The Promise — And Problem — Of Restorative Justice

Defining forgiveness is still a matter of great debate, but philosophers ground the concept in two things: Forgiveness requires one person to have caused another harm and for the victim to forswear revenge or bad feelings toward their transgressor.

That leaves a lot more unsaid than it clarifies. Is the purpose of forgiveness to get back to normal? What are the power relations inherent in asking for and granting forgiveness? Who has the authority to forgive? Most importantly, why is forgiveness necessary?

The rise of restorative justice programs has introduced the concept of forgiveness — usually kept far away from America’s courtrooms — to the criminal justice system. While forgiveness is not the focus of these programs, its potential fills the air as victim, offender, and community members all meet in the same place.

These programs are alternatives to the traditional sentencing models and offer an opportunity for victims, offenders, and members of their respective communities to meet and, ideally, repair harm, answer lingering questions, and restore broken bonds.

But restorative justice’s answers to forgiveness’s thorniest questions and its relationship to the concept more broadly are up in the air. While forgiveness is widely seen as both virtuous and healing, the specter of forgiveness that hangs above restorative justice proceedings can be a hollow and fragile imitation of the real thing, and it carries with it the potential to reinforce cycles of violence.

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{snip} Restorative justice is a burgeoning philosophical framework that asks people to rethink the best way to respond to harmful behavior. Perhaps the most expansive definition comes from Griffith University criminologist Kathleen Daly, who calls restorative justice “a set of ideals about justice that assumes a generous, empathetic, supportive, and rational human spirit.”

Restorative justice is “a set of ideals about justice that assumes a generous, empathetic, supportive, and rational human spirit”

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Restorative justice has spurred the development of private and public programs within schools and universities that seek to apply restorative justice principles to conflicts that arise within these institutions. Even more crucially, there are restorative justice programs that seek to replace or reform existing practices within the criminal justice system; state-sanctioned programs now exist in the vast majority of American states.

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According to research by Occidental College law professor Thalia González, as of July 2020, “The only states that have not codified restorative justice into criminal law are North Dakota, Rhode Island, South Dakota, South Carolina, and Wyoming.” (Restorative justice programs can be found outside the US too, from Canada to Ireland to Australia.)

Impact Justice, a criminal justice reform group, lays out a simple model for understanding restorative justice when it comes to criminal proceedings. Instead of asking what law was broken, who broke it, and what punishment is warranted — as our punitive system does — restorative justice asks who was harmed, what do they need, and whose obligation is it to meet those needs.

Typically, these programs involve what practitioners call a “conference” where the victim, offender, and community members (often friends or family of both parties) sit down. The offender will apologize or take responsibility for the harm they have caused and seek to make amends, and the victim is given the opportunity to ask questions and make clear all the ways the crime has impacted them and their community.

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It’s notable that the majority of these programs are for juvenile offenders; Gonzalez found that 91 laws in 33 jurisdictions are related to restorative justice programs aimed at minors, while just 42 laws in 15 jurisdictions are related to adult offenders. {snip}

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Restorative justice is perhaps overly optimistic about what it expects. It imagines a world where victims can be magnanimous about some of the most heinous transgressions, guilty offenders can be truly apologetic, and the broader community is positioned and able to help both parties.

According to University of New South Wales Sydney criminologist Julie Stubbs, there is disagreement over whether restorative justice programs actually prioritize victims. Participants cite high levels of satisfaction, but it’s unclear how much of this can be attributed specifically to the programs as opposed to selection effects (are the types of people ending up in restorative justice programs somehow different from people who aren’t?), the effects of time, or support from their communities. She also notes that satisfaction has been conceptualized and measured inconsistently, making it hard to be definitive about victims’ experiences.

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While there may be those among us who can forgive an unrepentant offender — if forgiveness is even the right word for such an act — for most of us, forgiveness requires a sincere apology. There isn’t extensive research on the question, but a set of interviews in 1999 with minors who went through a restorative justice program indicated that while 61 percent of offenders said they really were sorry, just 27 percent of their victims thought the offenders were sincerely apologetic.

This could be because in some restorative justice programs, facilitators require participants to apologize. Victims can feel as though the apology is only happening because the perpetrator is being prompted to give it, not because they truly feel contrition.

Even with a sincere apology, the coercive environment extends to the victim as well.

“Forgiving under government pressure is not really forgiveness, and it places further burdens on people already victimized,” former Harvard Law School dean Martha Minow wrote in her book When Should Law Forgive?

It’s uncomfortable not to accept someone’s apology, especially in front of other people. In most restorative justice settings, victims are not only in front of a facilitator but also the offender’s family or friends and members of their community. Some research has shown that in these communal conference situations, victims will say they forgive the offender simply to avoid the embarrassment of not doing so.

It is bad for victims to feel forced to accept their perpetrator’s apology in and of itself, but the larger concern is that it could lead to further abuse.

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“I came to this whole work out of concern about mass violence, genocide, atrocities, and seeing cycles of violence,” Minow told the New Yorker’s Isaac Chotiner about her work on forgiveness in the criminal justice system. “And the cycles of violence are perpetuated by resentments because of the way the last cycle of violence was resolved. I fear that that’s where we are living right now, and that there are many justified resentments. And maybe some unjustified ones, but, because there’s a perception that some people are treated better than others, we are laying the seeds for further conflict.”

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At its root, forgiveness is about letting go of justified negative emotions and a desire for retribution. It is also about giving up a certain form of social power that victims hold.

“Expectations of forgiveness are raced and gendered,” Minow argued on the Brennan Center for Justice’s podcast. “They’re also about class. They’re about power, but that’s partly because forgiveness is one of the powers of the weak. To claim the ability to forgive — and let’s be clear, to not forgive — is to claim the position of equality and dignity. And that’s a power that we shouldn’t actually ever take away from people.”

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It’s therefore not surprising that there is a notable tension in left-leaning political spaces between calls for leniency and restorative justice for criminal offenses, and calls for punitive measures against sexual abusers as the Me Too movement gained traction.

Georgetown University philosophy professor Alisa Carse has seen her students’ reluctance to bring restorative justice programs to their college campus for the purpose of resolving sexual misconduct cases. {snip}

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