The Limitations of Restorative Justice: A Literature Review

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The idea of restoration in the context of criminological practice has been around since the 1970s but has only recently begun to garner recognition as a truly viable alternative to traditional retributive justice, and even rehabilitation (Latimer, Dowden, & Muise, 2005). As a concept, restoration comes across as being the most humanistic approach to justice; it requires compassion, forgiveness, and earnest self-expression. Accountability is at the forefront of the discussion, as well as cooperative problem-solving. Further, the process of conferencing appears to be far more conducive to finding rewarding and realistic solutions for both parties, as opposed to a courtroom setting wherein a third party does all of talking for the individuals involved in a crime, as well as the decision making. However, restorative justice does have its pitfalls. As gleaned from the analyses that will be further discussed in this paper, there are three major areas in which restorative justice is either in need of improvement, or is inherently lacking: severity of reconvictions for offenders, effective facilitation, and the issue of self-selection biases.

A study conducted in 2008 by Shapland et al. posed the question of whether or not utilizing the models of restorative justice minimizes the likelihood of future reconvictions for offenders. The utilized method for assessing reconviction rates among offenders involved measuring whether or not offenders went on to receive convictions for new crimes in the two years following the restorative justice proceedings, in comparison with those whose cases had been processed in court (Shapland et al., 2008). The results generally weighed positively in favor of those who had opted to participate in restorative methods; statistically, prior offenders committed significantly fewer crimes (Shapland et al., 2008). However, for those who did re-offend within the two-year measurement period, there was either no meaningful difference in the severity of their crimes compared to the control group, or they surprisingly went on to commit crimes of greater severity (Shapland et al., 2008).

These results could potentially reflect a failure on the offender's part, to view the restorative process as one that implies serious consequences—especially considering the relaxed atmosphere of conferencing compared to attending court. This may ring especially true should the participating victim be particularly merciful. Unfortunately, the specific crimes committed by the offenders in the Shapland et al. (2008) study are not detailed, so it is not known whether the crimes in question are murder or petty theft. In any case, encouraging rehabilitation in conjunction with the existing methods of restorative justice would present an improvement in terms of discouraging offenders from committing the same crimes over again, and from committing violent crimes. In this way, restoration and rehabilitation cannot be viewed as alternatives to one another but should be considered supplementary.

In another study performed by Shapland et al. in 2007, they assessed the levels of satisfaction experienced by victims and offenders who had participated in restorative methods. This was done by engaging in conversations with the participating parties prior to, during, and after conferencing and mediation (Shapland et al., 2007). The questions posed to the participants focused primarily on their expectations, reasons for choosing to take part in restorative justice, their feelings toward the session and how it was conducted, and whether or not they felt it was effective in solving the issue and/or alleviating emotional stresses (Shapland et al., 2007). Once again, the feedback was by and large positive (Shapland et al., 2007).

However, in the rare cases where the participants did experience some degree of dissatisfaction, it was often due to inadequate facilitation (Shapland et al., 2007). Individuals reported that "facilitators were either more dominant than... was needed or, conversely, did not intervene when things became too heated or one-sided" (Shapland et al., 2007). Of course, this is a reflection of the relative newness of widespread restorative justice practices, indicating that there are still kinks in the framework that need to be worked out. The attitudes and behaviors of the facilitators who worsened the experiences of the participants need to be assessed and taken into account within the context of further skills development.

Finally, the most problematic of the criticisms surrounding restorative justice is the issue of self-selection biases (Latimer, Dowden, & Muise, 2005). A meta-analysis performed by Latimer, Dowden, and Muise showed that the largely positive results of restorative justice are greatly reduced by the fact that it is a "voluntary process" (Latimer, Dowden, & Muise, 2005). What this means is that those choosing to engage in restorative justice may already be going into it with a more positive outlook than those in the control groups against which they are to be compared (Latimer, Dowden, & Muise, 2005). Further, Latimer, Dowden, and Muise comment that restorative justice is "inherently" voluntary, and that it cannot be "truly restorative" if individuals are forced to participate (Latimer, Dowden, & Muise, 2005). This, unfortunately, presents a problem when it comes to gathering accurate research on the topic of whether or not restorative justice is genuinely effective (Latimer, Dowden, & Muise, 2005).

It is difficult to find literature focused on the shortcomings of restorative justice, due to the fact that it is a fairly new concept to most people about which they are predominantly hopeful. Its humane philosophy makes it very attractive to the big-hearted, and its hands-on methodology engages those who wish to have a voice in the outcomes of their cases. However, it is these precise ambitions that muddy the waters of restorative justice research, making it difficult to tell how viable a solution truly is.

References

Latimer, J., Dowden, C., & Muise, D. (2005). The Effectiveness Of Restorative Justice Practices: A Meta-Analysis. The Prison Journal, 85(2), 127-144.

Shapland, J., Atkinson, A., Atkinson, H., Chapman, B., Dignan, J., Howes, M., . . . Sorsby, A. (2007). Restorative justice: The views of victims and offenders: the third report from the evaluation of three schemes. London: Ministry of Justice.

Shapland, J., Atkinson, A., Atkinson, H., Dignan, J., Edwards, L., Hibbert, J., . . . Sorsby, A. (2008). Does restorative justice affect reconviction?: the fourth report from the evaluation of three schemes. Sheffield: University of Sheffield, Centre for Criminological Research.