Essay:Restorative justice

Restorative justice is a criminal justice system that focuses on two forms of restoration, viz. restoring the victim to the position he was in before the crime occurred and restoring the criminal to a state of integration into society. In some cases, there is hope of restoring relationships; for example, if the two parties were friends and one of them assaulted the other in anger, there might be potential for the friendship to be patched up. The name "restorative justice" is, perhaps, a bit misleading in some cases, since not all victims and offenders had a relationship or desire to continue having a relationship, if one did exist.

Also, in some cases, there is no way to undo the damage caused by the crime. Of course, the same can be said for retributive justice, which does not even attempt to provide for the needs of the victim, other than any hankering after vengeance that he might have. Indeed, retributive justice systems put such a high value of exacting revenge that they do not even show any compunction about compounding the harm to victims, and victimizing third parties, by forcing the productive members of society to pay for the criminal's incarceration, and cutting off all avenues by which the criminal might make a contribution to society, including by paying the victim restitution.

Restorative justice typically involves some form of victim-offender mediation, sometimes preceded by a victim impact program if the offender is deemed to need preparation to participate productively in the mediation. The process requires that the offender admit to his crime; if he denies it, the case is typically deemed unsuitable for restorative justice. Also, if the offender admits to his crime but feels that he had a right to do it, the usefulness of the mediation tends to be limited to coming to an agreement on restitution and perhaps helping to sensitize the offender to the consequences of what he did by letting him hear the victim's story. The victim may appreciate the chance to be heard, even if

Use in victimless crime cases
In some jurisdictions, a bastardized form of restorative justice exists in which the system is used to handle victimless crimes. In such cases, a defendant is either assigned against his will to play the role of victim, or a representative of the government serves as the victim. For example, if two boys get in a consensual fight, they may be both charged with disorderly conduct and held to be both victims and offenders of each other, even if they would both prefer that the case simply be dismissed. Or if a teenager is caught with a cannabis joint, the police officer who caught him may play the role of victim at the mediation, with some sort of community service probably being the penalty. To the extent that such crimes do infringe on anyone else's rights (such as, in the case of the fighting boys, the right of people not to have a disturbance in their neighborhood), it would be appropriate for those actual victim, or his designee, to attend the mediation, not whatever stand-in the government was able to get to attend in his place. Such practices are not much better than the system that currently predominates, in which politically-appointed or elected prosecutors, supposedly representing the public, make deals with defendants about how much restitution, fines, or community service they should provide in order to avoid prison time, and the defendant is expected (especially in federal cases) to stand up in court and apologize to society at large for his offense.

These types of cases tend to tarnish the reputation and effectiveness of restorative justice by mixing in with the true offenders those who are in fact victims of unwarranted government meddling in their personal affairs. These put-upon defendants and their families often have a tendency to be sullen, uncooperative and resentful, which typically has a negative effect on classes in which they interact with defendants who really did commit a serious crime. The whole point of the classes is to expose "thinking errors" on the part of the defendants, such as blame shifting, minimizing, entitlement, justifying, and so on. Ideally, these concepts should be interpreted in accordance with a libertarian view of rights, rather than a legal positivist view.

If some of the defendants in the class have a legitimate complaint about how they have been treated, and accordingly deny that their objections constitute a thinking error, it distracts from the process of exposing true cognitive distortions. Even if such defendants do not raise a complaint, others who hear them discuss their cases can draw their own conclusions about the system's lack of fairness. The program's lack of demonstrated ability to discern which people are truly criminals, and which are victims of the government, causes it to lose credibility.

Restorative justice programs often do attempt to screen for victimless offenders and reject those cases. But, perhaps due to the statist inclinations of some who are in charge of such programs, other victimless defendants are told that the program will not take the initiative to reject them, and therefore the defendant has a choice between cooperating with the program or going back to court and, in all likelihood, receiving a harsher penalty. In such cases, having a "good attitude" of cooperation with the program means not vocally taking a stand against injustice. Essentially, it means not exercising one's right and duty as a citizen to expose the wrong that is done by the government.

Of course, it could be argued that it is the duty of citizens to obey laws until those laws are repealed through democratic processes. This argument does not take into account that juvenile offenders have no voting rights with which to change the laws, and that even if they did, they would not necessarily be in the majority. Those who stand for freedom are often on the wrong side of the law. A system of restorative justice that pays attention only to what the statutes say victimizes society, rather than to overarching principles of what is truly victimless behavior, would have, in the 19th century, concluded that a person who helped a runaway slave escape should be held accountable to the slaveowner for violating his property rights. Any objections that the slaveowner brought the loss upon himself by infringing others' rights, or that a person has a right to help slaves escape, would have been dismissed as "victim blaming," "entitlement," "justifying," and so on.

Lack of competition and profit motive
Typically, restorative justice is handled by government agencies or by their contractors. There is no consumer choice; a victim and offender cannot come to a private agreement to dispense with the agency's services altogether and handle their case through a mediation provider of their choice. As a result, competitive pressures for efficiency are absent.

This has led to some restorative justice agencies having a slow workflow, since there is no risk of poor service resulting in a bad reputation that would cause the agency to go out of business. A restorative justice agency can provide rather slow service and still look good compared to the court and probation systems, which often take months to finish processing an offender. A slow response tends to diminish the effectiveness of the program, since both victims and offenders typically have an increasingly strong wish to put the matter behind them as more time passes.

The victim-offender mediation serves, in part, to help the victim work through his emotions by providing a venue for a productive form of catharsis and for reaching an agreement that can produce a feeling that justice has been done. When this does not happen promptly, people tend to find other ways of dealing with those feelings, and the mediation begins to seem less appealing. Also, offenders may, after awhile, feel like it is beating a dead horse to bring up an offense from long ago. If part of the purpose of the mediation was to help restore relationships, that may already have occurred by that time, or people may have moved on with their lives. On the other hand, if, after a long period of unnecessary waiting, problems still remain to be resolved in mediation, that means that people may have been suffering needlessly that whole time.

There can be some degree of competition if private contractors compete to establish a reputation for good service in an effort to get governments to choose them. If a contractor has done a good job for government agencies in jurisdictions A, B, and C, then it may use that track record to persuade jurisdictions D, E, and F to hire it as well. However, this suffers from the problem that governments may not be good at choosing contractors for the right reasons. The government officials in charge of making such decisions are selected through political or bureaucratic processes that are known for their inefficiency and ineffectiveness at serving the public's interests. The jurisdictions themselves should be converted into for-profit organizations in order to provide the right incentives.