restorative Justice Principles and the Criminal Justice Process
Insisting that restorative justice be seen as an alternative to the criminal justice process (through diversion) and ultimately as a replacement for criminal justice sanctions is probably why progress in applying restorative justice principles in criminal matters has been so slow. That slow progress in implementing restorative practices is generally attributed to the lack of broad public support for that approach and to a lack of public awareness of its benefits. However, that explanation is at best a partial one. In fact, a review of the evolution of restorative justice practices in criminal matters around the world shows that restorative justice approaches have had the most impact where they have been used to supplement, transform and humanize the justice system’s response as opposed to replace it.
Integrating restorative justice principles and practices into the criminal justice process has allowed significant progress in healing victims of serious crimes and facilitating their access to justice. It also opened new avenues for the successful rehabilitation and social reintegration of offenders. In some instances, it has even contributed to greater public confidence in the justice process.
Yet, it is somewhat naïve to assume that dialogue and persuasion alone can address the complex criminogenic factors that lead to crime. This may be why it has been difficult to establish the direct impact of restorative justice programs, unaccompanied by other intervention or sanction. However, dialogue, a focus on repairing the harm done, together with other measures to address these factors have been proven to produce credible results. Program evaluations are already there to prove it. Allowing restorative justice principles to transform every aspect of the criminal justice process is the most promising way forward. A commitment to restorative justice principles can and does transform our understanding of criminal sanctions and how they can be applied to promote offenders’ desistance from crime and repair the harm caused by crime. In some instances it also favours participatory responses and community engagement, thus favouring confidence in justice institutions.
Various states have tried to expand the use of restorative justice and make it available at every stage of the criminal justice process. However, few countries have managed to provide comprehensive restorative justice programs on a national scale, for both adults and children, and for most types of offences. In fact, past initiatives rarely achieved the level of public acceptance and support required for their broad-scale implementation. In the meantime, criminal justice resources continue to be channelled towards more traditional and punitive responses to crime.
Internationally, the institutionalization of restorative justice has taken many different paths. There is a broad range of definitions and applications of the concept of restorative justice. Restorative justice intersects to varying degrees and in different ways with the criminal justice process. That intersection occurs at various stages of the criminal justice process and, as a result, programs adopt many different forms.
The published literature on restorative justice programs sometimes fails to convey the vast differences that exist in various countries in the application of restorative justice principles and practices in criminal matters. Among other things, cultural differences, variations in criminal justice principles and traditions, and the political aspects of justice reforms are insufficiently acknowledged.
The 2002 Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters recommended that states “should consider the formulation of national strategies and policies aimed at the development of restorative justice and at the promotion of a culture favourable to the use of restorative justice among law enforcement, judicial and social authorities, as well as local communities” (para 20). The Basic Principles also recommended the adoption of national guidelines. However, very few countries have actually adopted such guidelines, let alone developed a roadmap for the systematic implementation of restorative justice principles throughout the criminal justice system, and beyond. Hopefully, every country can be encouraged to do so.
One positive development, over the last decade or so, has been the growing number of rigorous evaluations of restorative justice programs. These evaluations have helped us understand the benefits of restorative justice approaches and programs. They also identified various recurring issues with respect to the broad implementation of restorative justice. These issues include:
- The low level of referrals to programs;
- hesitation or resistance on the part of justice and allied professionals to the use of restorative justice;
- victims’ difficulty in accessing restorative justice as well as low levels of victim participation;
- community resistance and the low level support for programs, particularly those that present themselves as alternatives to the criminal justice process;
- difficulties in linking restorative justice programs to other essential services and interventions for both victims and offenders;
- issues relating to the governance and funding of programs; and,
- the lack of adequate training for facilitators and other professionals.
Too often, it seems, countries rely solely on legislation permitting the use of restorative justice practices, broad policy statements, or general guidelines promoting the use of restorative justice approaches without really addressing issues such as those listed above.
No one should be surprised then that restorative justice often failed to grow deeper roots within the crime prevention and criminal justice field. National initiatives too often fail to develop, as the Basic Principles recommend, “a culture favourable to the use of restorative justice”. In some instances, they promote restorative justice as a type of diversion program for minor crimes and first time offenders, but failed to convince or incentivize the system to consider diversion seriously. In other instances, the programs that are promoted are primarily offender-oriented and victims’ participation remain limited. In most instances, they encourage the development of programs, but fail to fund and resource them adequately.
There are no effective shortcuts when it comes to developing and implementing a national restorative justice strategy. The process, I would suggest, starts with a good review and understanding of existing criminal justice practices and how they can incorporate restorative justice principles. It continues with building on early successes and on existing institutional and community strengths. It requires a long-term commitment to the effort and the marshalling of adequate resources.
The recently launched 2nd Edition of the UNODC Handbook on Restorative Justice Programmes offers a tool for those who would like to be part of the effort to transform the criminal justice system.
UNODC – TIJ (2020). Handbook on Restorative Justice Programmes. Vienna: United Nations. https://www.unodc.org/documents/justice-and-prison-reform/20-01146_Handbook_on_Restorative_Justice_Programmes.pdf
Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety (2018). Principles and Guidelines for Restorative Justice Practice in Criminal Matters. https://scics.ca/en/product-produit/principles-and-guidelines-for-restorative-justice-practice-in-criminal-matters-2018/
Photo by Hannah Busing on Unsplash.