Restorative justice refers to the idea that the simple punishment through incarceration of a criminal may not necessarily end or satisfy the harm, injury or pain of the victim. Moreover, restorative justice argues that punishment by itself is unlikely to change the behavior of the offender in a way that guarantees he will not commit the same act(s) again and that he will feel remorse for the act(s) that he did commit. Accordingly, the aims of restorative justice are threefold. First, it aims to bring closure to the victim, whether it is through allowing them to fully participate in the criminal justice process, directly let their feelings known to the offender or understanding why the crime happened. Second, it aims to force the offender to come to terms with his actions and truly understand the impact(s) that they caused no only on the victim but also the family and friends of the victim as well as the family and friends of the offender himself. Lastly, restorative justice aims to allow the state, in the name of the community, to necessary but often ignored or unknown information that can be used to better inform the best strategy by which to proceed with a case or suggest/impose a punishment.
In the criminal justice system, restorative justice will most likely occur through some form of criminal mediation (Longman, 2011). The process involves a coming together of the victim, the offender and the community as represented by the prosecutor and other relevant community members such as church leaders. During the meeting, all parties are allowed to have their say without interruption. Moreover, not criticisms or offending remarks from any party could be made towards the victim (Tullis, 2013). The key point of the mediation is to allow the victim to express their pain and loss to the offender, allow the offender to an opportunity to express himself to the victim and allow the community an opportunity to “impact he sentence and encourage the offender to make a different choice in the future” (Longman, 2011).
Since the primary focus of restorative justice is the victim and repairing as best as possible the harm caused by the offender, they are the most important parties that need to be involved in the process in order for an effective outcome to be achieved. Without both parties active involvement no true resolution is possible. Additionally, as the representative of the community the case prosecutor must be involved because they have the discretion to decide what charges are filed against the offender, and what punishments will be sought to be imposed. The offender’s defense attorney should also be involved in order to ensure that the offender’s rights are protected at all times. Finally, a mediator will also need to be present to administer the process and make sure that all parties get their chance to speak and be heard. The mediator, moreover, should be someone with no interest in either side of the case in order to neutrally and objectively preside over the mediation.
While restorative justice provides a viable alternative to the criminal justice systems tradition focus on punishment and incarceration, it will not be transformative or disruptive. Indeed, despite restorative justice, the traditional criminal justice system for the most part, will remain unchanged for a number of reasons. First, the restorative justice process is too complex. It is not as simple as bringing together the prosecutor and defense attorney to discuss a plea; but rather involves a number of parties, as mentioned above, who may or may not trust each other, let alone want to have intense and personal conversations with them. Even in as case such as the Ann Grosmaire, it took substantial time and effort. If restorative justice was extended to all cases, there would not be enough time to do anything else. Second, the American public, at this time, is not prepared to accept an across-the-board availability of restorative justice to offenders. As was made clear in the Ann Grosmaire case, many Americans have a tendency to support “tough on crime” policies necessarily means that restorative justice will not become a common option in criminal cases (Beale, 2003). However, as mentioned, restorative justice provides an effective dispute resolution mechanism for certain types of crimes such as theft, computer crimes, some assaults, that can be more effectively and quickly resolved without going through the criminal justice process. In these cases, perhaps the victim simply wants his property back and the offender needs to understand that his actions were wrong. Accordingly, restorative justice under these circumstances could be disruptive. It might also be transformative after punishment has already been imposed as in the case of Gary Geiger (New York Times, 1994). If the victim sees that the offender is remorseful and has been punished, restorative justice could play an important part of helping the offender reintegrate into society.
My main criticism with restorative justice is that it could become yet another way for the better off in society to avoid punishments that the less fortunate will still have to confront. For instance, in the case of Ann Grosmaire, by all accounts the offender Conor McBride was a nice kid, from a nice family. Indeed, even though he killed his girlfriend, his background story as portrayed in the article, was quite positive, so much so that even the victim’s parents visited him. My concern is that if he did do well in school, did not get along with his parents, was poorer, that he would not have gotten as much support for restorative justice as in the article. Similarly, if he were African American, would he have gotten the same support, when studies have shown that African Americans are more likely to be seen as aggressive, and more likely to be convicted and more strictly punished (Goff et al. 2014)? What if it was a gay/lesbian couple? What happens if it was a random crime where the victim did not have such a long history with the offender? Accordingly, my concern is that if restorative justice increasingly becomes an option in criminal justice, it must be an option that is equally available, accessible, and used by every suspect or defendant.
Beale, S.S. (2003). Still Tough on Crime? Prospects for Restorative Justice in the United States. Retrieved from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1631&context=faculty_scholarship
Goff, P.A., Jackson, M.C., Di Leone, B.A.L., Culotta, C.M., & DiTomasso, N.A. (2014). The Essence of Innocence: Consequences of Dehumanizing Black Children. Retrieved from http://www.apa.org/pubs/journals/releases/psp-a0035663.pdf
Longman, C. (2011, Oct.). Making a Case for Restorative Justice. Retrieved from https://www.americanbar.org/publications/gpsolo_ereport/2011/october_2011/making_case_restorative_justice.html
New York Times. (1994, May 15). Shot Victim Helps Robber Gain Freedom. Retrieved from http://www.nytimes.com/1994/05/15/nyregion/shot-victim-helps-robber-gain-freedom.html
Tullis, P. (2013, Jan. 4). Can Forgiveness Play a Role in Criminal Justice? Retrieved from http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-in-criminal-justice.html?pagewanted=all&_r=3