Restorative Justice
The New Hope for Revitalizing Community
By Pip Cornall
We live in an amazing time of unprecedented growth in human consciousness. The recent women’s movement has been the catalyst for men—who are still overwhelmingly the decision makers—to embrace new beliefs and behaviors enabling a shift from dominator to partnership models of governance and community, true partnerships with women, with children, and with nature.
The relationship between men and women is the foundation of society. As relationships become more egalitarian, restoring and revitalizing our sense of self and increasing our ability to deeply value each other, we can turn our attention towards restoring and revitalizing communities as well.
Some countries are already much more advanced in this process and not coincidentally the UN suggests they are the best places to live. As these more progressive democracies embrace partnership principles, their justice systems are undergoing significant changes. Restorative Justice (RJ) is now a rapidly growing worldwide pheno-menon. Based on indigenous justice practices it has been used with success for thousands of years to resolve conflicts within tribal communities.
The rising global spiritual movement, in which people realize that we are all connected to every living person and thing, is also driving the search for compassionate justice methods. As a mediator I regularly witness the success of these heart based methods of dealing with conflict and I am delighted by their rapid worldwide adoption.
The restorative approach is going in the right direction and recent reports have shown its effectiveness in reducing violence worldwide.
In an address to the Foreign Policy Association in New York last December, Gareth Evans, President of International Crisis Group, pointed to a reduction in wars taking place:
“Contrary to conventional wisdom, and perhaps all our intuitions, there has been a very significant trend decline—after a high point in the late 1980s and very early 1990s—in the number of wars taking place, both between and within states, in the number of genocidal and other mass atrocities, and the number of people dying violent deaths as a result of them. There are now 40 percent fewer conflicts taking place than there were in 1992. In the case of serious conflicts (defined as those with 1000 or more battle deaths in a year) and mass killings there has been an 80 per cent decline since the early ‘90s, and an even more striking decrease in the number of battle deaths.”
Andrew Mack from the Human Security Centre in Canada, says, “The best explanation is the one that stares us in the face, even if a great many don’t want to acknowledge it: the huge upsurge in activity in conflict prevention, conflict management, and post-conflict peace building activity that has occurred over the last fifteen years, with most of this being spearheaded by the much maligned UN.”
Restorative Justice, defined as a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior, has a broader meaning encompassing a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. These include international peacemaking tribunals such as the Truth and Reconciliation Commission of South Africa to innovations within our criminal justice system, schools, social services and communities.
Retributive justice systems, where crime is seen as a violation of the state, are defined by lawbreaking and guilt. Retributive Justice asserts that a legitimate moral response to crime is a proportionate punishment, irrespective of whether this will achieve any positive social consequences. Some liken Restorative Justice to a “horse whisperer” approach to justice and community, while describing re-tributive justice as a “horse breaking” approach.
Retributive and Restorative values and behaviors arise from dominator and partnership systems respectively, which determine how families, communities and nations operate. They also determine our approach to war, inter-national policies and justice.
Norwegian Johan Galtung, international mediator and founder of peace studies (International Peace Center, http://www.transcend.org), uses two frameworks that he calls “security discourse” and the “peace discourse” in his peace theory. These are usually applied to international conflict but are valid for national applications as well. I believe both frameworks are born from retributive and restorative approaches rooted in the emotions of fear (security) or compassion (peace). Both address the same concern but are almost diametrically opposed.
A security approach works when evil/strong parties are weakened through defeat or deterrence by the “chosen ones,” and/or converted to become good.
The peace discourse approach pre-supposes that an acceptable and sustainable outcome is possible—one that will satisfy all parties. As a result, people and nations are not divided into “good” or “bad” or “chosen” or “evil.” Instead there is a perceived potential for a global community, especially if the root causes of violence are addressed—including both structural and cultural violence. (A good example is the Bush “Axis of Evil” speech.)
The security approach/retributive methods are more commonly used in dominator-oriented governments and conversely restorative/peace approaches occur more in partnership-oriented democracies.
Today many progressive democracies are adopting or experimenting with restorative justice and an examination of the failure of many retributive systems will explain why this trend exists.
Historically we have viewed crime through a retributive or punishment based lens. The current “criminal justice” process which uses that lens fails to meet many of the needs of either victim or offender. The process neglects victims while both failing to hold offenders accountable and failing to deter crime.
This focus on proportionate punishment, irrespective of whether it will achieve positive social consequences, is indicative of the influence of a retributive/dominator philosophy.
According to the Human Rights Watch report last December written by US program director Jamie Fellner, a record 2.2 million are in prison or jail in the US, an increase of 2.7 percent over 2005. The United States currently incarcerates 1.4 million inmates—more people than any other country in the world, even more than China, which has a population four times that of the US.
Despite such incarceration levels, US crime rates remain much higher than other industrialized nations. Families and communities are shattered and individuals are isolated by this system. Re-integration into the community and the work force is severely compromised.
Marshal Rosenberg, the founder of Nonviolent Communication (www.cnvc.org), says “The concept of ‘deserve’ is at the basis of retributive justice. The way you control people, given that our nature is evil and selfish, is through a system of justice in which people who behave in a good manner get rewarded, while those who are evil are made to suffer. In order to see such a system as fair, one has to believe that both sides deserve what they get.”
Riane Eisler of the Center for Partnership (www.partnershipway.org) and author of The Chalice and the Blade, explains:
“Unlike earlier classifications, the domination and partnership models take into account the central importance of the primary human relations—the formative childhood relationships and the relations between the male and female halves of humanity—in molding our attitudes and behaviors.
“When children experience violence from parents or others in their families, or observe violence against their mothers within their own families, they learn it’s acceptable to use force to impose one’s will on others.
“Dominator societies are all characterized by top-down rankings in the family and state or tribe maintained through physical, psychological, and economic control; the rigid ranking of the male half of humanity over the female half; and a high degree of culturally accepted abuse and violence—from child and wife-beating to chronic warfare. These societies use punitive justice systems to support the dominators.”
Riane Eisler continues, “The partnership model has a different core configuration: a democratic and egalitarian structure in both the family and the state or tribe; equal partnership between women and men; and a low degree of built-in violence because force is not needed to maintain rigid rankings of domination.
“Cultures with this configuration can be tribal, such as the Teduray of the Philippines; agrarian, as are the Minagkabau of East Sumatra; or industrial and postindustrial, like Sweden, Norway, and Finland.
“Without judging these societies as ‘ideal’ or not, their beliefs and institutions can be said to support respect for human rights in families and the family of nations. The democratic Nordic nations, where there aren’t huge gaps between haves and have-nots, have laws prohibiting physical punishment of children. They also host a strong men’s movement disentangling ‘masculinity’ from domination and violence.
“Women play important leadership roles too, consti-tuting approximately 40 percent of the legislatures. Accordingly, stereotypically feminine traits and activities such as nurturance, nonviolence, and care giving are considered appropriate for men as well as women.
“The people of these societies are supported by fiscal policies such as funding for universal health care, elder care, childcare allowances, paid parental leave, peace stu-dies, and environmental protection. And these nations are regularly at the top of the UN national quality-of-life charts; deeming them the best places in the world to live.”
Women’s participation in the legislature is a primary indicator of a country’s social health. The US, with only 14% women in government positions, ranks 59th in the world. Scandinavian and some European countries top the survey with women’s legislative participation rates ranging between 36-45%.
New Zealand was the first country to give women the vote (1893), followed by Australia in 1901. Perhaps it is no accident that Youth Justice Conferencing, central to many restorative justice processes, began in these countries and is now being exported to other parts of the world.
Retributive justice systems and their laws have been largely created by men (imbued with a male dominant paradigm) with very little input from women until more recent times. The death penalty, still upheld in some US states, is seen as abhorrent in most European democracies. In some Middle Eastern countries where women’s participation is low (some don’t yet have the right to vote), punishments tend to be severe.
Retribution is a philosophy, a belief system that we have all been raised with, reinforced by religion and cultural beliefs. Its impacts go far beyond the justice system and include politics, media, sport, marriage, parenting, commerce and even personal psychology. Those raised in punitive systems tend to punish themselves, their spouses and families, their workmates and even their friends when certain (often ill-defined) lines are crossed.
One cannot underestimate the impact of being raised within the retributive model. Tragically, retribution and punishment stifles truth. Many of us have told lies because we were afraid being punished if we told the truth. As a society long on punishment and short on forgiveness, we tend to be merciless on our political leaders. Perhaps in this way we all play a role in the lack of transparency and truth telling that we are clamoring for. In such critical times of global climate change, commercial inequity and violence in all its forms, truth telling is of the utmost importance.
There is a profound link between a country steeped in retribution and the way it conducts international affairs. When the population has been educated in retributive justice, there is nothing they want more than to see someone suffer (revenge).
I was on the beach in Australia when the September 11 attacks occurred. Fearing a violent response from the US, I wished that I could mediate between Osama Bin Laden and George Bush. Having witnessed so many successful mediations I believed it possible in international conflicts—I still do. Many lives would have been saved with a mediated solution.
I knew that if we’d been listening to the messages coming to us from the Arab world for many years we might have chosen a different approach. The pain, ex-pressed by the Arabs had never been responded to with empathy or understanding by the West.
Rosenberg reminds us that when we don’t hear people’s pain, it keeps coming out in ways that make empathy even harder.
Riane Eisler says, “A culture steeped in domestic violence, bullying, and ruthless competition is bound to choose aggressive means to solve international disputes. Creating peace abroad requires being more peaceful at home in our own families, schools, and cities.”
Because the dominator model relies on obedience to a strong state, the premise of crime as lawbreaking results in an emphasis on the act of breaking a defined rule, rather than the harm done or the experiences of those affected. Under this system, the victim is the state and “crime is an offence against the state,” not against the individual. Thus the real victims, those who suffered the actual harm, are left out of the decision making process. They are only called upon to be witnesses or secondary players in the process. The singular focus on legal guilt, not moral, social, or even factual guilt, further isolates victims.
The cumulative effect of retributive justice is that it isolates both the victim and the offender from their personal experiences. For offenders, there is potentially a greater reward for denying than accepting responsibility. For victims, their limited role in the process makes empowerment difficult. Because the community has little or no say in the outcome, members of the community tend to feel entirely alienated and helpless. The result of retributive justice is a system where few are satisfied with the outcome and many are rendered worse off.
It seems the only winners in retributive justice are the lawyers and the booming prison industry.
Restorative justice views crime as a violation of people and relationships, or as a conflict within the community, creating an obligation for offenders to make things right. In other words, in a restorative justice model, crime is primarily a conflict between individuals resulting in injuries to victims, communities, and the offenders them-selves; only secondarily is it Law Breaking. Therefore Restorative Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance.
It is important that Restorative Justice not be confused with the “permissive approach,” known for its low control and high support. This method also called “rehabilitative” tends to prevent people from experiencing the consequences of their wrongdoing, thus requiring low accountability.
In contrast the restorative approach has high levels of control and support—it confronts and disapproves of wrongdoing while affirming the intrinsic worth of the offender. The victim’s needs are also better met in this process, because it is based around a concept of collaborative problem-solving.
Although methods and formats vary Restorative Justice provides an opportunity for those who have been most affected by an incident to come together to:
• Describe how they were affected.
• Share their feelings.
• Develop a plan to repair the harm done and/or prevent a reoccurrence.
In this way the restorative approach is re-integrative—allowing the offender to make amends and shed the offender label—and is best accomplished through various cooperative processes that include all stakeholders. Primary stakeholders include victims and offenders because they are the most directly affected. Others with a significant emotional connection to victim or offender such as parents, spouses, siblings, friends, teachers or co-workers are also directly affected. They constitute the victims’ and offenders’ communities of care.
Restorative Justice, which requires offenders to take responsibility for their wrongdoing and to meet the needs of affected victims and communities, represents a true restoration of victims, offenders, and the affected community.
If the overarching aim of the criminal justice process is to reconcile parties while repairing the injuries caused by the crime, then the criminal justice process should facilitate active participation by victims, offenders and their communities. It should not be dominated by the government to the exclusion of others.
The collaborative processes, programs and outcomes typically identified with restorative justice include:
• Victim offender mediations and programs.
• Conferencing—such as Youth Justice Conferencing in Australia and New Zealand.
• Circles—used for community conflicts.
• Victim assistance.
• Ex-offender assistance.
• Restitution
• Community service.
I first encountered Restorative Justice in the Victim Offender programs at Mediation Works in Medford, Oregon in the 90’s; and then with the Department of Juvenile Justice where I convened Youth Justice Conferences (YJC) in NSW, Australia. (Conferencing is a process for transforming conflict into cooperation, in situations involving up to 40 people.)
Excited by the process and successes I saw, I began to apply conference techniques to the workplace, organi-zations and the broader community. As a mediator I found this process surpassed other methods for resolving conflict and internal tensions in groups. In 2003, I used conferencing to help resolve disputes within an Australian Olympic Team prior to the 2004 Olympics.
Most participants in Justice and Workplace conferences enter the conference with high levels of reluctance and skepticism, and most are pleasantly surprised at the outcomes, with responses like “I’m amazed at the results, we’d tried to resolve this for so long we had given up.” Because of this much of my energy is put into encouraging participants to show up and stay the process. I have seen enough successes for me to have complete faith in the method. It reinforces my belief that heart-based (restorative) systems bring out the best in participants (and punitive systems bring out the worst). I think the main reason conferencing is powerful is because it allows for the thorough venting of feelings. After victims of a conflict feel thoroughly heard (but not before) they are more able to collaborate in the outcome plan and are even generous with the offender.
A restorative criminal justice system aims not just to reduce crime, but to reduce the impact of crime as well. Crimes harm people and relationships. Restorative Justice requires that harm be repaired as much as possible. The process offers a potential for much community healing.
Each process of healing through restorative justice is an opportunity to create deeper community bonds while building social capital and creating more heart-based solutions to local problems. The capacity of restorative justice to address these emotional and relational needs—and to engage the citizenry in doing so—is the key to achieving and sustaining a healthy civil society. An international restorative/peace approach to international conflicts has been proven to drastically reduce deaths by war and other forms of violence. A criminal justice system that merely doles out punishment to offenders and sidelines victims does not address the emotional or relational needs of those who have been affected by crime. Nor does it address the root causes underlying the crime.
Since childhood I’ve known that humans should be treated with respect, dignity and kindness—this knowing was not intellectual but existed in every cell of my body. Perhaps your childhood was similar. Restorative Justice offers us an opportunity to proceed beyond merely talking about peace and justice, to implementing an effective model that embodies that same childhood wisdom.
Pip Cornall is a mediator, conference facilitator and trainer. He was a member of the Australian Delegation and represented Oregon’s Congressional District 2 at the Second International People’s Summit to create Departments and Ministries of Peace that took place in Canada in June 2006. He is currently participating in the introduction of Restorative Justice to Ashland and the Rogue Valley. For additional information please visit http://www.malechallenge.com
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