Condensed by David Rhys

Adapted from an article by Sharon Levrant, Francis T. Cullen, Betsy Fulton and John F. Wozniak which appeared in the journal Crime & Delinquency, Vol. 45 No. 1, January 1999.

Three decades have passed since the rehabilitative agenda was pushed aside for crime control policies rooted in a "get tough" philosophy. This orientation has led to harsh forms of punishment, including a dramatic increase in incarceration. Even community-based sanctions are "unabashedly fierce," emphasizing rigorous surveillance and the enforcement of increasingly stringent conditions of supervision.

It is tempting to portray the penal harm movement as having achieved complete hegemony over correctional policies. It is a powerful way of thinking with which few policy makers publicly take issue. Penal harm ideology has undermined but not stamped out alternative perspectives.

Surveys of the public reveal that citizens favor early intervention programs over prisons as a solution to crime, are willing to use community sanctions as an option instead of incarceration, and continue to support rehabilitation as an important goal of corrections. In accordance, the space still exists for progressive policies to be put forth which challenge the idea that harming offenders is the only, or the best, means of controlling crime.

In this context, restorative justice is emerging as an increasingly popular alternative to penal harm or "getting tough". The primary focus of restorative justice is on the ways in which crime disrupts relationships between people within a community. In its purest form, it is an informal approach to repair these relationships. Thus, it attempts to hold offenders accountable through both shaming and reintegration processes in hopes of strengthening community bonds and providing crime victims with an opportunity to regain their personal power.

The Vermont DOC has been restructured to include two primary service tracks: the risk management service track is designed to provide intensive treatment and supervision to high-risk felony offenders, and the reparative service track requires low-risk, nonviolent offenders to make reparation to the victim and the community. Reparative boards have been instituted in the reparative service track as a means of actively involving community members in the justice process. These boards consist of five citizen-volunteers from the offender's respective community who are responsible for meeting with the offender to develop a reparative agreement that requires the offender to (1) restore and make whole the victim(s) of his or her crime, (2) make amends to the community, (3) learn about the impact of the crime , and (4) learn ways to avoid re-offending.

Two central questions in the restorative justice movement must be explored. First, commentators have pointed out that correctional reforms implemented with good intentions often have been corrupted to serve less admirable goals and interests. Thus despite its benevolent possibilities, will restorative justice programs be corrupted and have untoward, unanticipated consequences? Second, given the current knowledge about changing offender behavior, there is little reason to conclude that restorative justice can have a meaningful effect on recidivism. This latter issue is critical, given that a perceived failure to reduce recidivism contributed to the decline of rehabilitation and boosted the legitimacy of punitive correctional policies in recent years.

The Corruption of Benevolence?

In the 1970's, many liberals joined with conservatives in rejecting rehabilitation and in endorsing reforms, especially determinate sentencing, that constrained the discretion exercised by criminal justice officials. Believing that these reforms would result in increased justice, liberals largely overlooked the possibility that conservatives would use the rejection of the rehabilitative ideal as a means to achieve their goal of getting tough on offenders. In hindsight, it now appears that the liberals' benevolent hopes of doing justice were corrupted by conservatives who succeeded in passing harsh laws which ultimately increased the punishment and the harm done to offenders.

In endorsing restorative justice, liberals once again are embracing a reform also being trumpeted by conservatives. In doing so, it seems prudent to consider the lesson of the anti-rehabilitation movement: Progressive sentiments are no guarantee that reforms will not be corrupted and serve punitive ends. There are four possible unanticipated consequences of restorative justice: (1) it will serve as a means of getting tough on offenders; (2) it will not be restorative for victims, offenders, or communities; (3) it will be more of a symbolic than substantive reform; and (4) it will reinforce existing race and class biases besetting the criminal justice system.

Getting Tough Through Restorative Justice

According to progressive advocates, restorative justice offers potential benefits to offenders, including the opportunity to reconcile with their victims, a less punitive sentence, and the chance for reintegration into society. However, six considerations suggest that restorative justice may not achieve its progressive goals and, in fact, may increase the extent and harshness of criminal sanctions.

First: Restorative justice systems lack the due process protections and procedural safeguards that are awarded to offenders in the more formal adversarial system: counsel are generally discouraged from attending mediation hearings and the informality of the system contributes to more lenient rules of evidence.

Second: Despite the rhetoric of restoration, offenders may be coerced into participating in the mediation process because of perceived threats of harsher punishment if they refuse to do so. The problem of coercing can be exacerbated if people who normally would not be subjected to state controls through the formal criminal justice process are coerced into participating in restorative justice programming.

Third: Restorative justice programs can potentially widen the net of social control. For example, market research in Vermont revealed that citizens wanted the criminal justice system to take minor offenses more seriously. Thus, instead of diverting offenders from intrusive forms of punishment (e.g. electronic monitoring, incarceration), restorative justice may place more control over the lives of non-serious offenders who may have otherwise received no formal supervision.

Fourth: If broad changes do not take place to make the system restorative, then restorative justice sanctions will likely increase the supervisory requirements that offenders must satisfy. A survey of offenders participating in Vermont's Reparative Probation Program revealed that offenders perceived the program to be much more demanding than regular probation.

Furthermore, it was discovered that contrary to the program's design, offenders were subjected to both reparative conditions and traditional probation supervision. If subjected to unnecessary sanctions and services, offenders' chances for noncompliance, and hence revocation, are increased. Intensive services are necessary to achieve a significant reduction in recidivism among high-risk offenders, but when applied to low-risk offenders, intensive services have a minimal or positive effect on recidivism. For example, studies on punishment and deterrence based programs, such as intensive supervision, boot camp, Scared Straight programs, and electronic monitoring, revealed that these strategies produced slight increases in recidivism. This phenomenon has been called an "interaction effect" in which additional efforts to intervene with low-risk offenders actually increases recidivism. The seriousness of the offense, however, is not consistently related to an offender's risk of recidivism. Thus restorative justice programs run the dual risks of producing the interaction effect in low-risk offenders and of under servicing high-risk offenders.

Fifth: As conditions of probation expand through restorative justice programs, the potential that offenders will not meet these conditions also increases. This higher level of noncompliance, combined with heightened public scrutiny and a demand for accountability, will likely result in the revocation of more offenders. For example, the closer surveillance of offenders in intensive supervision programs has led to the increased detection of technical violations. Because of an emphasis on stringent responses to noncompliance, detected violations in these programs have often been followed by the revocation of probation and incarceration. Thus restorative justice programs may not only increase social control within the community but may also result in more offenders being sent to prison because they fail to comply with the additional sanctions imposed within the restorative justice framework.

Sixth: Restorative justice may increase punishment if reforms fail to develop policies and programs that are able to reintegrate offenders into society. Shaming policies are gaining popularity because they can fulfill the retributive aims of the public. There is danger in these policies as they may be wrongly interpreted as a revival of support for public shaming practices, such as the ducking stool and the scarlet letter, without an emphasis on the reintegrative element of community acceptance and support. Absent community acceptance and opportunities for change, offenders may be stigmatized, encouraged to participate in criminal subcultures, and become reinvolved in criminal activity. A primary role for probation and parole officers should be to work with communities in an effort to increase acceptance, support, and opportunities for offenders. However, a study recognized that the success of Vermont's Reparative Probation Boards was hindered by staff resistance to philosophical changes and subsequent changes in operations.

Conclusion

Although restorative justice is being advocated as a benevolent means of addressing the crime problem, its attractiveness lies more in its humanistic sentiments than in any empirical evidence of its effectiveness. It remains an unproved movement that risks failure, invites corruption, and perhaps does more harm than good.

Until a complete paradigm shift has occurred, restorative justice policies will potentially inflict additional punishment and increase the social control imposed on offenders, without a reduction in recidivism or other long-term benefits to communities.

[Note by David Rhys] Over 60% of the population at the Southeast State Correctional Facility in Windsor, Vermont is comprised of Furlough, Parole and Reparative Probation technical violators. While a technical violator may receive a sanction of 30-90 days incarceration for their non-criminal technical infraction, most often they are kept for many, many months more, becoming lost in the "red tape" of Corrections administration. To house these short-term violators, offenders with longer sentences (who could take advantage of Vermont's education, work training and other rehabilitative programs) have been shipped to other states and are simply "warehoused" with no chance of rehabilitation or reparation. Is this an efficient use of our "overcrowded" prison space?

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