Restorative Justice
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American Military University

Professor Michael Beshears

CMRJ316 Correction and Incarceration

January 20, 2011

Abstract The general disillusion with the present punishment-based and rehabilitative approaches to crime control has created a political climate ripe for reform. A new move based on the premise of accountability and remedial has great appeal. While restorative justice seems to guarantee a distinct third alternative, the imprecise use of the emerging "vocabulary of restoration" has created as much confusion as clarity about the fundamental concepts of the new paradigm. Restorative justice has come to mean all things to all people. I agree with Walgrave and Bazemore: “A coherent definition and vision should serve as a unifying focus for reflection and experimentation among practitioners and scientists, and should inform policy makers and the public about what restorative justice is and is not” (Bazemore and Walgrave, 1999a, p. 46).

Restorative justice, as a practice, has a history older than state justice does, yet the example of restorative justice has only recently begun to be expressed. Since Howard Zehr's book Changing Lenses (1990) first sketched the outlines of the restorative justice example, little agreement principles have evolved (McCold, 1998c). Recently, two competing definitions of restorative justice have been brought up. The Declaration of Leuven (1999) and a Working Party of the U.N. Alliance of NGOs (McCold, 1998b) both integrated a working definition of restorative justice. "Restorative justice is a process whereby all the 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" (Marshall, 1996). Walgrave and Bazemore have publicly criticized Marshall's definition as inadequate, and have proposed a definition of restorative justice that is much more expansive--the "Maximalist" model of restorative juvenile justice (Walgrave, 1998b; 1999; Bazemore and Walgrave, 1999 a,b). The comparison of the definitions should help to explain differences and help to define the factors within which to the theory of restorative justice.
I propose a "Purist Model" of restorative justice that goes with Marshall's definition and evolving restorative justice practices. It is not intended to the proposed model as purist to mean that it is the only pure model possible consistent with theory, nor to suggest that programs fitting within the definition will operate in an ideal manner. Rather, a purist model of restorative justice is one that includes only those elements of the restorative example without elements of obedience and treatment examples. The more traditional or pure a model of restorative justice, the less well received it will be by those invested in practices deemed to be outside the definition. However, the development of a conservative model is important because of the vagueness with the terms. Theory should be based on accurate thinking, not suitability. This paper considers the current context within which to develop a feasible mid-range restorative justice theory. By "mid-range," I mean a theory that does not attempt to explain most of social or political behavior, but explains sufficient to involve the phenomenon of crime and harmful misconduct and social responses to it. The Purist model of restorative justice that has the characteristics criticized by the Maximalists is then described. After responding to the criticisms, I have similar concerns about the Maximalist model. Finally, a typology of restorative justice practice is proposed to distinguish the restorative from the not restorative, and between fully, mostly, and partly restorative programs. If the challenge to construct a maximalist model of restorative justice and this reply are to be more than merely differences in opinion, there needs to be a constructive framework within which to carry on. It is necessary to place the issues within the situation of the social sciences. To do so, I need to be clear on a number of scientific concepts. The terms paradigm and theory many times is used interchangeably, but they are not the same. “Paradigms are general frameworks or viewpoints: literally points of view. Paradigms provide ways of looking at life. A theory is a systematic set of interrelated statements that intends to explain some aspect of social life. Thus, theories flesh out and specify paradigms” (Babbie, 1995, p 2-3.). If restorative justice is to develop as a paradigm, postulates, theories, propositions and concepts all need to become established. A postulate of restorative justice, for example is that crime injures people and relationships. A theory of restorative justice for example, might be that justice is predicated upon meeting the needs of those affected by crime. Restorative justice concepts include victim, offender, community, harm, needs, obligations, reparation and reconciliation. A restorative justice proposition might be that meeting the needs created by a crime will provide a satisfying sense of justice being done. A suggestion of restorative justice, for example, is that participants will rate restorative processes as more satisfying than traditional court processes.
This reply to the challenge issued by the Maximalist model is specifically about shaping restorative justice theory from what is now a loosely defined paradigm. It is likely that theories that develop early in the paradigm shift will hold great influence over the nature of practice and research for years to come. This section will discuss the role of theory in the broader restorative justice movement and locates the present efforts among the various grand theories proposed in the literature.
How shall a mid-range theory of restorative justice be developed and built upon when it is part of a larger paradigm? The place to begin is the basic claims of restorative justice. Crime is personal. A crime is an injury to people and relationships. Justice is a search to make things right as much as possible. "This is a quite different definition from the retributive definition of crime, which considers it as a transgression of a general juridical-ethical rule." (Walgrave, 1999, p. 141). Theory consists of sets of concepts and overviews, both of which are dangerous where the intent is the personalization of harm done. We now have a growing body of research on programs that everyone agrees are truly restorative, clearly demonstrating their remarkable success at healing and resolution. Therefore, restorative justice theory needs to develop closely within the practice. Generalizations has to be made carefully because the restorative paradigm is still very unclear. For example, generalizations must be as true for New Zealand's Maori conferences as it is for Indianapolis Police conferences. Abstractions and generalizations that are meaningful in Canberra but have no context in Hollow Water cannot be said to be true of restorative justice generally. The limitations of a general theory of restorative justice will eventually emerge out of a recursive process of studying restorative practices, developing generalizable principles, inducing psychological, sociological and political causal structures, testing those theoretical structures, and revising and refining the theory based upon science. I struggle to understand what it is we see, although those observing the transformations that can occur in restorative processes would agree, we "know it when we see it." A shared language will eventually develop from how we interpret what we see and how we express those visions to others. This requires defining terms and exploring the meaning of ordinary words like harm, crime, community, healing, punishment, and justice, among others (McCold, 1998b). For the purpose of developing a mid-range theory of restorative criminal justice, it is useful to limit consideration, for the moment, to common crimes and the harms created by them. Zehr (1990) asks, who was affected and what are their needs and responsibilities? Who are the affected stakeholders and how shall they be represented? A useful framework for the development of a mid-range restorative justice theory was first suggested by Virginia Mackey (1990,p. 42) and later elaborated upon (McCold, 1996). The stakeholders each have roles defined by their injury, corresponding needs, and their responsibilities in relationship to a given incident of wrongdoing. There is a direct relationship between the injury, need, and responsibility. The injuries caused by crime produce a need to repair those injuries, and the need to repair injuries produces a responsibility to take affirmative action to seek satisfaction of those needs.
The real needs of victim, offender, and their personal communities are known in general, but how specific needs could best be met in any given incident are personal matters that cannot be secure. The needs of the society, the community, neighborhood, city, etc. will be a function of which definition of community we have in mind.

References
ReferencesBabbie, E. (1995). The practice of social research. 7th ed. New York: Wadsworth Publishing.
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Bazemore, G. & Walgrave, L. (1999b). Reflections on the future of restorative justice for juveniles. In G. Bazemore & L. Walgrave (Eds.), Restorative juvenile justice: Repairing the harm of youth crime (pp. 359-399). Monsey, NY: Criminal Justice Press.
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Walgrave, L. (1998b). What is at stake in restorative justice for juveniles. In L. Walgrave (Ed.), Restorative justice for juveniles: Potentialities, risks and problems for research (pp. 11-16). Leuven, Belgium: Leuven University Press.
Walgrave, L. (1999). Community service as a cornerstone of a systemic restorative response to juvenile justice. In G. Bazemore & L. Walgrave (Eds.), Restorative juvenile justice: Repairing the harm of youth crime (pp. 129-154). Monsey, NY: Criminal Justice Press.
Zehr, H. (1990). Changing lenses: A new focus for crime and justice. Scottsdale, PA: Herald Press.