Restorative justice is a theory that emphasizes restoring victims.[i] Restorative justice is victim-centered and involves those most directly affected by the crime —the victim, the offender, their family members, and members of the community.[ii] Through the restorative justice process these individuals are directly involved in addressing the harm and coming to a solution.[iii] Unlike retributive justice that views crimes committed by an offender as a crime against the state,[iv] and asks the questions: What law was broken, who broke it, and what the punishment should be?[v] Restorative justice instead focuses on the crime against the victim,[vi] and asks the questions: Who was harmed, what are the needs and responsibilities of all affected, and how do the parties together repair the harm?[vii] Restorative justice is relatively new and only emerged in the United States around the 1970s.[viii] Nationwide there are thirty-five states that have adopted legislation encouraging the use of restorative justice for both children and adults.[ix]
When a crime is committed often as a society we often believe the punishment must fit the crime.[x] Within the westernized legal system, having justice done is most often synonymous with administering punishment.[xi] While the current criminal justice system in the United States has its strengths, there are also weaknesses such as being overworked and overwhelmed with the number of cases.[xii] As a result of being overwhelmed, the offender and victim might not get the attention needed due to lack of time.[xiii] The restorative justice model is better suited to meet a individuals needs because there is a personalized sense to it, from the face to face direct communication to working together to reach a solution.[xiv]
The restorative justice model started out in the 1890’s based on the tradition of oral justice of the New Zealand Maori and the native people of North America.[xv] However, the movement did not begin to gain momentum until the 1970’s when a variety of approaches to restorative justice started to emerge in many countries throughout the world.[xvi]
Canada is considered to be the pioneer behind the restorative justice movement, when they began using victim offender mediation (“VOM”) in 1974 as a result of an incident in Elmira, Ontario in 1974.[xvii] A probation officer who wanted to make offenders accountable for their actions, took two men door-to-door to the owners of the properties they vandalized.[xviii] This action had such positive reactions from all parties involved that it served as a springboard for victim-offender mediation programs.[xix] Restorative justice can be seen throughout the world in countries such as Australia, Canada, Hong Kong, Israel, South Africa, New Zealand and much of Western Europe.[xx]
Since then restorative justice programs have begun to pop up throughout the United States starting in the 1970s and 1980s. A concurring opinion by a Florida Supreme Court judge sums up why restorative justice is so important, in her opinion Judge Pariente states:
. . . . [A] lengthy prison term would satisfy only the goal of retribution. On the other hand, a balanced and restorative justice approach views crime as "more than a violation of criminal law" but also as a disruption "in a three-dimensional relationship of victim, community, and offender." It further recognizes that because crime “harms the victim and the community, the primary goals should be to repair the harm and heal the victim and the community. The goal of any case disposition should be to promote public safety, competency development, and accountability. Further, sentencing that has been based on restorative justice principles has shown higher rates of compliance with payment of restitution amounts and in completion of community service. (citations omitted)[xxi]
A number of states are currently implementing restorative justice principles to their juvenile justice system such as: Arizona, Colorado, California, Illinois, Iowa, Minnesota, New York, Ohio, Oregon, Pennsylvania, Texas, Vermont and Wisconsin.[xxii] While restorative justice originally began as a way to deal with property crimes such as burglary, today restorative justice is being used for even the most severe forms of crimes, including murder.[xxiii] Restorative justice is not only used in throughout the criminal justice system but is also used in schools, communities, businesses, and foster care and group homes.[xxiv] It is clear that restorative justice is gaining momentum throughout the United States and is on its way to repairing the harm afflicted against victims by offenders, and bringing people together in the process.[xxv]
[xv]. Jasmine Duel et. al., Restorative Justice: Restoring California’s Juvenile Justice System and Abolishing Juvenile Life Without Parole, 3 L.A. Pub. Int. L. J. 68, 78-9 (2010-2012). “Navajo of North America explain that their version of restorative justice was not designed to punish individuals, rather to "teach them how to live a better life ... It is a healing process that either restores good relationships among people or, if they do not have good relations to begin with, fosters and nourishes a healthy environment.” Id.