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    Justice The Restorative Vision PDF

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    Ju Balajadia

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    NCC canada Vim Oener Misti Program (LEN PERSPECTIVES ON CRIME AND JUSTICE Justice: The Restorative Vision New Perspectives on Crime and Justice Occasional Papers of the MCC Canada Victim Offender Ministries Program ‘and the MCC U.S. Office of Criminal Justice Feproary 1600 e000. 7 tthe 1988 annual mectng ofthe American Society of Criminal. ogy, Hary Mika of Coneal Michigan University organized session ‘ented “Restorative Justice: From Theory to Practice.” Ths ise ‘ofthe “Oceasional Papers” reproduces thre of the papers which were presented there. an Van Nes’ paper ha been revise slighty sinc its presentation Although the revisions probably would not alter M. Kay Tri ‘comments in amajor way, they would have modified her emphases somewhat. Nevertheless inorder to make thes avaiable quickly ‘we ave decide to peint her response in its eigina for, 1M. Kay Haris Associate Professor in the Department of Criminal Jastce at Temple Univers, Philadelphia, PA. Dan W. Van Ness is President of Justice Fellowship, Washington De. Howard Zhe is Director ofthe MCC USS Office of Criinal Sse, Elkhart, IN. [New Perpsectives on Crime and Justice ave issued regulary a8 ‘means of sharing important papers and perspectives. These "Occasional Papers are sponsored join bythe MCC US. Office ‘of Criminal Justice and the MCC Canada Vitim Offender Ministries Program. For adiional copies, permision wo repint or ist of ‘ther available resources, contact itor of the above programs of ‘Mennonite Cental Commitee (adresses Usted back cove) Copyright © 1989 MCC US. Office of Criminal Jastice Justice: The Restorative Vision Justice: Stumbling Toward a Restorative Ideal by Howard Zehr Pursuing a Restorative Vision of Justice by Daniel W. Van Ness. Alternative Visions in the Context ‘of Contemporary Realities by Mt Kay Harris MCC US. Offee of Criminal Justice MCG Canada Vicim Otfender Ministries Program 1969, SI Justice: Stumbling Toward a Restorative Ideal Howard Zehr Several years ago Ist in an American courtroom with a 17-year-old defendant. Thad boon asked by his family and his atorey 10 ‘develop a sentencing proposal forthe court's consideration, ‘The evens which had led upto this day were api. This young san (ie was 16a the dime) had use a knife rob a young woman ina dark hallway. He and bis i rend needed money in ode 0 | ‘esape what they viewed as an unrable family sation, Watching felevision had fed hi to belive that when confoned, the victim ‘would simply handover her money. Atth same time, be would ‘each tis “uppity” woman, who had refused toe wi him on an elie occasion, lesson. ‘Unfortunately ral fe does nt aways paral! welevision. Ia his dark hallway both vitim and offender panicked. The young woman Tost an eye; he was arrested and now, months ate, was wating (0 a i ae ‘This young man had no pevious cod of violence but had com ted Very serious crime. Tecommended a seaeace which included ‘community service restitution othe vitim, counseling, employ- ‘mont and specifi living equtemens, pus both supervision and some custody. The judge, however, imposed his own Senence: 20.85 year in prison, wih n possibilty of eaty release. The efendan would bea leat 37 nearly middle-aged «when he emerged, Before pronouncing sentence, the judge surveyed al ofthe usual and often mutually contradictory - objectives which ae given for Seateacing. In the end, however, te need for punishment seemed 0 ‘be the primary justification fr sucha sentence. Inthe 1980s, that ‘orale i sufficient During the past several decades, the U.S as experienced what appeats on the surface tobe a major shin the philosopty of enlencing. Rehabilitation i ow out of fasion; punishments etn a ‘An unholy alliance of heal and conservatives made possible he victory of aust deserts philosophy. Conservatives always did want {o punish Liberals wer fed up with the many abuses and failures of| the ehabiliative system, Calla spade a spade, they agreed: the im of sentences should be to punish, but odo 5 preity, propor: tioatly, equitably ‘The jst deserts approach has lt a varity of determinant and ‘mandatory tenteneing schemes intended to reduce discretion on the ar of judges, thus minimizing discriminatory and arbitrary Senences. Bu instead of eliminaing discretion, these sentencing Schemes simply shifted discrecon to oer pas of the criminal Jasce system, parts which ae even less visible and es account able, while making sentences more igi. Discretion isnot gone: tie Simply more hidden and les availble fr mitigating harsh ee ‘ences. Out prisons continue wo be dspoportiaatly populated by Contrary to the hopes of liberals, jus dese in patie meant harsher sentences: Consequenly a second result ofthis “et tough” approach crime hs been high incarceration rates and crowding on ‘massive scale, Included in these gurs i or young offender, In passing sentence, the judge commented, "T hope bythe me you come out you wil be les likely tot to violence” What naivte! What he is ikely 10 actualy experience during those 20 plus years in prison - and what hes likely tobe lke as a esl is aey obvious, “The death penalty also is back with a vengsance. The numbers on rath ows ae sch that f we execute one person every day (inluding Sundays), ic would ake 5 1/2 years wo kill hse currently fenienced wo death ‘This doesnot count tose who are being add; ‘ve mould need to il an aiinal person every day and al 9 Seep up with these new addons. DF) |We are commited to punishing by death even though here is absolutely no evidece ha the death ponlty deters potential ‘offenders, eventhough thee is evidence hat the example ofthe ‘eat penalty actualy causes some people til, We are wilig to ‘execute even though i hasbeen clearly demonsuated thatthe penalty of deaths unfairly imposed onthe basis of race, even thovgh te nancial costs have been shown tobe higher than costs bof life imprisonment, even though we know that we sometimes make ‘mistakes. We are that commited o punishment. (Cf Haas & Tncian,1988) Even when we climed we were rehabilitating we willy punishes Perhaps it is more honest to admit what we aia fact ding Sl in abondoning reblitation we eliminated something that may in the long run be more imporant han anything else: we eliminated humane motives for zeting offender. I out purpose i fist and foremost o punish, what mote is therefor weating offenders and rlsoners fly and humanely? To what values can we appeal? The Tack of humane mative ulimatly may have more sous implica ‘on than prison crowding or sentencing inguity. ‘As real the jude in ou case aod abou the need wo make the offender accountable. By that he meant having him take his ‘medicine, "paying his deb to society” by puting in his time (Gronially, at society's expense). Wil hat help him understand the ‘human consequences of what he has done? Wilt help him to ake responsibility for what he has dove? Hardly. We punish bu we on" told wry aczountble in any meaningfl sense ofthe word A variety of alternatives o prison have seemed o offer promise in ‘the oeotieth century. Although they occasionally served as real alternatives, sully they have simply been allematives wo alter tives, rallematives to nothing. Sometimes they have been as bad ‘or worse than what they claimed to replace (CI Rothman, 1980; Feeley, 1983) ‘The result has been afr amount of cynicism about possibiliis for change. While allematives have maliplie, te prison poplition has mushroomed. Instead of reducing prison populations, the overall system has expanded, with even more people nthe criminal justice ‘sem, A variety of new “solutions” ar being offered today. Some look to the privatisation of prisons. Electron monitoring i spreading ‘willy-nilly, wid lite testing or accountability. Intensive probation ‘is popula Allof these promise new ways to punish but few Promise long-range saluons. The implicaons of some are down Fight frightening. ‘Punishment, n short, has aed ive up ots promise {A second major area of crisis i rood in the long-term neglect of In some ways, this decade has been the ea of the eime victim, Finally, thee hasbeen some recognition fr crime victim, some attempt to provide tem wih hep, some understanding of what hey experience. And what they experience atthe hands of the offender, then often atthe hands ofthe “system,” canbe truly devastating They certainly deserve this setion, Victimization isa uly devastating experince that affects many areas of a person’ life. (CE. Bard & Sangre, 1986; Neiderback, 1986) Toften involves exteme fetings of er, of poweresses, of guilt ofselP-blame. Vietimization generates anger athe offender who did his, bt anger also at one's sel at he system, at God. ‘fects most reas of io - work, play, ily, mariage and can Stay with one forte remainder of ones lie “That crime is traumatic is easly acknowledged fo crimes that sccity teats as Serius. Yet te experienc of crime can be nearly {stramatic fo vicuns of eimes which society treat as minor: busrplay victims, for example often sound mach like rape victims in relating their experiences. ‘Grime, even scemingly minor crime, soften dooply vaumatic, and isso because crime violates a person's very sense of self. Crime stacks two basic eles on which people ase theives: the bit that he world canbe tte o be ord, andthe belief ha each of| tusis an autonomous individual with power over ou own life. People nee to live in a world which is basicaly predictable and ‘der. When things happen, ty ned explanations becuse taplanatons restore a sense of order, When things happen then, people ak “why?” Crime upsets this Sense of orderiness and tt. knocks othe props, making victims wonder what they can tut and what hey Know. Thats why crime vitis, ike cancer victims, ak "Why me?” Tha isthe reason answers res import: answers restore rer, and oder sa key o psychological equilibrium. ‘Tobe whole, people also nocd 1 fee like they ar in control oftheir ‘own lives, Denied personal power, individuals fea less than buna, ‘When crime oocurs, someone akes power over another’ life, ‘making them feel diminished, less tan flly human, To be healed, then, victims ned to regain a sense of consol over hee own lives In shor, crime even “mince crime is waumatc because it tretens people's sense of themselves as autonomous individual ina Predictable word IO Crime vet have many neds. The following ae only afew Victims badly nocd an experience ofjusice, This may have many imeasions. Often tis assumed that vengeance is part ofthis ne, but hiss not necessarily so: the need for vengeance may alten ‘s10w out of justice denied. The experience of justice seems to Include assurance at what happened othe wctim was wrong, ha ‘twas unfair, that was undeserved, Victims need Wo Know tht Sonathing 8 being done to make sure that the offense dos ot recur. Often they fel some need fo restitution, not simply for the Actual compensation itepresens but lo forthe statement of indication hats pled, ‘Victims want answers. In fc crime vitims often rat the need for answers above needs for compensation. Why me? What could | have dove diferenly? Quesdons such as hese bedevil itis, ‘Without answers, ican be very dificult io recover. Victims also need opportunities to ven tel feelings to fiends, 0 -sighbors, to law enforcement people, perhaps above allo the oe who caused this pain. They need chances "el the tah” of what ‘happened to them. Finally, victims ned to he empowered. Power hasbeen taken from ‘em. Fo be healed, some sense of power must be estoed ‘Unfortunately, hese needs are raely mei he usual experience of jasice. Rarely do victims find out what relly happened, Rarely are they leo vent thee feelings as they would wish. Razely do they receive compensation a even fll nfrmation about thei cases. Rarely are they involved in ther own cass unless they are needed 25 witnesses. Instead of having power retured to them moter wots, powers fuer denied in the evimial jase proces, Twice ictmized, vitims fee, instead of being healed, the wound i compounded. Consequently, itis retain thet wounds often for yews “Today ther area varity of assisance and compensation programs for victims, Mos victims, however, donot recive such asistance ‘Vctim programs remain on the margins, avaiable o only a few and considered tobe peripheral o justice. Why ar rime wits so neglected? Why is panishieat so inctective, 90 counerproductive? Why havealiematives not bees alieratves? The reason, I suspect is that we hae aed io as fundamental questions, We hav ale examine and queso te underlying assumpcons, the paradigm, under which we operate is as if we have Been reaching into a dark box, moving things around inside, without asking wheter hiss the ight box. We have asked which punishment, but we have not asked whesher punishment. We have sought alternative punishment, but not Seratveso poishment. We have assumed Hat the inition of Pain is normative and cena, whether nthe name of punishment or rehabilitation, (CT Christ, 1981; Haris, 1983-8, Second, we have not seriously questioned what crime means Instead, we have secpeed the legal understanding of rime which defines crime as teaking rules, a violation ofthe state Finally, we have pot seriously examined the appeopriat ole of the state in adminisiering justice. Instead, we have assumed that rie issoley the stat’s esponsiiliy indsed hatte response to crime isthe sate's monopoly. “The socalled criminal json system has aed on numerous fonts, and its llues are ground in he reribuve paradigm” on which itis based. The reuibuve paradigm defines crime ist and fore most as role-reaking. It fines he sate, not the individual, a he ‘tim. This paradigm undesands justice 1 be the admiisvation Of pin pain in measured doses all guide by ight rules. It assumes thatthe sate - and only the tat responsible o respond wo crime ‘snot surprising, then, tht victims are someplace, hat they are peripheral wo the proces: they ar not included in the equation. (Crime isa matter between stat and offender. The offender isthe passive recipient of “justice,” andthe victim ison the outside, Involved primarily ifneeded by the sate ‘This"recibutve paratigm” goves our understandings of crime and justice today, bait isnt the ony paradigm availabe Infact, tas ‘ot been the predominant model fr most of our history. ‘Throughout mos of westem history, crime has heen understood as ‘an offense of person agaist person, uch ike other conflicts and ‘wrongs which are weated as “ivi” Throughout mos ofthis history, people have assumed thatthe cone respoase must be to Somehow make things ight resiution ad compensation were very commen, perhaps normative. Crime created obligation, labiities, that needed o be ken care of, usally through a process of neotia- tion, Acts of vengeance could oecur, but no, it appears as fe~ quently as is usualy assumed andthe function of vengeance may fave ben diferent than we expec. Both victim and offender had a responsibility in this proces, as did the community. Te state haa role ae wel bat it wns imited and was by nocessiy responsive the wishes of wins This isa gross simplification, ofcourse, but to some extent our istry hasbeen a daletic Between wo models of sie: tate jstce and “community” jusice. (CE Lenman & Parker, 1980) Stat justice was imposed jase, punive justice, hierarchical justice. Community justice was negotiated justice, reitaive justice. Sat jastice has operated in Some form during most of western histor. However, community justice predominated until fairly recently. Only in the pt fe centuries did stat justice win oat ‘The sae won a monopoly on justice, but only witha great gh (Berman, 1983) The very of tae justic constituted a egal revoltion of temendous import, but revelation which has been recognized and stalled to infrequent. “Te dimensions of this legal revolution were many bot inched thre particularly important developments: 1, The division of conflicts and harms into two ferent spores = il and criminal - with quite diferent ‘operating assumptions and rls in each 2, The conality ofthe sate when wrongs are defined as criminal 3. The expectation of pnishment psi action in the criminal sphere. tie no aceldent thatthe birth of prisons - anew technology for ivering doses of pain - coincided wih this egal revolution ‘Community jasce was one paradigm frm ou past. Another is ‘iblcl justice, No only ou own immedias history but als the Sldeo- Christian wadion laden a diferent iectn than the retributive paradigm, “The Bible often cited as foundation for our way of ding justice: “an eye for an eye, oo for aoa," sayeth the Lord. But ther is more to "an eye for an eye” than mess the eye, Iwas not intended fs command todo vengeance, bata limitation on vengeance. ‘Moreover it was nt the goveming paradigm ofthe Old Testament In fac, the phrase only occurs tre times in the Old Testament ‘Then inthe New Testament, Crist specifically eects this theme: “you have Head it sd, "an eye fran ey," -but tll you, love your enemy,” ‘The leading paradigm of the Older Testament is more accurately found in tow Goi understood to respond to wrongdoing. When confronted by sn, God is described a ful of wrath, with words hat ‘connote het, heavy breathing, Like rime victims, God i under- stood to be angry. But the underlying theme isha inspite ofthis ‘wrongdoing, and inspite ofthe resulting ange, God never eves up, ‘Restoration, aot rurbuton, ithe paradigm of ileal juste Inthe Old Testament, Gos over intents captured i the word “shalom,” (Yoder, 1987) Shalom implies peace but goes beyond ‘he usual understanding to mean peope living in right relationship ‘with one another = material, socal, spiritually. The essence of rime is that it upsets shalom, making vght relationships impossible. (Cine, in the bblieal view, is wound that equites healing Thats ‘why restton, making things ih, i found eo often ther. I fact, the word for making things rights the r00t word for shalom, In he [New Testament, therefore, Christ's focus on restorative responses rather than retibuton i ths quite logial, and nota rejection of the (overall rus ofthe earlier Old Testament material ‘What is tobe learned from all his? No, of course, hat all was rosy inthe days gone by or that we ean recreate ox world, What we an fear is that we must question our paradigms and igi hat there ae other possibilities, Perhaps we can begin fo develop Aitferent, restorative es foe viewing crime and punishment. ‘Much crime is, afterall in reality what our ancestors assumed it ‘as violation of peopl by people. Harm is personal, not atstraet, and it eretes obligations © make right And hat is tue, then reparation ought wo be athe center of justice. “The reibutive model anda reparative aleratve might be summaries like this: Revribuive Justice 1. Crime violates the state and its ams. 2. Justice focuses on determining blame 3. sothat doses of pin can be measured out 4. Jusicei sought through a conflict between adversaries ‘5. in which offenders pied agnins state, 6 rules and inteaons ouvelgh outcomes, and one side ‘wis and the oh oss Restorative Justice 1. Crime volts people and relationships, 2 Justice alms to dently needs and obligations 3 so that insofar as possible, things can be made ight. 4 Justice encourages negotiation and an exchange of information, 5. gives viens and offenders coral rles, 6 andi judged by the extent to which esponsibilies are assumed, needs are met and healing (of individuals and relationships) is encouraged. ‘This isnot he place to explore the many implications of such a vision; pehaps inded, te formulation i seriously awed. What is Jmportat is that we fee ourselves to ask fundamental questions However, it does seem important that llemat formulations take im account the existential elt of crime that what we cal crime Involves actual harms and contlits and belongs therefore on & ‘continuum whch includes oder “lil” harms ane conflicts ‘Obligation esl. Both victim and offender are pat of the problem and therefore bth must be part ofthe resolaton. Resolutions must take into account needs - especialy victim needs, bat als those of the offender = and should seek wo epi. Instead of asking "Who did i) What do they deserve?” the primary questions shouldbe "Wat ‘hasbeen hurt? What can be done to make things right?” Actual ‘hams and conics should be given thei righ place in our understanding ferme, and the search foe reparative solutions should take precedence ver painnficion, ‘At sue i what is pormatve ater than what would present ‘realistic response in all sation. The caren paradigm ie shaped. round the most unosual, bizare offenses, making procedures for Such cases normative for “wdinary’” ones, Some offenders are ‘dangerous and most be restrained. Some offenes ae 30 serious Dat spoil procedures are warranted, Bu these special cass ced nt, tthe nom. ‘What is importants that we recognize the immporance ofthe paradigms we use, and that we re ourselves to question these praigms. Restorative justice is one possiblity which challenges ‘ur assumptions. Is, however, hardly a paradigm at this pont at ‘ost, itcan seve as a"sensing theory” Perhaps it can teas, Serve to make us think carefully before we impose pin. Low Incarceration rates inthe Netheands have, ina recent sty, been abated not so much any parca philosophy of "eorectone” ‘astoa "bad conscience” about prison. (De Haan, 1987) A genera tion of jurists was shaped bth by the expeience of imprisonment st the hands ofthe Nazi's and a law curculam which questioned Punishment. The result was a hesitancy to impose pain i he form ‘of imprisonment. 1 noting els, perhaps our discussions can ‘contribute oa mille in which the inflcuon of pai seen asa last ‘resort, filare of other options, rather than he hub of sie [As we experiment with new “altematives,”it willbe essen \webe guided bya vision, but also that we be aware of tensions between our valves and thse ofthe existing, rebutive system, Davis, Boucherat and Watson's recent su of victim offender ‘mediation programs ia England wars of the dangers of ignoring Value question and of acking new experiments, even (oF especialy) ‘parative ons, on othe existing criminal asice sytem. (Davis e al, 1987) A new understanding and anew language of juste is ‘ceded, and tey ell for esearch which wil shape and test he ibility of reparative paradigm, References and Select Bibliography ‘Auerbach, Jerod S. (1983). Justice Without Law? New York & Oxford: Oxford University Press. ‘Bard, Morion and Sangrey, Dawn, (1986). The Crime Victim's Book. Brunner- Mazel, Second Eaton, ‘amet, Randy. (1981), Resin: A Paradigm of Criminal Justice, Iv Burt Calaway and Joe Hudson, editors, Perspectives on ‘Crime Victims. St Louis: C.V. Mosby Co. ‘Berman, Harold. (1983). Law and Revolution: The Formation ofthe Western Legal Tradition, Cambridge, Mass: Harvard Universiy Press, Bianchi, Herman, and van Swaaningen, Rene, (1986). Towards 2 [Non-Repressive Approach to Crime. Amsterdam: Free University Press ‘lad, ohn R; van Mastgt, Han, Uidriks, Nes A. editor (1987). The Criminal Justice System as a Social Problem: An ‘Abolidonst Perspective. Rowerdam, Nederlands: Erasmus Universit Boccker, Hans Jochen. (1980). Law and the Administration of “Jstice in the Old Testament and Ancient Fast, Teaslated by Jeremy Moser. Minneapolis: Augsburg Publishing House. (Cust, Nis. (1984). Crime, Pain and Death in New Perspectives on Crime and Justice: Occasional Papers Issue ‘Aizon, Pennsylvania: Mennonite Cental Commitee. (Christie, Nils, (1981), Limits to P Oxo: Universttsforlaget ‘Contemporary Crises: Law, Crime and Sociat Policy. Vol, 10, ‘No.1, (1986). DoedrechBosion/Lancaser: Marinus Noh Publishers Cullen, Francis T. and Gib, Karen E. (1982). Reaffirming Rehabilitation. Cincinnati, Obie: Anderson Publishing Company, Davis, Gwynn, Boucheat, Jacky and Watson, David. (1987). A Preliminary Study of Victim Offender Mediation and Reparation Schemes in England and Wales. Research and Planning Unit Paper 42. London: Home Office. De Haan, Willem. (1987). Abolitonism and the Politics of ‘Bad Conscience’. The Howard Journal of Criminal Justice. Vol. 26, No. I, February, Feeley, Malcolm M. (1983). Court Reform Simple Solutions Fall, New York: Basic Books Triat: Why Gayln, Willard Glaser, I; Marcus, Steven and Rthman, David (0981). Doing Good: The Limits of Benevolence. New Yor: Pantheon Books. Haas, Kenneth Cand Ice James A. ede. (1988). (Challenging Capital Punishment: Legal and Social Science Approaches. Newbury Par, California: Sage Publications. Harris, M. Kay. (1983-84). Svateies, Values, andthe Emerging Generation of Alternatives to Incarceration, New York University Review of Law and Social Change, Vol. XI, No I, pp. 141-170, Lenman, Bruce and Parker, Geotiey. The tate, the Community and ‘he Criminal Law in Early Modern Europe, i Gael etl, Crime land the Law: The Socal History of Crime in Western Europe Since 1500. ‘Leshan, Lawrence and Margenau, Henry. (1982). Fnstin’s Space ‘and Van Gogh's Sky: Physical Realty and Beyond. New York Collier Books/Macmillan Publishing Company. [NAACP Legal Defense and Educational Fund, Ine LDF). Death Row, US-A. Quarzly Publication. New York [Neiderbach Shelley, (1986). Invisible Wounds: Speak. New York: The Hayworkh Press 4 Vietins Rothman, David. (1980). Conscience and Convenience: The Asglum and Is Alternatives in Progressive America. Boson: Lite, Brown and Compan. Stephens, Gene. Paricipatory Justice: The Pols ofthe Future. Sostice Quarterly (Omaha, NE}, 316742, 1986. ‘Van Ness, Dan, (1986) Crime and Its Vietims. Downers Grove: Intervarsity Press ‘Wright, Mann. (1982), Making Good: Prisons, Punishment and yond. London: Burnet Books Li Yoder, ery B. (1987), Shalom: The Bible's Word for ion, Josie, and Peace. Newlon, KS: Faith and Life Press Zee, Howard, (1985). Retributive Justice, Restorative Justice in [New Perspectives on Crime and Justice: Oceasional Papers Issue 4, September, Akron, Pennsylvania: Mennonite ental Commitee. 1s Pursuing a Restorative Vision of Justice Danie W. Van Ness ‘We areal funitar withthe fairy tale “The Emperor's New Clothes” in which a vain ruler is swindled int buying supposedly magical ments, clothing that cannot be Seen by fos er by those unfit to fod office. Neitber the emperor nox his attendants will admit that they an se nothing and he King actualy parades down main sect ‘lthed only in his foolishness, It is nt unl a cil laughs "The “mperor has no clothes!” hat tose in the crowd wil ami that they ‘cannot seth clothing either. The king i exposed (trl) as @ prod and foolish man Many students of America's ximial justice sytem have exper: enced a simile moment of elightenmen, what Randy Barett (0977 has called a "paradigm sit”. Criminal justice approaches that before semed appropriate ae now exposed as unsound. Criminal osc problems tat once seemed not cay inactble but unexplainable tu out tobe consequences of a now obvious founds tional problem. ‘We reach this moment of isight slong diferent paths. Perhaps the ‘most painful s the one uaeled by ene victims. Let me iste | witha uve story. While washing hs car one day, John was atacked bya younger man who broke his am and sole his ea. The police Subsequently aresed the offender and recovered John’s lightly damaged vehicle Jobin and his wife were old that they would be kept informed the ropes of the case, but were not. They mised virwally every Smportnt hearing either because no on od them the ies a dates, or becae tho hearings were rescheduled without warning. ‘Te couple finally decided to mect with the prosecutor to find a why they were sing so Badly treated. The answer they ecelved ‘eas unt "You are not pat this ease: you just happened abe tbe victims. This wasn offense against he sate, and thats how we hand ie” ‘The official's braaly frank (and legally correc) answer shows how skewed the Wester view ofevime and josie bas become. Rather than formally acknowledging that crime causes injuries to vies, ‘urls define it as only an offense against goverent. Victims ate nt partes in criminal cases, They ae merely evidence forthe prosecution, [Not only does this lyin the fae of common sense, it runs count to ancient Hebe, Greek and Roman legal waditions — the very tradition upon which we rely so heavily for our understanding of Justice. These societies undersood crn primarily as an offense ‘gaint victims and thee kn, within the context of community. The ‘community held offenders accountable to victims nt ony o avoid endless eyes of revenge and violence, bt alo to restore peace wo the community. ‘We se his reflected inthe Hetvew words for pace (shalom, restitution shim), and recompense (hile). Each came fram the same rot each concept was inter-connected. Reston was sen because it el offenders accountable for he injuries they had inflicted onthe victims. Recompense, sometimes tanslted “retibuon” (actin the seaseof revenge, bitin the sense of satisfaction), vindicated community vies. Each contributed tothe process of restoring peace Shalam) 1th communi In contrast, contemporary criminal justice e preoccupied with maintaining public ove and punishing offenders, while balancing ‘offenders’ righs with governmental power. Vitis ace ignored, and government has usurped the appropriate role of te community in maintaining peace ‘The reasons for his change have bon explored elsewhere at ‘considerable length Berman, 1983; Van Ness, 1986). Iti ler that "he move to sae-centered criminal jusice was no the rest of new Ascoveries in cme prevention and adjudication. It occured as part ofan effort o expand the politcal power of atonal goveraments ‘over ocal autores Restorative Justice Susce Fellowship has begun a tre-year projet a develop a ‘System model based on Restorative Justice principles. We bewan wit the tess that our criminal juice system ie in eri largely ‘ecase itssoe active party i government, and its sole focus isthe ‘offender, True justice equtes a balanced approach involving ‘otims, offenders, goverment and local communities “Thre principles form the foundation of Restorative Juste: 1. Crime resus i injuries to victims, communities, and offenders: therefore, the criminal justice process most epi those injuries 2, Notonly goverment, but vitins, offenders, and communi- ‘es should be actively involved inthe ermal justice proces a the eriest point and tothe maximum extent possible. 3, In promoting justice the government is responsible for preserving order, ad the community is tesponsible for Establishing pace ‘may be helpful to demonstrate the diferences between Restorative Justice and eure practice. As noed before, comtemporary erm nal justice focuses exclsively onthe offender andthe government ‘CURRENT PRACTICE f ° Government's function ist provide security fr society by establishing ade. Its interests to punish those who violate he law, Offenders, on the other hand, ssn thei dug process protections: the rights and liberi thr have becn established to ensure fair eaten of individuals, ‘The criminal justice system is esentialy a contest to determine wheter dere wll be rebut imposed onthe offender, and f 30, in what form. I pits government aginst individual ina high-stakes confit In contrast, Restorative Justice retuns tothe ancient view that there ‘ee actualy four parties, rather than ust. RESTORATIVE SUSTICE OFFENDER GOVERNMENT commun |When we expand the diagram includ the victim and community, we begin to appreciate just how guncated and unbalanced the prevailing view of usicehas bee, Frees mans more hn uo poces forth fender Ilo ries iain of isin claims Ths tal ides ronan fom responsiblity forthe injuries one to them, bt ‘Sho rparation~ ving vietums wat ae hem. Security isnot obaind through govemmentaly-imposed order alone, ‘The community also contibutesby forming ston, stable, ‘Deel lationships among its members Finally, we have ame comprehensive et of goals ere a YY 4 » a In Restorative Justice, the purpose of the government’ ineraction with the offenders probably beter termed rsompease than ‘eubution, Retution i “deserved paishment for evi done”. ‘While that underscores a important aspect ofthe goverment offender relationship it has tvo shortcomings. Firs, the only active party iste goverment, the punish the offender is merely a psi recipient. Second, punishment tat des ot help rea the Injuries caused by cre simply eeates new injuries. ‘While Webster's uses recompense asa synonym for rebaton, the two words are slighaly diferent, Recompense is “something given ‘or done fo makeup fora injury”, Itadds what reibation alone ‘mits. Fist, the active party is the one who cased the injury. Secon, purpose he ancton ore jy cans by Furthermore, recompense becomes only one ofa series of societal goals. Rehabilitation of offenders, beling of victims, nd vcs ‘compensation a als important aims, The model suggests that ‘requiring recompense and offering ress ae features ofthe government's interaction with offenders and veins, while offering ‘ehabliation an healing chartetrize the communis ‘There is one final featur of the model. 1s cirelar consiraction reflects the dynamic and dependent relationships that exst among the parties. Peace without ode is incomplete as due process without vindation. Healing without redress would be as inadequate as rehabilitation without recompense, ‘This has several implication, First, we cant pick and choose the ‘atures we like and abandon the acer; hey ae all essential, But thats exacy what we have done in ou arent approach fo ‘riminal justice. The system focuses exclusively onthe relationship between the offender and government. Iti why we need anew appreach — the vison of Restorative Justice —to responding to I Second, our stages to prevent and espond to crime must involve alte pats as fully as possible. Prevention quizes acooperaive fffort Between the community andthe government. Ie nat simply {government's responsibly. Order and peace are bath necessary to provide for secur and to prevent ime. ‘When rime des tke place, the traction becomes evea more namie. Both government and community must now respond to the victim and the offender. This rats, n fect, pale wack For responding tthe crime, one administered bythe government and the other by the communi “The governmental rack the criminal joc sim. It provides a formal proce for declaring cena acts as criminal, detecting and snprebending suspects, determining guilt or innocence, determining ‘pproprite sanctions, and vindicating and securing reparation for ‘Te community-based wack is more organic than formal. Is als0 Jess develope in the United Sates, although cuer countries, such as Japan, appa to have a moee evenly balanced two-rack approach (Fale, 1988). Whereas goverment secks anaes elution, the ‘commonity involvement focused a restoring peace’ rehsbiit ‘ion ofthe offender, healing ofthe victim, ad reconciliation of oth ‘The two wack shouldbe explicil linked at appropriate stages. For example, community-based Vieim-Offender Reconciliation Programs (art ofthe informal wack) intervene at specifi stages of the formal criminal joc system, The els ofthe mediation are ‘sequel presented athe sentencing hearing and given formal approval. Since society's overarching esponse to crime should be 1 repair injures, erie shouldbe dealt with hough the informal proess as ‘much as possible. 2 From Vision to Reality How, then, do we mak the vision of Restorative Justice aealiy? ‘have two suggestions. The fis is realy a caution: we must itinguis between the vision lf and the statgis for accom lishing the vision. Steg reforms are not he vision’ they bring tus closer to total societal response to crime which reflects the vision A physician conducts surgery not because tha isthe essence oral, but because ica lead Yo health Second, we should choose reforms which will facili the dynamic and dependent relationships which characterize Restorative Jat, ‘This means that by themseves the eforms may appoa as 3s unbalanced asthe system they ae to remedy. But because hey address missing aspects of jose, the resul wil be estoed balance, For example, contemporary criminal justice systems i ily in the upper et quadrant of the Restorative Justice model. If we want 0 redress this imbalance, then we shuld look closely a tbe lowe ight ‘quadrant for possible efor, “This suggests hat we should consider strategies hat expand the roles of the victim and ofthe community, with dhe victims role receiving the greatest emphasis. While communities do need to becoms more active in responding to crime, they have ada ong history of Pantcipation, ranging fom John August" voluntary sponsorship of| ‘convicted offenders, o contemporary crime watch programs. The ct, om the otber hand, is the party mos neglected by te criminal justice system What might such reforms look lke? Here ar four which Justice Fellowship has adopted as "key impact goal" — reforms that woul ares the needs of victims in relation fo he oter thie paric= 1, To grant victims a formal ole inthe criminal justice system, including the ight to participate (vith legal eprsenao) in eriminal cass to pursue 2.To sentence nondangerous offenders 1 estton and community servic programs rater than prison 3, To provide victims of crime with Fist response and cris intervention services rough local churches. 4, To provide vitims and offenders in every community with opportunites for reconeiaton through chuch- ‘used programs Each of hee goals would require radically diferent respons 0 the needs of victims by the otber pats, 1. To gran vst a foal cole in the criminal justice stem, ‘including the ret paricinte Cth esa epson in ‘tinal cases i purse esiuton, Wile his would be a complete departure from United States criminal justice practice, several westem European counts allow tim o join civil clams for damages with criminal als (Dunkel, 1986), French victims may even inate criinal proceedings themselves the public proscstr has decided oto pursue the case (Merryman and Car, 1978) ‘The tial ofthe tors Mohammed Harnad is casein point As ofthis writing, Hammadi is on wal in West Germany for partici ting in the 198Sbjacking of a TWA flight, nd forthe murder of US. Navy diver Rober Seem, Steibem’s parents are participating in the ial as co-plainfs wih the goverament, represented by their ‘own West German lawyer. Had ths wl aken place inthe US. the Stesems would have ha o role at al 2s ‘There are at east dee advantages to allowing victims this right Fist the criminal process would be more speedy and les cosy than the civil process (Schlesinger, 1980, p. 457; Merryman and (Clark, 1978, p. 738). Second, it would afi the principle that rime isan offense principally against the victim not the gover- ‘ent, And third, would distinguish the logal intrest of he vicki from Wat ofthe goverment 2. Ta sentence nondangeims offenders io resin and ‘community sevice ograms mer than prison. “Thee factors shouldbe considered in sentencing decisions: the seriousness ofthe offense, the rk the offender poses, and the injury ‘caused bythe offense. The extent of injury should determine the amount of restiution or community service ordered The rk the ‘offender poses should detemine he degree of conrl wo be exerted by the government. And the seriousness of he offense will ‘tdinanly determine the length af the sanction, ‘Asa practical mater, imprisonment makes restition an impossbil- ity. Few prisoners hve either the external resources or he prison- labor income wo repay tee vetims. Therefor, pisa should tbe tied fr those who donot constitute a seriou isk to the community, ‘nce they can be adequately supervised in other stings which ‘Permit them to wok and perform communiy servic. ‘This approach would nt only work othe advantage of victims; it ‘would also save the community the wx burden of unnecessary incarceration, and woul lp the goverment adress the prison crowding crisis, I would sso keep nondangerous offenders ou of ‘debilitating prison conitns Tobe a successful srategy, objective criteria would need 1 be tablished to ieniy those deemed “dangerous”, However, even ‘sing something a Wooden a "vilennonvolent” reveals that a Substantial porton of tose in prison might be sentenced diferealy under this propos. Nearly 35% of state prisoners in 1986 were ‘onveted of nonviolent eines, and had no previous record of ile crime (anes, 1988). +3, Te provide victims of crime wit ist esponse and crisis jnervnton serves tous lal shuches. ‘Vickie need assistance from the momenta crime is commited. “The immediate and log term impact of crime can be devastating. But tbe exent of lng em injuries ean be reduced if immediate aid isavallable, First response an css intrveation programs provide seevioes suchas emergency shir, financial assistance, crisis intervention, chil care and relerals oscil Service agencies. ‘While there ar already succesful programs throughout the country, ‘most are unable to provide the comprehensive help that is nceded, ‘dc to staff an funding shortages. Communes must augment cexising system-based Victim assistance programs, and help publics their existence. Sstice Fellowship has aged local churches because of our unique ‘constituency. We work with Christians for reorms that are consis- tent with biblical teaching, and wea afiiaed with Prison Fellow Ship Ministes, which assis local churches in ministry o prisoners, exprisoners, and thes families, 4, To provide sisims and offenders in ewer community wih ‘snparuniis fr conciliation housh churh-based progam. ‘We must aess the need many victims have to meet wih their offender, to ask questions, and sometimes evento reconcile with and forgive thei offenders. This cannot, and shouldnt, be forced on| ictims. But the healing potential is enormous for those who tke the opporuaniy. Vie: Offender Reconliaon Programs (VORP) allow victims and offenders to met with tained mediators to ‘discuss ther felings about the crime and 10 workout restitution agreement. a a ‘Thisis good for victims. Not only do they receive estiuton, but they also havea much higher degree of salisfcton with the justice process after such an encounter (McGill, 1986). And the recon: Elation proces can also be beneficial tothe offender (who typically ‘would rather not eet with the victim). Through tis proces, offenders come to realize that tei erime was mor than something they did to “the system"; they violated another person. Justice Fellowships fous on church-basedvitim-offender ‘econeliation programs stems from the sae organizational onsideraons mentioned in #3 above, CConetasion ‘Acid has laughed and the emperor stands exposed, What should the onlookers do? Some undoubtedly wll discuss the need fr ser penalties o deter Poteau con aris, Others wil propose management couse. hep the king make beter personnel decisis. Stil oters will decry the sorry circumstances ofthe swindle’ upbringing. All may have point. But heir esponsei incomplete unless Someone gives the emperor what he relly neds ashe tudges home: arte, ‘What Ihave proposed stat we respond to the need for robe that we formally recognize that rime injares vitins, and thatthe criminal justice process shoud help repair those injuries. We should o this not because itis the essence of justice, but Because it wll help estore balance Restorative Justice requires al four pares — victims, offenders, ‘communities and government — to contribute othe reparation process. Infact, Resiorave Justice unleashes the dynamic ier reltionship ofthe interests, needs and goals of those parties. ‘As such, sands in stark contrast 0 our contemporary, 0 ‘dimensional criminal justice sytem, which considers only how uch pain ean be fai inlited onthe offender for breaking the aw Bat binging the vision of Restorative Justice to reality demands a specific and achievable svategy. Meeting the needs of vietims in foarkey ares shouldbe that strategy. Doing so would help resiore the balance now missing in society's response to crime References Barnet, RE. (1977). Restution: A New Paradigm of Criminal Justice In RE Baret and J. Hagel (Eds), Assessing the Criminal: Restitution, Retribution, and the Legal Process (Gp. 349-383). Cambridge, MA: Balingee ‘Berman, H. (1983). Law and Revolution: The Formation of the Wester Legal Tradition. Cambridge, MA: Harvard University. Dunkel, F. (1986). Reparation and Vitin-Offender Conciliation and Aspects ofthe Legal Position ofthe Vici in Criminal Procedures in Weserm European Perspective. In Europe North-American Juvenile Justice Systems: Aspects a ‘Tendencies (p. 303-327). Munich: Schrifteneine der Deutschen ‘Vereinigung fur Jogendgrich und Jugendgsicstilfen, and Haley, 1.0. (1988), Confession, Repentance and Absolution: The Lelimotf of Criminal Justice in Jopan. Ia M. Weight and 8, Galavay (Eds), Mediation and Criminal Justice: Victims, Ofenders, and Community. London: SAGE Publications, 23 TInnes.C. A Ganuary, 1988), Profile of State Prison Inmates 1986, ‘Washington, DC: US Deparment of Juste, Bureau of Justice Sais. Meili, D, (December, 1986) Crime Vietim Restitution: An ‘Analysis of Approaches. Washington, DC: US Department of Justice, National Insite of Tusice, Office of Communication and Research Uilizton “Mesryman, J. and Cla, D.S.(1978). Comparative lw: ‘Western European and Latin American egal systems. Indianapolis: Bobs Merl Schlesinger, R. 8. (1980). Comparative Law: Cases, Texts, “Materials. Mineola, NY: Foundation Pres. ‘Van Ness,D. W. (1986) Crime an its Vietms: What We Can Do. Downers Grove, IL: InerVarsity Press 0 eee Alternative Visions in the Context of Contemporary Realities M. Kay Harris My ini plan for this paper was to discus dangers and dilemmas ‘uroundiog various types of efforts to effoewate change based on erative models of Justice while waditonalermina jasce practices and ideology remain generally in force. However, when Feceived and read drat papers fom tvo of the oes panelists, I ‘ocided thatthe discussion cull be lot livelier and potenaly ‘more productive If ullzed those papers asa way of surfacing the Sues planned to address, In particular 1am going o take the tier of commenting fal extensively on Dan Van Nes’ paper." Lakily,Iknow that tony is Dan a good sport, but alo athe i femuiely intrested in feedback on his emerpng vision. Ina thon, Dan knows tht Tam stuggling with many of te same issues fsTexplore whata feminist vision of juice might ook ike and 1 hope at ny reactions nd questions willbe helpful tall of ws who are chasing siilardreams. -Ananiclein the September-Octaber 1988 issue of Lifelines,” the ‘Newsletr ofthe National Coalition to Abolish te Death Penalty, drew parallels among the movement to abolish slavery, racial segregation, and the death penalty. ‘The autor, Professor Bruce Teelewite argued that the movement o abolish slavery can each us things about tacts, timing, and leadership that an be applied in fer change effort He noed, for example, that abolitionists never Stgreed ons satement of intermediate goals, never affirmed a ‘common theory of abolitionism, and never resolved the sharp Confit between pushing for efor of existing condiins vers a tliat demand foran immediate end to slavery. He cited as an itustation the sharp dispute between Lysander Spooner and ‘Wendel Philip. Spooner argued tat, propery interpreted the ‘aa fe ein ah fs oat aes Hart oe fe ‘SEmiprtne dng icone omnes a CConstition prohibited slavery ad he called upon judges to declare the exiting sytem unconstitutional. Philips, on Be other hand, berated Spooner’ scholarship abd reasoning, concluded that the CConsiaion was pro slavery, and called upon judges to resign from folic rather than enforce an immeal law. Ledewit argued that ‘debates like that helped make abolitionists an nllectual force wo be reckoned within American lea status I ear those of us concemed tit aackinginjastices today Jona enjoy. We sorely need 10 {rongthen both ou analyses and our proposal for change and itis in that spirit hat ase a numberof mae conceras from Dan's daft [per ened “Pursuing a Restorative Vision of Tusice.” Fit, the model as presented appears destines to fall athe sated aim of social repair or restoration since ii directed exclusively toward ndvidaa-evel responses and doesnot encompass soa level remedies. Although doesnot ay so direety, he paper's focus on geting the offender w repair the damage caused by his or her offense makes i appear asi crime is solely ox primarily an individual problem aitbutabl tothe weakness, sinless, rote efciences of individual lawbreakers. It does nt adress the ole of society of suctral nd insttaonal frees that promote crime and conflict, “The exclusive emphasis onthe individual esponsiily of the ‘offender appears likely o reinforce current social divisions and Incqiies. Consider, for example, the significance ofthe fact hat ‘the population presenly under‘conrol of the penal system i so

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