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Defining restorative justice

Although the concept of restorative justice has existed in one form or other in many early Indigenous and European cultures Strang (2001: 3) notes that ‘the term was first used in its modern sense in the 1970s to refer to victim–offender mediation programs in North America’ before also becoming widely used throughout Western Europe. Restorative justice practices emerged in the 1990s as a better way of ‘doing justice’ due in large part to their adoption in New Zealand as a means of more effectively addressing juvenile offending through the introduction of Family Group Conferences under the Children, Young Persons and their Families Act. The Act required that all juvenile offences (except murder and aggravated rape) be dealt with by a family group conference, which was characterised by the coming together of the offender, the victim and their families with the goal of repairing the harm caused. The principles underpinning the application of restorative justice were also applied to adult offenders through the 1990s. The role of restorative justice practices within the formal criminal justice system was acknowledged more than a decade later with the passing of the Sentencing Act 2002, Parole Act 2002 and the Victim’s Rights Act 2002 (NZ Ministry of Justice nd). In 2000, the ‘development of restorative justice policies, procedures and programmes that are respectful of the rights, needs and interests of victims, offenders, communities and all other parties’ was encouraged at the tenth session of the United Nations Congress on Crime Prevention and Criminal Justice (UNCPCTO 2000: np). Restorative justice principles were then firmly placed on the United Nation’s agenda in 2002 when the Economic and Social Council adopted the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (UN Basic Principles). The UN Basic Principles encourage Member States to establish guidelines and standards that set out the use of restorative justice programs appropriate to their legal systems (UNODC 2006).

The practices that began in New Zealand were soon replicated in various forms in other parts of the world and were the primary basis for restorative justice programs in Australia (Strang 2001). The most common forms of restorative justice programs are victim–offender mediation, conferencing (for both adult and young offenders) and circle sentencing.

What is restorative justice?

Understandings of restorative justice are based on the premise that crime causes harm to people, to relationships and to the community; that it is not simply committed against the state (Strang 2001). Restorative justice represents a departure from the principles upon which the traditional criminal justice approach is based as it puts reparation of harm at the fore rather than punishment. It also signals a shift away from the traditional view that prison is an effective deterrent from future offending (Sherman & Strang 2007). It has been argued that interest in restorative justice has grown in part, due to a ‘general disillusionment with retributive [forms of] administrative justice’ (Hayes, McGee & Cerruto 2011: 128). Further, tougher stances on law and order, culminating in increased and lengthier prison sentences have failed to adequately address crime, fuelling the need to consider alternatives.

Restorative justice is differentiated from the conventional criminal justice system in the following ways:

  • rather than crime being seen as a violation of law and committed against the state, it is perceived as a conflict between individuals which has resulted in harm to victims and communities (Latimer & Kleinknecht 2000);
  • where the traditional approach seeks to determine guilt and impose punishment, restorative justice is more concerned with repairing the harm caused by offending and restoring relationships (Strang 2001); and
  • restorative justice processes provide an opportunity for ‘active participation by victims, offenders and their communities’ (van Ness cited in Strang 2001: 3), a departure from the passive roles offered to them by the traditional criminal justice system.

Some contributors to the field claim to be ‘against punishment’ (Daly 2013: 356 Walgrave cited in Daly & Proitetti-Scifioni 2011: 219) and do not see its relevance to restorative justice, while others argue that punishment cannot be separated from restorative justice (Daly & Proietti-Scifoni 2011; see Daly 2013 for a discussion on the relationship of punishment to restorative justice). Umbreit, Coates and Vos (2004) have pointed out that there is an assumption that restorative justice is not punishing because it does not intend to be and yet their research with participants revealed that some offenders felt that they had been punished more through restorative justice processes than would have been the case in the traditional court system. In many ways, restorative justice asks more of offenders than the conventional system; they must participate more actively, remorse is hard to feign and they must engage more directly with the police, judicial officers and victims.

Further to this, Foley (2013: 130) argues that ‘retribution is much wider than simply punishment’ and that contrary to prevailing views, restorative justice programs actually play an important role in helping achieve retribution because they include ‘bringing offenders to account, denouncing their behaviour, providing public vindication for victims and setting reparation and sanctions’.

Definition of restorative justice, standards and practices

Despite the fact that restorative justice is now a well-established way of ‘doing justice’, there remains contention around exactly what the term means (Vaandering 2011). Daly and Proietti-Scifoni (2011) posit five reasons for the lack of a clear definition:

  • that restorative justice ‘has developed in a piecemeal fashion’ (van Ness & Strong cited in Daly & Proietti-Scifoni 2011: 5) across domestic and international contexts;
  • the popularity of the idea and the momentum that resulted led to the inclusion of ‘any justice activity, which remotely seemed alternative’ (Daly & Prioetti-Scifoni 2011: 5);
  • key contributors to both theory and practice fail to agree on what restorative justice is;
  • restorative justice was adopted to the transitional justice context despite the different meanings of terms such as restoration and reparation in the context of domestic crime within developed nations, compared with violations of human rights in conflict contexts; and
  • the field has suffered from a lack of clear guidance for defining key terms, for example, in international law instruments, as is the case for transitional justice.

The definition offered by Marshall (1996: 37) of

a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future

has been the most commonly accepted. Braithwaite (1999: 1) emphasised the ‘restorative’ focus of such practices and identified the parties involved when he stated that restorative justice ‘has to be about restoring victims, restoring offenders and restoring communities’. More recently, Zehr (2002: 37) offered the following:

Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.

It is said that there are three key characteristics common to restorative justice programs;

emphasis on the offender’s personal accountability by key participants, an inclusive decision-making process that encourages participation by key participants; and the goal of putting right the harm that is caused by an offence (Bazemore & Schiff 2004: 41).

Restorative justice is ‘a process rather than a particular program model’ (Umbreit et al. 2004: 82) and as such, encompasses a wide range of practices. Bolitho (2012: 76) suggests that this is due to different processes reflecting and emphasising the various elements and principles of restorative justice; ‘elements and principles that are given differing weights…reflecting different ‘sensibilities’ and cultures’. Umbreit et al. (2004: 88) add that it is a concept that has evolved over time and while it is important to ‘guide with care the underlying principles of restorative justice’ it is equally important to understand that it is likely to continue to evolve and that this should be viewed positively.

The concepts of reparation and restoration are integral to understanding restorative justice. As Daly and Proietti-Scifoni (2011) note, both concepts are recent additions to domestic criminal justice (with the latter also moving into international law in recent times) and neither has a settled definition. There is some overlap between the concepts and Daly and Proietti-Scifoni (2011) suggest that the terms may be best understood by noting the starting points of various advocates; that is, some take reparation as the key term, others restoration. Restoration, as referred to earlier, refers to the overarching goal of restorative justice to ‘put right the harm’ (Bazemore & Schiff 2004: 41) and reparation can be seen as a ‘subsidiary activit[y] that may assist in moving a victim to an initial state before the crime’ (Duff cited in Daly and Proietti-Scifoni 2011: 35). Reparation can be made in a variety of ways and can be both material, for example, undertaking work for the victim or community service and making restitution, or symbolic, including but not limited to making a verbal or written apology or entering a treatment program. Importantly, repairing harm goes beyond paying for damages, it is about actively engaging with a victim to acknowledge their ‘ownership’ of the offence and that they have been ‘wronged’ in the commission of the offence.

Restorative practices

The difficulty in defining restorative justice can be partly attributed to the wide range of practices that it can include; that is, ‘diversion from court prosecution; actions taken in parallel with court decisions, and meetings between victims and offenders at any stage of the criminal process’ (Daly 2001: 5). Sherman, Strang and Newbury-Birch (2008: 9) clarify the distinction between restorative practices and restorative justice whereby the former represent

approaches to justice, criminal sanctions and rehabilitation that attempt to incorporate either offender awareness of the harm they have caused, or offender efforts to pay back the community for that harm, without necessarily engaging in restorative justice or in any way repairing harm done to their own victims.

They further specify that

Where a personal victim has been harmed but does not participate in the restorative practice, it would not constitute restorative justice. Where no personal victim exists, however (as in vandalism at a community centre), the participation of a community representative in a collective resolution involving the offender as well would qualify that restorative practice as restorative justice (Sherman, Strang & Newbury-Birch 2008: 9).

For example, this means that while cautioning and many speciality courts operating in Australia may be broadly ‘restorative’, they are not are not actually examples of restorative justice.

Much of the diversity in practice and definition is due to the fact that restorative justice theory has developed alongside restorative justice practice. In order to better align practice and theory, Braithwaite (2002) proposed a set of constraining, maximising and emergent standards to guide restorative justice processes. ‘Constraining’ standards are those values that must be present, as they represent the fundamental rights of participants and impose limits on the way in which practice is carried out (eg non-domination, empowerment and respectful listening). ‘Maximising’ standards refer to those values that seek to return those affected by crime to their pre-crime state and reflect the identified needs and wants of victims and offenders from the restorative justice process (eg restoration of human dignity, property loss, safety, damaged relationships, freedom and compassion). ‘Emergent’ standards (eg emotions such as remorse, forgiveness or mercy) are an indication of a successful restorative justice process and occur spontaneously and cannot be urged. While constraining standards must be present in restorative justice processes, maximising and emergent standards are considered to be indicators of ‘restorativeness’ but may not be achievable in all cases (see Braithwaite 2002 for a complete list and explanation of the standards). The advantage of this approach is that it provides a consistent set of measures against which different programs can be assessed. More importantly, the standards set out by Braithwaite help to conceptualise restorative justice as occurring on a continuum and provide an alternate, and more appropriate measure of the impact of restorative justice, rather than ‘fall[ing] back to using typical criminal justice measures as indicators of restorativeness’ (Bolitho 2012: 76).

Victims and communities

Victims

Central to understanding restorative justice and the concept of ‘restoration’ is understanding who is the object of ‘restoration’ that is, who the victims are and what the community is in this context. Victims (those harmed by a crime) may be individuals who were directly harmed, indirect victims with an emotional connection to the direct victim, or collective/institutional victims; for example, when items are shoplifted from department stores (Sherman, Strang & Newbury-Birch 2008).

Although one of the core tenets of restorative justice involves bringing the key participants together to repair the harm caused by the offence, victims and offenders do not always meet face-to-face. In some instances, victim–offender mediations can involve ‘shuttle mediation’, whereby the mediator meets separately with the parties. In the Australian Capital Territory, restorative justice conferences are defined as an exchange of information between the people most affected by a crime and can occur directly through face-to-face meetings or indirectly, through exchange of letters, emails, audio recordings, video messages, telephone conferences and messages relayed via the convenor/facilitator (ACT Restorative Justice Unit personal communication 26 August 2013).

Communities

The concept of ‘community’ and its role in restorative justice processes has led to varied interpretations and some confusion (see McCold 2004; Umbreit et al. 2004). McCold (2004: 20) defined the ‘community’ in restorative justice as being comprised of ‘family and friends of those directly affected’, while others have argued against ‘such a narrow, restrictive notion of community’ (Umbreit et al. 2004: 84). Umbreit et al. (2004: 84) take a broader view of community which refers

to a place that has certain specific characteristics, to a group of people who share something in common such as a profession, and to even a ‘we spirit’ feeling state.

An important element of restorative justice processes is that they seek to repair the harm caused and reintegrate the offender into the community. Community representatives (eg school teachers, Indigenous elders, youth workers, church ministers) are involved in helping to identify ways in which the harm may be repaired and can be involved in identifying the skills required for the reintegration of offenders (Morris 2002). Researchers observing conferences in Canberra noted the important role played by community volunteers; facilitators reported that community volunteers were able ‘to express a “community perspective” that would not be “heard in the right way” if presented by the facilitator in the role of police officer’ (Bazemore & Schiff 2004: 48).