Designing Restorative Justice Policy: An Analytical Perspective

• Author: Ellen C. Lemley
• DOI: 10.1177/0887403401012001003
• Published date: 01 March 2001
• Date: 01 March 2001
• Subject Matter: Journal Article

CRIMINAL JUSTICE POLICY REVIEW / March 2001Lemley / RESTORATIVE JUSTICE POLICY

Designing Restorative Justice Policy:

An Analytical Perspective

Ellen C. Lemley

Washington State University

The emergingnotion of restorative justice loosely rests on several related,though dis-

tinct, theoretical, religious,and historical traditions. Efforts to implement restorative

justice policies in the criminal processes in the United States have recently experi-

enced a dramatic upsurge. However, successful implementation and theory testing

both require carefultheoretical specification, something that restorative justice cur-

rently seems to lack.This article attempts to identify heretofore unaddressed theoreti-

cal problems and offers future directions for researchers and practitioners to both

ameliorate those problemsand permit adequate testing and implementation. The arti-

cle also describes current applications of restorative justice programs for offenders

that may help clarify conceptual ambiguity.

Three apparent trends in the literature hold significance for research and

practice in criminal justice. Criminal justice organizations currently face

challenges produced by the reduced willingness of the public and legislative

policy makers to spend ever-increasing sums of money on the justice sys-

tem, particularly for incarceration. Moreover, those employed within or

who study the criminal justice system are increasingly frustrated over their

inability to have a significantimpact on overall crime rates. Finally, a move-

ment to involve community members, victims, and offendersand potential

offenders in the justice process is becoming more evident (Hahn, 1998).

Three broad policy themes have responded in concert to each of these

concerns. First, crime prevention methods including community-oriented polic-

ing (COP) and problem-oriented policing offered nontraditional approaches

to policing with the intention of reducing community criminogenic factors.

These same models encouraged and were premised on community involve-

ment, which also has been expressed in the form of community courts and

community justice approaches (Clear & Karp, 1999). Finally, alternative

43

AUTHOR’S NOTE: The author would liketo thank Greg Russell and Carter Hay for their

insights. She also thanks the anonymous reviewers for their comments.

Criminal Justice Policy Review, Volume 12, Number 1, March 2001 43-65

© 2001 Sage Publications, Inc.

sentencing approaches have become increasingly important to reduce the rate

of costly institutional incarceration for nondangerous offenders (Petersilia,

1998).

A fourth policy theme has emerged to respond to the above concerns,

particularly the third concern of including community, victims, and offend-

ers in the justice process. Restorative justice is the newest emerging policy

theme and is gaining wide support. This trend in policy attempts to change

our view of crime. In our current retributivesystem, a criminal act is gener-

ally distinguished as an offense committed by an offender against the state.

The state has an active role in the attempt to ameliorate crime and its causes

through incapacitation, deterrence, and retribution, whereas offenders, in

contrast, have a passive-defensive role. Generally, victims and communities

do not play a direct active role in the justice system in any fashion. Restor-

ative justice, in contrast, views crime as an offenseagainst people and rela-

tionships. Offense creates an “obligation to make things right.” To properly

address obligations created by crime, the active and direct participation of

victims, offenders, and communities is essential. All three of the aforemen-

tioned parties must be involvedin the solution process because crime affects

each in one manner or another.

Despite the increasing attention given to restorative justice, a number of

critical questions remain. If restorative justice programs hope to demon-

strate empirical strength in their attempt to reduce crime, the critical ques-

tions should be addressed. These questions revolvearound definitional clar-

ity,power and authority concerns, model specification, and implementation

and research of restorativeprograms. Each of these questions will be addressed

in turn, and possible remedies and directions will be presented.

RESTORATIVE JUSTICE

Currently,victims and communities play no widespread active role in the

justice system. Although the formal process exhibits competing valuestruc-

tures (Feeley,1973; Packer, 1968), the system remains state centric, largely

separated from communities and victims, with little recognition of the harm

caused by criminal acts—harm that is rarely repaired. Critiques of the cur-

rent system have offeredmany alternative visions of justice and crime, all of

which contributed to the evolution of restorative justice theory. Some of

these grew out of the experience with reparative sanctions and processes

such as restitution and victim-offender mediation (VOM), the victim’s

movement, and the increased interest in informal dispute resolution and

neighborhood justice (Bazemore, 1996, 1998). The theory may also be

44 CRIMINAL JUSTICE POLICY REVIEW / March 2001