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Punishment
8 Preventable Pitfalls of Restorative Justice Processes
Restorative justice: Fallibility means theory won't always translate to praxis.
Posted October 10, 2024 Reviewed by Jessica Schrader
Key points
- Retributive justice frames isolation and stigma as motivators of accountability, when research debunks this.
- Carceral systems and logic disregard the roots of harm, nuances of conflict, and human capacity for change.
- Restorative justice views belonging as a core need, harm as relational, and healing as a humanizing process.
Restorative justice (RJ) is an alternative to the isolating, stigmatizing, and traumatizing nature of our punitive criminal justice system. Indigenous and Native nations have practiced restorative justice for millennia, based on their strong cultural value of relationality. An underlying belief of restorative justice is that the root causes of harm cannot be addressed without remembering our interconnectedness. To many, this sounds like “getting out” of accountability, but it is deep work.
Nothing about restorative justice skips over deep reflection. It does not skirt around sitting with the impact of harm and how it has rippled out. It does not shy away from identifying who holds disproportionate responsibility for exacerbating, enabling, or ending harm. It does not work when people are in denial, will not apologize, will not change their behavior, will not commit to a lifelong process of unlearning, and will not make amends, should harmed parties want that. But because RJ lacks the carceral features of retributive justice—banishment, ridicule, and stigmatization through policing, prisons, child protective services, vigilantism, etc.—many underestimate it.
Practitioners of transformative justice—which amplifies the structural analysis of restorative justice—state that under both frameworks, accountability is guided by the same questions: What’s necessary to ensure that I’ll never cause that harm again? How do I make things as right as possible, given that I can’t go back and change what I did? What was going on with me to allow that level of harm to come from me? What need was I mistakenly trying to meet by causing that harm? Why did I act outside of my values? Moving forward, who can partner with me to ensure that I do not re-create those acts or dynamics, even when I am at my lowest?
Research shows that RJ lessens recidivism, motivates harm-doers to sustain change, and leaves survivors/victims feeling safer. Over the years, schools, prisons, and governments have utilized RJ processes and practices (e.g., community/family conferencing, offender-victim mediation, peacemaking/sentencing circles, restitution, and community service). Yet, implementation can be fraught with problems because humans are fallible, and most of us are socialized in carceral cultures that do not view RJ as "enough" without punishment or dehumanization.
To that end, the Bard Center for Research on Women has an excellent video series on how to support harm-doers in being accountable, what accountability can look like, and obstacles to accountability. Across all interviews, practitioners share that the conflation of justice with shaming sabotages accountability. There are too many gems to summarize, but an overarching point is that we are brought up in a culture that encourages banishment, ridicule, and spectacle as solutions to harm—often to the point that we forget that moral perfection is an illusion, people are not all good or all bad, and most importantly, some people who make grave mistakes actually want to change.
Here are some things to keep in mind if you are considering a restorative process:
Absolutist thinking. Harm often involves people overreacting when triggered, or stepping out of character when feeling threatened or provoked. Absolute thinking—“people are born all good or all bad”—would have us judgmentally lump all harm-doers in with serious offenders (e.g., predators, sociopaths, etc.) whose motives are much more sinister. To be sure, nuances about motives do not excuse any harm. Yet, the distinctions can help us remember that harm is not necessarily the core of who someone is. Usually, harm-doers simply have not learned that valid feelings do not warrant harmful behaviors. They are not irredeemable or unteachable.
Reflection question: How can we acknowledge context/intent without minimizing impact?
Cynical/defeatist thinking. Without cautious optimism, a harmed party may default to presuppositions and confirmation bias filters. That is, simply looking and listening for evidence that favors their prejudices, rather than being receptive to contradictory evidence that might reveal an incomplete, one-sided, or outdated narrative. The instinct to preserve one’s self-serving opinions is natural; but reductive narratives often do not hold up against reality. To reach an actual resolution, we must be willing to concede whenever we are wrong—this cannot happen if we argue in bad faith and project disappointment before even getting started.
Reflection question: How can survivors/victims process distrust, skepticism, and/or cognitive dissonance as they confront new sides of the harm-doer or perspectives on the conflict?
Masochism/schadenfreude. Sometimes harmed parties can derive schadenfreude from shaming a harm-doer, or from setting self-masochism as the standard for genuine/legitimate remorse. Yet, exuding shame likely means a harm-doer has not learned anything. While guilt can motivate constructive action after regret and remorse, shame can trigger our nervous system’s fight-or-flight response. This releases stress hormones that flood and dysregulate our prefrontal cortex, the brain region for directing emotional regulation, processing, and perspective-taking. Consequently, metacognition and self-reflexivity (i.e., thinking about our thinking and reflecting on our emotions)—skills that facilitate reflection and remorse—are blocked.
Reflection questions: Are we conflating accountability with perpetual self-shame and/or public confrontation/spectacle? How are we addressing behaviors like blackmail, dehumanization, provocation, and scapegoating?
Exile. An exiled harm-doer without community may or may not be able to sustain progress (i.e., lifelong unlearning and behavior change) through self-motivation alone. So, although we can derive a sense of vindication from persuading others to stand against harm-doers permanently and unconditionally, this is not necessarily geared toward harm-doer’s rehabilitation—assuming the harm-doer is actually committed to changing in the first place. A small support system like a community accountability group may be sufficient, but reinforcement from others is also helpful.
Reflection questions: How can we coach support systems not to enable harm in private? Are we forgetting that relationality is a core component of restorative justice?
Favoritism. Facilitators are not immune to implicit biases, such as being swayed by authority, popularity, sexual attractiveness, or wealth. These attributes can shield some harm-doers from deserved consequences. Remaining vigilant of double standards that privilege some—e.g., lower expectations and unearned advantages—can help us pinpoint when others are subjected to carceral, vengeance-driven standards of accountability. One option is for practitioners to compare current processes to prior ones, to determine whether consequences are consistent with past standards, thus preventing implicit biases from compromising fairness and integrity.
Reflection question: How can we guard against the halo-and-horn effect?
No checks and balances. Skilled facilitators can help survivors/victims recognize when resentment is driving confrontational or passive-aggressive behaviors. Survivors/victims are just as human as harm-doers, and thus, unconsciously engaging in conflict escalation and power-over (versus ‘power-with’) behavior is easier than one might think. Even if survivors/victims are facilitators themselves, it is usually much harder to remain principled and thoughtful in conflict that involves us, compared to when we are the outside facilitator.
Reflection question: How is unprocessed resentment/spite (overt or covert) driving this process?
Shifting goalposts. While resolution-setting is iterative and ongoing, the harm-doer must be able to clearly identify expectations regardless of how many pivots and revisions occur. Doubts and tension can arise when there is no transparency about expectations. Resulting confusion can make survivors/victims wonder if a harm-doer’s commitment is sincere, or make a harm-doer feel that the process has been contrived to elicit and shame their failure and shortcomings.
Reflection question: Accountability is lifelong, but what signals the conclusion of this phase?
Undefined communication channels or timetables. Unplanned and unstructured contact—especially when it is hostile or passive-aggressive—can escalate conflict. Taking time at the beginning of a restorative process to preemptively define both communication channels and timetables can go a long way in minimizing opportunities for confusion, crossed boundaries, tested patience, and triggered traumas. Perhaps a facilitator will relay all updates at a specific time each week, while also vetting what should be processed within versus outside of the group.
Reflection question: How can all voices be heard in the most planned and predictable way?
