Adopting New Values for the Courts
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Adopting New Values for the Courts
Adopting New Values 1
Cavanagh, T., (1998). Adopting New Values for the Courts: What is Restorative
Justice? The Court Manager, 13(2/3). P. 24-27. Williamsburg, VA: National
Association for Court Management.
What is restorative justice? Restorative justice was identified as a major trend in the
state courts for 1997. Yet, court managers as a whole know little about this process. The
principal focus, values, outcomes, and vision of both restorative justice and the present
system, called retributive justice, are explained. With this information, court mangers
and leaders can lead the development of clear mission and vision statements for their
organizations, incorporating the restorative and retributive justice values appropriate
for their communities. As a result, strategic planning will be focused on implementing
a vision based on these values.
* * * * *
Why is the criminal justice system of the United States failing at restoring peace
to our communities? The criminal justice system is based on retributive justice, which
focuses on the offender. The New Zealand courts were the first to use a process called
restorative justice, which involves balancing the interests of the offender, victim, and
community. What is restorative justice? What is our present system called? What are
values, outcomes, and visions of these two processes?
Restorative justice is a new concept for people in the United States. We are
familiar with the system of retributive justice, which is focused on answering the
questions of what laws were broken, who broke them, and then punishing the guilty.
Restorative justice recognizes three key parties to crime, the offender, victim, and
community. In an effort to serve the needs of these three parties, the criminal justice
system needs to be dedicated to restoration, healing, responsibility, and prevention.
1 Criminal Justice Process Case Essay
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For example, in New Zealand juveniles are referred to Family Group
Conferencing after they admit their guilt to the court. If they do not plead guilty, the
case continues through the traditional court process. The Family Group Conference is
initiated by a trained mediator bringing together the victim and the offender, as well as
family, friends, and supporters of both parties. The conference begins with the offender
describing the incident. The impact of the crime is described by each participant. As a
result, the offender realizes the consequences of his or her behavior, and the victims get
to express his or her feelings. The victim describes his or her desired outcomes, and all
participants are involved in problem-solving how to repair the harm done. The session
ends with all participants signing an agreement containing expectations and
commitments. Sentencing Circles is a process focused on the community and usually
involving complex issues, such as gang activities. Other restorative justice activities
more familiar in the United States are victim impact statements, classes and panels,
victim offender mediation, community service, restitution, and community restorative
Currently, most restorative justice type activities are done by social services
agencies, schools, law enforcement, and probation departments. These activities share
three common elements: healing, victim offender mediation, and apology (shaming)
and reintegration. Marshall (1997) offered a definition of restorative justice, which is:
“A process whereby parties with a stake in the particular offense come together to
resolve collectively how to deal with the aftermath of the offense and its implications
for the future.” Howard Zehr and Harry Mika developed “signposts” to identify
restorative justice processes:
Focusing on harms suffered rather than laws broken.
Showing a balanced concern for the victim and offender and involving both in the
criminal justice process.
Working toward restoration of victims through empowerment and response to their
2 Opportunities for Direct and Indirect Victim
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Supporting the offender and simultaneously encouraging him or her to understand,
accept, and carry their commitments to repair the harm.
Recognizing offenders’ need to fulfill obligations which are achievable, not punitive.
Providing opportunities for direct and indirect victim offender dialogue.
Involving and empowering the community through the judicial process, particularly
by increasing its capacity to recognize and respond to crime.
Encouraging collaboration and reintegration rather than coercion and separation
Paying attention to the unintended results of activities and programs.
Showing respect for the dignity of everybody, particularly victims, offenders, and
colleagues concerned with justice.
Today American courts are typically focused on retributive justice and the
offender and allow limited participation by victims though such programs as advocacy,
assistance, and restitution. The role of representative of the community is assumed by
the prosecutor, appearing on behalf of the people of the individual state or the United
In 1966, Roger Warren, president of the National Center for State Courts, pointed
out, in 1996, the emerging trend towards a system of restorative rather than retributive
justice. That same year National Institute of Corrections Director Morris Thigpen noted
a transitional change is occurring in the criminal justice system involving themes of
restorative justice. In 1977 Nancy Gist, Director of the Bureau of Justice Assistance,
called for bridging the gap between the courts and the public. Building partnerships
between the local judicial system and communities by making the work of the courts
visible, accessible, proactive, and focused on victims will help to bridge this gap.
Restorative justice ideally involves bringing together the offender, the victim,
their families, and community representatives to devise a plan to make the situation
whole again. Such a model recognizes the violation of one person by another.
Contrasted with that philosophy is the current system in the United States of
retribution, which focuses on violations of law, fixing the blame, and punishing the
guilty. The courts of New Zealand made the most comprehensive use of restorative
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justice. The New Zealand system is a combination of ancient values, learned from the
Maori people, and modern insight.
As an example of implementing restorative justice values, the Colorado
Probation Services department adopted a vision of restorative justice, which “strives to
repair the damage caused by criminal behavior to the victims of crime, individually and
as a community. This may include financial reimbursement to the victim or victims, as
well as public service to the community in an attempt to ‘pay back’ the local community
residents.” The statement continues, “To be successful, offenders must also be
restored. They must learn how to respond positively and cooperatively to societal
norms, to become pro-social rather than anti-social.” The statement notes, “Neither
restorative justice nor modeling or pro-social behavior can be accomplished without
fostering a partnership with the larger community: the bench, the district attorney’s
office, the defense bar, social services, agencies who serve youth treatment providers
and agencies which provide educational, vocational and financial support to offenders
and their families.”
A Restorative Justice Conference was held in Denver in February 1988, and
Colorado probation department offices began implementing the vision of restorative
justice with the hiring of community liaison officers. The positions were funded with
grant money from two sources: the Victims of Crime Act (VOCA) and the Violence
Against Women Act (VAWA). Duties of the community liaison officers include
coordinating restorative justice activities already in place in the community, developing
new programs, and educating the public about restorative justice.
Court employees need to become familiar with restorative justice and the key
values of the process in order that the missions and visions of all segments of the
criminal justice system can be in alignment. By understanding the core values of
restorative justice, court managers possess the tools to evaluate the outcomes of non-
prison, community based or alternative sentencing programs beyond recidivism rates.
Admittedly, a set of shared values are yet to be developed for restorative justice. Some
values are emerging which can guide the courts.
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The focus of retributive justice is on the offender. Laws and punishment are the
core values. Outcomes are measured in terms of: 1) What law was broken, 2) Who
broke it, and 3) How should he or she be punished? Important to this process are the
ideas of separation, that is, putting people in prison or other placements outside the
family and community, and labeling or stigmatization, that is, giving people
identifications like parolee, probationer, felon, ex-con, prisoner, and even defendant.
The vision of retributive justice is to create a safe community.
Restorative Justice is based on a balanced focus on the offender, victim, and
community. The values, according to each participant, are: (a) the offender, apology or
shaming and reintegration, (b) the victim, the harm and opportunity for forgiveness,
and (c) the community, relationships.
Outcomes and measurements for restorative justice programs, based on each
core value are:
Apology — either oral or written, recognizing responsibility and not seeing oneself
as a victim and realizing and acknowledging the harm suffered by the victim.
Reintegration — earning his or her place back in the community, particularly
through the action plan developed under the healing the harm process.
Harm — assessing what harm was done, developing a case plan to repair the harm,
and creating an action plan for those responsible for healing and repairing the harm.
Forgiveness — the opportunity is extended for the victim to accept an apology from
the offender and to extend forgiveness.
Relationships — healing broken relationships and creating new relationships.
The vision of restorative justice is creating peace in the community. This visions
differs from the retributive justice focus on safety, leading to separating undesirable
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people, like criminals, from the community, usually by placing them in prison. The
result is those people who are different and live on the margins of society are the people
primarily sent to prison. Those people include the homeless, mentally handicapped,
poor, and minorities. The focus on creating peace realizes offenders are part of the
community and in most cases will return to the community if incarcerated. The
community of the offender includes family, friends, and work relationships. Those
relationships provide the environment for developing a sense of social conscience,
awareness of how one’s actions affect other people, and a desire to be a positive
member of the community.
Restorative justice in the juvenile justice system was identified as a major trend
in the “Report on Trends in the State Courts, 1996-97.” If courts adopt restorative
justice concepts as an alternative to the traditional retributive justice system and
implement a more balanced approach towards justice, communities will become
involved in the courts, and confidence in the criminal justice system will grow.
We can learn more about restorative justice by studying the New Zealand model.
With a thorough understanding of the New Zealand model, the judiciary and court
managers can adopt new shared values in our local judicial systems regarding the roles
of victims, offenders, and communities. Further research is needed to address three key
- Communicating the value of restorative justice to the judiciary in order to raise the
respect for the process beyond minor cases.
- Changing the mind-set of the courts from offender oriented to offender, victim, and
- Altering the focus of the courts from being in-bred and geared toward protecting
and promoting self-interests, which are dedicated legal procedure, practice, and
tradition, to including the best interests of the community.
The benefits of adopting restorative justice practices to judges and trial court and
probation managers include:
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- Victims and the community can become more involved in the court process.
- By using such practices as restitution, community service, mediation, family group
conferencing, and victim impact panels consistent with restorative justice values,
studies indicate recidivism decreases.
- Victims are given choices and a sense of control, which decrease fear. As a result of
utilizing restorative justice processes, victims and offenders see the system as fairer
and are overall more satisfied.
- A reduction in caseload is noted in some studies, particularly where all or most
cases are referred to a variety of restorative justice processes.
- Plea negotiations are enhanced by options, reducing court time.
- Victim advocacy is politically strong currently and can aid in changing the judicial
- Restorative justice offers a commonality of values for justice professionals
committed to improve the criminal justice system.
- Payment of restitution is completed more often using restorative justice approaches.
To learn more about restorative justice, I recommend the following: “Changing
Lenses,” a book by Howard Zehr; “Restoring Justice,” a videotape that can be ordered
by calling 800/524-2612 and requesting PDS #72-630-96-720; and my web site at
Adopting New Values 8
Bazemore, G. (1997). The “community” in community justice: Issues, themes, and
questions for the new neighborhood sanctioning methods. The Justice System Journal,
19(2). Williamsburg, VA: National Center for State Courts.
Bazemore G. & Pranis K. (1998, February). Restorative justice conference.
Denver, CO: Colorado Probation Department.
Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge, England:
Cambridge University Press.
Colorado Probation Services, (1997). Statement of common grounds. Denver, CO:
State Court Administrator’s Office.
Doolan, M. (1993). Youth justice – Legislation and practice. In Brown, B. &
McElrea, F., The youth court in New Zealand: A new model of justice, (pp. 17-29).
Auckland, New Zealand: Legal Research Foundation.
Feinblatt, J. & Berman, G., (1997, November). Responding to the community:
Principles for planning and creating a community court. Bureau of Justice Assistance
Bulletin. Washington, D.C.: U.S. Department of Justice.
Marshall, T. (1997, March 20). Seeking the whole justice. Repairing the damage:
Restorative justice in action. Paper presented at the ISTD Conference.
McElrea, F. (1996). The New Zealand youth court: A model for use with adults.
In Galaway, B. & Hudson, J. (Eds.), Restorative justice: International perspectives, (pp.
69-83). Monsey, NY: Criminal Justice Press.
Adopting New Values 9
Moore, L. (1996, Fall). Educational program summaries: Purposes of courts and
the delivery of justice. The Court Manager, 11(4). Williamsburg, VA: the National
Association for Court Management.
Mika H. & Zehr, H. (1997). Restorative justice signposts. Akron, PA: Mennonite
National Center for State Courts (1998, Winter). NCSC tracks state court trends
for 1997. Center Court 3(1). Williamsburg, VA.
National Institute of Corrections, (1996, March). Community justice: Striving for
safe, secure, and just communities. Louisville, CO: LIS, Inc.
Presbyterian Church (USA) (Producer). (1996, May). Restoring justice [Film].
(Available from Presbyterian Distribution Service, 100 Witherspoon Street, Louisville,
Zehr, H. (1995). Changing lenses: A new focus for crime and justice. Scottsdale,
PA: Herald Press.