Controversies Around Restorative Justice

Restorative justice is a movement with traction. People are excited by it. They are volunteering in growing numbers to make it happen. Some people are even getting paid to do it, especially in schools, and usually through nonprofits like Restorative Justice for Oakland Youth, Community Works, and the Insight Prison Project (all discussed in this issue). Marilyn Armour’s article sums up the progress so far.

Its practitioners say the movement’s innovative practices have immediate benefits and radical long-term potential.

There is hope, first, that it will keep young people and especially young people of color out of the criminal justice system, out of the school-to-prison pipeline. Once that is well under way, many believe that other visions will appear possible, all the way to the end of prisons as we know them and a reconception of the entire legal system (see Peter Gabel’s piece). Many hope this movement can also provide new ways of responding both to conflicts in general (Kay Pranis) and to the inherited oppressive structures of race and class (see Fania Davis’s piece and Denise Breton’s).

Restorative justice may be poised for a breakthrough into public awareness. It would be a boon for budget-cutting politicians and taxpayers if only the public could buy into it. For example, in the San Francisco Bay Area it costs around $50,000 to run a juvenile offender through the justice system, not counting the cost of incarceration if there is to be any, versus about $4,500 for a restorative process that typically leaves the victim much more satisfied, the young person reintegrated into the community without even being charged with a crime and much less likely to reoffend, and many community members relieved and grateful. Multiply the criminal justice cost many times for adults locked away for years.

But the rub is, punishment is nowhere seen in this process—unless, when you have harmed someone, you consider listening to them express their pain to be punishment, rather than a chance to develop empathy for them, see yourself in a different light, and learn and change in whatever way you now perceive is needed. Some consider that process tougher even than receiving punishment. Others think it’s being “soft on crime.”

Can a justice movement not based on punishment grow fast enough to win at the ballot box, even in an über-liberal city? In September the New York Times noted that “Restorative justice has long had proponents in some corners of the criminal justice system, but it is now gaining prominence in an unlikely forum: the San Francisco district attorney’s race.” We go to press too soon to know the result.

Or will restorative justice appeal more to small-government and traditional-values conservatives? Some of its elements do appeal to the Right, others to reformist liberals, others to radicals, including prison abolitionists. Of course, there are also elements that each of these players may dislike or hate. And no one will resist it more than the prison-industrial complex and the politicians in its pockets.

How it is presented by the media will be critical, but perhaps not decisive: it is how well it works in practice, in those places innovative enough to fund it, that will likely be decisive.

How We Talk about Controversies

Most articles in this issue come from progressive and radical activists, scholars, lawyers, and teachers who are writing wholly from within the restorative justice movement. We are centering their voices because it is they who have both the strongest hope for the transformative power of the movement and the most practical understanding of how the vision of restorative justice can take shape on the ground.

While most restorative justice practitioners initially seem to present a unified front, there are certainly differences among them if you listen more closely. Some authors in this issue raise controversial issues within the movement directly, others by inference only.  If they criticize anyone, notice how gently they do so. The movement has only got where it has by its practitioners’ commitment to reach out to the humanity in the other, to listen, to suggest and not to judge. A South Asian Buddhist goes to a conservative Florida town to support white Christians in developing a groundbreaking restorative approach to plea bargaining in a murder case. A survivor of child abuse works with prisoners in San Quentin prison, most of them serving life sentences for violent crimes. These practitioners could not do their groundbreaking work if they allowed either left-wing or right-wing stereotypes of prosecutors, conservative Christians, or lifers to cloud their vision. That doesn’t mean that restorative practitioners are blind to the realities of power and white supremacy, the legacies of genocide and slavery, the depredations of profiteers, or the violence inherent in the structure of our prison system. But their whole practice is to reach across any divide and connect, empathically.

I am writing this article from a slightly different place, as a kind of sympathetic cartographer of the movement. I have felt drawn to restorative justice since first writing about it in Tikkun (September/October 2009) and have started to attend trainings in the field. So with one foot planted inside the restorative justice movement as a student and the other in more journalistic territory, I am hoping to offer a different perspective: a beginner’s bird’s-eye glance at some of the controversial issues both outside and within the movement, and at factors that may be enabling it to gather traction. I am offering this analysis not in a spirit of divisiveness but with the genuine hope that it will help readers who have never heard of the restorative justice movement to grasp the diversity of worldviews within it and understand where opposition and support are likely to arise. It is important for those within the movement to understand ways in which restorative justice is seen by individuals and groups from different places on the political spectrum, from conservative to moderate, and liberal to radical. {{{subscriber|2.00}}} [trackrt]

Conservative Reactions to Restorative Justice

Once restorative justice becomes a well-known policy option, I assume that small-government conservatives will welcome the budget savings and tax relief, provided they can be convinced that diversions from prison are not dangerous to society. The remarkable experience of New Zealand, which for over twenty years has run its entire juvenile justice system on restorative principles, and has closed its juvenile detention centers, should reassure them. As this experience is not well known in the United States, we are delighted to share an excellent survey of it by one its leading proponents, Judge Fred McElrea, as an online-only article accompanying this print issue.

Many social conservatives, especially of a traditional Christian bent, already warm to the notion of bringing offenders to a point of remorse and genuine accountability, and then to redemption, a true change of heart. Chuck Colson, one of the players in the Watergate scandal (long since reformed as a born-again Christian), is considered by many to be America’s leading prison reformer as well as one of its leading Christian conservatives. Excoriating overcrowding and inhuman conditions, Colson signs on to a faith-based strand of restorative justice.

However, the centrality of religious conversion to Colson’s version of restorative justice presents a concern for the mainstream movement. Further, conservative philosophy typically blames the individual’s sinful human nature rather than environmental factors in generating crime. Mainstream restorative justice operates from a different model. It is based neither on a medical model of the pathology of the offender, nor on a Christian model of the offender’s sinful nature and dependence on a Higher Power. Instead, a model of mainstream restorative justice is more likely to include concepts such as mutuality, respect, active listening, empathy for ourselves and those we have harmed or been harmed by, a focus on self-empowerment and attendance to the deeper needs of those involved, and the questioning and unlearning of prevailing punitive belief systems. For instance, the behavioral changes noted in violent men through mainstream restorative practices typically result from their coming to understand how they developed strategies to survive child abuse, poverty, racism, police brutality, or other environmental stresses and bought into the prevailing “male role belief system”; from this understanding, as well as from the care of peers and facilitators, flows empathy for their younger selves and then for their victims. The hope of many restorative justice practitioners is that such transformed men (and women) will become participants in reforming the social conditions and inequities that so restricted their options, in addition to practicing emotional maturity in their daily relationships.

Many Christians find this development of empathy and social responsibility entirely compatible with Christianity, whether it involves Christian belief or not, but this is not the typical Christian conservative view. However, to an observer like me, both Colsonesque and mainstream restorative justice seem to have much in common—both believe in the individual’s ability to change. As more violent offenders transform themselves through both paths and meet and talk, I assume there will be cross-fertilization.

Still, many conservatives who do believe in redemption see it as entirely compatible with punishment. Anyone harmed by crime is likely to feel colossal anger and so traditional notions of “an eye for an eye” will always have great appeal, especially if no mechanisms exist for satisfying the victim’s needs for empathy, answers, or restoration. If restorative options start to divert large numbers from prison, conservative investors in the prison-industrial complex will surely mobilize to protect their investment. They are likely to fund emotive appeals for punishment, many of them in traditional (and selective) biblical terms, and possibly with racist overtones.

The essence of mainstream restorative justice is a practice of listening and empathy that is by nature corrosive of ideology and self-righteousness. Thus, combining thorough personal accountability with an understanding of the ways one’s environment has molded one is a complex task, not easily assimilated into some conservatives’ worldview. But that may change.

Middle America’s Reactions to Restorative Justice

On balance, I assume that most hardcore conservatives will not go for mainstream restorative justice. However, many middle-of-the-road people, including many evangelical Christians, may well support it when they see how well it works for crime victims they know and for any of their own relatives and friends who are arrested for offenses. In a recent case it was remarkable how quickly some police families came around to wanting a restorative justice option when one of their own kids was caught in a possible offense. If approval grows in middle America, it will mainly be because of positive personal experiences that will contradict the media stereotypes and polemics approving punitive justice.

Liberal Reactions to Restorative Justice

The appeal for liberals may be obvious: take better care of victims; drastically reduce the prison system; spend the money on education and public aid instead; reject ugly emotions of revenge; and reintegrate offenders into the community where they can lead productive lives and pay taxes.

But what would liberals make of Peter Gabel’s vision of an astonishingly different kind of legal system? Some might feel that’s going too far. That’s to admit that fear of the other has been central to the liberal project all along. That’s to allow that the vaunted rationality of liberalism never has been free of emotion, but has too often been put to the service of a set of fears that serve neither love nor connection. To consciously serve love might be to infect public discourse with emotionality, spirituality, and even religion, in something of a creeping revolution.

Radical Reactions to Restorative Justice

Something that’s too revolutionary for many liberals should sound good to radical anti-racists and anti-capitalists. Yet, there is something highly distasteful, or suspect, about restorative justice for many radicals.

The greatest difficulty for the radical Left is implicit in Fania Davis’s words in this issue: “I would say this movement is more subversive than any of the revolutionary movements in which I have been involved since the 1950s. All previous social justice movements have kept us trapped in discordant, binary, either-or, right-wrong, and us-versus-them ways of being present to one another and to the earth.” Binaries are as central to the Left as they are to the Right. Many people have considered Right and Left to be equally self-righteous, equally prone to demonize the other side.

It’s not just that someone like Sunny Schwartz works for the sheriff’s department and expresses a vision for how corrections can become a noble profession, which looks to many radicals like collaboration with the imperialist and racist state. It’s also that restorative justice seeks to foster a sense of personal accountability in individuals who have perpetrated crimes. Doing so requires more focus on individuals—including on convicted members of oppressed races and classes—than some radicals are comfortable with. Some fear that restorative justice’s focus on individual accountability suggests that it’s the individuals’ fault they are in prison, not the fault of the system.

If you imagine that Sunny Schwartz is compromising too much with the system, it is worth noting that the central anti-violence teaching in her program is provided by Manalive, which was developed by Hamish Sinclair. Sinclair cut his teeth organizing coal miners and their families in eastern Kentucky and autoworkers in Detroit in the 1960s, who were all losing their union jobs as capital sought higher returns elsewhere. He saw his part of the Detroit resistance movement destroyed by the violent objections of union men toward women in their lives who wanted to share in the organizing. Sinclair dedicated his life to building programs for working-class men that would enable them to opt out of the “male role belief system,” in order to organize effectively with women when the times became conducive to organizing once more. Personal accountability and political organizing are two equal sides of Sinclair’s coin; he understands that neither comes easily and neither is complete without the other. One could argue that failure to grasp this has been the bane of most revolutions by radical utopians and of most elected social democratic parties as well. Animal Farm tells the classic tale of revolutionaries who both demonize the oppressor and, because they harbor romantic notions about the ability of the oppressed to be loving and just when they gain power, fail to learn the skills of accountability, empathy, and self-restraint (which a program like Sinclair’s Manalive teaches to highly competitive men).

Combining thorough personal accountability with understanding of the ways one’s environment has molded one is a complex task, not easily assimilated into some radicals’ worldviews. But that may change.

Restorative Justice or Transformative Justice?

Prison abolitionists argue that our current prison system is unreformable. Critical Resistance, a national grassroots group seeking to dismantle the prison-industrial complex, writes:

We call our vision “abolition,” and take the name purposefully from those who called for the abolition of slavery in the 1800s. Abolitionists believed that slavery could not be fixed or reformed—it needed to be abolished. As PIC [prison-industrial complex] abolitionists today, we also do not believe that reforms can make the PIC just or effective. Our goal is not to improve the system; it is to shrink the system into non-existence.

Groups like these that see the restorative justice movement as already too fatally implicated in the criminal justice system (and unrealistic in its idea that there was anything good to be restored in the first place) tend instead to rally around the idea of “transformative justice.”

Unlike restorative justice projects, which are often related in some way to the criminal justice system, either as an intervention meant to prevent incarceration or as an effort partly within the prisons to promote healing of offenders and victims, transformative justice projects tend to focus on creating a community-based system wholly outside the prison and courts system, thereby resonating more strongly with the prison abolitionist movement.

Each side in this debate can push the other’s buttons. Failure to be sufficiently adversarial toward the criminal injustice system can look unconscionable to transformative justice activists. The use of more adversarial language and practices (e.g., in transformative justice, survivors making demands on those who have harmed them) and a perceived excess of theory over empathic practice can make restorative justice people doubt how transformative these other folks really are.

But as Bench Ansfield and Timothy Colman’s article on a Philadelphia-based transformative justice project makes clear, at the heart of both is the development of empathic practices that work, that increase the sense of safety for survivors of violence, and that help those who perpetrated the harm to change. People who line up on both the restorative and transformative sides of the spectrum already meet and talk, and will do this more as their movements grow. Again, the focus on empathic listening will make it more likely that they will hear each other. Insofar as restorative practices actually work, transformative justice projects will adapt and adopt them, and vice versa.

To me, both look like unfinished attempts at the same kind of thing, but starting from different positions in society as well as about society. Many restorative justice proponents start as professionals already in the system (the justice system or the school system—see Rita Alfred and Ina Bendich’s piece), who try to work it so that programs can get under way. While their methods may be those of reformers, working with district attorneys, within prisons, grade schools, or law schools, they have hugely transformative dreams. To them, the criticism from prison abolitionists may seem understandable but premature. Both movements, if successful, can end with prisons abolished, or reduced to housing only a tiny number of specific cases; one restorative justice lawyer speculated to me that this number might be as small as 2,000 people in the United States but added that the debate was fruitless at this point because it will be a matter of what works and how well we manage to create alternative methods for keeping people safe and transforming violent behavior. The movements are complementary, this viewpoint holds.

And it does behoove restorative justice people to think how they would do things if there were no state-violence sanctions at all in the background of their work: If the alternative to a family or community circle were not criminal charges, or if there were no literally captive audience for male role rethinking, would there be enough motivation for enough violent offenders to participate? What does a community do with those who refuse? When an offender is loose in the community and no one is going to call the cops, what sanctions of disapproval, of demands, can be brought to bear to bring the person to a community circle? It certainly may get to sound a little adversarial. But working out how to do this is a challenge that many restorative justice people already recognize.

What Change Is Most Radical?

What we think of as radical depends on what we think the root is. Is the root of human problems to be found in human nature as selected for by evolution, or is it sin, or private property, capitalism, patriarchy, racism, dominance, abusive parenting, or failure to prioritize empathy? For evangelical Christians, being born again is the most radical act. For some left-wing activists, “restorative” does not sound radical enough. For others it’s the word “justice” that is the problem: it suggests traditional binary categories of victim and offender, even of right and wrong, when what is needed is to jettison such notions and move to the radical view that everyone has the same set of legitimate human needs, everyone is trying different strategies to meet their needs, and barriers to communication and efforts to suppress conflict actually result in reduced safety and increased violence (see Dominic Barter’s article).

So there are differences, and people feel strongly about them. However, in my communications with restorative and transformative justice practitioners on different places on the spectrum, I have found everyone reluctant to criticize the other; they all seem aware that, while their own visions sustain them, they have much reason to maintain bridges to each other. This is entirely within the empathic ethos of these movements, and distinguishes them from those who, whether on the Left or the Right, embrace adversarial approaches.

Stories of Transformation and Freedom

There is little philosophically different in restorative justice from other nonviolent organizing. Other branches of that broader movement have their enthusiasts. Why is this branch growing more rapidly?

One answer becomes clear as soon as you talk to the enthusiasts. They are less likely to talk theory than they are to tell you stories of transformation, healing, and freedom. Whatever they are doing, it is giving them experiences that astonish them—experiences they want to share.

Dig deeper and the talk turns to practices. One central practice is the circle, in which everyone can be heard and no one dominates. Different practitioners have different ways of doing circles. A cloth may be spread on the floor with objects evocative of the participants’ values and lives. A poem or prayer or other words that speak to the culture of those present may be read. A talking stick may be passed around, each person speaking in turn, answering a question set by the facilitator. They may start by saying how they want the circle to run, what values it should embody, what they need from the others in order to feel safe enough to speak frankly, what kind of confidentiality, respect, commentary, etc., they require. With agreement reached on this, the circle goes ahead to fulfill the purpose it has been called for: hearing from a person who has been harmed, agreeing on a plan to redress the harm, reviewing how well the plan has been implemented, or other steps inherent to that particular practice.

People find that the circle structure frees them to speak more authentically. Victims tell how it was. People cry. Offenders hear, and then tell their own stories of pain and loss. A teenage offender is astonished to find that in the circle called to decide how to repair the harm he has caused, he can speak as long as he needs to, while the district attorney, paying a visit to see how the process works, cannot speak until it is his turn to do so. A “reverse Miranda” agreement has already been reached with the DA, that nothing said in the circle will be used as evidence, should the case go to court after all. A math tutor whose car was burgled by a teenager ends up giving the teen free tutoring. A young man who burgled two homes and fled returns two years later to offer restoration because his girlfriend is pregnant and he wants to make a fresh start; he agrees to pay the families in full for what he stole, and they, impressed by his attitude, ask him to spend the money on parenting lessons for himself and his girlfriend, to help stop the cycle of abuse he has suffered from: this becomes part of the plan he must fulfill to avoid criminal charges.

The various practices and stories of transformation are the core of the movement. However, it is not growing simply because the stories are memorable and rewarding to all concerned, but also because they are replicable and can find regular niches in existing institutions—schools, juvenile halls, and prisons—where their value is recognized in terms of dollars saved and in metrics like reduced recidivism. These practices do not depend on charismatic personalities but can be taught widely, so that facilitation emerges from within the community and does not have to come from “above,” from a professional. At the same time, how much to certify and professionalize is an issue that may become contentious: institutions and funding foundations frequently want credentials, and expertise is indeed needed, and there must be ways of working out who has it.

Experientialism and Theory

For a debate on the value of the term “restorative justice” versus other terms, it’s worth looking at Howard Zehr’s September 2011 posts on his blog. Zehr is one of the movement’s founders and leading thinkers. One of his links is to a 2009 post by Catherine Bargen, who writes of those who would like to drop the word “justice” when restorative practices are not linked to the criminal justice system:

It may be that it is easier to focus on restorative because it’s the nice value stuff but it’s harder to focus on justice because that may start to involve power issues. And it might get personal…. We have to give up privilege to bring justice into situations. Many of us leading the restorative justice movement are privileged.

Commenting on that post, another practitioner in the field thanks Bargen and notes the difficulty of raising such issues in the movement, which he finds excessively self-congratulatory, adding, “I’ve started wondering if there might be a strand of anti-intellectualism in the broader ‘restorative’ movement—that somehow issues of restoration, justice, healing, accountability, inclusion, etc. are simple issues not in need of fretting over too much.”

I find a strong analogy to the Christian movements that in my doctoral thesis I termed “experiential movements.” Christianity has been far more concerned with creedal belief than most religions, but it has always had strands that were concerned most with mystical experience, behavioral transformation, emotional states, or ethical actions. Theological terms may be of little concern to such movements. Anti-intellectualism has been a likely companion of such movements, and so has resistance among middle-class and white proponents to questioning their own privileges. But in other such movements, falling “in love with the values and the amazing transformations we saw happening,” in Bargen’s words, has led people into major campaigns for structural redress, including slavery abolition, trade unions, universal suffrage, and building the welfare state.

It appears to me that restorative practices are a modern version of these movements of personal renewal. Unlike earlier ones, this movement is secularized in presentation and thought, deliberately formulated to be open to people of all beliefs and none, but it is as experientially spiritual as its practitioners wish it to be. Its radical embrace of empathic listening and action makes it incompatible with divisive ideologies, creeds, or therapies—in a word, with any kind of cultism.

This version of personal renewal is also connected much more strongly to modern understandings of social structure, racism, imperialism, and inherited inequality. If the movement listens to leaders like Fania Davis, who argues powerfully for whites in the movement to educate themselves more deeply in the reasons racism persists and in the ways the criminal justice system is acting as a new Jim Crow, then we will start to have the kind of integration of personal change with structural change that many of us have been arguing for years is the only way a caring society can be built.

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(To return to the Winter 2012 Table of Contents, click here.) Also, don’t miss the seven freely accessible online exclusives associated with this special issue on restorative justice — to read them, click here.