What is restorative justice? Although not explicitly confined, the practice and framework generally center around repairing harm in the aftermath of a crime and repairing this harm via dialogue between parties impacted (Van Ness & Strong, 2015). While measuring success can be an ambiguous endeavor, a growing body of research suggests that restorative justice through these two pillars has, in many ways, missed its intended mark (Greene, 2013, Wood & Suzuki, 2020). As a result, the field has become split between two seemingly divergent paths- embracing a Purist/Encounter model that emphasizes the necessity of meetings between impacted parties and those who embrace a vision of more flexible interpretations of what it means to be restorative. The latter model is known as Maximalism (Boyes-Watson, 2000).
If restorative justice is ever to meet the needs of our current criminal justice crisis, it must abandon the theory and practice of Encounterism. The model has produced immovable limitations to restorative justice’s current and future success in its stubbornness around the necessity of centering harm as its praxis as well as its absolutism of meetings and conferences to address harm. Rather than abandon the practice, Maximalism provides answers to aspects of the Encounter model currently unaccounted for, allowing for a reimagining of restorative justice and its practical capabilities.
The Encounter Model
The Encounter model can be defined as: “A contemporary justice mechanism to address crime, [and] disputes…The mechanism is a meeting…of affected individuals, facilitated by one or more impartial people” (Daly, 2016, p. 14). While Daly does not personally identify as an Encounterist, her work closely mirrors Purist/Encounter advocate Paul McCold (2000). Utilizing both the definition above and the specifics of their work, two core principles of the Encounter model can be identified:
1. Restorative justice is not a system but rather a tool/mechanism to deal with conflict and harm.
2. This tool for justice is a non-coerced meeting between the parties directly involved.
Limitation: Tool not System
“Pre-work” is required of an offender before entering into a restorative conversation in the Encounter model. Given that a meeting also requires voluntary victim participation, criminal cases exist in which restorative justice via the Encounter model cannot be utilized (Walgrave, 2000). As a result, Encounter advocates “limit…restorative justice to…an individual level rather than a structural one” (Boyes-Watson, p. 444). The public is not looking for a response to some criminal actions. It searches for an answer to the failing criminal justice system in a society struggling to form meaningful relationships post-industrialization (Christie, 1977). Encounter advocates would be wise to recognize that much of the attention and funding provided to restorative justice stems from a belief in its capabilities to be a system of criminal reform and not a tool to be used when the conditions of criminality are perfected.
In this limiting version of restorative justice, Daly stipulates that all other mechanisms used to combat the current criminal system should fall under the title of innovative justice. This system comprises a vast toolbox of different indigenous and alternative practices in danger of being misidentified as restorative justice (p. 19). To this distinction, it is essential to note that “there is no authoritative body with the… credibility to make final decisions on what is or is not restorative” (Ness & Strong, p. 46). Changing the name from restorative to innovative is not within any practitioner’s realm of responsibility. It also runs the risk of confusing a currently intrigued public. Still, restorative justice is responsible for fighting against this form of colonization. Researchers and implementers are accountable for affirming and crediting prior works of indigenous persons, communities, and other existing practices.
Limitation: RJ Fundamentally as Dialogue
Centering restoration around dialogue often overlooks power dynamics and misidentifies the essential relationships in need of repair. In the context of domestic crimes, victims can see harm manifested in the form of psychological abuse (Maldonado & Murphy, 2021). Placing the victim and offender in a conference can then result in retraumatization rather than restoration. The structural issues with the Encounter model extend beyond two persons with an intimate and possibly manipulative relationship. Can there be a restoration of a relationship that never existed between two strangers and has no reason to exist post-criminal process?
Encounter advocates often champion limiting restorative justice to a meeting format because it allows for quantifiable results in victim satisfaction/dissatisfaction (Daly, p. 22). Yet if Encounterists are genuinely concerned with victim satisfaction, it seems contradictory to limit restoration to dialogue. This is particularly pressing given that meetings are not always an adequate mechanism for victim justice. In their research on the Thames Valley police initiative and Youth Offender Panels, Hoyle and Rosenblatt (2016) report that some victims interviewed indicated that apologies provided in the Encounter session felt disingenuous and unsatisfactory. Even more concerning, most victims rarely showed up to invited meetings at all (p. 39).
The Maximalist Model
If restorative justice does not have meetings as its primary vehicle, what does drive restoration in the aftermath of a crime? Walgrave and Bazemore (1999) provide a helpful definition of the Maximalist model in our quest to answer this question, paraphrased below:
Crime injures people and relationships. Therefore, every action primarily oriented towards doing justice by repairing this harm is restorative (p. 374). “Every action” can be summarized as the single difference between an Encounter and Maximalist model. Maximalists recognize the importance of meetings while simultaneously pushing Encounter advocates to acknowledge other inputs outside of dialogue critical for repairing harm. Inputs overlooked by Encounter advocates that a Maximalist model could address include:
- High-functioning dialogue requires the long-term skill-building of social-emotional intelligence.
- In the aftermath of a crime, repairing the relationship to oneself can take precedence over repairing a relationship between offender and victim.
Expansion: Skill Building
McCold (2000, p. 367) rightfully points out that “offenders need to develop empathy” (pp. 367). The assertion that this occurs within the process of an offender meeting with a victim patronizes social-emotional learning. Perhaps some of the reasons for unsatisfactory responses from victims post-conference are correlated to a society lacking the skills and investment in empathy, perspective-taking, or responsibility- a particular epidemic among White men (Bloch, et al. 2020). A restorative model includes accounting for proactive skill-building. School practitioners would be well suited to merge social-emotional learning, trauma-informed practices, and “sustained restorative dialogue” (Giles-Mitson, 2021) into their restorative justice models.
Expansion: Self-Restoration
While recognizing both Rosenblatt (2015) and McCold’s warnings against the practice of restorative justice becoming rehabilitative justice, the offender’s relationship to themselves should still be a priority. At the risk of repetition, society is looking for a system to combat lowering crime and limiting punishment as isolation (Jouet, 2019). Among other inputs, recidivism results from a rehabilitated and restored individual ready to be reintegrated into the community (Braithwaite, 1989). We have a responsibility to “ensure that every person belongs” (Boyes-Watson, pp. 448) as part of what restorative justice does. This pillar applies to prioritizing the relationship of the victim to oneself as well. Practitioners must provide services, include victims in the process of decision making, and generally match the needs of those who have been directly affected by a crime (Ness & Strong, pp 115). In terms of application, this could look like a “dual path” model of restorative justice. A set of state or community members tends to the offender’s needs, and another group of state/community members tends to the victim’s needs. The offender-victim meeting is optional and predicated on victim want and offender preparation.
Conclusion
Restorative justice can and must do more in changing or even replacing the current model of criminal justice. Dialogue is essential to ensuring responses that work with those impacted rather than for or to parties harmed/caused harm. Viewing restorative justice through the lens of the Encounter model leaves too many cases of criminality at the behest of a racist and ineffective justice system. The public has an appetite for change and has- for better or worse- indicated that it believes restorative justice may be the answer. Those in the field can either emphasize that it is not the system of solution or rise to the challenge and modify the process in the name of a more just and restorative society.
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The Griddle 