Across North America, there has been a recent and significant push to expand access to restorative justice processes for justice system-involved community members. In Oregon, the aim has been to provide true diversion (limited system involvement and community-based) for more serious and violent crimes. This expansion has also cultivated a push for stronger and more equitable relationships between the criminal justice system and community-based non-profits and agencies aiming to deliver restorative justice services. All of this has caused me to reflect on some of Just Outcomes’ learnings regarding community-based agencies’ aspirations to develop restorative justice programs in partnership with the criminal justice system.
Following are a few patterns we have seen emerge in our work.
When programs are set up without initial and integral collaboration of systems partners, it sets the programs/agencies up to “sell” the program to those systems after the program is already designed. It is our observation that being in that position can often lead to a few less-than-ideal outcomes:
- Uninformed Decision-Making: Systems partners often enter into these conversations with misunderstandings about what restorative justice is, and therefore, often reject the idea outright. Because it is something being “sold” to them, it is typically not a process of evolving understanding, but instead leads to a yes/no, win/lose conversation – which is not typically effective at building strong partnerships or achieving the goals of the program/agency.
- Risk of Cooptation: System partners can often dictate the rules when implementing programs brought to them by community partners. Given the community program’s likely dependence on funding and/or referrals from the system, it puts the system in the driver’s seat of establishing partnership parameters. This can lead community-based agencies to adapt their programs in ways that are uncomfortable, putting the alignment of a program’s design with restorative justice values and principles at risk.
- Restrictive Referral Parameters: Due to both of these factors, programs often “start small” with restrictive referral parameters focused on first-time offenders, youth offenses, low-risk youth, and lessor charges, in order to appease a limited understanding of restorative justice by the system. This unfortunately can set the stage for systems’ partners “pigeon-holing” restorative justice into this limited framework of utilization. It is often more difficult after this starting place to get systems to think broadly about what restorative justice has to offer survivors, those that have caused harm, and community members in cases of more serious harm and impact.
Given these risks, we suggest that programs and agencies pursue the following potential approaches:
- Start with a Question, not an Answer: Enter the conversation through inquiry and humility.. Exploration of the issues from the systems’ perspective will provide important information about how restorative justice might, or might not be able to address some of their concerns.
- Understand Needs from Systems’ Perspective: Increase your understanding and ability to articulate the problems that most system partners and community members would agree on. Examples that have stood out in our work include:
- Repeat Offending: Restorative justice has a means to hold meaningfully accountable those from the community that are in and out of the criminal justice system consistently. Restorative justice can provide a way to hold these repeat visitors accountable, while simultaneously addressing underlying issues/conditions leading to offense.
- Survivors Dissatisfaction: the system offers limited options and ways of achieving a sense of justice for those that have been harmed. Most victim advocates and DAs will agree that there are more scenarios than not where survivors/victims are left feeling disempowered, unheard, and undervalued by community and the criminal justice system after crime.
- Court Overload and Delay: There is a general agreement within the criminal justice system that prolonged trials have a significant impact on survivors, accused persons, their respective families. Community-based restorative justice can offer an alternative response to harm, therefore reducing the load on our courts.
- Impact on Law Enforcement: I have spoken with very few police officers that feel good about what happens in the system after they arrest someone. They feel that justice rarely occurs, that those that are caught rarely change, and that victims/survivors are underserved. Their solution is often focused on harsher sentencing. But I have found an openness to alternative solutions when the conversation starts with what it is they want changed in the outcomes, rather than specifics on how they think those outcomes can be achieved. If the conversation begins from agreement on what outcomes we collectively seek, the methodology of getting there can be explored more fully.
- Disproportionality and Overrepresentation: Disproportionality within the legal criminal justice system is well documented. This is a critical issue, though not one that all systems’ stakeholders are ready to acknowledge or address. This issue can be particularly difficult to navigate in more rural communities where the disproportionality is more easily overlooked by those within the system.
- Collaborate in the Creation of Solutions: Begin the conversation from a place of agreed upon issues to address. This will make it significantly easier to engage community, systems partners, non-profits, businesses, etc. in a meaningful conversation about how to transform the justice system. Engaging interested and impacted parties of the community and system in the initial visioning and design work allows for a vision to emerge that reflects the ethics of the community and its members. This also can be where an outside facilitator, needs assessment, facilitated process of program development, etc. can be extremely helpful.
Our theory, based on our experience, is that when a program emerges out of this kind of community development and organization, it will be owned and celebrated by everyone involved in its creation, therefore becoming something that no longer needs to be “sold”. It is through the process of development itself that the system itself has likely evolved in its understanding and relationship to the community – which is a necessary ingredient for restorative justice to truly take root in a meaningful way in any given community.