A Restorative Approach To Accountability
A practice outside of the courtroom, and a way of life.
Welcome to Conflict Confidential, a newsletter about conflict, relationships, and being a person.
This post is Part 3 of a three-part series on accountability. Here’s Part 1 and here is Part 2.
Why am I so into restorative justice?
Because I understand each person wants and needs something specific for themselves to move through a painful experience. Each person uniquely grapples with feelings of shame, guilt, remorse, or even just telling the truth. People learn differently. People heal differently.
Because I grew up in a family of immigrants led by Very Strong Women. It was hard to be heard growing up. I was often talked over. Shunned. I learned a social order via dominant personalities coupled with performative gender roles. I carried this sense of social placement with me for decades. I then too became a Strong Woman who talked over others. We behave as we’re conditioned. Until we learn another way.
Because I spent ten years working in an environment where the ability to speak was deliberately enforced. Conversations in courtrooms are orchestrated very intentionally to dictate who gets to speak, and when, and who doesn’t speak at all. Only those of a select group have the privilege of speech, of even knowing the special language and rules for speaking. Subsets of people are there voluntarily while others have to be there; some can talk while others cannot.
Because after representing thousands of people charged with committing crimes it’s clear there’s no one-size-fits-all for accountability. Being punished for bad behavior might teach someone not to do wrong again, but it also very well may not. We need more options.
Because conflict can be dealt with in ways which make a situation much worse, or transform people and relationships for the better.
I’m also into restorative justice because I intimately know how harsh it feels to have my perspective shut down, to be interrupted when I speak, to be mocked in front of others. I also know how affirming it feels when I sense from others I’m being heard, seen, and understood.
We’re in an era of filtered connection through glowing screens where mute buttons and chat boxes block the human experience of nuance. It confuses the senses. As Charles Taylor writes in The Ethics of Authenticity 20 years before Zoom was even invented, the dominant place of technology in our lives has ushered in a loss of resonance, depth, or richness in our human surroundings. Simultaneously productive and transporting, virtual conversations can also be distant and lacking.
In contrast, communicating with others through restorative practice is unlike any conversation I’ve experienced before and outside of it. Restorative practices are methods of facilitated dialogues which encourage people to speak honestly and listen to each other. It values inclusive participation, respect and responsibility, and empowerment. A restorative process can be about conflict, or used for building community, celebrating something, or honoring a loss. Engaging in a restorative process is like stepping into a vortex, kind of. While in a restorative dialogue I vividly feel my humanness. I am challenged by holding the tension of deep listening while anticipating my turn to talk, of speaking publicly while also speaking authentically. Through hearing stories and reflecting I learn more about myself, about other fellow humans, and the many ways we are interconnected with one another.
Restorative justice (RJ) is an approach which utilizes restorative practices to address harm or conflict and focuses on repairing the damage and restoring relationships, rather than just punishing the person who caused the harm. RJ rebalances power in that everyone has an opportunity to speak and be heard. It’s a facilitated process often with a speaking order. But there is no arbiter who decides outcomes for others. RJ directly involves people impacted by an issue to come to decisions themselves. This includes the person who caused harm and/or experienced harm, the people in their life or from their communities who also have stake in the impact and outcomes, and RJ practitioners who create the social container to hold the complexities of the conversations.
The basic idea of RJ is to bring people together in a safe and respectful dialogue to:
Allow those who caused harm to take responsibility for their actions and understand the real impacts
Give those who experienced harm a voice and an opportunity to get answers and share how they were affected
Involve the community in holding those who caused harm accountable in a meaningful way while also supporting the victim(s) of harm
Collectively identify obligations and agree on ways to make amends and repair the harm
The goal of RJ is accountability, understanding, and putting things as right as possible. It views crime or wrongdoing as a violation of people and relationships, rather than just a violation of laws. Civil Rights leader, professor, and social justice activist Fania Davis describes RJ as interrupting endless cycles of harm by seeking to heal the harm, repair the damage that’s done to relationships, and is a form of justice which seeks to create more social peace than social conflict.
Restorative practices like victim-offender dialogues, peacemaking circles and community conferencing aim to humanize the accountability process and meet the needs of all who are impacted. There are also surrogate restorative dialogues, which The Mend Collaborative describes as a powerful and helpful strategy for survivors for whom no one was identified as the person responsible, or the person responsible is not available or lacks capacity, or for survivors who do not want a direct dialogue with the person responsible for harm. A person acts as a surrogate for the dialogue who has had the experience of causing a similar harm, or can speak to the impacts.
What Actually Happens in Restorative Justice?
RJ looks like a group discussion. A common method is people sitting in a circle and taking turns speaking. People may pass an object (a talking piece - like a stone) to indicate who is speaking. In the center of the circle there may be items signifying natural elements like water, fire, Earth, or other objects people can gaze at during the process. Sometimes people bring personal items to place into the center of the circle, like photographs. The intention is to create a space where people can feel present, and grounded. Cellphones are put away. The time is dedicated for discussion.
Restorative justice practitioners facilitate the conversations by explaining the process and rules, and guiding the discussion with carefully crafted prompts. Through deep listening and attunement to what’s happening in the group, practitioners hold the space and provide support where necessary. But ultimately the participants generate what happens in the discussion, as well as the outcome and next steps.
Restorative Justice Origins
While specific RJ models are contemporary, the underlying values of repairing harm, stakeholder involvement and community-based resolution have deep roots across cultures and faiths. The origins of restorative justice practices can be traced back to indigenous traditions and customary dispute resolution processes in various cultures around the world:
Native American and First Nations practices - Many tribes had community-based processes for resolving conflicts and making amends through victim-offender mediation, peacemaking circles, and involving the extended family/clan.
Aboriginal customs in Australia and New Zealand - Practices like village moots and family group conferencing stem from traditional Maori and Aboriginal approaches to maintaining social order.
African ubuntu philosophy - The Bantu philosophy of ubuntu, which emphasizes interconnectedness and the idea that one's humanity is tied to others, influenced resolution practices involving victims, offenders, and the community.
Religious and spiritual traditions - Restorative elements can be found in Judaic teachings, Islamic Sharia law, Buddhist teachings on social harmony, and Christian traditions like victim-offender reconciliation programs.
The modern restorative justice movement in the US emerged in the 1970s, pioneered by advocates like Howard Zehr and Kay Pranis, drawing inspiration from these ancient practices. It was a response to criticisms of the overly punitive conventional criminal justice system and the disconnect from addressing survivors’ needs or positive reintegration for people who caused harm. RJ is now utilized as an alternative to the justice systems, in schools and other systems, and the movement continues to expand across the US and around the world.
Is RJ The Answer?
I hesitate to write this piece as if RJ is the solution to our struggles with accountability. RJ is not the panacea to our criminal legal system. Nor is the RJ process widely accessible yet. If I had a conflict right now with someone it would be a lift to find an available RJ practitioner and willing friends to be my “community” in the process. It’s challenging to coordinate people, and there’s often a natural hesitation people experience when invited to participate.
It’s also a time-intensive process. RJ is slow. It’s a real commitment of energy. It’s not a short mediation session where people hammer out an issue in one go. There’s often a good amount of pre-work where the facilitators meet with parties individually ahead of time, often multiple times, to build trust and prepare them for the dynamic conversations ahead.
RJ can also feel messy and complex because people are messy and complex. In an RJ process emotions are given space to be expressed. There’s no formula for processing difficult emotions, but there are ways for conversations to be held to feel safe enough to go there.
RJ isn’t a plug and play process. This can be frustrating for those of us who desire a certain level of predictability. But it can also be beautiful and transformative. Healing, even. When it works, it really works.
For the process to be truly restorative it cannot be imposed on people. Although many courts and schools are now exploring and offering RJ opportunities, people’s involvement shouldn’t be in the form of a mandate. Participation must be voluntary- people need to be fully informed about the process and consent to opt in. If a person feels forced to participate it will undoubtedly shape how they show up in the conversation. Resistance, or feelings of intimidation, blocks authentic connection. If a person is scanning for threat or doesn’t want to be there, they will not feel safe to open up authentically.
“The criminal legal system is about representation. Restorative justice is about self-agency.” -Sandra Rodriguez of the Ahimsa Collective quoting Erica Washington of Restorative Justice Project at Equal Justice USA.
Despite the temptation to be cynical I actually have a lot of faith in people. I believe people can change for the better if they really try. I believe with some gentle guidance and unconditional support people can connect with the agency within to be the best versions of themselves. RJ offers people a space to experience that. For some, it may be the only time they have ever felt safe, seen and understood, and recognize the potential within themselves to evolve.
I end this series on accountability with restorative justice because it gives me hope. When people come together with intention and willingness to be open minded to process, surprising things can happen. People start to see beyond their own stories. Like viewing conflict “from the balcony,” the process of listening to others and seeing nuances allows the mind to shift from a fixed point of view to broader understanding. This diffusion of one’s tightly-held belief is key to moving through conflict. When we cling, we get stuck. When we expand, we have more room to try things another way.
RJ gives us a place for approaching conflict beyond binary. This is incongruent with our current legal systems where the options are guilty or not guilty. But people are trying to do justice differently. People want something more than what the justice systems offer. RJ is another option.
And this movement is growing. The National Association of Community and Restorative Justice, on which I serve on the board, hosts the largest conference on RJ in this country. Since the first convening in 2007 the numbers of conference attendees continues to rise. This year’s conference is in a week in Washington D.C. and registrants are in the thousands. Yet just as interest increases, so too does the backlash. From media mocking RJ on shows like Law and Order and obnoxiously on Fox News, to state senators making up controversies and using terms like “restorative justice schemers” to sow distrust on criminal justice reform, there is an unwillingness to accept options outside of punitive approaches to so-called accountability. But the momentum is there - since the mid-2000s, there has been rapid expansion of restorative justice laws in over 45 states. Community violence intervention efforts are increasingly utilizing RJ to address root causes and interconnected conflicts to stop gun violence. Philanthropic foundations and the federal government have started investing in community-held responses to violence and harm by funding innovative RJ programs. Schools and juvenile justice systems are adapting RJ approaches to create better outcomes for youth. It is happening, whether the skeptics agree or not.
Once I Saw It I Couldn’t Unsee It
Many people who are into RJ view it not only as a “process” but also as a way of life. I close with a quote from The Little Book on Restorative Justice, by Howard Zehr on why RJ inspires people to live in a more “restorative” way:
“The Western criminal justice system is intended to promote important positive values – a recognition of the rights of others, the importance of certain boundaries on behavior, the centrality of human rights. But it does so in a way that is largely negative: it says that if you harm others, we will harm you.
Restorative justice, on the other hand, provides an inherently positive value system, a vision of how we can live together in a life-giving way. It is based on the assumption – a reminder for those of us living in an individualistic world – that we are interconnected. It reminds us that we live in relationship, that our actions impact others, that when those actions are harmful we have responsibilities.”
Take care of yourselves and the people in your orbit. Till next time.