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Copyright (c) 2005 Drake University
Drake Law Review
Spring, 2005
53 Drake L. Rev. 667
LENGTH: 12757 words
CRIMINAL JUSTICE SYSTEM REFORM SYMPOSIUM: ARTICLE: THE LAW AND RESTORATIVE JUSTICE:
FRIEND OR FOE? A SYSTEMIC LOOK AT THE LEGAL ISSUES IN RESTORATIVE JUSTICE
NAME: Mary Ellen Reimund*
BIO: * Assistant Professor and Director of Law and Justice, Central Washington University-Des Moines; B.S., Bowl-
ing Green State University, 1978; J.D. and M.A., Drake University, 1987; LL.M., University of Missouri-Columbia,
2000. The Author wishes to thank Anne Joiner and Doug Rosenoff for their editing assistance.
SUMMARY:
… Victim-offender mediation, family group conferencing, sentencing circles, and reparative boards are restorative pro-
cesses practiced throughout the United States. … In addition to the role of attorneys, this Article will discuss some of
the legal issues that have surfaced with restorative justice, both in the context of a total shift in philosophy and as a con-
tinuum of restorative practices, such as due process and the privilege against self-incrimination. … Liaisons in the Polk
County Attorney’s Office coordinate the conferences between victims and offenders and community members conduct
the meetings. … As programs handle more cases involving serious crimes, concerns about the legal implications of re-
storative processes will be greater due to heightened concerns about offenders’ rights. . … With direct participation by
the victim, offender, and community, fewer specialized roles are needed. … Both prosecutors and defense attorneys
who embrace the restorative justice philosophy understand that these processes make changes in the lives of offenders,
victims, and the community at large.
TEXT:
[*668]
I. Introduction
“In one case everybody is holding hands and saying “Kumbaya,’ and on the next one we are tied at the wrist and pound-
ing on each other.” n1 Thus, lawyers can be conflicted over their roles in the changing environment of the criminal jus-
tice system with a restorative emphasis versus an adversarial one.
As an adversarial process, our legal system is composed of professionals, which includes defense attorneys stand-
ing in for the offender, the state representing the community, and a judge acting as referee. n2 The outcomes are imposed
by the legal authority of judges and juries “who stand outside the essential conflict.” n3 The role of the victim is to assist
the state as a witness by providing evidence so the prosecution can be successful. “Victims, community members, even
offenders, rarely participate in this process in any substantial way.” n4 The traditional criminal justice system focuses on
the following questions: “What laws have been broken? Who did it? What do they deserve?” n5
Restorative justice is another philosophy that resolves criminal conflict using a different set of principles. Restora-
tive justice takes a victim-centered approach to crime. n6 It recognizes the needs of victims and focuses on holding of-
fenders accountable to victims and the community. n7 Restorative justice asks the following: “Who has been hurt? What
do they need? Whose obligations and responsibilities are these? Who has a stake in this situation? What is the process
that can involve the stakeholders in finding a solution?” n8
Victim-offender mediation, family group conferencing, sentencing circles, and reparative boards are restorative
processes practiced throughout the United States. n9 Programs that support restorative practices [*669] can be operated
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53 Drake L. Rev. 667, *
through or given referrals from the courts, prosecutors’ offices, probation offices, community mediation centers, and
private providers. n10 Most “Western justice systems incorporate[] restorative justice programs and values for some
young offenders, typically for less serious offenses, but there is no reason why they need [to] be limited to young of-
fenders or minor crimes.” n11
Along with the upsurge in restorative programs n12 in the United States comes the question about the role of the law
and lawyers. There is a continuing tension between whether restorative justice is a philosophy around which a new sys-
tem of justice should be developed or whether restorative justice can be achieved within the confines of our current jus-
tice system. The legal issues and the role of lawyers in restorative justice can vary depending on the degree of restora-
tiveness that permeates the criminal justice system. “The more restorative justice evolves into a kind of mainstream re-
sponse, however, the more urgent it is to reflect on how to insert it into an adequate legal frame… . Legal formalism
must not intrude on the restorative process, but the process must take place in a legalized context.” n13
This Article examines the legal issues and role of lawyers as they relate to restorative justice in the adult criminal
justice system. The legal issues cannot be viewed in a vacuum without an understanding of the principles and values of
restorative justice. With that foundation, restorative processes and outcomes with practical examples will lend insight
into how restorative justice is manifested within the world of criminal justice. In addition to the role of attorneys, this
Article will discuss some of the legal issues that have surfaced with restorative justice, both in the context of a total shift
in philosophy and as a continuum of restorative practices, such as due process and the privilege against self-
incrimination. The law and lawyers can work in a way that support [*670] restorative values. Law can, and should, be
a friend and not a foe of restorative justice.
II. Principles and Definition of Restorative Justice
When a crime has been committed, there is a need to right the wrong. n14 Restorative justice looks at “crime [as] a viola-
tion of people and of interpersonal relationships.” n15 With the violation, there is an obligation to right the wrong and
repair the damaged relationship. n16 Before William the Conqueror, crimes were viewed as wrongs against individual
victims. n17 That changed in the twelfth century, when the focus shifted from crime as a conflict between victim and of-
fender, to crime becoming a violation of the king’s peace. n18 The state stole conflicts away from the parties; n19 restora-
tive justice moves toward giving them back.
“Restorative justice requires, at minimum, that we address victims’ harms and needs, hold offenders accountable to
put right those harms, and involve victims, offenders, and communities in this process.” n20 While those principles are
being examined at an academic level, they are “also being practiced by countless individuals who have given little
thought to its definition, but simply find that a particular process “works.'” n21 Moving beyond the principles of restora-
tive justice to a generally accepted definition is a difficult task. n22 Although some suggest that “it is critically important
to develop definitions of restorative justice philosophy, practice [*671] and programs that are consistent,” n23 others
embrace the flexibility. n24
III. Restorative Justice and the Criminal Justice System
Is restorative justice a complement to the existing court system or a candidate to replace it? “Redeem or divert out?” n25
These questions reflect two views regarding the role of restorative justice within the criminal justice system. One view
shows a paradigm shift where restorative philosophy is the predominant way of handling criminal cases – a transfor-
mation for criminal jurisprudence. n26 “Restorative justice advocates dream of a day when justice is fully restorative, but
whether this is realistic is debatable, at least in the immediate future.” n27
The second approach to restorative justice in the criminal justice system offers it as another tool in the toolbox of
options – a complement to the existing system. “Focus[ing] on repairing harm and not on what should be done to the
offender is the key to understanding restorative justice and is what distinguishes it from punitive and rehabilitative jus-
tice approaches.” n28 “Crime is defined by the harm it causes and not by its transgression of a legal .” n29
[*672] In his widely cited book, Changing Lenses, Howard Zehr contrasts the retributive approach in the tradi-
tional criminal justice system with a restorative view of the justice system. n30 However, in his new book, The Little
Book of Restorative Justice, Zehr expressed concern about the polarization that results from framing the issues as either
restorative or retributive because it may mislead by “hiding important similarities and areas of collaboration.” n31 His
current analysis is likely more representative of present perceptions regarding restorative justice in the criminal justice
system today. Not a single jurisdiction in the United States has “fully embraced restorative/community values and prac-
tices.” n32 There are, however, numerous programs operating as complements to the criminal justice system. n33
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Positioning restorative justice as a complement to the traditional criminal justice system is a starting point for gain-
ing greater systemic acceptance. No one has a magic wand to wave that will instantly transform the criminal justice sys-
tem into a restorative one. n34 Showing individual program successes within the system helps lay the groundwork for the
infiltration of restorative attitudes and approaches within the criminal justice system. n35
IV. Types of Restorative Justice Processes and Outcomes
Restorative justice programs can be divided into two categories: “those providing restorative processes, and those
providing restorative outcomes.” n36 Victim-offender mediation, family group conferencing, sentencing circles, and re-
parative boards fit within the processes category. n37 Understanding the basic models of restorative justice and seeing
system applications in adult restorative justice programs aids in our later discussion of legal issues. Although these
models help in understanding [*673] what happens in these restorative processes, there are variations and hybrids of
these models in practice. n38 “It is important to view restorative justice processes along a continuum, from fully restora-
tive to not restorative, with several points or categories in between.” n39
A. Models of Restorative Justice Processes
1. Victim-Offender Mediation
Of all the restorative justice processes, victim-offender mediation (VOM) has been in operation the longest – over twen-
ty years. n40 It is the most utilized model in the United States, accounting for almost 400 programs. n41 There are varia-
tions in terminology for VOM programs; examples include victim-offender reconciliation, victim-offender conferenc-
ing, victim-offender dialogue, victim-offender meeting, or community conferencing. n42 Despite the variation in names,
most follow a similar process by “providing a safe place for dialogue among the involved parties,” usually facilitated by
a trained community member. n43 The steps in a VOM meeting are as follows:
1. Introductory opening statement by mediator[;]
2. Storytelling by victim and offender[;]
[*674] 3. Clarification of facts and sharing of feelings[;]
4. Reviewing victim losses and options for compensation[;]
5. Developing a written restitution agreement[; and]
6. Closing statement by mediator[.] n44
VOM gives victims an opportunity to meet offenders, discuss how the crime has impacted their lives, discuss the
physical, emotional, and financial impact of the crime, and “receive answers to lingering questions about the crime and
the offender.” n45 The offender is able to explain what happened, take responsibility for his behavior, and make amends
to both the victim and the community. n46 Although the majority of victim-offender meetings reach a restitution agree-
ment, n47 this is “seen as secondary to emotional healing and growth.” n48
The Milwaukee County District Attorney’s Office operates a Community Conferencing Program similar to this
model. Milwaukee is unique because it is one of two counties in Wisconsin where the state legislature has funded an
assistant district attorney position in the prosecutor’s office to serve as a restorative justice coordinator. n49 According to
Assistant District Attorney David Lerman, who coordinates the community conferencing program in Milwaukee Coun-
ty, referrals to the program come from prosecutors, defense attorneys, victim-witness advocates, judges, law enforce-
ment, probation officers, or victims who wish to speak directly with an offender. n50 The program works with adult of-
fenders in nonviolent cases where the offender admits wrongdoing. n51 [*675] According to a legislative audit, only 8.8
percent of offenders who participated in a Milwaukee County Community Conferencing program in 2002 were rearrest-
ed for a crime within one year, as compared to 27.6 percent of nonparticipating offenders in a control group. n52
Victim-offender reconciliation has saturated the adult criminal justice system in Polk County, Des Moines, Iowa. n53
According to Assistant Polk County Attorney Fred Gay, sending cases to victim-offender reconciliation is a considera-
tion for Polk County prosecutors in the following situations: when reviewing cases during initial intake, during pre-plea
at the defense attorney’s request, and during felony presentence investigations. n54 “It is just part of the way we do busi-
ness,” Gay explains. n55 All types of cases are eligible to go through victim-offender reconciliation except domestic vio-
lence cases. n56 Liaisons in the Polk County Attorney’s Office coordinate the conferences between victims and offenders
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53 Drake L. Rev. 667, *
and community members conduct the meetings. n57 Victim satisfaction with victim-offender reconciliation is what has
gained the political support for funding. n58
[*676] While the Milwaukee and Des Moines programs handle adult offenders, the majority of cases across the
country referred to VOM involve misdemeanors, property crimes, and minor assaults n59 – all committed by youthful
offenders. n60 As programs have matured and greater trust is gained from the referring justice system agencies, there has
developed a push to work with victims and offenders involved in serious crimes, n61 such as sexual assault, n62 attempted
homicide, and murder. n63 As programs handle more cases involving serious crimes, concerns about the legal implica-
tions of restorative processes will be greater due to heightened concerns about offenders’ rights. n64
2. Family Group Conferencing
Family group conferencing (FGC) is similar to VOM, but FGC involves a broader group of people – such as family,
friends, coworkers, and teachers – to resolve the criminal incident. n65 The origin of family group conferencing comes
from the Maori in New Zealand “where it is used … for most juvenile offenses.” n66 In 1989, New Zealand became the
first country to adopt a fully restorative juvenile justice system using FGC. n67 With the New Zealand model, “all but the
most serious and violent [*677] youthful offenders are diverted from the court [system].” n68
A second model of FGC is used in Australia, but it is based on ideas borrowed from the New Zealand model. n69
This approach utilizes a “standardized, scripted model of facilitation,” n70 and is used by police and school officials to
“facilitate meetings between the parties and their families.” n71 Estimates in 2001 showed ninety-four active FGC pro-
grams in the United States. n72 The vast majority of FGC programs are limited to juvenile offenders n73 and thus fall out-
side the parameters of this Article.
3. Circles
Circles – referred to as sentencing circles, peacemaking circles, and community circles – are derived from First Nation’s
community practices in Canada. n74 They were first used in the Canadian criminal justice system “as an alternative way
of sentencing that involves all stakeholders.” n75 The use of circles in the United States began in 1995 with a pilot project
in Minnesota. n76 They are now used in both juvenile and adult cases to determine sentences and decide offenders’ terms
of accountability. n77 Circles also “help families and communities take responsibility for mending broken relations and
creating new lives, [and] give criminal justice professionals a chance to work with victims and offenders in new ways.”
n78
“In a circle process, participants arrange themselves in a circle.” n79 A “talking piece” is passed around the circle to
allow each person to speak, one at a time, in the they are seated in the circle. n80 This process [*678] emphasizes
respect, valuing what each participant has to say, and “the importance of speaking from the heart.” n81 Participants in the
sentencing circles may include the victim, supporters of the victim, the offender, supporters of the offender, judges,
court personnel, prosecutors, defense counsel, police, and interested community members. n82 Sentencing circles typical-
ly have four stages: (1) determination of suitability; (2) preparation; (3) the peacemaking circle meeting; and (4) follow-
up and maintenance of accountability. n83 When cases are referred from the court for sentencing, the agreement reached
in a circle can be the sentencing recommendation that is presented to the court. n84 “Using circles to respond to crime …
[is] an ongoing process with stages that can extend over weeks, months, or years, depending on the case and the needs
involved.” n85
Several communities in Minnesota use circles for sentencing recommendations. n86 Minnesota is unique because
there is legislative authority for restorative justice programs, including circles, to “assign an appropriate sanction to [an]
offender.” n87 Minnesota’s restorative justice statute withstood a challenge before the Minnesota Supreme Court in State
v. Pearson. n88 The Washington County circle handles misdemeanor case [*679] referrals from city attorneys. n89 Prior
to Pearson, the Washington County prosecutor sent felony cases to sentencing circles, but after that decision, the county
attorney discontinued participation. n90
One of the older operating circles in the United States is the South Saint Paul Restorative Justice Council. n91 This
group utilizes circles for a variety of purposes, including sentencing. n92 A study of that program exposed disagreement
between the community, prosecutors, judges, and corrections as to what cases would be appropriate for a circle. n93 De-
spite disagreement as to appropriate referrals,
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Judge Barry Stuart, the pioneer of circle sentencing in the Yukon … [who has] worked primarily with quite serious cas-
es involving multiple recidivists, suggested that the extensive time and resources required for peacemaking circles are
primarily warranted in [recidivist] cases … rather than the very minor cases involving first time offenders that are di-
verted from the justice system. n94
A circle is the most restorative process available because it encompasses more of the restorative justice values than
other processes. n95 Community members have direct involvement in determining which cases come to the circle. n96 Cir-
cles address the needs of both victims and [*680] offenders. n97 Members of the circle have a role in making sentencing
recommendations. n98
4. Reparative Boards
Reparative boards are usually composed of citizens in the community who conduct face-to-face meetings with offend-
ers who have been ed by a court to participate. n99 Board members and the offender discuss the nature and impact of
the offense and draw up a contract. n100 These boards have been implemented statewide through the Department of Cor-
rections in Vermont, where persons sentenced to probation go through this process to work out the conditions of proba-
tion. n101 By legislative mandate, restorative justice became the law and official policy in Vermont, and the reparative
boards are used in cases where offenders commit nonviolent crimes and do not require significant intervention. n102
B. Outcomes
The outcomes of these processes “include restitution, community service, victim support services, victim compensation
programs, and rehabilitation programs for offenders.” n103 Similar outcomes emerge from the traditional criminal justice
system, so there are some restorative outcomes that do not flow from restorative processes. An example would be com-
munity service, which is considered “an alternative form of punishment, not restorative justice.” n104 Restitution, howev-
er, has the potential for being restorative if it is “seen as repayment to or a contribution to the community, mutually
agreed upon by all parties.” n105 Although these judicially imposed obligations can have an explicit restorative meaning,
their restorative impact will be reduced. Between the fully restorative processes and the partially restorative reactions,
degrees of [*681] restorativeness exist. n106 “A fully restorative system would be characterized by both restorative pro-
cesses and outcomes.” n107
Howard Zehr raises several issues that point out the dangers in defining categories for what is and is not restorative
justice. For example, he has asked: “Is it primarily a process? … You can do the process and you can come up with some
pretty awful things… . Can you come to a good restorative healing outcome in a bad way?” n108 Familiarity with the re-
storative processes and outcomes as well as understanding that there are degrees of restorativeness helps when assessing
the legal protections, processes, and role of attorneys in restorative justice.
V. Law and Restorative Justice
The foundations of law may be impeding the wider adoption of restorative justice within the criminal justice system.
According to Judge Gary Schurrer, “the legal system has never been a system that is designed to encourage change rap-
idly.” n109 Because the law is driven by precedent, looking toward the future rather than at the past is foreign to those
trained in the law. n110 This legal mindset does not encourage new and different theories for the criminal justice system,
such as restorative justice. n111
Not only do legal systems adopt change slowly, other legal ramifications also hinder systemic adoption of restora-
tive justice and raise the question of whether restorative justice can operate within the legal parameters currently exist-
ing within the criminal justice system. Critics of restorative justice have noted concerns about due process protection
and procedural safeguards that exist in more formal processes. n112 “Rights can [*682] be trampled because of the infe-
rior articulation of procedural safeguards in restorative justice processes compared to [the] courts.” n113 When “the values
are similar between restorative [justice] and conventional processes, such as offender rehabilitation and accountability,”
tension is low. n114 However, when the rights of offenders are involved, “a value less compatible with restorative justice
theory” emerges, and the divide becomes greater. n115
If restorative justice is fully embraced through a paradigm shift, then a different way of looking at legal issues
should be considered. “Due process, legality, equality, right of defense, presumption of innocence and proportionality
may be irrelevant or may need to be experienced in a different form. Maybe other legal principles need to be construct-
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ed in a manner more appropriate for the restorative perspective.” n116 One author has even explored what a restorative
constitution might look like. n117
Since that shift has not taken place, restorative justice is practiced today within existing constitutional parameters
and procedures in the criminal justice system. A closer examination of the pertinent legal concerns as they relate to re-
storative justice reveals that the issues may be of greater magnitude in theoretical discussions than in practice. Most
restorative theorists and practitioners recognize that the rights of offenders cannot be ignored and responsibility for their
protection falls on the professionals. n118
A. Constitutional Implications
Our Constitution guarantees the criminally accused certain rights, including due process and the right to avoid self-
incrimination. n119 The [*683] system relies on procedural rules to determine legal guilt or innocence, with lawyers and
judges as the keepers of procedural expertise. n120 Although constitutional rights are a vital part of the United States
criminal justice system and have to be protected in restorative processes, how that process looks may be different under
a restorative justice model because restoration of violated relationships is key. Expertise in substantive law becomes less
necessary because crime is not viewed as breaking a state law, but rather as violating community norms. n121 With direct
participation by the victim, offender, and community, fewer specialized roles are needed. n122 Restorative justice simpli-
fies procedure by putting parties in control of a conflict’s resolution. n123
1. Due Process
As guardians of due process, public defenders want to make sure that restorative justice programs protect the rights of
offenders. n124 Although there are concerns about the erosion of rights in restorative processes, it is a misnomer to believe
that restorative justice requires abandonment of due process and procedural safeguards or that the two concepts are in-
compatible. n125 There are times when the full array of procedural [*684] protections afforded by formal court processes
are desired, especially if guilt is in dispute. “Conferences should never proceed in cases where the defendant sees him,
or herself as innocent or blameless … .” n126 “Courts of law are designed to be “truth machines’ – forums for sorting out
disputed facts” in those types of situations. n127 But this machinery is unnecessary and can be “counterproductive in cases
where significant facts are not in dispute.” n128 Concerns regarding due process are lessened in many restorative pro-
grams when the offender participates after pleading guilty. In those cases, the question becomes whether due process
was infringed upon in any greater degree in a restorative process than through plea bargaining. Plea bargaining “cir-
cumvents … “rigorous standards of due process and proof imposed during trials.'” n129
If an offender is compelled to participate in restorative processes, the concerns about due process are greater. When
VOM was endorsed by the American Bar Association in 1994, the number one item on its list of program requirements
was that participation by both the offender and the victim be voluntary. n130 Although coerciveness has been a criticism
of restorative justice, the same could be said regarding plea bargaining, which occurs in ninety percent of felony prose-
cutions. n131 Voluntariness can [*685] remedy coercive elements of restorative practices that have a tendency to impede
due process. n132
An example of how voluntariness can be achieved within a restorative program is the Milwaukee Community Con-
ferencing Program. Offenders are given two options: (1) what the penalty will be with restorative conferencing; and (2)
what the penalty will be without conference participation. n133 Coercion is lessened because the offender has the option
of whether to participate, and thus an option to choose the corresponding penalty.
Another way to protect due process rights is to give an offender the opportunity to opt out of the restorative process
at any time to pursue her case in the traditional criminal justice system with its full panoply of rights. n134 In contrast
would be restorative programs where offenders are ed to engage in a restorative process as part of their sentence.
Not only does the system take away the ability of the offender to be a voluntary participant in restorative justice, it sof-
tens the voice of victims since the options regarding the terms of an agreement reached during a VOM would be re-
duced.
2. Right Against Self-Incrimination and of Confidentiality
There is the potential that an offender participating in a restorative justice process could trigger her Fifth Amendment
privilege against self-incrimination. n135 The constitutional rights of a person accused of a crime and directed into a re-
storative process could be violated if she was not given any warning about rights against self-incrimination and then
revealed information which later could be used against her in court. n136 Most restorative justice programs “do not …
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