Restorative justice is a practice in which the person(s) who were harmed by a crime, and those who were responsible for that harm, are brought into communication. In this blog, Dr. Ian Marder discusses the implementation of restorative justice in some key jurisdictions, focusing on their legislation, policies and models of service provision.
Restorative justice (RJ) is a criminal justice practice in which the person(s) who were harmed by a crime, and those who were responsible for that harm, are brought into communication. The purpose is to enable the people who hold a stake in the outcome of an offence to play a part in repairing the harm and finding a positive way forward.
It is intended as a voluntary process for all participants and can be used with any type of offence and at any stage of the criminal justice process – including as a diversion from arrest or court, or post-sentence, by probation services and in prisons. Its potential benefits are varied: from increasing victim satisfaction with criminal justice and helping victims to recover from crime, to reducing reoffending by changing the way that offenders think or providing further support and motivation to desist from crime. Importantly, restorative justice also constitutes a set of principles which can underpin a broader change in systemic and institutional cultures and ways of working.
As governments on all continents increasingly seek to integrate restorative principles and processes into their criminal justice systems, there is much they can learn from exploring the legal provisions and models of delivery which already exist around the world. This piece seeks to provide information from some key jurisdictions, focusing on their legislation, policies and models of service provision.
The purpose (of RJ) is to enable the people who hold a stake in the outcome of an offence to play a part in repairing the harm and finding a positive way forward.
England and Wales
RJ services are now widely available in England and Wales. Each of the 43 regional police forces has an elected official called a Police and Crime Commissioner (PCC). In 2013, PCCs were made responsible for commissioning victims’ services locally – including RJ – using new Ministry of Justice funding. Although these funds are not ringfenced, most PCCs have either commissioned a third-sector provider (such as Restorative Solutions and Remedi) or funded an in-house service to deliver RJ. Many of these services now take referrals from any criminal justice agency, irrespective of the offence in question or the stage of the justice process.
In addition, many police forces have the capacity to resolve low-level cases and non-crime incidents informally using RJ. Youth Offending Teams (YOTs) use RJ in response to youth offending, and many also seek to take a restorative-style approach even when victims do not wish to participate. Recent legislation in England and Wales includes the Crime and Courts Act 2013 which permits judges to defer sentencing so that RJ can take place at that point, and the Offender Rehabilitation Act 2014 which provides for probation services to use RJ as part of community and suspended sentences.
New Zealand has used RJ with young offenders since the Children, Young Persons and their Families Act 1989 which mandated judges regularly to adjourn proceedings to allow RJ to take place. Several subsequent acts in 2002 gave statutory recognition to the use of RJ with adults. More recently, the Sentencing Amendment Act 2014 requires judges to adjourn proceedings to enable adult offenders and their victims to be offered RJ at that point. This means that RJ can be used with a wide array of serious crimes, including in cases where the offender is ultimately imprisoned. One important lesson from New Zealand, however, relates to delivery capacity. News reports suggest that the 2014 law came into force before there was enough capacity to assess all the new referrals in a timely manner, with courts reporting significant delays in the early days of this reform. Now, comprehensive RJ services are provided by community-based groups across New Zealand, funded and regulated by the Ministry of Justice. The government has also released best practice guidance on delivering RJ in the jurisdiction, as well as annual research reports and other documentation on its use.
Australia is another country with a relatively long history of RJ, although its policies vary across the different states and territories. In the Australian Capital Territory, for example, the Crimes (Restorative Justice) Act 2004 enables cases to be referred to a dedicated Restorative Justice Unit. Recent legal proposals in that territory have sought to loosen the criteria for when RJ can be used with young offenders and to include sexual and family violence within the remit of the Restorative Justice Unit. RJ is also available in Queensland and South Australia, and is used with serious crime in New South Wales. While police-led conferencing in Queensland was discontinued years ago (Clamp and Paterson, 2017), there remains substantial interest in RJ from researchers and professionals across the country. This has led to new projects in recent years, such as a pilot project focusing on sexual assault cases in Victoria, which started in 2015. The project is among the first of its kind in the world, as it seeks to provide justice in some of the many cases of sexual assault which are not successfully prosecuted.
Colorado, United States
The State of Colorado has perhaps the best developed RJ system in the United States. The statutory Restorative Justice Coordinating Council (RJCC) provides training and supports the development of RJ programmes; the same law which created the RJCC, also enables RJ to take place throughout the youth justice process. In 2013, a new law introduced a $10 surcharge on offenders to fund new RJ pilots, research and a State RJ coordinator. This law also: gives victims the right to be informed about the availability of RJ; requires many young offenders to undergo a pre-sentence evaluation to determine whether RJ is a suitable sentencing option; requires district attorneys to assess whether certain young offenders are suitable for diversionary RJ; and directs the Department of Corrections to establish policies and practices for RJ in prisons. This was one of many criminal justice reform bills introduced into the state legislature by Rep. Pete Lee, an advocate of restorative justice.
(RJ) is intended as a voluntary process for all participants and can be used with any type of offence and at any stage of the criminal justice process – including as a diversion from arrest or court, or post-sentence, by probation services and in prisons.
Continental Europe and beyond
Some of the oldest and best-embedded RJ systems can be found in continental Europe. In Finland, for example, the Mediation Act 2006 seeks to achieve equal access to victim-offender mediation for all persons and requires the state to fund mediation services (pp. 65-69). In Norway, the Municipal Mediation Service Act 1991 established a National Mediation Service that receives referrals for both civil and criminal mediation from any agency, any offence and at any stage of the process. 650 lay mediators volunteer for the 22 regional mediation services, delivering over 8,000 cases in 2011. In Belgium, the Youth Justice Act 2006 requires prosecutors (pp. 25-28) to consider using a restorative diversion from prosecution in response to most youth offending.
Many further European jurisdictions have legislation and policies which should be analysed by any other countries seeking to develop their work in this area. For example, Northern Ireland (pp. 125-130) set up a new Youth Conferencing Agency to facilitate cases referred by the youth courts, while legislation in Latvia, Hungary and the Czech Republic allocates the responsibility for victim-offender mediation (VOM) to their probation services. This is not to ignore countries in other continents. In Asia, for example, South Korea has an established system of VOM: following revisions to its Crime Victim Protection Act in 2010, VOM was used to divert around 111,000 cases from court in 2016. In contrast, there are a number of jurisdictions – including France (pp. 71-74), Malta (pp. 115-118) and Poland (pp. 131-136) – which have decent legislation on RJ, but which lack a stable, national service provision, limiting its accessibility in practice.
There has been change, too, in the international legal instruments pertaining to RJ. In October 2018, the Council of Europe published Recommendation CM/Rec(2018)8 on restorative justice in criminal matters. This document argues that the availability of RJ should not be contingent on the victim’s location, the type of offence, the offender’s age or the stage of the criminal justice process alone. It also describes how the proactive use of restorative principles and processes outside of the criminal procedure can help underpin a broader cultural change in criminal justice systems. New regional collaborations and initiatives are also taking shape in Africa, Latin America and Asia, while moves are afoot within the United Nations to update their own training and guidance on RJ. Given the proliferation of activity in this area, researchers must continue engaging with policymakers and practitioners to help ensure that any developments are as safe and evidence-based as possible.
PRI’s Global Prison Trends 2018 publication reported on the growing trend of restorative justice and the barriers to its acceptance and implementation. Read more here.