IX. Practical Challenges to Restorative Policy and Practice
While restorative justice has demonstrated great success in some parts of the world, the restorative justice movement, especially in the United States, finds itself in something of a crisis due to a decline in resources to support new programs and initiatives, and continuing policymaker commitment to punitive and less effective alternative programs. Despite positive empirical impact and widespread support for restorative justice values, most problematic has been the lack of broad application of restorative practices and policies beyond responses to low-level crimes. Also apparent is the failure to move beyond mostly small “boutique programs” disconnected from mainstream juvenile and criminal justice and from systemic change. For mainstream criminal and juvenile justice officials, these programs may seem worthy of support as one of many “alternatives” for low-level cases, but they also seem to be isolated from mainstream concerns. Most importantly, restorative justice advocates have often failed to explain to those criminal and juvenile justice professionals and the communities they serve how restorative justice programs help them solve fundamental system and community problems.
A focus on programs cannot provide the basis for a holistic approach to restorative justice in the absence of a systemic commitment to transform the focus and effectiveness of criminal and juvenile justice intervention. Indeed, the most successful case study of a comprehensive implementation of restorative justice began somewhat inadvertently in the late 1980s in New Zealand, as mentioned early in this paper. This modern beginning of a system-wide restorative effort in juvenile justice produced national legislation mandating use of an ancient, nonadversarial decision-making model employed by Maori aboriginals for hundreds of years (now known widely as family group conferencing) to determine the disposition, or sentence, for all juvenile cases other than murder and rape. Family group conferences, rather than being presented as “alternative” or “add-on” programs, were meant to give parents, as well as extended family (or clan) and community members, primary input into decision making for these cases once guilt/responsibility for the crime was established. In doing so, this practice largely displaced or reduced the dispositional function of the court, while also addressing the solving of chronic system and community problems that were the primary concern of the national legislation: overuse of incarceration for juvenile offenders resulting in severe facility crowding, and the disproportionate confinement (DMC) of minority youth (i.e., Maoris).
While the New Zealand experience is unique as a case study in restorative justice implementation, there are many important lessons in that effort for the United States and other countries. Many countries, for example—including those in the United Kingdom and Europe, as well as Canada and Australian provinces and states—while not mandating use of restorative processes, specify presumptive use of restorative justice for many crimes; that is, use is expected in the absence of justification not to do so. Despite the fact that 25 U.S. states by the late 1990s had changed the purpose clauses of their juvenile codes to include restorative justice, and estimates in early 2000 that more than 700 restorative programs operated nationally, most states support only a handful of programs. Moreover, referral rates are miniscule relative to most programs and mainstream dispositions (e.g., probation), and most importantly, few of these jurisdictions specify or even prioritize use of restorative practices.
Given the relative failure in the United States to make restorative justice part of the mainstream of criminal and juvenile justice, a checklist of do’s and don’ts that should guide a new two-pronged strategy for expanding, sustaining, and maximizing the use and benefits of restorative policy and practice might have several key assumptions. In addition to the general emphasis on engaging system leaders by demonstrating how restorative justice could (as in the New Zealand and other experiences) resolve chronic system and community problems (i.e., by increasing public safety), additional specific recommendations for implementing and expanding use and impact of restorative justice policy and practice include the following: (1) Deemphasize programs and challenge the view that restorative justice is an “alternative” rather than a primary, even essential, feature of both decision making in criminal and juvenile justice and follow-up on meaningful obligations and sanctions assigned to offenders; (2) rather than supplement, or provide an “alternative” to, many mainstream, ineffective practices, restorative justice should be designated in statute or policy as the primary response to large groups of offenses; (3) because restorative justice is compatible with core justice functions in multiple settings, advocates should seek to develop a restorative “way” or approach to enhance and refocus core criminal justice functions—e.g., consider a restorative model of discipline and conflict resolution in correction facilities and in schools, and develop restorative models of diversion, probation, and reentry. In addition, restorative values and principles have been discussed and initially applied to staff discipline, court management, community policing, and other core criminal justice functions and could be further expanded as movement toward a systemic approach.