Can Restorative Justice Be Effectively Used in Criminal Cases and Put an End to Mass Incarceration?

The United States incarcerates people at a far higher rate than other democracies. While the U.S. is home to 4 percent of the global population, a total of 16 percent of the world’s incarcerated population is currently in the US.¹ As such, reforming the criminal justice system, particularly with respect to mass incarceration, is one of the central challenges of American legal professionals and activists today. Mass incarceration is not merely an issue of scope but also of demographic distribution. There are stark racial disparities in rates of imprisonment, with Black people being sent to state prisons at five times the rate of white people.² Racial injustice is even more evident when it comes to drug convictions, as Black people are incarcerated for drug offenses at a rate 10 times greater than that of their white counterparts, even though these groups consume drugs at nearly the same rates.³

Given the deep-rooted, structural flaws of the existing American criminal justice system, the framework of restorative justice has emerged as a promising reform of the carceral state. The restorative justice approach circumvents core deficiencies of the conventional penal system and thus needs to become a more integral part of the American criminal justice system. While traditional proponents of restorative justice object that incorporating restorative justice into the criminal system falls short of restorative ideals like completely voluntary participation, many restorative justice proponents have by now acknowledged that avoiding the criminal legal system entirely is infeasible.⁴ To reduce mass incarceration, restorative justice needs to operate within the criminal justice system, at least in the short term. At the same time, we must not regard restorative justice as a panacea for all the ills that plague the American criminal justice system, since in its current form, it has several drawbacks that must be addressed if it is to be scaled nationally.

Restorative justice has become a politically charged term with radically different meanings, but we can refer to British criminologist Tony F. Marshall’s definition for conceptual clarity. He describes restorative justice as “a process whereby parties with a stake in a specific offense collectively resolve how to deal with the aftermath of the offense and its implications for the future.”⁵ The essential feature of restorative justice is that the parties themselves decide what should happen after the occurrence of harm. By redirecting power from courts to particular individuals, restorative justice is inherently more democratic than the existing judicial system.⁶ One byproduct is that restorative justice produces unique outcomes for similar types of criminal offenses, as each case has a distinct set of circumstances. In other words, restorative justice “is not a ready-made package of roles, actions and outcomes that can be plucked off the shelf, but has to be, often quite painfully made from its basic ingredients.”⁷ In that sense, restorative justice deviates quite significantly from standard jurisprudence. Instead of producing generalizable and abstract principles of justice, it brings about highly-individualized solutions to conflicts. The existing sentencing system fails to recognize the heterogeneity of criminal behavior and attempts to fit inherently different criminal offenses into narrow criminal categories. Given its prior record, the American criminal justice system has over-corrected this fundamental flaw in its structural design, by imposing excessively severe punishment. Restorative justice, on the other hand, delivers outcomes that more accurately reflect the specific context in which a crime took place, and thus provides a more effective and fine-tuned response to crime.

Restorative justice is widely known for its role in reconciling abuses in South Africa, Rwanda, Sierra Leone, and several other countries.⁸ In these very traumatic contexts, courts have a history of sowing division in the civilian population instead of fostering healing and reconciliation.⁹ However, in many other nations, there is no long and robust history of restorative justice in standard criminal cases. Restorative justice in the United States exists in addition to the criminal process and mainly consists of face-to-face interactions between the victim and the offender. Members of the broader community, including family, friends, and other people affected by the crime can also attend these meetings. Before everyone engages in conversations with one another, restorative justice facilitators meet individually with the victim and offender to collect information and discuss expectations for future dialogue.¹⁰ When the parties sit down together to talk, each individual has a turn to speak about the crime, its effects, and the conditions and life histories leading up to the event. The offender shows remorse and gives an extensive public apology, while the affected party expresses their emotions, fears, pain, and needs. Their meeting comes to an end when the group reaches a consensus on what actions the offender can undertake to repair the harm and meet the victim’s needs.

As of July 2020, forty-five states and the District of Columbia have adopted laws allowing restorative justice as an option in some criminal cases.¹¹ The most commonly codified forms of restorative justice are not part of criminal procedure. Researchers found that “62% of all restorative justice laws fall outside the stages of the criminal justice process, from arrest to parole and community reentry (164 laws total).”¹² Moreover, there is a significant legislative preference for adopting restorative justice laws in juvenile systems, as there are considerably more restorative laws pertaining to juveniles (91 in 33 jurisdictions) than adults (42 laws in 15 jurisdictions).¹³ However, restorative justice need not have such a narrow application. In New Zealand, judges review all cases for referral to the restorative justice route. Furthermore, restorative justice is compulsory for all serious juvenile offenses, apart from murder and manslaughter.¹⁴ New Zealand integrates restorative justice into the post-adjudication stages of its criminal justice system.¹⁵ If the judge decides that a case should be considered for restorative justice, the offender meets with the victim and a facilitator. The restorative process is initated after the offender pleads or is found guilty, but before they are sentenced in court. The judge reviews the agreement reached during the restorative conference. Studies found that courts in New Zealand approved eighty-one percent of conference decisions and when they did change them were eight times more likely to lessen the order.¹⁶ The United States should also incorporate the use of restorative justice into its criminal system. The existing model in New Zealand is just one out of the many ways in which restorative justice could become part of criminal procedure, and thus ought to serve as an impetus to boldly reimagine our criminal justice system.

Expanding the use of restorative justice in criminal cases would have multiple advantages, for victims and offenders alike. Studies have found that restorative justice programs are effective in decreasing recidivism in cases involving violent offenses and are slightly more impactful for adult serious offenders than for minors.¹⁷ This may be the case because hearing the effects of a violent crime directly from the victim can have a strong emotional effect on offenders. Moreover, restorative processes help victims deal with, and eventually overcome, feelings of powerlessness by recognizing that harm was committed and helping them restore their faith in society. In contrast, a traditional court does not provide this valuable psychological relief to the victims. Only two percent of federal criminal cases go to trial, with the vast majority being resolved by guilty plea.¹⁸ This reality of the judicial process undercuts the healing process of victims, especially when the plea deal consists of a lesser charge that does not acknowledge the actual scale of the harm produced. And when cases do go to trial, it can also be more psychologically challenging for victims, especially those who testify. Additionally, victims do not always want offenders to be incarcerated for a long time. Respondents in surveys of crime victims oftentimes indicate that they prefer rehabilitation over sanctioning and believe that prisons are likely to induce people to commit crimes.¹⁹

These considerable benefits create a compelling case for a wide application of restorative justice in American criminal law. Yet a complete discussion of restorative justice needs to include analysis of the weaknesses of existing restorative practices. In the United States, most restorative justice laws allow for substantial discretion in decision-making.²⁰ As a result, explicit or implicit bias may influence whether a prosecutor, a judge, or another agent in the criminal justice system refers an offender to restorative justice. Some studies lend support to this concern, as Black and Latino offenders were less likely than white offenders to be placed in a a juvenile restorative justice diversion program in Maricopa County, Arizona.²¹ Moreover, participants in restorative justice processes are exposed to serious risks because many states lack laws requiring confidentiality of proceedings. In the absence of protective legal provisions, restorative justice risks perpetuating state punishment, which can happen if either party withdraws, if the mediator deems the process inadequate, or if a judge rejects the consensus that was reached during restorative meetings. Therefore, those who seek to expand the use of restorative justice in criminal cases need to address these drawbacks.

Due to the moral, political, and social urgency to end mass incarceration, the United States ought to greatly expand the use of restorative justice in criminal cases. Instead of merely passing restorative justice laws expressing aspirational goals, states need to apply restorative justice more substantively in their criminal justice system. Rigorous research should inform the implementation of restorative justice practices to avoid the potential pitfalls of this process. More importantly perhaps, integrating restorative justice into the criminal justice system requires a firm commitment to protect the rights of a group that has been for far too long marginalized—incarcerated Americans.

References

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1. “Incarceration Statistics,” Vera Institute of Justice, accessed October 17, 2022, https://www.vera.org/incarceration-statistics. ↩

2. Ibid. ↩

3. https://www.aclu.org/issues/smart-justice/mass-incarceration ↩

4. Adriaan Lanni, “Taking Restorative Justice Seriously,” SSRN Electronic Journal, 2020, https://doi.org/10.2139/ssrn.3797755. ↩

5. Tony F. Marshall, Restorative Justice: An Overview (Coventry: Coventry Lord Mayor's Committee for Peace and Reconciliation, 2018). ↩

6. Joanna Shapland et al., “Situating Restorative Justice within Criminal Justice,” Theoretical Criminology 10, no. 4 (2006): pp. 505-532, https://doi.org/10.1177/1362480606068876. ↩

7. Ibid. ↩

8. Lydialyle Gibson, “Restoring Justice,” Harvard Magazine, July 15, 2021, https://www.harvardmagazine.com/2021/07/features-restorative-justice. ↩

9. “Redressing Harm through Restorative Justice,” Harvard Law School, August 4, 2022, https://hls.harvard.edu/today/redressing-harm-through-restorative-justice/. ↩

10. Lydialyle Gibson, “Restoring Justice,” Harvard Magazine, July 15, 2021, https://www.harvardmagazine.com/2021/07/features-restorative-justice. ↩

11. Thalia Gonzalez, "The State of Restorative Justice in American Criminal Law," Wisconsin Law Review 2020, no. 6 (2020): 1147-1198 ↩

12. Ibid. ↩

13. Ibid. ↩

14. Adriaan Lanni, “Community-Based and Restorative-Justice Interventions to Reduce over-Policing,” American Journal of Law and Equality 2 (2022): pp. 69-84, https://doi.org/10.1162/ajle_a_00040. ↩

15. “Ministry of Justice,” How restorative justice works | New Zealand Ministry of Justice, accessed November 23, 2022, https://www.justice.govt.nz/courts/criminal/charged-with-a-crime/how-restorative-justice-works/. ↩

16. John Bradford Braithwaite, “In Search of Restorative Jurisprudence,” SSRN Electronic Journal, 2002, https://doi.org/10.2139/ssrn.330989. ↩

17. Heather Strang et al., “Restorative Justice Conferencing (RJC) Using Face‐to‐Face Meetings of Offenders and Victims: Effects on Offender Recidivism and Victim Satisfaction. A Systematic Review,” Campbell Systematic Reviews 9, no. 1 (2013): pp. 1-59, https://doi.org/10.4073/csr.2013.12. ↩

18. John Gramlich, “Only 2% of Federal Criminal Defendants Go to Trial, and Most Who Do Are Found Guilty,” Pew Research Center (Pew Research Center, May 30, 2020), https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/. ↩

19. Adriaan Lanni, “Taking Restorative Justice Seriously,” SSRN Electronic Journal, 2020, https://doi.org/10.2139/ssrn.3797755. ↩

20. Thalia Gonzalez, "The State of Restorative Justice in American Criminal Law," Wisconsin Law Review 2020, no. 6 (2020): 1147-1198 ↩

21. Nancy Rodriguez, “Restorative Justice, Communities, and Delinquency: Whom Do We Reintegrate?*,” Criminology &Amp; Public Policy 4, no. 1 (January 2005): pp. 103-130, https://doi.org/10.1111/j.1745-9133.2005.00010.x. ↩