Restorative and Transformative Justice: A Comparison
Article by Scot Nakagawa
The feature articles in this issue of Justice Matters all point to some glaring problems with criminal justice in the U.S.. The current system is piss poor at preventing victimization (incarceration rates and crime rates appear largely unrelated, and of those released from prison, the majority recidivate); it marginalizes victims and neglects their needs; through incarcerating so many poor people, it is weakening and destabilizing the very same communities where most victims reside; and, while it is increasingly relied upon to fill the growing holes in the social safety net, it has failed as a solution to our social problems and is, in fact, making matters worse.
For many in the criminal justice reform community, the system has failed because the fundamental principle upon which it is based—the notion that retribution can be equated with justice and in turn with community improvement— is wrong.
Advocates of alternatives point out that in our current system, the focus is on the offender rather than on the victim, and on what laws are broken rather than on the harm done. The ultimate goal is to inflict pain upon offenders as a means of achieving “justice” and deterring future crime, and not on healing and strengthening individuals and communities. For this reason, victims are, for the most part, marginalized by the system. The majority do not receive restitution or compensation, and services to support healing among crime victims are hugely underfunded, especially in comparison to the investment that is made in prosecution and incarceration. Compounding these problems is the fact that most victims services are tied to prosecution, so if your perpetrator is not prosecuted, you are unlikely to receive compensation, restitution, or support services. The only “compensation” most crime survivors can hope for is revenge.
By carrying out state sanctioned revenge and equating it with justice, are we not promoting the same kind of thinking that can lead to crime? Many argue that neglecting the needs and concerns of perpetrators also contributes to crime. Only about 6% of state prison budgets nationally are devoted to rehabilitative programs for prisoners. Most prisoners never participate in addiction treatment programs and education and job training in preparation for their return to the community, in spite of the fact that 33% of state prisoners were under the influence when they committed their crimes, according to a recent study (and 70—80% of prisoners are estimated to have serious substance abuse problems), and despite the clear connection between lack of education and job skills and criminality. Services to prisoners families are practically non-existent in spite of the fact that in one study of juvenile detention centers it was discovered that over 50% of juvenile offenders had a parent who had served time in prison.
After release, prisoners often face collateral consequences that limit their access to foodstamps, welfare, student loans, and federally funded subsidized housing, even in the event that their family lives in such housing. All of the evidence indicates that people living in conditions of deprivation and alienation from society are the majority of prisoners, yet our system purposely deprives and alienates ex-prisoners. In response to the growing crisis that our appetite for revenge has created, the search for alternative ways of dealing with crime and victimization is growing into a worldwide movement. Among the new alternatives, restorative justice in particular has garnered support.
While restorative justice is still a new field, it is practiced throughout the world, including by some governments. In the U.S., restorative justice has been used in church congregations and tribal governments where crimes and injustices are perpetrated by one community member against another, and aspects of restorative justice, (such as victim offender mediation), has been incorporated in some state correctional systems.
What is restorative justice?
Unlike our current system, the central goal in restorative justice among grassroots practitioners is not avenging the past, but creating a better future for all involved. Rather than focusing on what rules were broken, a restorative justice system looks at what harm was done, and focuses on how to best repair that harm by giving the victim of the crime and the community in which the crime was committed a voice and a role in the process of achieving justice. Restorative justice is also committed to achieving the best outcome for both sides—it helps offenders to accept responsibility and do their part in achieving a just outcome.
Restorative justice practitioners lead victims, offenders and community members through a process that includes some or all of the following elements:
- Interaction between the victim and the perpetrator
- Attempting to repair the damage done by providing reparations in the form of money, services, etc., to the crime survivor and/or the community
- Reintegrating both victim and offender into the community without lingering collateral consequences or stigma on either side
- Full participation on the part of the victim and offender in which each is allowed to tell their own story about how they have been affected by crime
- Transformation in how all parties and the community view the crime and each other, relate to one another, and deal with crime in the future
While restorative justice provides a hopeful model, it has received some criticism from progressive criminal justice reform advocates. Critics cite instances in which restorative justice has been co-opted by the criminal justice system and used in ways that leave some crime survivors feeling like they have been “re-victimized” by the process. A Data Center report authored by Grace Chang in 2000 describes an incident in which the restorative justice model was used by the courts in Canada. In this case, the courts used the model, which they claimed was based on indigenous practices, to bring a group of indigenous women together with a bishop who was charged with sexually assaulting them when they were girls. By forcing the indigenous women to participate in a “healing circle” with their non-indigenous perpetrator, the state caused tremendous insult and trauma. The state’s insensitivity around race, culture, and gender power dynamics, and the lack of consideration of the needs and wants of the crime survivors ended up causing more harm. The incident makes clear that when crime survivors and perpetrators are not both fully invested in the process, the outcomes are likely to be dubious and justice is unlikely to be served.
In order for the restorative justice system to work, all participants must be willing and able to face each other and arrive at a just solution; a circumstance that is not always possible. In response to the co-optation of the restorative justice model, many advocates are pointing in a new direction, to transformative justice.
While operating along similar lines, transformative justice resists co-optation in that it begins with the assumption that we must move forward rather than attempt to restore what was there before. For the victim, it means embracing the possibility of transforming the world positively from their pain, and incorporating that experience in their healing process. Perpetrators are similarly challenged to transform themselves and engage the world—the belief is that most perpetrators commit crimes because they have been marginalized and disempowered, and often suffer from rage and alienation.
Rather than attempt to restore this state, transformative justice looks to the future, and acknowledges and incorporates an understanding of the social problems that lead to crime, avoiding simple solutions that neglect the needs of the community.
Transformative justice also puts an understanding of the structural racism and classism of our existing criminal justice system at the center of the theory. It assumes that a central function of the current system is to enforce class and race inequities and that the system must be fundamentally transformed before it can be an agent of justice. While transformative justice is still a very new concept in criminal justice reform and has only been applied in a few circumstances, it is a promising new direction in alternatives to incarceration. Both restorative justice and transformative justice are increasingly becoming part of the popular dialogue around criminal justice.
This article originally appeared in the Fall 2003 issue of Justice Matters.
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