Virtual Reality: Prospective Catalyst for Restorative Justice

• Published date: 01 April 2021
• Date: 01 April 2021

ARTICLES

VIRTUAL REALITY: PROSPECTIVE CATALYST FOR

RESTORATIVE JUSTICE

Kate E. Bloch*

ABSTRACT

A 2018 U.S. Department of Justice report assessing data from thirty states

found that eighty-three percent of those individuals released from state prisons in

2005 were rearrested within nine years.

**

When a revolving door ushers five of

six individuals back into custody and decimates communities, more effective

approaches to criminal justice demand attention. In countries around the world,

restorative justice has been emerging as a promising candidate. It generally

involves an interactive process in which stakeholders identify and grapple with

harms caused by the crime. But many environments lack the resources to invoke

its benefits. While restorative justice takes various forms, the crux of each variant

involves perspective taking—seeing the harm and its consequences through the

eyes of those who experienced it. Cognitive science research suggests that the

emerging technology of virtual reality affords an innovative and often especially

compelling approach to perspective taking. Embodying an avatar through virtual

reality unlocks the opportunity to experience the world as another. Avatars could

make virtual perspective-taking encounters a valuable introduction for subse-

quent in-person encounters or offer a perspective-taking opportunity when in-

person encounters are not practical or prudent. This Article explores how virtual

reality could become a catalyst for restorative justice.

* Professor of Law and Harry & Lillian Hastings Research Chair, University of California Hastings College

of the Law. I am grateful to the kind and generous colleagues who furnished invaluable guidance and insight

during the development of this article. In particular, I would like to thank Jon Abel, Hadar Aviram, Jeremy

Bailenson, Demarris Evans, Jeffrey Gould, Michael Madary, Roger Park, Kay Pranis, Sheila Purcell, Irene

Rodgers, Sandra Rodriguez, Robert Sapolsky, Danielle Sered, Bobbie Ticknor, Benjamin Trouille, Jessica

Vapnek, and Lois Weithorn, along with Dave Owens and other participants who provided thoughtful

commentary at a 2020 UC Hastings summer scholarship workshop. I also want to express my appreciation to

Chuck Marcus and Vince Moyer, my library reference liaisons, to Austin Burke, Richard Yates, and Veronica

Zamago, my research assistants, and to the editorial team at the American Criminal Law Review, for their fine

work related to this Article. Finally, I am grateful for the funding provided by the Harry & Lillian Hastings

Research Chair. © 2021, Kate E. Bloch.

** MARIEL ALPER, MATTHEW R. DUROSE, & JOSHUA MARKMAN, 2018 UPDATE ON PRISONER RECIDIVISM: A

9-YEAR FOLLOW-UP PERIOD (2005–2014), U.S. DEPT. JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF

JUSTICE STATISTICS, NCJ 250975 (2018), https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf (last visited

Feb. 6, 2021) (study based on random sampling process).

285

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

I. RESTORATIVE JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

A. Restorative Justice Defined . . . . . . . . . . . . . . . . . . . . . . . . . . 293

B. An Overview of Benefits and Limitations . . . . . . . . . . . . . . . . 295

1. Benefits: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

a. Potential Reductions in Recidivism. . . . . . . . . . . . . . 296

b. Working to Repair Communities . . . . . . . . . . . . . . . 300

c. Engaging and Empowering Survivors . . . . . . . . . . . . 301

2. Concerns About Restorative Justice . . . . . . . . . . . . . . . . . 303

II. RESTORATIVE JUSTICE & PERSPECTIVE TAKING . . . . . . . . . . . . . . . . . . . 306

A. Research on Visualization-Based Perspective Taking . . . . . . . 306

B. Immersive Perspective Taking in Virtual Reality . . . . . . . . . . . 309

III. VIRTUAL REALITY AS A CATALYST FOR RESTORATIVE JUSTICE . . . . . . . . 318

A. Implementation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318

1. Incorporating Restorative Justice Goals . . . . . . . . . . . . . . 319

2. Ethical Constraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320

3. Technological Constraints. . . . . . . . . . . . . . . . . . . . . . . . 323

B. Benefits and Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

1. Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

2. Limitations and Drawbacks . . . . . . . . . . . . . . . . . . . . . . . 326

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

INTRODUCTION

He stood before us, in a line of six men. He was the first to speak. He explained

that, at age fifteen, he had committed a murder.

1

For this crime, he had been sen-

tenced to forty years to life in prison. He was, in the local vernacular, a “lifer.”

Here in San Quentin State Prison, these six men shared with us

2

brief glimpses into

their journeys from violence in their communities to the confined world within the

armed wall posts of this fortress.

The speaker came of age in the “tough on crime” and “three strikes” era, a time

when the California Penal Code focused on punishment rather than rehabilitation,

retribution rather than re-entry.

3

But as he told his story, the most salient feature

1. Although each of the men introduced himself, to protect their privacy, I have not included their names.

2. San Quentin allows members of the public to visit the prison. The group visiting the prison that day

consisted primarily of students from two educational institutions. Lt. Sam Robinson, the San Quentin Public

Information Officer, organized and led the tour.

3. See, e.g., Sara Sun Beale, Still Tough on Crime? Prospects for Restorative Justice in the United States,

2003 UTAH L. REV. 413, 413–14 (comparing U.S. movement toward punitive policies with movement toward

restorative justice in New Zealand and Australia); HADAR AVIRAM, YESTERDAY’S MONSTERS: THE MANSON

FAMILY CASES AND THE ILLUSION OF PAROLE 136 (2020) (“In 2005, the California Department of Corrections

(CDC) changed its name. In what activists saw as a victory, the department added the letter R to its name, for

Rehabilitation.”).

286 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:285

was not anger. Instead, it was the emergence of empathy for the survivors

4

of his

crime, for the loss and pain he had caused others. In this context, he spoke of his

involvement with restorative justice programming in San Quentin. It is important

to note that parties responsible for harm have also frequently been survivors of

prior criminal conduct or abuse themselves.

5

As the five-hour visit to the prison

progressed, empathy became a refrain. In narratives we heard that day from men

confined behind the walls at San Quentin, restorative justice encounters seemed to

have touched the speakers in ways that made empathy accessible.

6

A 2018 U.S. Department of Justice study on recidivism reports that eighty-three

percent of the formerly incarcerated persons from the thirty states surveyed were

rearrested in the nine-year period following their release.

7

When a revolving door ush-

ers five of six individuals back into custody and undermines the fabric of communities,

8

more effective approaches to criminal justice demand attention.

9

In countries around

the world, restorative justice has been emerging as a promising candidate.

10

It com-

monly involves an interactive process where stakeholders—often including a survivor

4. “Victim” and “offender” are terms commonly used in the restorative justice canon. See, e.g., Jeff Latimer,

Craig Dowden & Danielle Muise, The Effectiveness of Restorative Justice Practices: A Meta-Analysis, 85

PRISON J. 127, 128 (2005). However, this Article refers to “responsible party” in lieu of “offender,” when the

reference is not part of the name of a program or quotation and “survivor” in lieu of “victim” under the same

constraints. Restorative justice approaches often require, as a threshold matter, that the responsible party be

willing to acknowledge accountability for having caused harm to the survivor. Id. at 128 (noting among other

expectations that “the offender needs to accept responsibility for the harm and be willing to openly and honestly

discuss the criminal behaviour”).

5. See, e.g., DANIELLE SERED, UNTIL WE RECKON: VIOLENCE, MASS INCARCERATION, AND A ROAD TO REPAIR

4 (2019) (“Nearly everyone who commits violence has also survived it, and few have gotten formal support to

heal.”). As survivors of prior crimes or abuse, responsible party engagement in real-time restorative justice with

survivors or surrogate survivors or in virtual contexts might risk exacerbating a responsible party’s Post

Traumatic Stress Disorder. Whether this is monitored and addressed in a live-survivor encounter may depend on

the circumstances of that encounter. A virtual encounter should include monitoring for that risk. See infra notes

260 & 300 and accompanying text.

6. For a description of how restorative justice can impact responsible parties, see, e.g., SUNNY SCHWARTZ &

DAVID BOODELL, DREAMS FROM THE MONSTER FACTORY 148–53 (2009). In a TED talk highlighting the value of

restorative justice and the importance of empathy, and ways their impact might be explained from a neuroscientific

perspective, Dr. Daniel Reisel notes that “[s]uch programs won’t work for everyone, but for many, it could be a way

to break the frozen sea within.” DAN REISEL, NEUROSCIENCE OF RESTORATIVE JUSTICE TED TALK, https://www.ted.

com/talks/dan_reisel_the_neuroscience_of_restorative_justice/transcript?language=en#t-397503 (last visited Feb. 6,

2021).

7. MARIEL ALPER, MATTHEW R. DUROSE & JOSHUA MARKMAN, U.S. DEP’T OF JUST., OFF. OF JUST.

PROGRAMS, BUREAU OF JUST. STAT., 2018 UPDATE ON PRISONER RECIDIVISM: A 9–YEAR FOLLOW-UP PERIOD

(2005–2014), at 1 (2018) [hereinafter 2018 UPDATE], https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf

(last visited Feb. 6, 2021) (describing study based on random sampling process).

8. For a discussion of the impact on communities, in particular, communities of color, see infra notes 100–112

and accompanying text.

9. In her 2019 book, Fania Davis, Executive Director and Co-founder of Restorative Justice for Oakland

Youth, offers examples of “restorative justice conferencing programs [that] exemplify [a] vision of a restorative

justice that repairs individual and social harms and interrupts overincarceration of youth of color.” FANIA E.

DAVIS, THE LITTLE BOOK OF RACE AND RESTORATIVE JUSTICE: BLACK LIVES, HEALING, AND US SOCIAL

TRANSFORMATION 71 (2019).

10. See infra note 12 and accompanying text; infra Part I.

2021] VIRTUAL REALITY 287