Lesson 9

9.1 BASIC CONCEPTS

Restorative justice represents a fairly new concept in modern capitalist societies and may be best
understood perhaps as a perspective and a social movement. It draws upon a wide range of
concepts and trends – some of which we have already explored and some that may be new to
you. It provides a holistic view of crime and society based upon:

• The need to move away from punitive models of crime control and prevention
found within the conservative push of the last few decades where many claimed
treatment, rehabilitation, and preventative measures had not worked and were at
times unjust
• Ideals of individual and community healing
• The restoration of peace and harmony
One of the perspectives that emerged in the early 1990s to counter the conservative, retributive,
‘just deserts’ approach was ‘Republican Theory’. John Braithwaite and Philip Pettit (1990)
argued the need to challenge retributive and goal oriented approaches to crime control like
utilitarianism that argues for the promotion of policies that focus on the greatest good for the
greatest number and instead:
• See the criminal justice system as interrelated sub-systems that work together
• Recognize that theories that focus on single subsystems (e.g. policing,
prosecution, or punishment) may miss the complex interactions that connect
them
• Understand the criminal justice system exists as simply one institution among a
number of social institutions and there is a strong need to explore these
interrelationships to explore the effects of crime policies on other areas of social
life
• Argue that we should question whether the regulation of crime should be handled
by non-penal agencies and institutions
• There is a need to view the different agencies within the criminal justice system as
a complete entity and employ a holistic view of crime and criminality

For Braithwaite and Pettit the concept of ‘dominion’ is important and simply means a kind of
fulsome social freedom that only exists within a well-governed state. So what does ‘dominion’
from this definition look like? Well, according to Braithwaite and Pettit, full dominion occurs
when:

• Every individual enjoys the potential for the same level of liberty available to
other citizens
 • This liberty is common knowledge among members of society
(I must note that this is a simplified overview of what is actually a more complex concept, and
one you may be interested in exploring further. If this is the case, I would recommend reading
Braithwaite and Pettit’s 1990 book Not Just Deserts: A Republican Theory of Criminal Justice.)
Republican theory also has four main policy presumptions that are identified as:
1. Parsimony – criminalization is costly and should be minimized
2. Non-invasiveness – penal powers should not be overly invasive
3. Reprobation – justice should convey a shaming, moralizing
message
4. Reintegration – offenders must not become outcasts as this
infringes on their dominion and threatens the dominion of others

The fourth policy presumption introduces the idea of ‘reintegrative shaming’ which introduces
the concept of restorative justice principles into republican theory as it argues for:

• A process whereby the offender is publically rebuked for harms they have caused,
but is then forgiven and reintegrated into society
• As part of the reintegrative shaming process, the victim is directly involved in the
proceedings and can be compensated for the harm done
• The focus is on maximizing personal dominion for the victim
Take a Moment
• Take a bit of time here to consider how different the above-mentioned approach
is from our traditional, adversarial position. Think about how shame is used in a
traditional way and compare it to the idea that an offender could be
constructively shamed and then welcomed back into a community. Think also of
the way in which the current justice system deals with victims. What role do
victims play and what rights do they have within a traditional system and how is it
different from a reintegrative shaming perspective? At this time, it would benefit
you read and work through the discussion questions in the ‘Crime in Context’ box.

Keep these questions in mind as we begin to explore the concepts and approaches of restorative
justice perspectives.

The following chart provides an overview of the main points/differences between restorative
justice, the republican approach, and the more traditional retributivist approach.

Restorative Justice/Republican/Retributivist Contrast Chart

Retributivist
Restorative Justice Republican Approach
Approach
 Offender makes Rectification of harm Repayment of
reparations for harm caused offence
caused
Aim
Penalties are
proportional to
crime

Violation of people and Against the ruling powers Socially constructed

Crime is...
interpersonal relationships and breaks legal code crime

Circle Sentencing Reintegrative Shaming Incarceration

Family Group State’s duty to

Models
Conferencing punish

Victim-Offender Mediation

Alternative to criminal Restorative Justice Harsh treatment

Criminial justice system principles
Justice Guarantee of
System Diversion programs Argues against harsh deterrence
treatment

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Lesson 9
9.2 HISTORICAL DEVELOPMENT
Figure 9.1: Historical Development.

A number of factors contributed to interest and development of restorative justice perspectives

and approaches in Canada and include a recognition of:

• The failure of the adversarial to lower crime rates

• High rates of incarceration
• The over-representation of Indigenous people in the criminal justice system
• The exclusion of victims and impacted communities from participation in, and
decisions made by the justice system
• The development of victim rights organizations
 • The emergence of social movements advocating for community-based justice
• The importance of community-based justice as a means of encouraging the
peaceful expression of conflict and encouraging the community to take
responsibility for problem sharing

It is very important to acknowledge and reinforce the recognition that restorative justice
perspectives have a historical base in Indigenous practices and the emergence of concrete
practices from the 1970s where:

• Aboriginal leaders implemented restorative justice initiatives to engender

emotional and spiritual healing within their communities
• These initiatives often reinforced and extended the influence of traditional
healing and spiritual practices for the community.

So, when we boil down the fundamental concepts within restorative justice perspectives we can
argue that these restorative justice approaches have their foundation built on three inter-related
propositions:

1. Crime is fundamentally a violation of people and interpersonal

relationships
2. These violations create obligations and liabilities
3. Restorative justice seeks to heal and put right the wrongs arising
from the violations of relationships through the development and
implementation of community-based justice initiatives

Figure 9.2: Image Attribution: bruinsua.weebly.com.

Take a Moment
Take a few minutes to view the material provided in this link for a concise, but comprehensive,
overview of the origins of restorative justice. You will find it beneficial.

In addition, Table 9.1 in the textbook provides you with a concise overview of the objectives
and values of restorative justice.

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Lesson 9
9.3 CONTEMPORARY EXAMPLES OF RESTORATIVE JUSTICE
The most commonly used forms of restorative justice may be put into four categories – victim
offender mediation, victim-offender reconciliation, community and family group conferencing,
and sentencing circles. While the following provides a summary of each approach, please be
aware that there is overlap between categories. In addition, the textbook provides an example of
each approach to highlight how Canadian communities are incorporating restorative justice
approaches to crime and criminality. From there, we will introduce the contributions of
peacemaking criminology and then examine some of the fundamental goals, processes, and
results of the Truth and Reconciliation Commission. At this point, I would suggest you read the
“Theory in Current Research’ box in the textbook for an example of research on Gladue Courts
in Toronto as example of a restorative justice approach at work.
So let’s begin.

1. Victim-offender mediation and/or reconciliation are among the

earliest initiatives undertaken in Canada. They are based on the
shared practice of:
• Bringing the offender and victim together
• Can take place numerous times within the process
including pre-charge, post-charge, or at the
sentencing stage
2. Community and Family Group Conferencing emerged in New
Zealand and is now used extensively in Canada
• Brings offender and victim together
• Widens participation to include friends and family
members of both the offender and victim
3. Sentencing Circles are widely used within Canada
• Bring offender and victim together
• Widen inclusion to include community elders, court
officials, and other community members
• Some provide an alternative to conventional
processes while others are used for diversion from
the justice system
• Community boards meet formally with offenders and
victims to facilitate a resolution of the conflict
Take a Moment
• Take twenty minutes to watch the video provided in this link to see restorative
justice in action. You will find it deepens your understanding of how this approach
may work. Can you see the concept of ‘reintegrative shaming’ emerging? I would
suggest you summarize your understanding of reintegrative shaming once you
have viewed the video. It will help solidify the material for you.

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 Lesson 9
9.4 CONTEMPORARY EXAMPLES: PEACEMAKING
CRIMINOLOGY
Peacemaking criminology has emerged in recent years as a challenge to the historical focus of
the criminal justice system – the detection and control of individuals and/or groups engaged in
criminal activity. This perspective highlights the failure of the adversarial approach and draws
attention to transformative strategies that are premised on participatory forms of conflict
resolution.

Figure 9.3: Peacemaking Criminology.

So, from this perspective:

•Traditional criminal justice represents a means of inflicting pain under the guise of
reducing crime
• Society cannot solve violence or human suffering by inflicting more violence or
suffering
• The emphasis is on transformative strategies in economic and authority structures
premised on participatory forms conflict resolution
• It is important to live our lives based on love, forgiveness, kindness, and hope
• The solution to crime requires communities of caring people, universal social
justice, and the reduction of hierarchical social and institutional structures.
• The acknowledgement of the need to modify economic structures to discourage
competition and the focus on individual gains to create an atmosphere of
cooperation and sharing.
A good example of peacemaking criminology in action can be found by clicking on this link.
Take a Moment
Think back to the chapter on Marxist criminology. Can you find links to Marxist perspectives
within peacemaking criminology? What do you think this link is?

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9.5 CONTEMPORARY EXAMPLES: TRUTH AND
RECONCILIATION
Figure 9.4: Truth and Reconciliation Commission of Canada (TRC).
The Truth and Reconciliation Commission was created as part of the Indian Residential Schools
Settlement Agreement between Indigenous peoples and the Government of Canada with the goal
of bringing attention to the history and legacy of residential schools and the mistreatment of
Indigenous people in Canada. The official goals of the Commission included but were not
limited to:

• Acknowledgement of the Residential School experiences, impacts, and

consequences
• Provide a holistic, safe, and culturally appropriate setting for those affected to
bring forward their stories
• Witness, support, facilitate, and promote truth and reconciliation events
• Promote awareness and public education
• Identify sources and create as complete a historical record as possible
The following link provides you access to a brief film clip that nicely summarizes the history of
residential schools. I would strongly recommend you take a few minutes to view it.

The Commission undertook this task and engaged in a variety of events across Canada. The
Commission also had access to relevant information from government and church records and
incorporated these materials, along with the shared experiences and stories of survivors and
families into a final report released in 2015. The report listed 10 principles the reconciliation
must be based on. The following paraphrase these principles:

1. The United Nations Declaration on the Rights of Indigenous

People is the framework
2. First Nations, Inuit, and Metis people have Treaty, constitutional,
and human rights that must be recognized and respected
3. Reconciliation is a process that requires public truth sharing,
apology, and commemoration
4. Reconciliation requires constructive action on addressing the
ongoing legacy of colonialism
5. Reconciliation must create a more equitable and inclusive society
by closing the social, heath, and economic gaps that exist
between Indigenous and non-Indigenous Canadians
6. All Canadians share responsibility for establishing and
maintaining mutually respectful relationships
7. An acknowledgement of the importance of Indigenous Elders and
Traditional Knowledge Keepers of the ethics, concepts, and
practices of reconciliation
8. Supporting Indigenous peoples’ cultural revitalization and the
integration of Indigenous knowledge systems into the
reconciliation process
 9. Reconciliation requires political will, joint leadership, trust
building, accountability, and transparency, as well as a
substantial investment of resources
10. Reconciliation requires sustained public education and dialogue
The report produced by the Commission made 94 recommendations that fall under two broad
categories: Legacy and Reconciliation. While each of these categories have several
subcategories, a significant portion of the Legacy recommendations relate specifically to justice
issues due to the significant over-representation, and treatment, of Indigenous people in the
Canadian criminal justice system. While your textbook summarizes a number of the
recommendations, I would strongly encourage you to read the 94 recommendations in the report
to truly understand the breadth and depth of the work undertaken by the Commission. I have also
provided a link to a newspaper article that discusses the recommendations and provides
additional material for you.
Take a Moment
• Take a moment to think of the importance of the Truth and Reconciliation
Commission process in fostering understanding of the impact of residential
schools on Indigenous people. How might these experiences have contributed to
the over-representation of Indigenous peoples in the criminal justice system?

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Lesson 9
9.6 CRITIQUES
Alright, we have now explored the concepts and applications associated with restorative justice
perspectives. As with every other chapter, we now turn our focus to some of the critiques
associated with this perspective. They include:

• The argument that restorative justice links a range of variables associated with
crime (e.g. unemployment, age, gender) but fails to map out how each is ordered
in terms of the flow of variables
• It presumes societal consensus concerning the nature of criminal activity and
behavior, for example, all individuals agree that murder is a criminal activity and
must be strongly punished.
• Therefore, policies fail to address issues of racism, class structure, and
institutional biases
• Questions regarding the challenge of distinguishing between reintegrative
shaming and discrimination.
 • A recognition that shaming does not easily apply to crimes that are not
individually based (e.g. state or corporate crime)
• The potential for violation of due-process rights of offenders (e.g. the self-
incrimination required in order to participate in the restorative process)
• The ‘net-widening’ process of social control associated with restorative justice
practices

Peacemaking Criminology is also subjected to critiques that include:

• The argument that the perspective is utopian; little is offered by way of empirical,
explanatory, or theoretical understanding
• While offering opportunities for reflection about different ways to frame issues of
crime and criminality, it fails to offer suggestions for practical application
• It ignores the argument that there may be legitimate, liberating applications of
violence in relation to state authority
• Rather than achieving peace, some victims may be re-victimized by the process

I want to stress here, the importance of reading the textbook for examples that will help you
understand the critiques.

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Lesson 9
9.7 CONCLUSION
As we wrap up our introduction to republican theory and restorative justice perspectives, we
understand that this approach provides a more holistic account of crime in comparison to ‘bad
apple’ approaches such as those found within new right criminology. It also highlights and
supports the position that while people should be held responsible for their actions, social and
institutional responses should be constructive instead of punitive and the focus should be on
healing to damaged relationships-at both the individual and community level-that are the result
of crime. Restorative justice offers intrinsically humane and socially positive conflict resolution
that can also provide economically responsible responses to crime. Prisons are expensive, as well
as inhumane, and it makes fiscal sense to look at alternative, cost-effective, and effective
measures of crime control. Perhaps most importantly, restorative justice approaches offer hope
and redemption in a world that often seems to be driven by fear, hatred, and a focus on the
‘other’.

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 Lesson 9
9.4 CONTEMPORARY EXAMPLES: PEACEMAKING
CRIMINOLOGY
Peacemaking criminology has emerged in recent years as a challenge to the historical focus of
the criminal justice system – the detection and control of individuals and/or groups engaged in
criminal activity. This perspective highlights the failure of the adversarial approach and draws
attention to transformative strategies that are premised on participatory forms of conflict
resolution.

Figure 9.3: Peacemaking Criminology.

So, from this perspective:

•Traditional criminal justice represents a means of inflicting pain under the guise of
reducing crime
• Society cannot solve violence or human suffering by inflicting more violence or
suffering
• The emphasis is on transformative strategies in economic and authority structures
premised on participatory forms conflict resolution
• It is important to live our lives based on love, forgiveness, kindness, and hope
• The solution to crime requires communities of caring people, universal social
justice, and the reduction of hierarchical social and institutional structures.
• The acknowledgement of the need to modify economic structures to discourage
competition and the focus on individual gains to create an atmosphere of
cooperation and sharing.
A good example of peacemaking criminology in action can be found by clicking on this link.
Take a Moment
Think back to the chapter on Marxist criminology. Can you find links to Marxist perspectives
within peacemaking criminology? What do you think this link is?

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