By Tamara Herdener, Faculty Member, School of Legal Studies, American Military University
Restorative justice is an ancient practice that has proved to be extremely powerful and effective in police cultures for centuries before the United States was created in 1776.
As the Centre for Justice and Reconciliation explains, “Restorative justice repairs the harm caused by crime. When victims, offenders and community members meet to decide how to do that, the results can be transformational.
“Restorative justice emphasizes accountability, making amends, and — if they are interested — facilitating meetings between victims, offenders, and other persons.”
With the emergence of COVID-19, the spread of the racial justice movement, and the call for communities to self-police, can restorative justice practices be a solution to issues facing the U.S.?
Assuming that we will always want and need some type of professional police force, could communities take some of the policing into their own hands? Could we build communities where individuals don’t want to harm others, but when harm does occur, could the community render justice without involving a professional police force?
These are important questions now in the United States. All signs point to communities, neighborhoods, schools, organizations, and even corporations beginning to adopt some form of restorative justice practices.
Restorative Justice First Requires a Strong Community
The first step in adopting restorative justice practices is to build a strong community. The idea is to use these practices to “restore” justice once harm is done, so the community must be strong and healthy to begin with. As a result, there would be a strong incentive for citizens to want to restore what was lost when the harm occurred.
Building community will be easier in some places than in others, however. In order to build community, the focus must be on what we all share: our basic humanity, the natural right of happiness, and freedom from suffering.
Another focus of building community is to ensure basic constitutional rights. This process can be tricky but not impossible in polarized communities.
How to Apply Restorative Justice
The restorative process begins after a crime occurs by bringing the victims and the perpetrators together. There are many models and structures to use the restorative justice process.
One example is to use a victim-offender mediator whereby the “victims and offenders meet face-to-face in the presence of a trained facilitator. The parties have an opportunity to talk about the crime, to express their feelings and concerns, to get answers to their questions, and to negotiate a resolution. Support people for both the victim and offender may be present, however, they do not normally participate in the discussion.”
Another restorative justice model often used in academic settings, such as college campuses, is referred to as the community circles model. “Restorative Justice Circles provide an opportunity for community members to come together to address harmful behavior in a process that explores harms and needs, obligations, and necessary engagement. Circles bring all parties together to meet, talk about what happened, and settle on a plan to repair the harm.”
The community circles around these two groups to support them in restoring justice. This powerful process occurs through conversation, vulnerability, honesty, and sometimes tears.
The underpinning of this process is that it focuses on the collective and the community, not on the individual. The entire community takes responsibility to rebuild and restore justice, not just the perpetrator.
Would America Accept Communities Ruled by Restorative Justice Principles?
Creating a community ruled by restorative justice principles would be a major paradigm shift for Americans. This country was built on individualistic values and hard work. While there is certainly a place for those qualities, it is now time to also consider the collective, community values, and communal responsibility.
One of the many challenges of restorative justice practices is that it takes a great deal of time to build the community. And when a crime is committed, it also takes a great deal of time, thought, and effort to reach satisfactory justice because each situation calls for a unique community approach.
Restorative justice requires communities to shift to a culture centered on creating a strong community and interpersonal connections. It requires creating personalized disciplinary plans carried out by offenders so that consequences are meaningful and effective not only for the offender, but also for the victim and the community. These are disciplinary plans that are unique to the persons involved.
This is the opposite of a one-size fits all model such as mandatory sentencing minimums. This approach removes the systemic guardrails in punishment. For example, many academic organizations use a personalized learning philosophy that provides educational experiences for students tailored to their unique characteristics.
A personalized punishment or disciplinary plan takes into consideration the unique situation and individuals involved in each crime or harmful behavior. The obvious drawback is that this plan requires a great deal of thought, time and effort. The current United States justice system seems to be broken. So might it not be worth the extra investment in a new approach such as restorative justice to restore our broken system? As Bryan Stevenson, the author of “Just Mercy: A Story of Justice and Redemption,” states, “Each of us is more than the worst thing we’ve ever done.”
About the Author: Tamara Herdener has practiced law in the public sector at the municipal and federal level for more than 20 years, including eight years of service in the U.S. Army Judge Advocate General’s Corps. She has been a professor in the Legal Studies Program at American Military University since 2005. Tamara earned undergraduate degrees in political science and foreign languages from Seattle University and a Juris Doctorate from the University of Notre Dame Law School.
Herdener serves on a variety of educational committees in her community. It is through her many years of teaching and in these service capacities that she developed a passion for understanding and meeting students’ needs from a holistic approach. She believes that approach positively impacts the greater common good. She is a firm believer that “a rising tide lifts all boats.”