One alternative form of justice offered up in recent years is deemed restorative justice. In broad terms, restorative justice techniques focus on a dialogue between the victim, offender, and members of the community about the crime that has occurred, the type of harm done, how it has affected each of the participants, and the ways that the harm can be healed going forward. Often, these processes are facilitated by a kind of mediator who ensures that each person has a chance to express their feelings and be heard by all the stakeholders in a crime. In this way, the ultimate goal of restorative justice would be for the offender to recognize the harm he has caused, make reparations to heal the harm done, and make steps to assure others that the crime will not occur again. Ideally, the victim of the crime will be satisfied with the reparations and, if possible, forgive the offender. The community members will also feel satisfied with the resolution and be able to welcome the offender back into the community after he has made a sincere effort to make things right again.
Hypothetically, there are quite a few advantages to restorative justice over more punitive forms of justice. One is that the victim of a crime, arguably the biggest stakeholder in the event, has a forum in which to be heard and understood. In our current criminal justice system, victims are often peripheral to the process: if they do have an opportunity to be heard in a court room, it is normally just to testify regarding the facts of the case, not to be able to work through how the crime has harmed them. In this way, the restorative justice process should ideally give more closure and emotional satisfaction to the person who is harmed most by a crime. Further, most of the people who commit criminal acts are not the hard-hearted sociopaths that lack any sort of empathy. Instead, they often rationalize with ideas such as the victim deserved it, can afford it, and so forth. By giving the victim of a crime the chance to be heard by the offender, the offender should ideally come to see the seriousness of their actions and the humanity of their victim.
Another advantage is that by opening up a dialogue about the events, rather than attempting to establish blameworthiness through traditional court processes, the restorative justice process leaves open the door for the offender to be reintegrated and accepted back into the community. By giving the offender a chance to voice his own experiences, the restorative justice processes seek to understand what may have driven someone to commit such a crime and increase understanding between members of the community. This is not to say that participants should seek to find mitigating circumstances that pardon the offender from any blameworthiness. The actions of the offender should be condemned and participants should seek for the offender to take responsibility for them. However, instead of the offender being seen as a morally-blameworthy person deserving of punishment, participants in restorative justice processes should seek to condemn the actions but understand the person behind them. This is akin to the biblical message of 'hate the sin but love the sinner.'
The community aspect of restorative justice is important as well--instead of the more broad, nebulous figure of the state being involved in punishment of the offender, the community should seek to understand why someone among them would act in a way to harm their own community and should seek to find ways to reintegrate and accept the person back into their group. This ideally cuts down the sharp, antagonistic divisions between offender and offended, and instead emphasizes interconnectivity and unity. This emphasis lessens feelings of resentment between punisher and punished and should decrease the chances that the offender becomes stigmatized and excluded from society, which in turns decreases the chances of reoffending.
Despite its hypothetical advantages, restorative justice is not without its problems. On a practical level, restorative justice processes can typically only take place when an offender has admitted his guilt. If the person who has committed the crime has not shown any willingness to take responsibility for the crime, restorative justice processes are essentially ineffective. Further, making the offender's punishment subject to the wishes of their victim has the possibility of becoming even more punitive than a third party, impartial judge. Because of the emotional trauma often involved in a crime, it can be difficult for the victim of the crime to think rationally or avoid vindictiveness. Some speculate that this is the reason why the eye-for-an-eye rule was instituted--to ensure proportional response to crimes, rather than blood feuds in which families were slaughtered wholesale due to the actions of one of their members. In fact, it might be almost offensive to believe that victims of certain crimes could come to forgive and accept a person that has wronged them. However, it is the facilitator and community members' jobs to ensure that the reparations made by the offender are indeed proportional and do not devolve into the type of punitive consequences that restorative justice seeks to avoid. Further, I think that the role of restorative justice processes for the victim should be seen as a way for the victim to work through their trauma emotionally and ensure that the victim is heard. Forgiveness and compassion are eventually ideal, but certainly not required. General statistical findings indicate that victims of crimes are typically more satisfied with restorative processes, but this could be a reflection of the type of people that choose to be involved in such programs.
Further, communities themselves are not immune to the types of hierarchical power relationships that restorative justice seeks to avoid. Wealthier or more politically powerful members of a community are not likely to face the same type of dialogue that someone lower on the socio-economic rung would face. Communities also often define themselves by what they are not, as opposed to what they are. When an offender is seen as residing outside the community, it can be difficult for restorative justice processes to attain the goals they seek to achieve.
Additionally, many restorative justice processes rely on instilling shame in the offender so as to inspire him or her to take responsibility for his actions and wish to make reparations. Shame itself is not necessarily an overly punitive tool--shame is a social feeling that can remind us that what we have done is out of line with even our own standards. However, if used excessively or in a way that makes the offender feel as though he is not able to reintegrate into the community, restorative justice techniques can be just as punitive and antagonistic as the forms of justice it seeks to correct. And though it poses itself as an alternative to more punitive forms of justice, it still relies on the distinctions between offender and victim, right and wrong, legal and illegal that underlie our current system of justice. If restorative justice truly seeks to be an alternative to our current system instead of carving out a niche within it, it must seek to engage more radical questioning of divisions between guilt and innocence, legal and illegal, punishment and treatment.
This leaves us with perhaps the greatest problem with restorative justice: how can one restore that which cannot be restored? Crimes like theft, property damage, and so forth are much easier to repair. But what of crimes like murder and rape? Because of the types of harm these do and the types of emotional trauma involved, restorative justice does not seem appropriate. When someone has been raped, it would seem near impossible to ever restore what has happened or forgive the person that has done that. But to me, creating more ugliness from such a situation is one of the worst possible things to do. Punitive justice systems have, for centuries, sought to ways to justify and explain why two wrongs make a right. One of the first moral lessons that many of us learn growing up is that this is in fact not the case: that striking someone back creates two black eyes out of one. Creating deeper wounds merely adds scars. Giving into feelings of anger and vengeance only leads to bitterness and resentment.
In this way, despite it's many flaws and problems, I find restorative justice more appealing because it is dialogue-based in nature. It takes an event in which harm is done and it seeks to create understanding and connectedness between all parties. Instead of condemnation, it offers avenues for redemption. The messages of restorative justice are of the 'we' variety, not the 'you and I'. Instead of further shattering lives that are already very apparently broken, restorative processes seek to create something better, something more whole. Can we, as a society, learn the same lesson we did when we were children, that harming someone in response to the harm they visited on us makes us worse, not better.
As a wise man once said, "We must learn to live together as brothers, or perish together as fools."
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