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A Call for Legislative Advocacy of Restorative Justice

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tanya Settles
November 3, 2023

Often, restorative justice (RJ) is described as a new approach to justice, but it is far from new. After all, traces of restorative justice are millennia old and appear in ancient artifacts. A more appropriate characterization of restorative justice is that it is an alternative approach to traditional justice systems with a focus on repairing harm, addressing needs of victims and enforcing accountability of people responsible for harm and then reintegrating them back into communities. There is enormous potential for restorative justice to operate in tandem with traditional justice systems when criminal justice systems recognize that not all people experience harm the same way, and there’s not a one size fits all approach to justice. 

Myths about restorative justice are easy to find. People unfamiliar with RJ often believe that restorative justice is a “get out of jail free card” for people who have committed crimes, fails to hold people accountable and amounts to nothing more than group hugs at the end of some meaningless, cockamamie process. None of these things are accurate. These myths fit into the “tough on crime” narrative that permeates political and public discourse. If tough on crime policies worked, courts would not experience docket backlogs, prisons would not be overpopulated and violence would largely be eradicated in communities. But these things haven’t happened, and often when there’s a media-notable episode of violence, there’s a quick response to lay blame on something other than facing the reality that crime is an expression of harm between human beings.

The founding voice of restorative justice in the Americas, Howard Zehr, recasts thinking about harm in three simple, but essential questions. Are the harms acknowledged? Are the people impacted by harm invited to be part of the solution? Are people responsible for harm encouraged to accept the obligation to right the wrong? Lacking an affirmative response to all three dimensions, the solution may have restorative elements, but restorative justice, it is not. For a process to be restorative it is essential that victims, offenders and community are brought together in recognition that each entity has been harmed, all parties voluntarily participate in generating a solution and the person responsible for harm acknowledges the harm to others and commits to their obligation to restore those harmed to a place of peace. 

The foundation of restorative justice is based on human relationships that recognize that harm stems from far more than a violation of law or statute. However, to gain the benefits of restorative justice, the cooperation of legislatures willing to engage in policy making is essential. Currently, there are about 6 states with strong statutory support for restorative justice, and another 15 with moderate support. This legislative framework has opened restorative justice resolution of harms ranging from minor juvenile offenses, crimes of violence and tort claims. The patchwork of restorative justice lawmaking varies across the nation, and the benefits are not uniformly available to people in all states. 

Benefits of restorative justice may include:

  1. Reductions in case backlog. Restorative justice can help alleviate the burden on traditional court systems by diverting cases from litigation and toward more informal, yet legally binding, community-based solutions.
  2. Increased community involvement. Increasing community engagement may improve support for and trust of the justice system overall.
  3. Improved victim satisfaction. Traditional justice systems tend to treat the people most harmed as witnesses for the state, not as people who were damaged or traumatized. When victims have a central and meaningful role in resolution, they tend to move toward restoration more easily than a traditional justice system can afford.
  4. Promoting accountability. In restorative justice, offenders are held directly accountable for the harm they have caused and are obligated to make amends for their behavior and the outcomes.  This results in greater likelihood of reduced recidivism, particularly in juvenile justice systems. Because resolution is jointly crafted, those responsible for harm are also more likely to comply and complete the terms of the resolution.
  5. Improved reentry outcomes. In those cases where restorative justice is leveraged after a term of incarceration, evidence suggests improved post-incarceration outcomes including improvements in recidivism reductions and increases in pro-social behaviors.

As communities and jurisdictions look for solutions to frailties of the traditional justice system, RJ has reemerged as a viable alternative to a variety of crimes ranging from low-level misdemeanors to crimes of violence. In Colorado alone, there are over 35 state statutes related to restorative justice. The legitimacy of restorative justice hinges on the engagement of state legislatures to create a policy framework that authorizes restorative alternatives. With a framework based in law and policy, justice system actors are more likely to develop solutions that call on local and community-based experts to resolve and prevent crime and disorder. However, lacking this framework, there’s little incentive to justice systems to shift from traditional adjudication to those approaches that focus on harm reduction and restoration. Now is the time for legislative bodies to consider the possibilities of restorative justice solutions. The wellbeing of our justice system may depend on it.

Author:  Tanya Settles CEO of Paradigm Public Affairs, LLC.  Tanya’s areas of work include relationship building between local governments and communities, restorative justice, and the impacts of natural and human-caused disasters on at-risk populations. Tanya can be reached at [email protected]. The opinions in this column and any mistakes are hers alone.

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