Restorative Justice

Remarks by Susan Herman, Executive Director, National Center for Victims of Crime, Before the International Symposium on Victimology, Montreal Canada

August 10, 2000

For the last 25 years in the United States, victims of crime and victim advocates have tried to make the criminal justice system more responsive to the needs and interests of victims. Victims have worked hard, first to be informed, and then to be able to participate. Over time, community-based organizations, police, prosecutors, courts, and corrections departments all began to provide victim advocates to help guide victims through the system-- to advise them of their rights to be present and to participate in proceedings.

These days, in the United States, it is far more common for victims to hear about a plea negotiation, to speak at sentencing or parole hearings, or to learn about an offender's release from prison. Still, many victims feel ignored, excluded, and profoundly disrespected by the system. There is no meaningful interaction with offenders, and victims' emotional, physical, and financial needs are rarely fully addressed, if addressed at all. As a result, victims often feel further alienated and unsatisfied.

On the other hand, restorative justice holds great promise as a set of values which promote healing and strengthen the social bonds which serve as the foundation of our communities. Empathy, mutual understanding, restitution and accountability are key principles of restorative justice. A high priority is placed on maintaining or restoring individual dignity. Crime is not depersonalized. It is viewed as an experience between individuals, in the midst of a community. All three - victims, offenders, and communities - should recognize how the crime has harmed each, and all three should attempt to rebuild social ties and recreate "right relationships."

Sounds like everything victims' advocates have been asking for. Right? Not quite.

Let me explain how restorative justice falls short.

Restorative justice programs leave out most victims.

Most victims do not participate in any formal process to resolve the issues surrounding their victimization. In the traditional criminal justice system, there are many reasons for this. The victim may not report the crime to the police, the police may not find the offender, the offender may not be arrested, the prosecutor may not pursue the case, or the case may never make it to trial. As a result, only a small percentage of victims in this country ever make it to court. To the extent that restorative justice models depend upon an arrest or some other official complaint to trigger the process, they will suffer from the same limitations and the vast majority of victims will not be able to take advantage of their benefits.

Furthermore, as I understand it, restorative justice typically requires an offender who has admitted culpability and wants to participate in the process. Consequently, the number of cases eligible for restorative justice processes is even smaller. At its best, restorative justice, as currently applied, is able to help only a very small number of victims of crime. Please do not misunderstand me. It could be that for those few victims and offenders, restorative justice may present a far more appealing option than the traditional criminal justice system. But for those who talk about restorative justice as a preferred approach, and one which could replace traditional systems, it is important to remember that the doors to restorative justice do not yet open as wide as the doors to the courthouse.

Restorative justice does not address many critical needs of victims.

Unlike the traditional criminal justice system, restorative justice offers victims a highly participatory process. Restorative justice focuses on victims' need:

• to tell their story and to be heard, to reconnect to their community;
• to participate in discussions about how to resolve their "conflict;"
• to experience empathy from the offender, the community or both;
• to get more information about the circumstances of the crime;
• to receive an apology and/or expression of remorse from the offender; and
• to receive restitution.

Victims often need much more.

Repairing the harm is often far more complicated than apologies and restitution and relationship-building. It can require long-term sophisticated counseling, assistance with safety planning, relocation and any number of services required to rebuild a life--emergency day care for the parent who needs to get a job to handle new crime-related expenses, substance abuse treatment for the traumatized victim who has turned to drugs, an escort service for the victim now too afraid to leave home or go to the store alone, employment counseling or training for the victim who no longer can perform their old job--or even something as simple as new locks or windows for their home.

Many of victims' needs cannot be met by individual offenders or small communities because there is only so much they can do. The "restoration" that restorative justice programs offer seems limited to the resources that an offender and a community of stakeholders bring to the table. From a victim's point of view, then, it is disappointing that a new paradigm that uses the word "restorative" does not address critical crime-related needs. Harm caused by an offender in a moment can change a life forever. Reparation can have very little to do with an ongoing relationship with an offender or a community.

The extent to which a victim can be "restored" is limited by the capacity of the offender and the community. As long as victims' needs are addressed only with the resources of offenders and communities, restorative justice will ultimately be unsatisfying. To the extent victims need more than empathy, restitution and relationship building, restorative justice, like the traditional criminal justice system, will fall far short. Again, this is not to say that restorative justice does not offer something of value. Often it is simply of limited value.

Restorative justice processes could offer enormous promise for victims.

I would like to see restorative justice take another big step. As I understand it, restorative justice is still very offender-oriented, even though we often refer to it as victim-centered. As I outlined above, the offender orientation significantly limits the application of restorative principles-- first, the process is limited to those cases with an offender who admits culpability and wants to participate, and second, the remedies are limited to what the offender and, secondarily, the community can provide.

If we were really asking what do victims need to repair the harm caused by crime, we would not be so constrained. If the process and the remedies were more victim-oriented, restorative justice procedures would be triggered by the occurrence of a crime and would attend to the needs of all victims. The community would be asked to help victims rebuild their lives -- to help with physical repair of the crime scene, to provide the support and counseling victims need, and to overcome victims' isolation and fear and reintegrate them back into productive community life.

If the offenders are apprehended, acknowledge responsibility for the crime, and want to participate in a restorative process, all the better. They can contribute enormously and in a way nobody else can. They can offer apologies, remorse, and empathy. They can give victims a more complete understanding of the events. I have often read that restorative justice processes can occur with or without the victim as long as you have some form of representation. I actually agree with this--my hope would be that some day restorative justice can also take place with or without offenders.

A final observation. I believe that there is a role for society at large, represented by the state, in repairing the harm done to victims. Currently, only the state has the authority to marshal the resources necessary to address some of victims' long-term, complicated problems. The day care, the employment counseling, the substance abuse treatment, or the long range housing needs of victims, usually cannot be adequately addressed by offenders and communities alone. In such cases, society as a whole should be asked to play a role. From a victims' perspective, one of the reasons the traditional criminal justice system is inadequate is that it does not have authority to call upon the full range of governmental resources necessary to meet the needs of victims. I fear that restorative justice practitioners, in a commendable effort to humanize the justice system and keep the state in the background, will make the same mistake. Therefore, I have come to believe we need to create a parallel system of justice for victims. The state must be involved.

My hope would be that someday, when a crime occurs, in addition to holding offenders accountable, we would also ask, "What do victims need?" and "How can offenders, communities and society at large help victims rebuild their lives?" From a victim's point of view, that would be justice.