Forget Restorative Justice

“True justice emerges through conversation” – Howard Zehr

“So, what are your thoughts on the killing of Osama Bin Laden?,” a woman inquires almost casually at a spring dinner party. Admittedly, the US military operation in Pakistan occupies the minds of many at this time – but surely this is not the usual pre-dinner small-talk. Realizing I’ve probably invited the challenge by my mention of my work in restorative justice, I engage with her in the hopes that we might unearth some of the topic’s complexity.

Quickly the more fundamental questions rise to the surface: How do we make sense of injustice? What is the true meaning of accountability? How do we attempt to restore order in the face of irreparable harm? Can people change? What does healing require? What are our own needs within all of this? Caught in this rich quagmire, and with no easy answers, we are the last to sit down to dinner.

Our work in restorative justice demands a skill that both transcends and includes direct engagement with participants. Beyond facilitating dialogue in the aftermath of harm, restorative justice practitioners have the implicit role of facilitating a gradual, collective re-visioning of justice in society. As we look up from our immediate work to the larger conversations that form our social and political environment, we observe that to practice restorative justice is to engage with the retributive and adversarial frames of justice that constitute the status quo.

Whether we wish it or not, our work brings us into dialogue with the people who by their views uphold an apparently different conception of justice. The stance we take in engaging with the deep-seated impulse towards punishment is of vital importance. It will be paramount to the success of our attempts at re-visioning justice in accordance with restorative values.

We as restorative justice advocates are often lured by our own passion into a kind of philosophical zealousness. It goes something like this: we know a way that is more holistic, effective and morally satisfying to deal with crime and its impacts; thus in order to achieve a more truly just world, we must educate and convert the public and decision-makers on the merit of this approach. Sound vaguely familiar?

There is a dissonance in the notion of restorative justice approaching its aims through adversarial means.  Restorative justice is not about denying or silencing the voices of anyone, including its opposition. Its spirit is just the opposite. When we’re most clear-headed, we understand that our prerogative is to listen to dissent as though our survival depends on it – which indeed, as a movement, it might. We cannot afford to turn a deaf ear to the sentiments underlying the impulse to punish. There is too much richness there, too much of importance.

This very conversation is the realm in which we humans negotiate our feelings of hurt and fear and grief, our rage, our needs for safety and dignity and felt accountability. We will never succeed as a partner in that negotiation if we cling to our positions and blindly impose our preferred outcomes.

The search for justice should be an act of deepening, not hardening. Let’s be clear – engaging openly with the punitive impulse does not mean accepting the thirst for vengeance at face value, or standing by mutely while destructive emotions chart the course of action. A restorative mindset suggests a spirit of both curiosity and companionship – of working together to excavate ever deeper through the layers of constructed meaning about justice. It is about inquiring deeply into an individual’s perceptions of justice, and then when their apparent conclusion has been presented, asking “what for” once more.

Our work invites us to seek the bedrock of a person’s sense of justice, trusting that beneath the strata of fear and pain, there are some clear gems of truth. We cannot predict what we will find there. It may appear messy, falling nowhere within our own neat conceptions of “restorative.” But maybe this unknown and even feral quality is part of the inherent richness of our work.

Being a catalyst for exploratory justice conversations does not require that we adopt a facade of neutrality with regard to our own sense of justice. Such conversations rightly hold all of us in dialogue with our own most deeply held values. But if our concern is with meaningful justice, then our primary task is that of holding space for others as they navigate their way through emotional, substantive and spiritual questions.

Our commitment to justice is expressed as an invitation to dialogue. More than advocating for a certain type of justice, we are invited to stand for a certain type of conversation about justice.

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Can I be a facilitator and stand for justice?

An excerpt from a conversation with a recent mediation training participant. She wonders: How can I approach situations of injustice as a facilitator, when my strongest impulse is towards fairness? Does mediation in situations of injustice imply giving up on our own sense of justice? My thoughts on this below – curious to hear yours.

I see two major ways of engaging with a problem: as an advocate, or as a conduit. An advocate is someone who takes an active stand on an issue, and seeks to further a specific agenda. A conduit is someone who attempts to help to clarify the interests of an advocate, and bring divergent voices into conversation based on those interests. If the problem/goal here is ‘fairness’ or ‘justice,’ I think the question you are presented with is how best to achieve this goal.

There are many people who fight for a concept of justice in the social arena, and this has produced extremely important gains (in women’s rights, civil rights, labour rights, etc). The limitation of advocacy is that the participants in the unjust relationship may never set out on a journey of re-humanizing their relationships. They are told how to behave in order to align with more ‘just’ values, but they able to remain at arm’s length from the important internal exploration of these values. Their behaviour may change for a time, but the risk is that in the absence of another person or group of people correcting their behaviour, they will revert to their ‘default’ behaviour.

The hope ingrained in a ‘conduit’ or ‘facilitator’ mindset is that through good process, parties will come to increasingly see their own humanity and that of the other in a new light. It is by bringing the characters in the unjust or unfair scene into dialogue that they begin to expose the impact that the arrangement is having on them both. From this perspective, a person who is fostering injustice stands ultimately to gain by a release from that arrangement, not to lose from it.  And they are most likely to see these gains and act accordingly by virtue of being shown, rather than told.

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Systematizing Restorative Justice

“I want to talk about the importance of restorative justice being mainstreamed as a response to crime and antisocial behavior, and so being absolutely capable of withstanding public scrutiny as an answer to the problems that people are concerned about. Instead of talking about diversion from the system, what we should really be talking about is transforming the criminal justice system. Transforming it into a service and transforming the way it operates. We should stop talking about diversion because what we want to do is not see restorative justice as some kind of alternative to the criminal justice system. What we want to see is restorative justice and restorative principles embedded in the criminal justice system as a whole and operating at every part of the criminal justice system.”

-Partial transcript of a speech by The Rt Hon Nick Herbert MP, Minister for Policing and Criminal Justice given on 16th February, 2011 at the joint Association of Chief Police Officers’ and the Restorative Justice Council conference in Manchester

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Justice is Meaning

Justice is contextual – it consists of the meaning that the people involved give to it. Justice is useful only insofar as it is meaningful to those involved. When it ceases to be meaningful it ceases to be useful. People will have differing perspectives on what is meaningful. When justice takes the form of, or encompasses conversation, it is more likely to be meaningful to more people.

But justice is not about accepting at face value the stated impulses of its participants. It is not about satisfying a victim’s unexamined hunger for vengeance anymore than it is about accepting an offender’s justifications, entitlement and minimizations of a his actions. Rather, justice is a process of working with each party to deepen their sense of what is meaningful in the situation.

This process of working together to explore and deepen the sense of the meaningful should have a name. Perhaps “excavation.” Removing the layers to find bedrock. Qualities like true accountability or repentance or forgiveness may be manifestations of the bedrock. But remember that justice is a process, not just an outcome. Justice is the journey toward, not necessarily the arrival to, bedrock.

There is certainly a material element to justice. But the notion that penalty can be meted out according to a spreadsheet seems to falsely rigidify that which is innately fluid.

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