RESTORATIVE JUSTICE - Māra Lustes blogs · PDF fileone British prison, after unsuccessfully...

one British prison, after unsuccessfully attemptingto challenge the introduction of new, extremelycoarse toilet paper through theft and protest, wereable to successfully draw on their gender identityand needs as women to pressure the institution toreverse its decision.

Finally, collective resistance includes the work ofprison authors who assume narrative authority andspeak to the experiential reality of imprisonment.Employing a range of genres, including in-housemagazines, the penal press, academic magazines likeThe Journal of Prisoners on Prison, and autobio-graphical or analytic accounts of prison life, such asVictor Hassine’s (1996) book, Life Without Parole:Living in Prison Today, these authors challenge thehegemonic official discourse of prisons and raisepublic consciousness through their writings.

INDIVIDUAL RESISTANCE

Not all resistance is collective. Prisoners also oper-ate in their own, personal interests as they employtactics to assert their agency and contest the condi-tions of their incarceration. These tactics mayinclude exceptional dramatic acts such as assaultson staff, suicide, and (particularly in the case ofwomen) starvation and self-injury. Sometimesresistance is literally scripted onto a prisoner’sbody. Not only is the act of acquiring tattoos anopen challenge to prison directives, but the exten-sive tattoos that decorate many prisoners’ bodiesspeak to countercultural allegiance. Some, such as“guilty until proven innocent” articulate and assertan antiestablishment discourse.

While exceptional acts can be powerful state-ments, the power relations characteristic of prisonand the vulnerability of prisoners may render subtleeveryday acts of resistance such as education, with-drawal, passive nonengagement in rehabilitativeprograms, illicit sexual relations, substance use, thefostering of subversive worldview and prisoner cul-ture more viable, prudent strategies for retainingautonomy and asserting agency. For many prison-ers, identity politics become the basis for, and tacticof, these everyday acts, such as demanding specialmeals in keeping with their religious beliefs.

CONCLUSION

It is important to remember the limits of resistance.Care must be exercised not to impose meaning andpolitical significance by defining all acts by disem-powered prisoners as resistance without attending toquestions of intent, meaning, and subjectivity(Bosworth & Carrabine, 2001). Moreover, we mustappreciate that while prisoners’ capacity to resist isnecessarily shaped by their imprisonment, the strate-gies employed are in turn conditioned by theiraccess to resources including cultural capital, socialstatus, legal advice, economic resources, positionwithin prison hierarchies, as well as their individualcharacteristics including their gender, race, national-ity, and institutional location. For instance, prisonerassociations founded on religious or ethnic affilia-tion, such as Native brotherhoods, Native sister-hoods, and the Black Muslims, provide individualswith emotional support, the basis for identity poli-tics, and emerge as a common voice to further therights of Aboriginal and Muslim prisoners.

—Chris Bruckert

See also Eighth Amendment; Michel Foucault;Fourteenth Amendment; Prison Literature; PrisonLitigation Reform Act 1996; Prisoner Litigation;Riots; Violence; Women in Prison

Further Reading

Bosworth, M. (1999). Engendering resistance: Agency andpower in women’s prisons. Aldershot, UK: Ashgate.

Bosworth, M., & Carrabine, E. (2001). Reassessing resistance:Race, gender and sexuality in prison. Punishment andSociety, 3(4), 501–515.

Gaucher, R. (Ed.). (2003). Writing as resistance: The Journalof Prisoners on Prison Anthology (1988–2002). Toronto:Scholars Press.

Hassine, V. (1996, 1999). Life without parole: Living in prisontoday. Los Angeles: Roxbury.

McDonough, J. (2001). Indelible impressions: Tattoos and tat-tooing in the context of incarceration. Master’s thesis(unpublished), University of Ottawa.

RESTORATIVE JUSTICE

Restorative justice provides an alternative frame-work to the adversarial-retributive justice model for

Restorative Justice———845

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dealing with offenders. In restorative justice models,victim needs are central, offenders are held account-able, and the government is a secondary player inthe process of restoring victims, offenders, and com-munities to a state of wholeness. Emerging in itscontemporary form in the 1970s, restorative justicegained widespread recognition in the 1980s, and bythe 1990s became part of mainstream correctionalpolicy and practice in the United States andcountries around the world. Today, restorative jus-tice has converged with the notion of communityjustice to become an alternative way of thinkingabout and responding to crime.

Proponents of restorative justice argue that com-munity members should play a crucial role in dealingwith the aftermath of crime, enhancing public safety,and furthering the goals of social and criminal jus-tice. Strategies that have become central restorativejustice paradigms include victim–offender mediationand reconciliation, family group conferencing,peacemaking and sentencing circles, and surrogateencounter programs. A challenge for the future is todetermine how restorative programs, policies, andpractices can meaningfully function within theretributive framework of U.S. corrections and bettermeet the needs of victims, offenders, and citizens.

HISTORY

The term “restorative justice” was coined by AlbertEglash in a 1977 article, “Beyond Restitution:Creative Restitution,” in which he identified threetypes of justice: retributive, distributive, and restora-tive. Ideas of restorative justice gained widespreadrecognition in the 1980s, and by the 1990s had beenintegrated into some mainstream correctional policyand practice in the United States, Canada, NewZealand, Australia, Great Britain, and other countriesaround the world.

Support for restorative justice arose from multipleforces, including public dissatisfaction with the crim-inal justice system, the victims’ rights movement,feminist critiques of patriarchal justice, peacemak-ing, and critical criminology, and the shift towardcommunity justice endeavors such as community

policing and community corrections. Rising crimerates, a fairly widespread belief that the correctionalsystem was ineffective in reducing recidivism, andpublic discourse and activism by victim’s rightsorganizations laid the groundwork for acceptance ofa new model of justice.

DEFINITION OF RESTORATIVE JUSTICE

Unlike the adversarial-retributive model upon whichthe U.S. criminal justice system is based, proponentsof restorative justice view crime as harm that mustbe repaired through a holistic process involvingvictims, offenders, and citizens. In this endeavor, thegovernment is charged with preserving order whilethe community is responsible for restoring peace.Restorative justice aims to address the natural antag-onism among the rights, needs, and interests ofoffender and victims through programs, policies,and practices that work to restore victims, offenders,and communities harmed by crime.

Central features of the restorative justice modelinclude the definition of crime as a harm; focus onproblem solving, resolution through dialogue, nego-tiation, restitution, and reparation; communityinvolvement and social action; recognition of victimrights and offender accountability; holistic under-standing of the offender; reintegration rather thanstigmatization, possibilities for repentance and for-giveness; and direct involvement of participants.The following table summarizes primary differencesbetween the retributive and restorative models:

Retributive Restorative

Crime = legal violation Crime = harmWrongs create guilt Wrongs create

obligationsDebt abstract/punitive Debt concrete/reparativeBlame/retribution central Problem solving centralVictims needs ignored Victims needs centralOffender stigmatized Offender reintegratedState monopoly on Victim, offender,

response to citizen roleswrongdoing recognized

Battle/adversarial Dialogue/reconciliation model normative normative

846———Restorative Justice


Related concepts and terms sometimes usedsynonymously with restorative justice include “com-munity justice,” “relational justice,” “indigenousjustice,” “balanced justice,” “responsible justice,”“transformative justice,” and “real justice.” Thenotions of restorative and community justice haveconverged in recent years, and some now refer to“restorative community justice” as a paradigm shiftreflecting the trend toward increased communityinvolvement in different stages and components of thejustice process incorporating multiple theories (e.g.,routine activities, restorative justice, balanced justice,reintegrative shaming) and practices (communitypolicing, conferencing, circles, juvenile and adultintensive community aftercare) with the goal ofrestoration, improvement of quality of life in commu-nities through government–community partnership,and active involvement of victims, offenders, andcitizens in the justice process.

CURRENT PRACTICE

Today, three distinct (though increasingly blended)models—victim offender conferences, family groupconferences, and circles—dominate the practice ofrestorative justice. Family group conferences (FGC)originated in New Zealand in the 1980s and are theprimary means of justice for dealing with juvenilesthere. Circles (sometimes called peacemaking cir-cles) emerged from First Nation communities inCanada. Victim–offender mediation (VOM), recon-ciliation programs (VORP), and conferences (VOC),of which there are more than 1,000 worldwide, arethe most widespread. These programs, which beganin the 1970s in the United States and Canada, bringtogether the victim and the offender with a trainedmediator to talk in order to somehow resolve andheal the hurt caused by the offense. The perpetratormay also be asked to provide some kind of financialreparation. VOM and VORP, conferences, and cir-cles are offered at different stages of the criminaljustice process including diversion, sentencing,community supervision, and institutional programs.Other programs and practices sometimes referred toas restorative generally include victim impact pan-els, victim awareness programs, and community

reparative boards, whereby citizens are involved inworking out reparative agreements (usually withnonviolent offenders).

Although VOM and VORP are considered themost widespread application of restorative justice,restorative justice is not just mediation. Sometimesit is not desirable or possible to bring the victimand offender together. For example, it may be thatsuch an encounter would further harm the victim.Likewise, both parties are not always willing orinterested in doing so. When this happens, confer-encing or peacemaking circles that enable offendersand citizens to discuss issues of accountability andunderstanding without the victim present can occur.

Unlike victim–offender mediation or reconcilia-tion programs, family group conferencing and cir-cles involve a large and diverse range of people inthe attempt to deal with an offense. Conferencing,for example, can include victims and offenders andtheir family members, as well as unrelated victimsand offenders. Circles generally involve victims,offenders, family members, community members,and facilitators who, arranged in a circle, pass a“talking piece” to assure that each person gets achance to speak without interruption.

RESTORATIVEJUSTICE AND CORRECTIONS

Restorative justice has emerged as a central issue forcorrections in the 21st century and has beenformally included in the mission and vision state-ments of a number of state departments of correc-tions (e.g., Minnesota, Washington, Oregon,Vermont) and correctional agencies throughout theUnited States. It has also been incorporated inCanada, New Zealand, Australia, Great Britain, andelsewhere. The application of restorative justice prin-ciples to correctional practice entails using the com-munity to deal with some of the consequences ofcrime (including victim and offender needs), enhanc-ing public safety, and furthering the goals of socialand criminal justice.

Restorative correctional programs, practices,and policies provide opportunities for victimand community participation in surveillance,



treatment/rehabilitation, reentry/reintegration ofoffenders, and for offenders to take steps to makeamends and/or repair harms resulting from theircrimes. Correctional practices embodying the prin-ciples of restorative justice exist across the correc-tional continuum in community and custodialcontexts. However, determining whether a programor practice is restorative is a matter of some debate.Howard Zehr (2002, p. 55) suggests that restorativejustice models can be viewed along a continuumfrom fully restorative to pseudo- or nonrestorativeand proposes six questions to assess the extent towhich a program, policy, or practice is fully, mostly,partially, potentially, or pseudo-restorative:

1. Does the model address harms, needs, and causes?

2. Is it adequately victim oriented?

3. Are offenders encouraged to take responsibility?

4. Are all relevant stakeholders involved?

5. Is there an opportunity for dialogue and participa-tory decision making?

6. Is the model respectful to all parties?

From this perspective, conferencing, circles,surrogate encounter programs, and reparative boardscan be considered fully restorative, while victimimpact panels in a correctional setting (generallyinvolving a one-way presentation of information)can be considered partially restorative. Communityservice, work crews, and offender reintegration pro-grams can be considered potentially restorative, butunless such programs are consistent with the funda-mental principles of restorative justice—involvingall stakeholders, collectively identifying andaddressing needs, harms, and obligations in anattempt to make things as right as possible, thensuch programs could in fact be pseudo-restorative.For example, a recent development in WashingtonState is the implementation of the “victim wrap-around process” whereby a committee of victimadvocates, victims of crime, community members,and state correctional officials develops a supervi-sion plan for offenders released into the community.However, for the protection of victims, offenders

are not part of the process. Is this practice fully,partially, potentially, or pseudo-restorative? Whilethe victim is seen as central to the process, theexclusion of the offender may place the practice onthe pseudo- or nonrestorative end of the continuum.

Variations of VOM, VORP, and VOC haveemerged that extend the concept of encounter andmediation to meetings between surrogate victimsand incarcerated offenders in institutional correctionscontexts. For example, a program developed byHoward Zehr in Graterford Prison in Pennsylvania inthe early 1990s involved encounters betweenmembers of the “Lifers” and family members ofhomicide victims interested in engaging in dialogueand asking questions of offenders. The program pro-vided a forum for victims who were unable to meetwith the offenders in their cases to ask questions ofsurrogate offenders for the purpose of healing and/orunderstanding. Other programs involve bringingtogether unrelated victims, offenders, and citizensin prison settings to read educational material onrestorative justice, engage in “storytelling” and sem-inar-style discussions about the impact of crime,offender accountability, the needs of participants,and concrete ways to engage in the restorativeprocess (Helfgott et al., 2000). Restorative justice isincreasingly being applied to correctional settingsinvolving adult violent offenders.

More restorative justice-oriented correctionaloptions are available today than ever before. Whilevictim–offender mediation (specifically with juve-nile property offenders), victim impact in sentenc-ing and parole decisions, and the use of restitutionand community service as a sanction have existedfor many years, newer programs and practicessuch as surrogate encounter programs in custodialsettings, victim–offender reconciliation involvingviolent offenders, community reparative boards,peacemaking circles, and conferencing offer cre-ative and hopeful alternatives to the traditionalcorrectional options of the retributive model.These restorative correctional options enable theprinciples of the restorative justice model to beapplied, in whole or in part, across the continuumof correctional contexts with different types ofoffenders.



ISSUES AND CHALLENGES

Central issues for the future of restorative justiceinclude determining how and if restorative andcommunity justice-oriented programs and practicescan meaningfully function within the largeradversarial-retributive justice framework, accumu-lating empirical research on the effectiveness of therange of restorative justice-oriented programs withdifferent types of offenders across correctional con-texts, and ensuring that victim needs are met andthat victims and their families are not furtherharmed by restorative correctional endeavors.

In the United States, restorative correctionalpractices are hindered by the dominant adversarial-retributive model. A fundamental issue is how andif restorative programs, policies, and practices canbe implemented within the retributive framework.Proponents of the restorative justice model havebeen criticized for minimizing or discounting thefundamental differences between the retributiveand restorative justice paradigms. Critics argue thatconflicting principles and practices of the twoparadigms make it impossible to implementrestorative justice within the retributive justiceframework, that restorative justice-oriented pro-grams implemented within the existing criminaljustice system are not truly restorative, that therestorative justice model is idealistic and utopian,and that some programs operating under the guiseof restorative justice are actually harmful tovictims and/or do not voluntarily solicit victiminvolvement (e.g., in the case of domestic violenceand/or sexual assault where there are power or con-trol issues between the victim and the offender thatmay be exacerbated by the restorative process).

Others suggest that despite the praises that sur-round restorative justice, little empirical researchexists to support its benefits. Kathy Daly (2002)argues that the “real” story about restorative justiceis much more qualified than the mythical one. Shesuggests that there are limits to “repairing harm,”that restorative justice approaches are less success-ful than advocates suggest in terms of their abilityto enhance understanding and sincere meaningfuldialogue between victims and offenders, and that

restorative and retributive justice models are notnecessarily as divergent as restorative justice advo-cates contend.

Another criticism is that many programs andpractices based on restorative justice principles arenot cost effective and/or have not proven to reducerecidivism. However, others suggest that the goal ofrestorative justice is not to reduce cost or recidivism,but to do the right thing. Recidivism reduction maybe a byproduct but not the fundamental objective ofthe restorative process, and the multidimensionalgoals of restorative justice may be best measuredthrough personal and interpersonal offender devel-opment, offender adaptation and reintegration,victim healing, and citizen and victim fear of crime.Assessing the impact of restorative justice-orientedcorrectional options depends on the accumulation ofempirical data. While much of the informationregarding the impact of restorative justice programshas been anecdotal, there is a growing body ofempirical research suggesting that these restorativecorrectional options enhance understanding betweenthe polar groups affected by crime, reduce fear ofcrime among victims and citizens, provide opportu-nities for victim healing and offender accountability,and (in some cases) reduce offender recidivism.However, the exact number of restorative justice-oriented programs in existence remains unknown,and there is a lack of systematic data on the directimpact of these programs on recidivism and pro-gram costs/benefits when high-risk violent and sexoffenders and their victims are involved.

Other questions that have been raised regardingthe application of restorative justice include: Whatif one party refuses to participate? Is victim partici-pation truly voluntary? In cross-cultural situations(where victims, offenders, and citizens come fromdifferent cultural backgrounds), how will differentconceptions of restoration be resolved? What hap-pens in situations where no “community” can bedefined? Does implementation of the restorativejustice model blur or dissolve the distinctionbetween civil and criminal law? These and otherquestions and challenges remain at the forefront ofdiscourse and exploration of the restorative justicemodel.



RACE AND GENDER ISSUES

Fundamental to restorative justice is the notion thatthe restorative process involves cultural pluralityand community or citizen ownership of the justiceprocess. This means that any program, policy, orpractice that is considered restorative necessarilyinvolves allowing the voices and concerns of tradi-tionally powerless stakeholders to be heard,acknowledged, and addressed.

Some argue that restorative justice offers a forumthrough which the needs of women and minorityracial/ethnic groups and indigenous populations canbe better addressed. However, critics contend thatrestorative justice programs do no better and insome situations may actually do worse than the tra-ditional criminal justice system in terms of dealingwith imbalances of power.

For example, there is disagreement about whetherrestorative justice is an appropriate response todomestic violence and sexual assault. Restorativejustice proponents suggest that the restorativeapproach gives female victims of domestic and sex-ual assault a safe forum through which to expresstheir needs, rights, and interests. Others argue thatthese sorts of crimes are so extreme that they shouldbe handled in the formal criminal justice systemthrough a punitive response. Feminists argue that ifdomestic violence and sexual assault are dealt withrestoratively, these matters may return to the privatesphere to be dealt with behind closed doors ratherthan a serious, public social problem deserving of aformal and severe criminal justice response.

Another concern is that restorative justice mayworsen social injustice. Braithwaite (2002) sug-gests that even when restorative justice is maxi-mally culturally plural, tensions exist betweenrestorative justice and social justice. For example iffacilitators are trained to assure plurality in therestorative justice process, would indigenous Elderswho have not been trained or certified be excludedfrom presiding over indigenous justice processes?Furthermore, cultural plurality and equalizingpower imbalances is a complex task in situationswhere the offender is from one culture/race/genderand the victim is from another. In such situationsthe victim–offender dynamic is supplanted by the

male–female, Indigenous–white, African American(or Hispanic, Asian, Native American, etc.–white),minority–majority culture. For example, in arestorative justice program where offenders are dis-proportionately racial/ethnic minorities from disad-vantaged socioeconomic backgrounds and victimsand citizens are disproportionately white andsocioeconomically advantaged, who has the weakervoice? How can the needs of all parties, in particu-lar the victim, be addressed while ensuring pluralityand promoting social justice?

An additional concern is that restorative justicehas been misrepresented as a peacemaking or “fem-inine” justice. Daly (2002, p. 66) argues that usinggender dichotomies (or any dichotomies) to describeprinciples and practices of justice will always fail,because justice must deal with “the messy world ofpeople’s lives.” If women are viewed as the peace-makers or caretakers, and responses to crimebecome increasingly restorative, then the burden ofjustice will fall on women who tend to do more ofthe restoring than men (Braithwaite, 2002). Care orpeacemaking approaches may not be appropriate forsome offenders and may further victimize somevictims. Relegating femaleness to peacemaking,caring, and restoration and maleness to conflict,punishment, and retribution is a response to crimeand injustice that makes crime and punishment thebusiness of men and victimization and restorationthe business of women—a false dichotomy that rein-forces the harm and power imbalance restorativejustice seeks to repair.

CONCLUSION

Restorative justice offers an alternative to the adver-sarial model of justice, a new framework for envi-sioning correctional interventions, and a range ofoptions to enhance public safety and offenderchange. It is unclear whether the restorative justiceparadigm will succeed in supplanting the retributive“Get tough” approach to crime and corrections.However, the grassroots nature of the restorativemodel and the convergence of the restorative andcommunity justice frameworks have resulted in



widespread implementation of a range of programsand practices founded upon the principles ofrestorative justice. Given that restorative justice-oriented programs and practices have been developedand exist independently of governmental agenciesthrough the efforts of religious and nonprofit com-munity organizations and individuals within acade-mic, social service, and/or other noncriminal justiceorganizations, it is likely that these efforts will con-tinue to impact corrections and to provide alterna-tive correctional options in the United States andaround the world. The accumulation of empiricalfindings on the range of restorative programs andpractices in corrections, the evolution of restorativejustice into community justice, and continued dis-course and action exploring the role of communityin crime, justice, and corrections will likely con-tinue to play an important role in future correctionalpolicy and practice.

—Jacqueline B. Helfgott

See also Australia; Crime, Shame, and Reintegration;Incapacitation Theory; Just-Deserts Theory; JuvenileOffenders: Race, Class, and Gender; Native AmericanPrisoners; Native American Spirituality; NewZealand; Prisoner Reentry; Race, Class, and Genderof Prisoners; Recidivism; Rehabilitation Theory

Further Readings

Bazemore, G., & Schiff, M. (2001). Restorative communityjustice. Cincinnati: Anderson.

Braithwaite, J. (1989). Crime, shame and reintegration.New York: Cambridge University Press.

Braithwaite, J. (2002). Restorative justice and responsiveregulation. Oxford, UK: Oxford University Press.

Braswell, M., Fuller, J. R., & Lozoff, B. (2000). Corrections,peacemaking, and restorative justice: Transforming indi-viduals and institutions. Cincinnati: Anderson.

Daly, K. (2002). Restorative justice: The real story.Punishment and Society, 4(1), 55–79.

Galaway, B., & Hudson, J. (Eds.). (1996). Restorative justice:International perspectives. Monsey, NY: Criminal JusticePress.

Helfgott, J. B., Lovell, M. L., Lawrence, C. F., & Parsonage,W. H. (2000). Results from the pilot study of the Citizens,Victims, and Offenders Restoring Justice Program at theWashington State Reformatory. Journal of ContemporaryCriminal Justice, 16, 5–31.

Liebmann, M., & Braithwaite, S. (1999). Restorative justice incustodial settings. Report for the Restorative Justice

Working Group in Northern Ireland. Retrieved fromhttp://www.extern.org/restorative/Rjreport.htm

Strang, H., & Braithwaite, J. (Eds.). (2001). Restorative justiceand civil society. Melbourne: Cambridge UniversityPress.

Strang, H., & Braithwaite, J. (Eds.). (2002). Restorative justiceand family violence. Melbourne: Cambridge UniversityPress.

Umbreit, M. (1994). Victim meets offender: The impact ofrestorative justice and mediation. Monsey, NY: CriminalJustice Press.

Van Ness, D., & Strong, K. H. (1997). Restoring justice.Cincinnati: Anderson.

Zehr, H. (1990). Changing lenses: A new focus for crime andjustice. Scottdale, PA: Herald.

Zehr, H. (1995). Justice paradigm shift? Values and visions inthe reform process. Mediation Quarterly, 12, 207–216.

Zehr, H. (2002). The little book of restorative justice.Intercourse, PA: Good Books.

RETRIBUTION THEORY

See JUST DESERTS THEORY

RIKERS ISLAND JAIL

HISTORY

The City of New York purchased Rikers Island in1884 for $180,000. At that time, the island mea-sured 87 acres. Before it became the penal colony itis today, Rikers, along with Hart Island, was used asa base for the U.S. Colored Troops, the AfricanAmerican soldiers who fought during the Civil War.In the 1930s, Rikers Island became the headquartersfor the New York City Department of Corrections,replacing the department’s antiquated facilities atBlackwell’s Island (now Roosevelt Island).

Rikers opened as a jail in 1933 with only twofacilities: the Rikers Island Penitentiary and theRikers Island Hospital. During the 1930s and intothe 1940s, the inmates housed at Rikers, many ofwhom were there because of problems with nar-cotics, worked as farm laborers on the island. Thetheory at Rikers was that hard work and freshair would help prisoners reform. Consequently,inmates worked at jobs such as growing farm pro-duce for other institutions, raising the numerous

Rikers Island Jail———851


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