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Restorative Justice: What is it and Does it Work?Carrie Menkel-MeadowGeorgetown University Law Center, [email protected]

Georgetown Public Law and Legal Theory Research Paper No. 1005485

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Restorative Justice: What IsIt and Does It Work?Carrie Menkel-MeadowGeorgetown University Law Center, Washington, DC 20001;email: [email protected]

Annu. Rev. Law Soc. Sci. 2007. 3:10.1–10.27

The Annual Review of Law and Social Science isonline at http://lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev.lawsocsci.2.081805.110005

Copyright c© 2007 by Annual Reviews.All rights reserved

1550-3585/07/1201-0001$20.00

Key Words

reconciliation, reintegration, community, victims, offenders,criminal law, crime and punishment, human rights, reparations,international law

AbstractThis article reviews the now extensive literature on the varied arenasin which restorative justice is theorized and practiced—criminal vio-lations, community ruptures and disputes, civil wars, regime change,human rights violations, and international law. It also reviews—byexamining empirical studies of the processes in different settings—how restorative justice has been criticized, what its limitations andachievements might be, and how it might be understood. I explorethe foundational concepts of reintegrative shaming, acknowledg-ment and responsibility, restitution, truth and reconciliation, andsentencing or healing circles for their transformative and theoreticalpotentials and for their actual practices in a variety of locations—family abuse, juvenile delinquency, criminal violations, problem-solving courts, indigenous-colonial-national disputes, ethnic andreligious conflicts, civil wars, and liberation struggles. Restorativejustice, which began as an alternative model of criminal justice,seeking healing and reconciliation for offenders, victims, and thecommunities in which they are embedded, has moved into larger na-tional and international arenas of reintegration in political and ethnicconflicts. This review suggests that there are important and seriousquestions about whether restorative justice should be supplemen-tal or substitutional of more conventional legal processes and abouthow its innovations suggest potentially transformative and challeng-ing ideas and “moves” for dealing with both individual and grouptransgressive conduct, seeking peace as well as justice.

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INTRODUCTION: CONCEPTS,DEFINITIONS, AND PURPOSESOF RESTORATIVE JUSTICE

To its conceptual and practical founders(John Braithwaite, Howard Zehr, and MarkUmbreit, among others), the field of restora-tive justice is an effort to transform the way wethink of punishment for wrongful acts. Whena crime or serious bad act (which may includemore classes of activity than those legally la-beled criminal) occurs, it effects the victims,offenders, interested bystanders (such as fam-ily members, employees, or citizens), and thelarger community in which it is embedded. Toparaphrase one of the field’s founders (Zehr2002, Zehr & Mika 1998), these bad acts orruptures in human interaction create needsand responsibilities for the direct participantsin the act, as well as for the larger societyin which their act(s) occur. Restorative jus-tice is the name given to a variety of differ-ent practices, including apologies, restitution,and acknowledgments of harm and injury,as well as to other efforts to provide heal-ing and reintegration of offenders into theircommunities, with or without additional pun-ishment. Restorative justice usually involvesdirect communication, often with a facilita-tor, of victims and offenders, often with someor full representation of the relevant affectedcommunity,1 to provide a setting for acknowl-edgment of fault by the offender, restitutionof some sort to the victim, including both af-fective apologies and material exchanges orpayments, and often new mutual understand-ings, forgiveness, and agreed-to new under-takings for improved behaviors. In its mostidealized form, there are four Rs of restorativejustice: repair, restore, reconcile, and reinte-grate the offenders and victims to each otherand to their shared community.

Restorative justice raises deep philosoph-ical, sociological, and empirical issues. Thephilosophical literature focuses on the pur-

1The notion of what the community is in restorative justiceis one of some controversy (Weisberg 2003).

poses and nature of wrongdoing and punish-ment (Gabbay 2005, Blumenson 2006) and isonly briefly reviewed here. At both the philo-sophical and sociological level, restorative jus-tice raises important questions about whoshould have power, control, and possessionover crime, acts of wrongdoing, punishment,restitution, reconciliation, and community in-terests (Christie 1977, Menkel-Meadow 1995,Von Hirsh 2003). When an act of wrong-doing is committed, who has an interest inits rectification: the victim, the community,the offender, those affected by the act, orthe larger society? Who decides what jus-tice is: the victim (who might want vengeanceor restitution), the state (who will want todeter future crimes and acts of wrongdoing,set precedents for others, and establish so-cial control), or the community in which thewrongdoing is embedded (where motivationsmay vary from revenge to the desire to re-claim every community member)? Who hasthe power to forgive and accept restitution orreconciliation: the victim, the victim’s family,the community in which the wrong occurred,or the state? What if acts of wrongdoing af-fect both individuals and a larger commu-nity, such as hate crimes or genocides? Ifcrime or other acts of wrongdoing are a col-lective hurt or tear in the social fabric, canindividuals forgive on behalf of anyone be-sides themselves? Are crime victims adequateproxies for the rest of a society that maydefine justice differently (more harshly, lessharshly)? How are we to know what the properunit of analysis is for measuring appropriateforms of punishment or restitution? What isthe proper balance between victim-offenderreconciliation, community peace, and socialorder or justice? (Similar issues have beenraised in the civil sphere of dispute process-ing; see Menkel-Meadow 1995, 2006.) Howshould we integrate both the public and pri-vate aspects of crime and wrongdoing? Shouldright-making of wrongdoing be backward fac-ing (punishment and legal justice) or futurefacing (reconciliation, restoration, and socialjustice)?

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Whatever one’s views on these impor-tant philosophical and criminological issues,the question remains: Does restorative justicework? Does it meet its own claims of reducedrecidivism, restored communities, and reinte-grated offenders? Is restorative justice moreefficient (less costly, more deterrent, morerestitutionary) than more conventional formsof punishment? Is it more fair or just (as per-ceived by participants or as analyzed by exter-nal, objective, and professional measures ofthese illusive concepts). This article reviewsthe extant findings, which do demonstratesome support for restorative justice claims,while also raising questions about the (limited)conditions under which restorative justicemay be most effective. The next major issueof evaluation in the field is whether even suc-cessful victim-offender restorative justice canbe scaled up to national levels of political andcivic reconciliation, either through truth andreconciliation–like processes or through repa-rations (Bradford 2005, Brooks 1999, Brophy2006).

Restorative justice as a social practice andmovement began, in its modern incarnation,in the 1970s as a response to what was consid-ered to be an overly harsh criminal justice sys-tem that neither effectively deterred crime norsuccessfully rehabilitated offenders. Champi-oned by social workers, progressive criminaltreatment professionals (including police of-ficers and prison reformers), some lawyersand judges, psychologists, and community andpeace activists, restorative justice was prac-ticed first (Lerman 1999), and theorized later,most eloquently by John Braithwaite (1989,1995, 1999, 2002, 2003, 2006). Restorativejustice proponents suggested that by provid-ing structured environments in which offend-ers and victims met and explained their in-juries and hurts to each other, offenders couldacknowledge and explain their bad acts, apol-ogize, and make restitution to victims whocould forgive and feel safe again. With fam-ily members or community representativespresent, there would be public accountabil-ity, an inquiry into root causes of criminal

or wrongful acts, and, at its best, suggestionsfor creative, tailored solutions. Restitutionarypossibilities would emerge from facilitated di-alogue. Through structured shaming (Kahan1996, 2006; cf. Markel 2007), responsibilitytaking, and acknowledgment of injury done,offenders might be effectively reintegratedinto their communities, and victims would nolonger be frightened or traumatized by whathad happened to them.

From the beginning, restorative justicepractices were intended to heal at both theindividual and group or social level. Attentionin both practice and theory was placed onhealing those directly affected by a crime orbad act and on institutional and social reform.At its most aspirational or utopian, restorativejustice has been seen as a potentially transfor-mative social practice that could, under theright conditions, obviate the need for harshcriminal punishment and incarceration. Inthis conception, restorative justice was linkedas a social movement to community orga-nizing, criminal justice and prison reform,the civil alternative dispute resolution (ADR)movement (Menkel-Meadow et al. 2005), andthe peace movement in that it sought alterna-tive processes for different and more humaneand tailored outcomes. In its more groundedand practical institutionalized forms, restora-tive justice was often supplemental, notsubstitutive, to conventional criminal pro-ceedings. In an early core definition ofrestorative justice, it is a “process that bringstogether all the parties affected by an incidentof wrongdoing to collectively decide how todeal with the aftermath of the incident and itsimplications for the future” (Marshall 1998,Roche 2004). Although some think restora-tive justice is most appropriate in the contextof small, interpersonal wrongful acts, such aspetty thefts, simple assaults, drug- or alcohol-related crimes, and family abuse, restorativejustice has been adapted for cases involvingmurder, rape, genocide, and other serioustransgressions against large groups or even awhole society (Umbreit et al. 2005, Wellikoff2004). It has also been used effectively as

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a model for pre- or nonlegal disputes inschools, organizational and corporate conflictmanagement, neighborhoods, communities,and families (Llewellyn & Howse 1998).

What began as a domestic social re-form movement (simultaneously developed inAustralia, New Zealand, Canada, the UnitedStates, the Netherlands, Austria, and oth-ers), restorative justice and its basic princi-ples became a process of international in-terest when Desmond Tutu (1999) led atruth and reconciliation process to transformand heal South African society’s transitionfrom apartheid to a just, multiracial society.Variations on indigenous [such as Rwandangacaca (Honeyman 2004, Bolocan 2004, Raper2005) and Ugandan mato oput (Blumenson2006)] and newly minted restorative processes(Avruch & Vejarano 2001) have now beenused in more than 25 national efforts to movemore peacefully through political, racial, eth-nic, and civil wars and transitions to morepeaceful, democratic, and just states. Restora-tive justice principles thus helped form a newfield of international law and political struc-ture: transitional justice (Teitel 2000).

Restorative justice has several foundationalconcepts that have now been elaborated andextended to many arenas of social and politicalinteraction:

� Personalized and direct participation ina process of speaking and listening ofboth a wrongdoer (offender) and a vic-tim of an act of wrongdoing;

� Narration of what an act of wrongdoingconsisted of and the harm or injury itcaused to those affected (including bothdirect victims and often others, includ-ing bystanders and the larger commu-nity);

� Explanation by the offender of what wasdone and why;

� Acknowledgment and acceptance offault for the wrong committed by theoffender with recognition of the harmcaused (with apology, if not coerced);

� Opportunity for appreciation or under-standing of why the wrong occurred

(root causes) and, in some cases, forgive-ness of the individual, without forgetful-ness of the act;

� Consideration of appropriate outcomesor restitution to those wronged by allparticipants, including victim, offender,family members, and/or larger commu-nity, often with expert facilitation;

� Reintegration of the wrongdoer intothe larger community, through apol-ogy, restitution, and/or support and so-cial services provided (alone or in con-junction with formal punishment aswell);

� Reconciliation of wronged and wrong-doer, within a renewed commitment toshared social norms (often reconstitutedwithin the restorative process);

� An orientation to the wrongdoer thattreats the act separate from the personso that the person may be redeemed asthe victim/community is repaired;

� An orientation to the future, to the ex-tent possible, to make right what waswrong and to rebuild new relationshipsand new communities.

These foundational concepts come from a be-lief that conventional legal processes (crim-inal, international tribunals, and even civilprocesses) are often ineffective in their bu-reaucratic separation of offender from theactual consequences of acts, in the timingof any remedial actions (delayed incarcera-tions or other punishments), and in the inat-tention to the personal nature of the wrong(both for rehabilitation of the offender andrestitution of the particular harm suffered bythe victim), not to mention in their failureto deter or reduce crime. Restorative justicehopes to harness the commission of wrong-ful acts to the making of new opportunitiesfor personal, communal, and societal growthand transformation through empowerment ofboth victims and offenders in direct and au-thentic dialogue and recognition. It also hopespractically to reduce recidivism and reinte-grate wrongdoers into more positive roles andrelationships.

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At the theoretical level, most proponentsof restorative justice claim that such processesreclaim the property of the crimes or conflictsfrom their ownership and mismanagement bythe state (Christie 1977) and return them tothe victims and offenders whose lives are mostaffected. As with the civil ADR movement,restorative justice proponents claim that out-comes can be creatively tailored to meet therequirements and needs of the situations andthe parties. Thus, there will be higher ratesof compliance and greater satisfaction withthe process itself, encouraging belief in its le-gitimacy and its ability to rectify wrongs andrepair broken or harmed social relationships.Restorative justice is designed to remove neg-ative stigmatization of the individual and re-place it with recognition of the wrongful-ness of an act, with shaming of the act, andwith reintegration of the person (Braithwaite2002; Strang 2001, 2004). As an ideology andas a practice, restorative justice often appealsacross the political spectrum, with liberalsseeking criminal justice reform through per-sonalized treatment, compassion, and under-standing for socially disadvantaged offenders,and conservatives approving of offender ac-countability, responsibility, and restitutionarypayments to victims (Barnett 1977). When itworks most effectively, restorative justice en-hances participatory and deliberative democ-racy and can promote community building,political legitimacy, and the development ofnew social and legal norms. Progressive the-orists and practitioners see in restorativejustice another form of participatory delib-erative democracy; conservative theorists seedevolved and localized governance for crimecontrol.

Although there are many contested the-oretical and practical issues in the uses ofrestorative justice at its different levels (per-sonalistic wrongs, less serious crimes, seri-ous crimes, state crimes, crimes or wrongsagainst humanity) that are reviewed below,recent scholarship (Strang 2004, Johnstone2003, Roche 2004, Strang & Braithwaite2000, Minow 1998) on these issues has en-

abled a relatively coherent set of issues, re-search questions, and objections to be de-veloped across levels of analysis and uses ofrestorative processes. Such issues include:

1. Whether restorative justice processesare effective in meeting their ownclaimed advantages, such as reduced re-cidivism rates; increased rates of rein-tegration to a nonoffender life; move-ment toward reconciled, postconflictsocieties;

2. Whether victims feel coerced or black-mailed to participate, forgive, forget,and forego (desires for revenge or otherretributivist goals) (Acorn 2004, Brown1994);

3. Whether offenders feel coerced to con-fess, apologize, and waive the rights ofthe criminally accused (Dolinko 2003,Delgado 2000, Brown 1994);

4. Whether restorative processes—likeother alternative processes that focuson direct, but informal, narrative—privilege some (the articulate, theverbal) and disadvantage others [theless verbal; the racially, gendered, orclass-based disadvantaged (Young 1990,2000; Daly 2002, 2005; Cahn 2006)];

5. Whether certain classes of wrongdoingshould never be submitted to restorativeprocesses, e.g., serious crimes such asmurder, rape, or wrongdoing in whichsociety as a whole, not just individ-uals, is affected, such as genocide orhate crimes (Robinson 2006, Rugge &Cormier 2005);

6. Whether particular wrongdoers or of-fenders (or victims) should be excludedfrom restorative processes, e.g., repeatoffenders, the mentally impaired, thosewho are remorseless;

7. Whether psychological or sociallybased communication technologies atthe individual level are effective formacro institutional, national, and largersocial problems;

8. Whether restorative justice can orshould substitute entirely for state and


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formal criminal sanctions and punish-ments or whether it should be a totallyinformal and voluntary supplementaryprocess;

9. Whether restorative justice is more eco-nomically and criminologically efficient(less costly, more deterrent) than con-ventional criminal justice methods;

10. Whether a focus on future remediationor right-making diminishes importantconcerns about blame for past wrongs(Menkel-Meadow 2004, Grillo 1991);

11. Whether individualized forms ofrestorative justice can meet the re-quirements of equity-based justiceor equality when similarly situatedoffenders are provided with differentialoutcomes (Robinson 2006);

12. Whether privatization of justice in thecriminal context (whether individualor at larger state levels) deprives usof the public function of courts, tri-bunals, punishments, and precedent-setting (Luban 1995);

13. Whether private criminal justice canoperate within the shadow of the law,with both the potential coercion of thestate as a threatened alternative, or as aweak substitute where there is no formallaw enforcement (international criminallaw);

14. Whether participation in restorativejustice procedures enhances both indi-vidual and communitarian sensibilitiesfor empowerment, fairness, legitimacy,satisfaction, and social justice;

15. Whether restorative justice is a spiri-tual, utopian project, with a faith in hu-man ability to be transformed, at bothindividual (Katz 1990) or group lev-els (Gibson 2004a), and whether it canbe harnessed to practical, institutional,large-scale social and legal change.

This article reviews the claims made forrestorative justice and the difficult and com-pelling issues raised by its use and offered byits critics to discount its achievements andpossibilities. I begin by recounting some of

the history of restorative justice in its var-ious forms, with its differentiated claims. Ithen explore some of the most trenchant cri-tiques that have been made of restorative jus-tice at philosophical, social, political, jurispru-dential, and practical levels. Next, I report onwhat we know to date about how restorativejustice actually works from a variety of empir-ical sources, including several meta-analysesperformed by others. Finally, I suggest whatissues and challenges lie ahead for both the useand assessment of restorative justice efforts inindividual, community, national, and interna-tional efforts to deal effectively with human-inflicted harm.

FORMS AND MODELS OFRESTORATIVE JUSTICE

Although in one sense restorative or restitu-tionary justice is as old at least as the earli-est forms of classical justice in Greek, Arab,and Roman legal culture (Braithwaite 2002),modern restorative justice traces its origins toobjections to both retributivist and failed re-habilitative models of criminal law and pun-ishment. Victim control of the prosecutionof wrongful acts was a common practice be-fore the modernization of the criminal jus-tice system in the late Middle Ages in Europe(Langbein 2003) relocated the managementof crime from private citizens to the state.State control of crime developed to providerevenue for the state (in fines and punish-ments) and more order and control (and eq-uity) in the treatment of offenders. State con-trol of criminal acts was also a product ofthe fear of vigilante or vengeance motives onthe part of victims, which actually perpetu-ated violence, as needs for less bloodthirstyand more orderly outcomes were required,not only as religious, social, and humanitar-ian values evolved, but also to provide somepredictability for the growing commercial so-ciety and increasingly centralized political or-der (Thompson 1976). Although fines andjail terms began to substitute for blood feudsin postmedieval Europe, elements of violent

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retributivist and vengeance-seeking systemsof justice continued to coexist with localrestorative forms of community moots or me-diation in many cultures. The history of crimi-nal justice and punishment is one of increasingstate control and surveillance (Foucault 1979),with concomitant increased costs of public in-stitutions and public responsibility, with littledemonstrated reduction of crime, violence, orantisocial acts (cf. Zimring 2006).

The twentieth century was certainly themost violent of all centuries at nation-state,group, and individual levels, even with themodern criminal and penological apparatusthat had developed by then. Aside from Angloand middle European criminal justice modelsof punishment (incapacitation, incarceration,retribution, rehabilitation), other legal cul-tures have long focused on restorative, repara-tive, or restitutionary forms of justice, includ-ing community moots, wise elder mediation,religious forms of repentance and reparation,and various forms of communal conferenc-ing (nanante, ubuntu, gacaca) in the MiddleEast, Africa, and Asia and peace circles in in-digenous American (both North and South)cultures. All these forms of justice or dis-pute resolution involve some narration beforevictims, offenders, family members, support-ers, community members, and leaders, withcommunally arrived at outcomes (fines of ani-mals, crops, other goods, or money; reparativework; and often ritual ceremonies of healingand forgiveness, including the sharing of com-mon food and drink, as well as dances, songs,and other expressive activities). Most repar-ative forms of justice were scaled to smallercommunities where mobility for both offend-ers and the community was limited and con-tinuing face-to-face contacts with communitymembers were the norm.

As state control embraced more social con-trol of criminal offenders, both through for-mal legal processes and therapeutic interven-tion models, reformers began to experimentwith new forms of handling (I never say man-aging) wrongdoing. In the early 1970s, bothin Canada and the United States, contem-

poraneously with similar movements in civiland family law toward mediation, experimen-tal programs in victim-offender reconciliationprograms (VORP) or victim-offender media-tion (VOM) (Umbreit 1994) were establishedalongside or within progressive court sys-tems, some as diversionary programs for mi-nor crimes, others as independent processes.By the mid-1990s, there were hundreds ofprograms in many states and provinces ofthe United States and Canada. These earlyprograms focused on facilitated conversationsof wrongdoers, victims, and family membersboth as supporters and as possible disciplinar-ians or enforcers. These programs sometimesserved as alternatives to state prosecutions(dismissals if victims agreed and were oth-erwise made whole). VORP and VOM wereoften founded by social reformers, progres-sive criminal law professionals (including po-lice, probation and parole officers, and socialworkers and some lawyers and judges), and,notably, by religious groups, such as the Men-nonites, who brought their reparative philos-ophy to bear on all forms of conflict resolution(Zehr 1990, Lederach 1997).

Some of the developments in the 1970swere sparked by First Nation practices inCanada (Stuart 2001) for “peace or sentenc-ing or family circles” used both for internalwrongs committed within tribes and then laterexpanded to First Nation land and other dis-putes with the larger nation-state (Bradford2005). These practices enlarged the notion ofwho was a proper participant or stakeholder inconflicts involving harm to other members ofthe community. A more flexible, tailored, andcommunitarian sense of justice or fairness, in-cluding group responsibility for bringing in-dividuals back into the community, charac-terized many of these programs. “Healing orpeace circles” of a variety of North Americannative groups, including the Navajo (Yazzie& Zion 1996), brought native practices to theattention of conventional court systems. Pro-cesses including “talking sticks” that rotateamong participants and equalize who will talk(especially in leaderless groups) are radically


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different from legalistic and adversarial con-frontations. The purpose of such conferencesis often not to assess fault or guilt (with fact-finding), although there is narration of whathappened and why, because usually fault orguilt is admitted. The purpose of the circleor conference is to consider the best ways tomake the victim whole or compensated and toconsider various forms of treatment or reinte-gration of the wrongdoer. With the emphasison remedial approaches (for both victims andoffenders), considered from a collectivity (thecommunity, tribe, family, or other represen-tatives), power is not located in a single judge,and the norms that are referenced may be ne-gotiated and interpreted for particular cases,with less emphasis on formal rules and stan-dards. These processes have many variations,including referral back to courts if wrongdo-ers do not admit fault or victims are not sat-isfied with apologies or restitutionary offerswhen laws have been violated. In other cases,the state may defer to some other form of au-thority (Indian tribes, local law enforcement,etc.), provided there is full participant consentor other legal authorization.

Perhaps the greatest and deepest impact ofthese new processes was seen in New Zealand,where family conferencing modeled on bothtraditional Maori and modern practices de-veloped into a mandatory model for juvenilejustice (Maxwell & Morris 1993). Here themovement represents collaboration amongmainstream conservative and social demo-cratic political parties, Christian profamilygroups, and Maori philosophy and participa-tion (Braithwaite 2002). In such family confer-ences, alternative structures to conventionaladversary adjudication involve the juvenile of-fender, teachers, social workers, family mem-bers, victims, and others who jointly developa package of restitutionary payments or ser-vice, apologies, and plans for future behavior,often in lieu of incarceration. In sentencingcircles, a community group helps develop pro-grams and proposals for compensating victimsand preparing behavioral plans for ameliora-tion of the conduct of the offender. Such pro-

grams, of course, have their critics (see be-low), both for coercing compliance and alsofor reduction of criminal defendant rightsin nations with strong civil liberties protec-tions (Delgado 2000). There is also some ev-idence that, when used in smaller, homoge-neous communities (which are felt to be moreoppressive to some adolescents than the coldstate), there is an increased risk of flight fromthe community (Marshall 1998).

In the United States, the states makingmost use of these programs are Minnesota,Vermont, Wisconsin, Maine, New Mexico,Pennsylvania, and Montana, which employvarious forms of victim-offender programs forjuveniles and for postconviction, probation,parole, and “creative” sentencing. Less use ismade currently at the federal criminal levelbecause of determinate sentencing laws (Beale2003), although in earlier periods, the federalcourts varied by region in how they deliv-ered tailored justice to particular offenders,with contrasting retributivist and rehabilita-tive goals (Utz 1978). A new development in-cludes “problem-solving courts” (Kaye 1997,Berman et al. 2005) in which restorative andrehabilitative principles have made their wayinto the formal justice system, as special-ized courts in drug offenses, vice, abuse, ne-glect, and other family issues have developedmore reparative sentences, including person-alized treatment programs, some elements ofrestorative shaming, and some structured en-counter with victims, as well as regular report-ing and accountability (e.g., drug tests) to thecourt itself (Dorf & Sabel 2000).

Restorative justice programs are intended,in ideology, to be purely voluntary, but as-pects of restorative justice have been co-optedinto mandatory diversionary and formal courtprograms, raising questions of philosophicalpurity and efficacy and challenging efforts tomeasure the impact of these programs. Somemodels of restorative justice have been usedin prisons, concurrent with and adjunct to for-mal punishment, and observers fear that someoffenders may pay twice with formal crim-inal sanctions and demands for less formal

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restitutionary or shaming rituals that re-duce their human dignity (Nussbaum 2004).Restorative justice processes can also beused following release, as conditions of pa-role or probation, connecting the offenderto agreements with victims or the commu-nity for social service, compensation, or ac-countability for behavioral change. Althoughrestorative justice is motivated by those seek-ing humanistic integration, it is easy to seehow some restorative justice forms can ap-pear oppressive, reducing freedom of action,and individual agency and requiring intrusivesurveillance and accountability that can de-volve into counterproductive resentment.

Restorative justice has, in recent years, in-formed a variety of other legal and politicalprocesses. John Braithwaite argues for its ef-fectiveness as responsive regulation in mat-ters of corporate and public policy regulation.When state regulators engage in negotiatedconversations with managers of corporationsand industries (such as nursing homes, tradegroups, commercial enterprises), Braithwaite(2002) argues, compliance is greater and dia-logues allow more realistic, flexible, and con-tingent enforcement of important legal stan-dards (see also Hawkins 1984).

Dispute resolution theorists and practi-tioners have argued that public and delib-erative encounters in regulatory, civil, andcriminal matters can be seen as a new formof governance, promoting healthy democraticdeliberation that is more participatory, le-gitimate, and flexible in its legal and socialproblem solving when matters are openlynegotiated with many stakeholders and whenmultiple issues and multiple parties are in-volved in the deliberations (Menkel-Meadow2004, Elster 1995, Bohman 1996).

In the 1990s, restorative justice practicesmoved outward from individual acts of wrong-doing to the systematic wrongdoing of civiland ethnic wars (by both intra- and inter-national state and nonstate actors) and ille-gitimate regimes such as apartheid. The useof TRCs and similar public panels of en-counters of victims and offenders and the

larger nation-state and international com-munity has given rise to whole new insti-tutions of justice (Avruch & Vejarano 2001,Minow 1998, Stromseth et al. 2006). Thesetruth commissions are intended to providea new national narrative as victims seek an-swers and information about their individualfamily members [what happened to the disap-peared (Argentina, Chile), the murdered, orthe incarcerated (Guatemala, Rwanda, SouthAfrica)], as well as the truth about state-sanctioned violence and harm (Sierra Leone,East Timor). As discussed more fully below,the challenge for these various and quite di-verse TRCs has been to ensure participationby both victims and perpetrators, which inmany cases is not a direct encounter as in moreconventional criminal restorative justice prac-tices, in settings where there is mostly talk ortestimony and not real punishment or restitu-tionary relief.

At the national or institutional level ofrestorative justice, the goals may be quitedifferent than in more individualized acts ofwrongdoing. The commissions are designedto heal the nation-state or civil community byallowing many narratives of hurt and harm tobe told and by creating new collective nar-ratives of the truth so that a society can be-gin anew with transformative understandingsof both its past and its future. Like the useof restorative justice in more individual set-tings, the efficacy and effectiveness of theseprocesses have been debated and questioned(see below), but these processes are clearlyevolving and offer great promise of adapt-ing to different political, cultural, and his-torical contexts and may ultimately transformour conceptions of international justice. As ismore fully explored below, as scholars and po-litical activists assess and debate their effec-tiveness, there are particularly rich encountersbetween the international human rights com-munity (with rights-based conceptions of jus-tice) and the international conflict resolutionand peacekeeping communities (with morerealist and pragmatic conceptions of post-conflict regimes). Differences of theoretical


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paradigms, of assumptions about human be-havior, of philosophies, and of commitments(such as to the rule of law or to pragmatic,informal actions of nongovernmental organi-zations) and practices may themselves haveto be mediated to make these new forms ofjustice meet their aspirational goals, eitheralongside conventional legal structures (withconventional international or national pros-ecutions of the most serious atrocities) oras substitutes for them (in less serious casesin which redemption, reassimilation, or evenco-optation of past aggressors may be possi-ble or desirable for security and continuityof regimes). The newer forms of truth andreconciliation practices combine tiered sys-tems of prosecution (for most serious crimes)and confession and restorative justice for lessserious offenses (Honeyman 2004, Hayner2001). Whether these alternative institutionsare public or private is also a crucial issue.The South African TRC proceedings weretelevised to the whole nation, but virtually allof the Latin American commission proceed-ings (Argentina, Chile, and Guatemala) wereprivately conducted (even with publication offormal reports).

CRITIQUES OF RESTORATIVEJUSTICE

Most proponents of restorative justice appealin visionary, optimistic, and aspirational termsfor a new human sensibility to emerge fromthe transformative effects of dialogue, con-versation, empowerment, and understanding,from individual juvenile offender advocatesto architects of the most complex truth andreconciliation governmental processes or for-mal state institutions, such as problem-solvingcourts. The claims made on behalf of restora-tive justice are simultaneously instrumental,incremental, and grand:

� Restorative justice enhances under-standing of the root causes of crime andconflict;

� Outcomes reached in restorative justiceare more likely to be complied with;

� Restorative justice processes reduce re-cidivism rates;

� Restorative justice offers the possibil-ity of reclaiming, repairing, and trans-forming individual wrongdoers andreintegrating them into productiveactivity;

� Participants in restorative justice pro-cesses are more likely to developfellow-feeling, empathy, and a senseof moral responsibility, mutuality, andreciprocity;

� Restorative justice processes enhancecommunity building, community normdevelopment, and democratic partic-ipation by increasing the number ofstakeholders who are involved in itsdeliberations;

� Restorative justice permits more real,less formal, less stylized or legal humancommunication and interaction, pro-ducing more authentic understanding;

� Restorative justice processes are richerat expressing a variety of often com-peting justice values simultaneously—acknowledgment of fault, recognition ofconsequences that flow from wrongfulactivity (punishment, remorse), com-pensation to victims, social learningand healing, mercy, as well as moraljudgment—and are thus more creativeand flexible and represent a form ofresponsive justice (Nonet & Selznick1978) that is humanely civilized and notas brittle as formal adversarial justicestructures;

� Processes using restorative justice val-ues are more likely to engage individualsin voluntary commitments for under-takings to others and self and to encour-age self-empowerment and self-esteem;

� The underlying values of restorativejustice promote a positive redemptionistand ameliorative view of human behav-ior, with a positive hope that even theworst among us can be transformed toconsider the common good and the bestfor other human beings;

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� Outcomes produced by participatoryrestorative justice processes are moretailored to the specific needs of indi-viduals, groups, communities, and na-tions; they can be bargained for withmore nuance, detail, and accountabil-ity than those produced by formal andoverbooked systems of justice;

� Restorative justice is potentially lesscostly and more efficient both in mone-tary and deterrent effects than conven-tional penological practices;

� If the principles of restorative justicewere to gain ascendancy, the criminaljustice system would be radically trans-formed (less punitive and more respon-sive), if not eliminated.

Since the practices of restorative justice inall of the forms described above have been de-veloping and attempting to express these aspi-rational values, a core of critiques of restora-tive justice has emerged at different levels andfrom the perspectives of different disciplines.There are empirical claims that restorativejustice does not meet its own claims (see nextsection) (Braithwaite 2002, Daly 2002, VanNess 1993); philosophical and sociologicalclaims that humans continue to carry base re-tributivist and vengeful motivations that areimpervious to so-called transformative pro-cesses (Acorn 2004); legalistic claims thatrestorative justice unfairly coerces and manip-ulates its participants to forgive (victims) orconfess and accept harsher terms (offenders)than legal rights and rules would permit informal justice institutions and that restorativejustice does not deliver equitable or equal jus-tice (Dolinko 2003, Delgado 2000); anthro-pological critiques that concepts in restora-tive justice ideology are culturally specific andnot universal (Avruch & Vejarano 2001) andthat notions of community are social con-structs and can be manipulated for bad ends(Weisberg 2003); and political claims thatrestorative justice processes will be manipu-lated, corrupted, co-opted, and deformed toproduce oppression, more state surveillance

and discipline, and more inappropriate socialcontrol (Abel 1982, Levrant et al. 1999).

In addition to these critiques, specificcritics have suggested that, like civil ADR,restorative justice privatizes that which shouldbe public (Luban 1995), prevents precedentsand rule generation for community normdevelopment, and hides its outcomes frommeasurement and evaluation. The locationof restorative justice (whether in or along-side courts or as private conferencing sessions)problematizes the relation of the state to lawenforcement and shared governance with pri-vate entities (a larger issue that clearly impli-cates more than restorative reforms in this ageof public-private partnerships).

Criminologists worry that restorative jus-tice will lead to subjective, nonobjective, andnonrational assessments of harm and needand will produce great inequities for bothvictims and offenders. What is extremelypainful to one victim may be tolerable for an-other. Whether victims receive recompenseand restitution will depend not on the qual-ity of the offense, but on the resources ofthe offender. Philosophers such as Nussbaum(2004) decry the potential degradation andloss of humanity that can come from com-pelled shaming. Acorn (2004) argues similarlyabout the effects of coerced compassion onthe part of victims, who have been seriouslyharmed and are made to feel ashamed abouttheir desires for punishment, vengeance, andretribution. In these claims, we see that thevery promise of restorative justice to be moreauthentic has the potential to be less authenticthan other forms of structured and rule-baseddiscourse because of its compelled or expectednarratives. When the harm is not only per-sonal but social, how can the offender satisfythe needs of the community for rectificationand safety with a simple (even if authentic)apology (Robinson 2003, 2006)?

Within the restorative justice movementitself, practitioners and theorists have theirown worries (Braithwaite 2002, pp. 137–68) that offenders may be stigmatized in adifferent, but harmful, way than they are


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stigmatized in formal court proceedings; thatvictims can feel revictimized in their retellingof pain or injury suffered [comparable to therape victim’s dilemmas in the formal adjudi-cation system (Matoesian 1993)]; that oppres-sive or false communities in societies that areactually heterogeneous will attempt to im-pose their own values on participants in theprocess; or that even with community homo-geneity more conservative or majoritarian val-ues may gain ascendancy and dampen indi-vidual freedoms (Weisberg 2003). Althoughconceived as a part of a progressive move-ment for social justice, the appeal of restora-tive justice to the Christian FundamentalistRight in the United States has caused some tobe concerned about whether restorative pro-cesses will be used for antiprogressive ends(imposing conservative, antiliberationist, nar-rowly religious, or monocultural values). Or,with less conservative ends, governments maysimply co-opt such processes to achieve theirends (diversionary programs, docket clearing,more social control and surveillance devolvedto nonstate actors) and thus routinize andmake less authentic the human encounter andengagement contemplated by restorative jus-tice proponents. Like civil forms of ADR insuch processes as consensus building, collab-orative governance, negotiated rulemaking,and multi-agency mediation, some worry thatthe separation of powers and accountability inconstitutional governments will be obscuredand made difficult to monitor. Lawyers, inparticular, worry about how informal pro-cesses, while serving some ends of responsiveand flexible justice, can erode other importantvalues—individual civil rights, standards forconvictions, rights of appeals, written opin-ions, and accountability of decision makers.

Feminists have been strong critics (andproponents in other contexts) of restorativejustice models that decriminalize violenceagainst woman and seek lesser punishmentsand no incarceration for wrongful acts thathave only recently achieved some form of legalrecognition (Daly 2005, Stubbs 1995). Prac-titioners worry that processes that are struc-

tured around dialogue and narrative (Young2000) may privilege the verbal and well ed-ucated and disempower those without educa-tion or other resources. And others worry thatrestitution commodifies crime and wrongdo-ing by allowing offenders to buy their wayout if they can (Kahan 2006). Imprisonment,at least in theory, is a great equalizer inincapacitation.

Finally, restorative justice requires well-intentioned, nonmanipulative participantsand sufficient resources to allow authentic en-counters and dialogue to occur. Thus, even forsome proponents of restorative justice, thereis a fear that restorative justice can only workwith large commitments of time, resources,and skilled individuals and must necessarilybe deformed and watered down to ritualizedimperfections if it is assimilated, aggregated,and institutionalized without sufficient careand resources.

EMPIRICAL ASSESSMENTS OFRESTORATIVE JUSTICE: DOESIT WORK?

There are many challenges in assessing theclaims of both proponents and critics ofrestorative justice at the conceptual andmethodological levels. Most importantly, as inassessments of all comparative forms of jus-tice or legal case processing, including civildispute resolution, it is virtually impossibleto conduct controlled experiments or treat-ments of submitting the same matter to dif-ferent treatment conditions for comparison.In both criminal justice matters and largerconflicts, ordinarily there is only one treat-ment of the matter or, if several treatmentsare used, the treatments are used for differ-ent purposes or at different times [such asuse of VOM for remedy but not guilt assess-ment, triaging, or grading of crimes againsthumanity that are assigned to formal pros-ecution or more restorative processes, suchas gacaca in Rwanda (Bolocan 2004)]. So, al-though a few controlled studies are emergingin which there is random assignment of cases

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to either restorative justice or more conven-tional models of process, the bulk of empir-ical evaluations of restorative justice effortsfocus on aggregate comparison data, with at-tempts at matched cases or data sets of differ-ent forms of treatment or intervention. Exam-ples include efforts to assess (a) comparativecompliance rates with agreements or judg-ments; (b) satisfaction rates for victims, of-fenders, professionals, and the larger com-munity with different processes and outcomepossibilities; (c) reoffender or recidivism rates;(d ) reduction of violence generally [commu-nity measures beyond those of participantsin the process (Zimring 2006)]; and (e) inthe case of TRCs, whether postconflict soci-eties build efficacious systems of governancewith legitimacy, compared with societies thathave not used such processes (Stromseth et al.2006).

The second challenge is to define and op-erationalize the meaning of variables assessed.As several new meta-analyses have shown,over the course of many years of study, suchvariables as reoffense rates vary enormouslyfrom study to study, thereby greatly con-founding analysis. In some studies reoffense ismeasured in short time intervals (six months);in others longer (up to two years or more).Some studies cut finely and look at degreesof severity of offense (simple and single prop-erty offenses, simple to repeated assaults) andothers look only at whether there is a subse-quent conviction or, quite differently, simplyanother arrest. Because it is easiest to mea-sure, with exit interviews or follow-up meth-ods, the most common factor studied is acrude measure of satisfaction with the pro-cess (and/or outcome), tracking the now richand robust findings of procedural justice at-titudes (MacCoun 2005, Thibault & Walker1975). These findings demonstrate that theprocesses generally favored are informal pro-cesses that give participants voice and thathave some cathartic effect in response to thedispute or act of wrongdoing. And these infor-mal processes are favored even when partieslose (or do not gain much) in outcomes. Here

again, the comparisons are analogical, ratherthan experimental.

Aggregate studies compare satisfactionrates of those who have used the conventionaljustice system with those who have attendedsome alternative process (Kakalik et al. 1996,Lind et al. 1989), but it is virtually impossi-ble for the same participant to compare treat-ment in the two types of processes in the samecase, leaving open the possibilities that casefactors and other variables may account forprocess satisfaction. For example, in one of themost rigorously designed tests of comparativecivil case processing, LaFree & Rack (1996)found that race and ethnic matching of third-party neutrals (whether mediators or judges)with participants (Anglo-white, Hispanic, orAfrican American) accounted for some of thecomparative satisfaction rates of disputants(and also explained some of the variance inoutcomes in the two processes (mediation oradjudication).

At the level of assessing the more ambitioustruth and reconciliation or societal restorativeprocesses, measurements are even more com-plex and difficult to assess. Should individualsbe polled about satisfaction (those who haveparticipated and those who have not)? Is itpossible, as some political scientists have at-tempted, to compare rates of internal con-flict and civil wars over time and betweennation-states and also to measure aggregatelevels of international conflict (Stein 1993)when different conflict resolution processesare used? As the growing literature on TRCsand postconflict interventions indicates, thereare great variations in the purposes, struc-tures (direct or indirect encounters and tes-timonies, amnesties or punishment, types ofmatters subject to informal processes, public-ity and accessibility of such processes, loca-tion, type of third-party interventions or facil-itations), and functioning of these innovationsin justice. Comparisons across widely differ-ent political, social, and cultural contexts maybe quite difficult.

Despite these methodological problems,the emerging data often provide not only


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confirming or disconfirming informationabout the claims and hypotheses aboutrestorative processes, but also, in some cases,information about new and perhaps unin-tended effects of such processes, such asGibson’s (2004a,b) findings on the develop-ment of human rights consciousness amongthose who viewed (on national television) theSouth African Truth and Reconciliation pro-cess, even if they did not participate directly(see below).

Here I present an overview of what stud-ies to date have revealed about how restora-tive justice is working or is perceived to beworking, in a variety of locations, with greatvariations in purpose, structure, and use.

The greatest claims for restorative jus-tice, in its most conventional forms in crimi-nal justice—that it creates greater compliancewith agreements or judgments, reduces im-prisonment (and therefore costs to the sys-tem), provides greater satisfaction for bothvictims and offenders, and reduces recidivismrates—have all been substantiated in a vari-ety of different studies on at least three con-tinents (North America, Australia and NewZealand, and Europe), despite methodolog-ical difficulties in almost all settings. Com-parisons between systems (restorative andconventional-retributivist) are difficult whenthe participants do not engage in both types[and satisfaction rates with informal processestend to be high, whether in civil cases (medi-ation, arbitration, or other forms of ADR) orcriminal cases (see Lind et al. 1989, Kakaliket al. 1996)].

Some studies focus on participation rates,noting that even when referred by courts (inless than voluntary settings) many offenderschoose to admit guilt and attend mediationwith their victims. (In virtually all court pro-grams, defendants who do not admit guilt andinstead seek trial are not referred to VOM.Thus, how voluntary a guilt admission is re-mains a worrisome issue.) Participation ratesfor victims range from 40% to 60% of thosereferred. Interestingly, participation rates forvictims go up when more time elapses be-

tween referral and participation in cases in-volving personal injury (assault), but decreasewhen more time elapses in cases involvingproperty (theft, vandalism) (Umbreit et al.2005). There is a curvilinear relationship forparticipation rates of victims and the serious-ness of the offense, with participation rateslowest for less serious offenses (“I can’t bebothered”) and for the most serious (fear ofthe offender or reliving the trauma in seri-ous bodily harm cases) (Coates & Gehm 1985,Wyrick & Costanzo 1999).

Many studies have demonstrated high sat-isfaction rates on the part of both offend-ers and victims who feel they were treatedbetter in restorative justice processes than inthe criminal justice system (Poulson 2003,reviewing 7 selected studies out of 100 onpsychological outcomes of restorative justice),often with satisfaction rates greater by a fac-tor of 3 to 4. Studies in such diverse loca-tions as Bethlehem, Pennsylvania (McCold &Wachtel 1998); Brooklyn, New York (Daviset al. 1980); Canberra, Australia (Strang et al.1999, Strang 2001); Israel (Umbreit & Ritter2006); a multi-state U.S. study (Umbreit &Coates 1992, Umbreit et al. 2001); Canada(Umbreit 1995); and the United Kingdom(Umbreit & Roberts 1996, Marshall & Merry1990); along with meta-analysis of multiplestudies (Latimer et al. 2001), with diverse setsof victims (female, young, old, low and middlesocioeconomic classes) and offenders (most,but not all of the studies focus on juvenileoffenders, with increasing attention to adultoffender programs as restorative justice prac-tices expand) all find that victims have satis-faction rates higher than what they had ex-pected to gain from a process following injuryand harm. Offenders are much more likely tofeel they have been treated fairly. Offendersatisfaction rates with restorative justice com-pared with court processes tend to be higherthan victims’ satisfaction (typically because,in minor offenses, participation in restora-tive justice proceedings may eliminate otherforms of punishment, including incarceration,although in some programs offenders might

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have had their cases totally dismissed in a moreconventional setting).

Both victims and offenders report satis-faction with their ability to narrate and ex-plain more fully both the harm and injurythat wrongdoing caused in particular circum-stances and the reasons for committing badacts. On the victim side, there is a slightlylower perception that their opinions weretaken more seriously in restorative justice thanin court, compared with offenders (Poulson2003). And, in an important and rigorous anal-ysis in Australia, victims whose restorative jus-tice proceedings were badly handled or didnot take place were the least satisfied [lesssatisfied than court users and participants inmore successful restorative justice proceed-ings (Strang 2001)]. Thus, the quality of therestorative justice process may be especiallyimportant when there are high expectationsabout what it can accomplish. Participantsgenerally expressed satisfaction with the fair-ness of mediators or third-party facilitatorsover judges [by a factor of 2.3 for victims and6.0 for offenders (Poulson 2003)].

Victims have been satisfied with whatthey perceive to be greater accountability inrestorative justice (Poulson 2003), and, notsurprisingly, victims were more likely to for-give the offender in restorative justice pro-cesses than in court proceedings, probablybecause offenders are much more likely toapologize [6.9 times more likely according toPoulson’s (2003) meta-analysis] than in courtproceedings.

Since the beginning of the 1990s, re-searchers have attempted to track compli-ance rates with reparation and compensa-tion agreements. Although many argue thatrestorative justice does not require an agree-ment but rather seeks understanding and dia-logue, studies document that agreements forsome sort of restitution are highly likely tooccur [more than 90% in VOM programsin which there is face-to-face contact, withsome form of restitutionary agreement beingreached in the vast majority of cases (Umbreitet al. 2005, Umbreit 2001, Umbreit & Coates

1992)]. Compliance rates range from a high of100% to usually no lower than about 75%, incomparison with control groups with diver-sionary or other sentences from courts (see,e.g., Haley & Neugebauer 1992, Marshall1998, Kuhn 1987, McCold & Wachtel 1998).Latimer et al.’s (2001) meta-analysis of eightstudies with a control group found that resti-tutionary compliance was 33% higher inrestorative justice cases than in the controlcases (in court). Other studies in the UnitedStates have found comparisons of complianceof 81% completion rates in restorative justicewith 58% completion in court cases (Umbreitet al. 2005). And in a randomly assigned treat-ment evaluation of six different programs,89% completion was found in restorative jus-tice, compared with 75% completion in courts(Ervin & Schneider 1990).

Satisfaction rates for victims are often at-tributed to the nonmaterial or human as-pects of the process—the ability to explainin regular language (not court-stylized ad-missible evidence) what the harm caused hasmeant for the individual, to learn facts relat-ing to the wrongdoing, and to learn a littlebit about why an offender does bad things.In his meta-analysis of seven studies, Poulson(2003) found that victims who participatedin restorative justice proceedings were halfas likely to feel upset about the crime after-wards than were victims who went to court.In the places where restorative justice is usedin very serious crimes, such as murder or se-rious felonies, the effects of restorative jus-tice are often only in this nonmaterial realm—accountability and apology by the wrongdoerand some relief in the form of closure orforgiveness for the survivors (Umbreit et al.2003), because in very serious cases (murder,rape, and serious assault) restorative justice isancillary or supplemental, not substitutionary,to formal adjudication. In its most spiritualforms, restorative justice is experienced as acathartic event, both for victims and offend-ers. As one participant described it, “Today Ihave observed and taken part in justice admin-istered with love” (Braithwaite 2002, p. 53).


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Indeed, some have asked whether an apologyfrom a murderer might provide greater psy-chological closure (at least for some) than thedeath penalty (Hirsch 2006).

Perhaps the greatest empirical effort hasbeen expended on examining what concreteand measurable effects restorative justice hashad on recidivism rates. In a meta-analysisof 19 studies with 9307 offenders ( juveniles),Nugent et al. (2003) found that VOM par-ticipants were 33% less likely to reoffendwithin six months than those who had notparticipated in VOM. This rigorous meta-analysis recognizes important categorical andcoding issues—different studies define reof-fense differently (arrest, conviction, any newcontact with the criminal justice system), andthe time period in which an offender is fol-lowed can have important effects on the find-ings. Generally speaking, over longer periodsof time (as the offender moves further andfurther away from the VOM event), recidi-vism rates move closer together for restora-tive and conventional criminal justice partic-ipants (Nugent et al. 2003). These data mustbe compared with the general rates of declinein juvenile delinquency with the ordinary lifecourse (which some estimate at as much as50% who no longer offend when they growolder; see McCord 2000). Victimless crimes(like some forms of drunk-driving and somedrug offenses) may be less subject to restora-tive justice–court differences as the encounterwith a victim is minimal (with a state officialstanding in for the harm the crime caused)(Strang 2001). And comparisons of recidivismrates are subject to great selection biases, withthe more minor crimes or those committed byjuveniles more likely to be assigned to restora-tive, not conventional adjudicative, treatmentconditions (Braithwaite 2002, Bazemore &Walgrave 1999, Bradshaw et al. 2006, Pfeiffer1998). Finally, empirical studies, with rare ex-ception, tend to homogenize offenders and donot capture the offender who commits crime“for the thrill of it” and may not be deterredby either restorative justice or conventionalcriminal processes (Katz 1990).

John Braithwaite and other researchersstudying regulatory enforcement have doc-umented that compliance with regulationsis often higher (and rates of repeated non-compliance lower) when regulated industriesand corporate actors are actively engagedin discussions of compliance and allowed totalk with their regulators (Braithwaite 2002,Hawkins 1984). Inspections of mine safety (inthe United States and the United Kingdom)that involved exit conferences with dialoguesand plans for reparation were much morelikely to lead to compliance with rules andincreased safety standards. Braithwaite foundthat persuasion worked much more effec-tively in the corporate compliance contextthan did punitive measures. Similar resultshave been noted in nursing home regulation,special education (Handler 1986), and nuclearpower regulation in a field now internation-ally called “communitarian regulation” (Rees1988, 1994) [not unlike American reg-neg(negotiated rulemaking); see Harter 1982].

Uses of restorative justice in controversialarenas such as domestic abuse have met withcriticism by feminists and some child advo-cates, but in fact many studies do report somesuccess with nonrecidivism in some formsof family conferencing and other forms ofrestorative justice (Burford & Pennell 1998).There has been less rigorous demonstra-tion of successful uses of school peer medi-ation or antibullying to reduce school vio-lence (Braithwaite 2002, pp. 59–61), althoughsuch efforts continue, especially in the wakeof recent violent school shootings. Most ofthe United States was treated to its first pub-lic display of restorative justice when theAmish families who lost children in a schoolshooting in Pennsylvania forgave the wrong-doer, prayed with his widow, and createdan image of freedom as “the freedom fromvengeance, which is forgiveness” (Fleming2006, Arendt 1998). Although not a restora-tive justice process with the actual offender(those who prayed together were all familiesof either the murderer or his victims and were,thus, all survivors), this demonstration of

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religious forgiveness was quite contrary to theimages presented of more vengeful parents inother school shootings (such as Columbine,Colorado).

With the expansion of restorative justice tospecialized reparative courts, like drug courts,vice courts, and unified family courts, re-searchers have just begun to explore rigor-ously whether new treatment models with lesspunishment reduce recidivism, increase em-ployment, or have other ameliorative effectsfor both individuals and the larger commu-nity. Dorf & Sabel (2000), for example, havestudied drug courts’ effectiveness and haveargued that these experiments in local so-cial control should be allowed to flourish andvary as evaluators seek to discover what works(such as ongoing relations with social work-ers and accountability to judges and othercourt personnel) in which contexts [big citieswith larger budgets and more resources orsmaller communities with more gemeinshaftor surveillance (depending on whether onehas a Weberian or Foucaldian perspective)].Courts that treat defendants as members ofa community have been documented as be-ing perceived to be more fair than conven-tional courts (Frazer 2006), and perceptionsof fairness are linked to increased compliance(Tyler & Huo 2002). These efforts to evalu-ate problem-solving courts are controversial,especially among those who see restorativejustice institutions as formally abrogating le-gal rights in the name of remedial creativity(Thompson 2002). With restorative justice’sanalogue in the debate about use of bargain-ing processes for negotiated rulemaking in ad-ministrative regulation and civil law (Harter1982, Coglianese 1997, Freeman 1997), crit-ics fear that softer processes will underminelegal formality, separation of powers, formallegal accountability, and enforcement, as wellas ordered norm and rule creation.

Evaluation of restorative justice’s rehabil-itative potential recapitulates the historicaldialectic of all judicial reform. Nineteenth-century reformers created juvenile courts tobe a more responsive, less punitive, pater-

nalistic institution for wayward youths. Civillibertarian litigation in the 1960s produced,among other cases, In re Gault (1967), whichinfused juvenile criminal proceedings with le-gal rights, such as the right to legal counseland, some would argue, more punitive out-comes. Restorative justice, like its analoguesin civil justice, is a reaction to an over-rigidified, bureaucratized, punitive, and inef-fective (at crime reduction) criminal law sys-tem, which now has its own critics for drawingdifferent lines around individual and collec-tive, formal and informal, material and spir-itual, rights-based and interest-based values.Where restorative processes are supplemen-tal, not substitutional, of the conventional le-gal process, they are more likely to be ac-cepted. Yet some would prefer other reformsof the criminal justice system to remedy itsproblems. Some argue for less plea bargain-ing and faster, more responsive trials to al-low defendants and victims to come to formaljustice faster. Others argue for less draco-nian sentencing, both in length of time andseverity, to return to earlier reform effortsat more rehabilitative notions of criminal re-mediation. Still others argue for decriminal-ization of certain offenses (minor propertycrimes, drug offenses) or more localization ofcriminal law enforcement, whereas more con-servative forces argue for harsher sentencesand criminalization of more offenses. In thepolitical standoffs surrounding criminal jus-tice policy, restorative justice appears to beone reform that appeals to both sides of thepolitical spectrum, if for different reasons.

Beyond the conventional criminal jus-tice system, efforts to expand restorative andreparative processes to larger acts of wrong-doing (Elster 2006) [state violence, genocide,civil wars, ethnic conflicts, international hu-man rights violations, and past wrongs suchas slavery and internment (Brophy 2006)]have also pitted restorative reformers againstmore formal rights-based reformers. Theactivity of nongovernmental organizations,the United Nations, and other organizationsin enunciating and enforcing human rights


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standards has created whole new institutionsof formal prosecution at the internationallevel [the International Criminal Tribunal forthe Former Yugoslavia (Hagan 2003) andfor Rwanda and the International CriminalCourt, among others]. Proponents of enforce-ment of international human rights argue forstrict criminal prosecution, whereas othersargue that some forms of reparative justice[whether individualized (Godobo-Madikizela2003) or more collective (Keller 2007)] aremore likely to lead to healed and function-ing postconflict societies, replicating timelessphilosophical debates about the relative ef-ficacy of principle, adjudication, and rightsversus interest- or needs-based bargaining(Elster 1995; Menkel-Meadow 1984, 2003).The rapid execution of Saddam Hussein afterprosecution in a state (not international) tri-bunal, cutting off further testimony, informa-tion, and maybe public remorse, has reigniteddebates about how justice is delivered in suchcontexts. Whereas some tribunals have beeninternational and other TRCs are nation-statebased, other efforts have experimented withmore mixed combinations of internationaland state-based institutions (Sierra Leone,East Timor). Meanwhile, complex legal issuesof whether international bodies, such as theInternational Criminal Court, should bend tonational policies of amnesty or forgiveness re-main unresolved (Blumenson 2006).

Attempts to study the aftereffects of TRCsand more local, indigenous restorative pro-cesses, such as gacaca in Rwanda, now abound,with heated debate and controversy (Borer2006, Henkin 2002, Rotberg & Thompson2000, Kritz 1995, Avruch & Vejarano 2001,Hayner 2001) as many nations have filed for-mal truth reports with a variety of repara-tive conditions (Guatemala, Argentina, Chile,El Salvador, South Africa, Sierra Leone, EastTimor). Questions of whether internationalor local principles of justice should govern arenow being raised as well (for their effects onpostconflict legitimacy of the legal processesused and the creation of new postconflict na-tional identities, see Ivković & Hagan 2006).

International tribunals are often viewed asaligned with one side in ethnic conflict, assome have argued has occurred in the In-ternational Criminal Tribunal for the formerYugoslavia, thus prolonging hostility and pro-moting continuing desires for vengeance.

Some decry the lack of participation byimportant perpetrators, such as Dyzanhaus’s(2003) exposure of the absence in the SouthAfrican TRC of apartheid-era judges, whofailed even to narrate and acknowledge theircrimes against humanity in upholding the le-gality of the apartheid regime. Others moreforcefully critique the absence of any real pun-ishment, accountability, or reparative com-pensation (Andrews & Ellmann 2002, Abel1995) for horrific wrongs, not to mention thefailure to confront more long-lasting harms—not only discrimination, wrongful murdersand incarceration, and removal of civil lib-erties, but also continuing gross economicinjustice, with little effort to ameliorate,even with well-written and democratically ap-proved constitutions, the continuing condi-tions of inequality, poverty, and increasingcrime among the have-nots. Some fear thathaving written a report and formally repentedas a government, instead of “nunca mas!”(never again), Argentina and Chile, amongothers, could just as easily fall again intothe clutches of brutal dictators (especially asPinochet successfully avoided full account-ability for his crimes). Whether postconflictor postdictatorship societies can put asidetheir past hostilities and sharp divisions andseek more moderate third ways or alterna-tive strategies without fully coming to termswith the past remains to be seen. Democrat-ically elected regimes are certainly fragile inthe former Soviet Union and parts of EasternEurope, whereas Latin America appears, as ofthis writing, to have turned a democratic cor-ner, even while left and right cleavages remainstrong in many countries. Optimistic citizenshope that past atrocities of military dictator-ships have inoculated civil societies againstever again permitting them to exist, but his-tory cautions against definitive conclusions,

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especially when economies are so volatile andinequality remains so pervasive, if not worsethan in earlier decades. In the United States,arguments are made for truly restorative jus-tice, not only in the nonmaterial form ofapologies for slavery, Japanese American in-ternment, and Native American genocide andproperty expropriation (Bradford 2005), butfor material reparations to be paid to descen-dants of the victims of these social and po-litical crimes (Brophy 2006, Ogletree 2002).Indigenous groups throughout the world havebegun to make similar claims and to file na-tional civil and international claims and law-suits, seeking a variety of forms of justice, in-cluding land claims, monetary compensation,and self-determination and self-governance.

Nevertheless, as the debate between thepast and future continues in the practices oftruth and reconciliation panels or other formsof transitional justice and in the pages of schol-arly reports, some rigorous empirical analy-sis has suggested that, as with the law of un-intended consequences, other effects may begenerated by such alternative justice systems.Gibson’s (2004a,b) recent study of post-TRCSouth Africa demonstrates powerfully thatthose who viewed at least some of the televisedTruth and Reconciliation proceedings weremuch more likely to adopt a human rightsconsciousness than were those who did notview any of the proceedings. Even in a settingwith racially differentiated beliefs in the effi-cacy of the rule of law, exposure to the wrong-ful acts of apartheid and their public condem-nation increased some perceptions of the needfor political and racial tolerance and respectfor minorities within a majoritarian rule of lawconception. Thus, the transformative, educa-tional effects of such processes may have ben-efits for those outside of the victim-offenderdyad (and are why so many restorative jus-tice projects seek to include community rep-resentation and some form of publicity ortransparency). These processes are not onlyfor the active participants or victims of thespecific act of wrongdoing or harm. To theextent that formal justice systems are about

providing public norms and accountabilityand remedying harm to the larger commu-nity, public restorative justice processes havebeen empirically demonstrated to provide ed-ucative, participatory, democracy-enhancingpotential, through radically different formatsand with potentially wider reaching effects.

THE FUTURE OF RESTORATIVEJUSTICE: CHALLENGES ANDOPPORTUNITIES

Restorative justice is more of an idea, philos-ophy, set of values, or sensibility than a singleconcrete and uniform set of practices or pro-cesses. In some settings, there is direct com-munication, confrontation, and reconciliationof victims and offenders; in others, there ismore indirect restorative justice (Tickell &Akester 2004, Utah Law Review 2003, Mar-quette Law Review 2005), using proceduressimilar to caucusing or separate meetings,as in civil mediation, especially when directcommunication between offenders and vic-tims might make things worse or too painful(as in some murder, rape, and other seriouscrimes). In some settings, restorative justiceis only for the victim and offender, promisingsafety, confidentiality, and tailored, individu-alized, reparative, and conciliatory outcomes.In other settings, more public participationis crucial [by those affected by the wrongfulconduct, family members, supporters, treat-ing or representative professionals, the largercommunity, and, in its most public forms suchas TRCs, the larger society (O’Hear 2004,2006)].2 What began as an idea to reduce thepunitive nature of conventional criminal pun-ishment (especially for juvenile offenders andvictimless crimes) and to improve the out-comes of criminal justice has developed into

2Restorative justice processes have been demonstrated indocumentary films, focused on the actual operation of a va-riety of processes, or actually televised for an entire society,as with the South African TRC. More recently, restorativejustice was depicted in a 2006 British film, Breaking andEntering by Anthony Minghella, which concludes with ajuvenile criminal family conference in London.


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a social and political movement seeking touse restorative or reparative sensibilities toheal not only single acts of misconduct, butcivil wars, genocides, and international, multi-ethnic, political, and religious conflict.

Restorative justice as a social move-ment has been both constituted by andworks in collaboration with other politi-cal movements—peace studies, nonviolenceadvocates and practitioners, civil ADR andconflict resolution process proponents, in-ternational human rights activists, participa-tory and deliberative democracy theorists andpractitioners (Menkel-Meadow 2005), andthose who believe in responsive or dialogicregulation and justice (Pavlich 1996, 2005).What these movements have in common isa belief that more flexible, humane, dialogic,conversational, and authentic human engage-ment can end a cycle of misconduct, pun-ishment, retribution, vengeance, and morebad acts and violence by both individual-ized and systematized processes of turning theother cheek, including authentic responsibil-ity taking, accountability, and restitutionaryoutcomes leading to forgiveness, reconcilia-tion, and reintegration. These are large, aspi-rational, almost utopian ideas and goals, in-formed by a basic optimism about humans’ability to engage in social learning and behav-ior modification at both individual and largegroup levels. Efforts to operationalize suchgrand notions at so many different levels arestill experimental, evolving, and fragile. As so-cial scientists and political leaders try to assesswhether notions of reconciliation and reinte-gration can substitute for more punitive andretributivist institutions, they will have to con-front a variety of challenges to these processes,including:

� Whether processes that may work onsmaller scales ( juvenile criminal offend-ers, community sentencing circles) canbe scaled up to national and interna-tional conflict settings without com-promising the basic ideas of restorativejustice;

� Whether restorative justice requiresshared values at the community, nation-state, or international level to be ef-fective, or whether something less thanunanimity or consensus can be appealedto in seeking human reconciliation afteracts of wrongdoing;

� Whether the informality, confidential-ity, and flexibility of restorative jus-tice threatens important human andlegal rights (publicity, representation,due process, anticonfessional rules, eq-uity and proportionality in punish-ment) or whether human rights and hu-man problem-solving processes can bereconciled;

� Whether informality, confidentiality,and flexibility in the sanctioning ofwrongdoing compromises needs forpublic processes, public norm genera-tion and enforcement, and transparencyand equity;

� Whether restorative justice processesshould be supplemental or substitution-ary to more conventional processes ofpunishment and prosecution;

� Whether restorative justice processesthemselves privilege some over others(the verbal, well resourced, represented,willing, clever, or manipulative);

� Whether authentic participation inrestorative processes and rituals is pos-sible in any mass, multi-valued, and di-versely constituted community or soci-ety and whether participation in moremicro, specific case situations can trans-form individuals and societies on amacro level to engage in more delib-erative and responsive solutions to badsituations;

� Whether the basic philosophy of sep-arating bad acts from bad people canbe an effective notion for dealing withmodern, group, and mass-level harmfulacts.

These challenges are many and profound.Not listed above are the more practicalchallenges of structuring, supervising, and

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monitoring the operation and effectivenessof restorative justice programs. As restorativejustice ideas are propelled from one domainto another, both ideas and institutionalizedpractices are themselves transformed to meetthe needs of particular communities. Thereis always the danger of co-optation, bothby the larger system and by individuals wholearn to work the system with insincere apolo-gies, offers of restitution or reparation, orother inauthentic performances. How insin-cere participation can and should be discov-ered and disciplined (in a nonfact-finding en-vironment) remains a serious conundrum forrestorative justice advocates. Whether rules,standards, and best practices can or should begenerated to assure quality of process or someuniformity across or within domains remainsan important policy issue in this field.

Yet, with all these challenges, we know thatrestorative justice has reduced recidivism andreoffense rates in many programs (with bothjuveniles and adults); that restorative justiceprocesses, with more direct and responsive

communication and negotiation, can gener-ate new norms that are more reflective ofchanged circumstances or enhanced humanunderstanding; and that even merely observ-ing a restorative justice process or ritual canhave social learning and transformative ef-fects on how human beings conceive of theirrights and responsibilities in a modern and di-verse world. As social scientists develop rigor-ous evaluations of how these programs workin different settings, at different levels, withdifferent purposes and structures, and withcomparisons to relevant conventional pro-cesses, we will learn more about how restora-tive and reparative philosophies and practicesmay transform punitive forms of social controlwith more optimistic ideas about human em-powerment, understanding, problem solving,and reconciliation after events of individualand group fissures. If, as the saying goes, youcan get more bees with honey than with vine-gar, perhaps we can get more social progress,peace, and justice with healing than withpunishment.

DISCLOSURE STATEMENT

The author is not aware of any biases that might be perceived as affecting the objectivity ofthis review.

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