Analysing Restorative Justice Theory vs Application

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Restorative Justice is an alternative way of solving criminal and social cases. As a relatively new emerging field of justice it has not developed a solid legitimacy basis in wide circles yet. In this paper I claim that Restorative Justice's effectiveness and potential of practical implementation in criminal offences is limited and expands only to the particular types of misconducts. Advantages and shortcomings of Restorative Justice in using it in different real-world scenarios are examined.

Restorative Justice: Theory vs. Application

Restorative justice is an alternative way of resolving criminal and social cases. Classical Retributive Justice assumes that longer imprisonment sentences or harsher punishments of offenders will deter crime more effectively. Restorative Justice holds radically different approach; its premise is to make an offender responsible for his actions by confronting him with the damage he had inflicted upon the victim and also by offering him an opportunity to suggest an action aimed towards restoring peace and alleviating or compensating the harm done. It views a crime as a conflict between two individuals rather than a violation of state's legislation. The main focus is to restore the peace and to repair the broken relationship rather than to punish the offender in order to deter him from future crimes.

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Tangibly, apart from the set of ideas, Restorative Justice represents the social movement of activists who advocate for a certain way that criminal justice should be executed. They argue that Restoratives Justice system provides better solutions for conflicts and injustice resolution "in realms as diverse as child abuse, school bullying, workplace negotiations, adult criminal behavior, the gross violations of human rights and international conflicts".(1) Advocates of Restorative Justice also claim that it is at least as effective in criminal relapses' preventions as the traditional courts system.

However, Restorative Justice has not developed a solid legitimacy in wide society circles yet. Therefore the effectiveness of its practical implication is at question. Rama Mani, for example in her book "Beyond Retribution" characterizes Restorative Justice as decentralized, non bureaucratic, non coercive system with the primary focus on restorative, reconciliatory and reparative factors. Nevertheless Rama argues that Restorative Justice practices are not professional. Restorative Justice's heavy reliance on usage of informal measures in injustice resolution is both its distinctive characteristic and its shortcoming. "Reconciliatory is possible and appropriate only between neighbors or friends (in a broad sense of that term); between people whose lives are structured by shared values and mutual concerns. Furthermore, informal community-mediated justice can be more violent, repressive and conflictual than court-ordained measures, as communities can, after all, be harsh, hostile and exclusionary".

Restorative Justice is often compared to the traditional Criminal Justice. However this tendency is not right, argues Antony Pemberton in his paper "Evaluating Victim Experiences in Restorative Justice", because usually the goal of this comparison is to 'establish' which system produces better results. Restorative Justice and Criminal Justice both use two completely different paradigms with different purposes and styles. "Instead of asking ourselves if Restorative Justice should be preferred to Criminal Justice, we could ask ourselves under what circumstances Restorative Justice is better suited and under what circumstances Criminal Justice or some combination of the two is best. What features of Restorative Justice are most effective for which situation"? (102)

Antony Pemberton argues that, despite the fact that Restorative Justice is widely reported to have positive effects on both victim and offender, the appropriateness of its usage should be considered very carefully. The type of crime is a big factor in restorative Justice. For victims of property crimes, for instance, Restorative Justice seems to work less effectively if the material harm, to the point, has not been compensated by the offender. Statistics show that the victims of property crimes report those crimes to retrieve the goods stolen or destroyed in the first place. Taking into account that Restorative Justice primarily deals with emotional and psychological harm done by the crime, it becomes clear that the victim of material crime will not find any comfort in reconciling with the offender unless the material damages are restored.

The victims of violent crimes, on the contrary, may only seek revenge when they report the crime. They are taking the crime more personally and much more prone to display enmity or hatred towards the offender depending on the severity of the violent offense. In case of violent crimes Restorative Justice is much more appropriate to implement because psychological and emotional damage that was inflicted is what mostly concerns the victim and the physical harm restoration is not the necessary prerequisite for offender's forgiveness.

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Moreover, Restorative Justice is much more likely to be helpful to the violent crime victims who eventually develop Post Traumatic Stress Disorder related to the shock and stress experienced. "Post-traumatic stress is a common reaction to traumatic events like assaults, rapes or severe accidents. In the aftermath of crime, many victims experience at least some of the following symptoms: re-experiencing the event, repeated and unwanted intrusive thoughts, hyper-arousal, emotional numbing and avoidance of stimuli which would serve as reminders of the traumatic experience". (107) Most victims recover in a matter of weeks or months after the disturbing experience, however the considerable portion of people who develop PTSD suffer from impairment of their communicative function, self-esteem, confidence and become socially 'unfit'.

This is where Restorative Justice system might become handy. "Theories regarding the role of perceived control in adjustment to stressful life events typically hypothesize that events perceived to be uncontrollable are more distressing that those that are perceived as more controllable". (108) During the process of reconciliation the victim can be assured of that he or she is not uniquely vulnerable and that nobody is prepared for such stressful events which happen very rarely and randomly. Moreover the better understanding of motives and causes of crimes disclosed by the offender in the Restorative Justice process is likely to have positive effects on victim's perceived locus of control and release the victim from the burden of "what if" internal dialog.

But what is it exactly the assessment of Restorative Justice's practical effectiveness? Upon what terms can the society agree on its implication's feasibility? The problem is that Restorative Justice is not some detached holistic unit that can be measured; Restorative Justice is a complicated, non-standardized theoretical system which cannot be fully grasped in a single dictionary definition sentence. French researcher in the National Centre for Scientific Research and the professor at the Bordeaux Institute of Political Studies Jacques Faget points to the similar idea - is the proof of Restorative Justice's practical effectiveness the necessary condition to justify its existence in social practice and theory? Jacques Faget argues in his paper "Epistemological Reflections on the Evaluation of Restorative Justice Practices" that practical effectiveness is actually not a common sense notion in the case of Restorative Justice, and is rather hard to define.

Jacques Faget further in his paper examines the methodological aspect of establishing "practical effectiveness" of Restorative Justice asking "who evaluates, for what reason, on which social issue and how"? Looking at existing evaluations, Jacques Faget asserts that it is not sufficient to unveil personal orientation or status of an evaluator to ensure maximum objectivity of the results. "It is particularly important to know the researcher's institutional affiliation. Is the researcher part of a government ministry, a university or Restorative Justice practioners' organization? What are the sources of funding for the research - the state, a court, a mediators' lobby, or a non-government organization"? (3) All this information will help to better understand the motives behind the research, and how is the particular researcher related to Restorative Justice. All these measures are intended to ensure the impartiality of the research and to make sure the researcher is not blinded by subjectivity due to the professional or personal interests.

Jacques Faget also asks: evaluation of what? There is no such thing as global consensus on Restorative Justice and its elements. Restorative Justice is currently in different progressive states and has not been equally evolved over time in different countries of the world. Common "preferred themes that are used for Restorative Justice's evaluation are the degree of satisfaction of participants or between the participants, the number of agreements signed and the recidivism rates of offenders". (3) The body of research concerning these questions is always, Jacques Faget argues, subjected to the methodological biases to lesser and greater extent.

In particular, the measure of satisfaction level of participants in Restorative Justice's process is at first seems to provide a strong argument. However reflecting on consensual nature of such research, one might suppose that only the satisfied participants agree to take part in this research while the dissatisfied participants are way too disappointed with the process itself to take part in any extra activities. This insight might explain the fact that levels of satisfaction of Restorative Justice's processes are statistically higher compared to the traditional Criminal Justice participants' satisfaction levels.

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Further, the interaction level between the researcher and the ongoing process, needed for an adequate Restorative Justice process's evaluation is difficult to achieve from the ethical point of view, because the third party involvement might affect behaviors of participants. Practices of research involving one-way windows and hidden cameras are extremely rare, therefore researchers are forced to resort to interviews and questionnaires after the reconciliation session has already taken place, which according to Jacques Faget "is flawed because it depends upon participants' selective memories of what was going on, and because it captures only participants' descriptions of the communications between reconciling parties". (6) Similarly, the number of agreements signed and the recidivism rate are both subjects to the methodological biases.

Jacques Faget argues in his paper that the majority of research shows favorable percentages (from 50% to 90% depending on RJ program) of successful agreements signed using mediation. However, those percentage numbers are not adequate because many agreements can be signed spontaneously or in the ritualistic manner by people who find it hard putting the conflict behind and reconciling with the offender; or by people who find it impossible to come to terms of agreement and who sign a contract just to put an end to the process without acknowledging its failure.

The number of successful agreements signed also depends greatly on a mediating person. "If for example, like many mediators with a legal background, the evaluator favors the 'problem solving model' the focus is likely to be on the treatment of symptoms and the signing of an agreement. If, on the other hand, the evaluator is a fervent adherent of the 'transformational model', like many mediators with a psychoanalytical background, greater attention will be paid to work on the causes of the conflict and relatively little value will be given to signing contracts". (5) And lastly, the analysis of recidivism, the author argues, is also imperfect. The reason for that is that the relapse is registered only if the offender gets himself caught.

Finally there is a danger connected to popularization and misunderstanding of Restorative Justices by masses. Reconciliation between the parties in conflict using Restorative Justice is getting more popular due to the word of mouth and mass media coverage of successful cases. As Restorative Justice is getting popularized, the emergence of new Restorative Justice Institutions might be inevitable. There is a danger of them thoughtlessly putting Restorative Justice's practices on conveyer belt terminating the emotional and cognitive restoration part out of equation and dealing with only the bureaucratic part.

Nevertheless, the exposure of the drawbacks in evaluation of Restorative Justice, Jacques Faget concludes, is not intended to discredit all the work done by the researchers, but to inspire the reflecting reasoning and modesty in drawing conclusions. Such precautions are necessary because of the popular image of Restorative Justice. It is very easy to confuse it with what it is not. People who are only on surface familiar with Restorative Justice tend to see it as a more respectful, more democratic, more humanistic do-it-yourself approach that is opposed to 'ruthless' traditional Criminal Justice approach. Such dualistic views of Restorative and Criminal Justice tend to overlook methodological flaws of its evaluation and bear a danger of misusing Restorative Justice system by people who are poorly informed.

All in all, Restorative Justice is certainly not a panacea for all criminal offences. Its circle of influence is limited. The actual effectiveness and appropriateness of Restorative Justice's implementation fully depends on the crime committed and on offender's and victim's characteristics. To conclude, Restorative Justice is most appropriate to implement when both parties are willing to participate, when they share some common values and when the crime is not purely material.