Restorative Justice

Definitions of Crime

Traditional criminal justice represents crime as a violation of the laws of the state. Criminal accusations are claims made by the state (through its prosecutors) that the criminal is guilty of a violation of the law, and thus is subject to penalties imposed by the state. Restorative justice sees crimes as problems or conflicts between people, one of whom is a wrongdoer and the other a victim. The purpose of the restorative justice process is to identify the sources and consequences of the problem or conflict, and to rectify them.

Definitions of Justice

Traditional criminal justice holds that justice is served when those who are guilty of crimes are punished for them fairly, according to the law. Restorative justice holds that justice prevails when the wrongdoer accepts the wrongfulness of the conduct, recognizes its harmful consequences for the victim, and undertakes to restore the victim's losses so that the harmful consequences can be undone.

Participants in the Justice Process

Under traditional criminal justice, the state is the accuser and the defendant is the adversary. The two engage in a trial in which the state is forced to prove the accusation. The role of the victim arises only after the case has been proven in trial, and the role of the community is to determine the laws under which the accusation will be pressed by the state. In restorative justice, the accused and the victim have active roles, in which they are expected to describe the antecedents and consequences of the criminal event, and provide a “human” view of the facts of the crime. The community also has a role to present to the accused the community-level costs of criminal conduct, and to present to the victim a commitment to restore the losses the victim has experienced. The state is responsible for managing the process by which each participant's views and values are presented and received by the others.

Practices used to Adjudicate Accusations

Traditional criminal justice resolves criminal accusation through a trial, in which carefully restrictive rules of evidence and testimony are used [Page 409]to structure a serial interrogation that results in a verdict of guilt or innocence. In practice, trials are rare in most jurisdictions, and instead, a series of inducements is offered to the defendant to waive the right to an evidentiary trial by pleading guilty and accepting the state's right to impose a punishment. By contrast, there are several different types of restorative justice processes, varying in degree of formality and procedural regularity. But all restorative justice processes have three aspects that set them apart from traditional criminal justice approaches. First, what people are allowed to say is less formally restricted in style and content than a traditional trial. People are expected to speak from personal experience rather than “give testimony,” and the rules that apply to what may be said are considerably relaxed. Second, there is no jury to determine guilt, for restorative process begins with an assumption that the defendant accepts responsibility for the criminal act itself. Third, the process is conversational and informal, not legalistic and adversarial.

...