The culture of punishment: A critical approach

The restorative justice path to healing our communities

Restorative justice heals while retributive justice hurts. Restorative justice is organized around the principles of a healing justice rather than a hurting or harmful justice. Retributive justice asks who has caused harm and seeks to punish and in turn cause more harm in retribution. People who cause harm are then warehoused by a carceral system in prisons and jails and not truly introduced to a process of taking deep responsibility for their actions. Conversely, in a restorative justice approach, core to the orientation, is a set of principles and adherence to the concept of high accountability for wrongdoing simultaneous with high support to repair harm. Restorative justice is “a process in which all the stakeholders affected by an injustice have the opportunity to discuss the consequences of the injustice and what might be done to put (things) right” (Braithwaite, 2022). It is then both a set of practices and principles as well as a comprehensive worldview that promotes wellness and healing in the face of harm.

Because restorative justice is both a set of tools and an embodied approach to creating and sustaining a more equitable world, it is a way of being that centers participatory fairness and a balance in power relationships. It maintains balance through taking a values-based approach in response to conflict and wrongdoing, and equally focusing on the person who caused the harm, the person who has been harmed and the community (Ryan and Ruddy, 2015). That balance restores the perceived loss of power to participants which in turn empowers them on their healing journey. To further aid participants on their journey, restorative justice also employs a toolkit of structural and relational practices to achieve overarching restorative principles. It is an ethos, in fact, that may be practiced to build community and heal conflicts.

Restorative justice heals, because it employs the concept of high accountability, while retributive justice hurts

Humans are interconnected and therefore the effects of a wrong against one person does not just affect that person; the impact of a wrong goes beyond them to their community and everyone with whom they interact. Restorative justice recognizes this truth and seeks to holistically heal the community and the individuals within.

Restorative justice is in no way a new phenomenon, it is a thousand-year-old tradition originated in indigenous cultures across the globe (Walker, 2012). Restorative conversations, restorative economic reparation and restorative ways of engaging in sustainable living, are all valid means. However, the most commonly known and central element of restorative practice is holding space in a restorative justice “circle”. Restorative justice is typically practiced while sitting in a circle where participants “discuss how they have been affected and reach agreement about what should be done to repair the harm caused” (Pointer et. al., 2023). By sitting in a circle, everyone occupies an equal space on a level playing field and is able to see and hear each other fully. Circles have proven to be an effective space for discussions integral to the healing process.

The Three Circles of Restorative Justice

There are three widely accepted types of restorative justice circles: Community Building or Peacemaking Circles (Tier 1), Conflict or Harm Circles (Tier 2), and Re-Entry Circles (Tier 3) (Davis, 2018). All three of these circle types have similar structural (circle rounds, talking piece, centerpiece) and relational elements (opening, check in and out, values and agreements, games, ritual and ceremony) from an outsider looking in. They are different, however, in their content, goals and participants.

A wrong against one person does not just affect that person; its impact goes beyond them to their community and everyone with whom they interact

Tier 1 – Community Building Circles

Community Building Circles are the backbone, workhorse and foundation of restorative justice practices. A jail, prison, school, community, office or family that embodies a restorative approach will 9 out of 10 times likely engage in community building. An abundance of community building circles will prove to be a sustainable solution if they are practiced regularly, even daily, with the primary purpose of deepening the interpersonal relationships and personal connections between circle members (Huguley et al., 2020; Wadhwa, 2016).

All circles require pre-planning. However, community building circles do not require significant preparation with circle members or long-term coordination with members after the circles are concluded, as is the case in other circle types. “By engaging the community, a conflict can be resolved in the best interests of the victim, the offender, and the community, rather than what the law requires. Thus, in the implementation of many restorative boards, community members—rather than an institution—exercise authority” (Beck, 2012).

The goal of the community-building circle is to deepen relationships. Circle members are expected to be authentic and to reveal their true selves. There is an environment of radical honesty where all people present have a license to “be real” and not be judged for their views or lived experiences. The participants in community building circles include those who are available to be present, or those chosen and invited for unique reasons. Participants may be members of a specific class or club or of an affinity or interest group. The specific activity of the people in attendance is to see each other (practice “Sawubona”), to connect with one another and to work together.

The central element of restorative practice is a “circle”: everyone occupies an equal space and is able to see and hear each other fully

Tier 2 – Conflict Circles (aka Harm Circles)

People who are new to or marginally familiar with restorative justice practices usually seek out interventions initially when they are facing a conflict. They desire to find a resolution for a clearly identifiable harm. They want a fair and equitable process for resolving a distressing conflict that includes the voices of all those affected. They also aspire to participate in a process that may conclude with the deep satisfaction felt when true healing and authentic repair of social fracture is possible.

For conflict circles to work, the participants must be open to and vulnerable with each other (Martinez et. al., 2022). Ideally, through that vulnerability, sustainable and preventative transformation will occur. This prevention element is increasingly important in evaluation of effectiveness because while Restorative justice is effective in resolving such conflicts it is equally beneficial as a preventative measure to lay the foundation to avoid ever having such a conflict exist.

Conflict Circles also possess all of the structural and relational elements of all circles. The content of a conflict circle is the discussion that leads to consensus on a plan of accountability and repair for the harm that was caused, with meaningful support to accomplish it. The accountability plan can be as simple as an apology or acknowledgment of wrong-doing, or as complex as years of service and restitution.

Restorative justice is a holistic pathway to building community, resolving conflict, celebrating our own humanity and healing our world

There is significant planning and individual preparation before the date of the circle is set. This includes preparation of those most affected as well as those causing the harm. As such these circles are quite labor-intensive for the circle keeper and all of those in attendance. Additionally, much of the emotional labor of these circles is accomplished in the preparation process. The participants in a Conflict Circle are those people most impacted by the harm caused. The participants include the people who have been most harmed as well as the people who caused the harm. Also present are people who have been impacted negatively because they observed the harm or were affected by its consequence. For example, in the case of a suspension, a younger sibling may have had to change or eliminate their sports activities to accommodate the support service needs of the sibling who caused the harm.

Tier 3 – Re-Entry Circles (aka Circles of Support and Accountability COSAs)

Re-Entry Circles are a critical tool to use when supporting people coming back to a community after they have been suspended or expelled for an infraction. These Circles are the least commonly practiced circle type, in part due to the intensity involved in gathering appropriate circle members and scheduling their participation. They are utilized when a person has been extricated from a community for causing a harmful act or some other wrongdoing and they are at the point of seeking to “re-enter” the community. These circles are typically used when juveniles or adults are returning to society after being in custody in prisons and jails.

Re-entry circles involve the participation of multiple diverse community members who may offer support and guidance to the person who is transitioning back into the community. The community’s ability to offer high levels of support and accountability are key components of a re-entry circle. The participants are the preselected COSA members, invited support persons, and relevant community members with critical human and material resource allocation capacities to support the person of focus.

Re-entry circles include basic structural and relational elements (Boyes-Watson & Pranis, 2015). The preparation for Re-Entry Circles is significant as the planning and recruitment of Circle of Support and Accountability (COSA) members requires much reflection, agreement, and consideration of the person being supported and the relationships they have with the potential COSA members.

The goals of re-entry circles or COSAs are realistic, sustainable and agreed-upon plans for support and accountability (Walker, 2015). Future COSA circles are organized around updates on life circumstances, wellness status and compliance with circle plans. Included in the COSA is an authentic and verifiable commitment from key COSA members to offer specific support to ensure a smooth re-entry of the person and adherence to the earlier stated goals of the COSA.

Restorative Justice as a Holistic Pathway

Newcomers to the movement often think of restorative justice as solely a set of tools to resolve conflict, but restorative justice actually offers much more. It is a holistic pathway to building community, resolving conflict, celebrating our own humanity and healing our world. It guides us in the act of repairing harm but also teaches us to engage in self and communal care through the embodiment of a set of principles calling us to engage in the practice of forgiveness of self and others (Suzuki and Wood, 2017).

While these practices have been embraced for thousands of years, the modern RJ movement is about 50 years old (Kohn, 2010). It has largely been practiced without a racial consciousness lens, except for a few notable leaders who have argued that race, class, gender, sexual orientation, and ability as well as other sometimes marginalized and minoritized identities are central to the practice of RJ (Davis, 2019). It is indeed essential that we take these factors into consideration when looking at justice, because these marginalized communities are affected, victimized and vilified to a much larger extent. Many are quick to identify the cyclical nature of crime in these communities, however, few are willing to identify sustainable solutions which will stop the negative cycles altogether. Across the globe, oppressed cultural groups have a rightful claim to solutions which will bring about justice and restorative justice brings their voice from the margins to the center while building equity and elevating their humanity.

These practices naturally resonate with indigenous cultures in Native North America, Kenya, Ghana and South Africa as well as other continental African nations, the Maori People in New Zealand and even more recently citizens in Hull and Leeds, England (Liebmann, 2007).

Restorative justice brings their voice from the margins to the center while building equity and elevating their humanity

How does Transformative Justice fit with Restorative Justice?

Transformative justice describes a political orientation to healing historic and present-day harms using a reparative approach (Mingus, 2019). It is abolitionist in its orientation and asserts that the carceral system in its entirety is harmful and violent and was developed to further oppress marginalized and minoritized communities and maintain social control over the freedoms of these people. By extension, prisons, jails and the entire policing institution hurts rather than heals our communities. Transformative justice approaches obviate involvement of carceral systems in responding to violence and other abuses, and instead focus on healing and accountability.

As with restorative justice, indigenous and traditional peoples have utilized transformative justice approaches for centuries. However, in the transformative justice case the effort has been to repair harm as a direct response to state violence and to avoid contacting or in any way involving an inherently vicious and harmful carceral system. Some transformative justice enthusiasts assert that, “while restorative justice challenges the retributive justice system and brings people together, it fails to recognize the socio-political and economic issues addressed by transformative justice” (Nocella, 2011). Transformative justice imagines new and radically different futures, and envisions structures for healing and the systems surrounding them as more community focused, relational and based upon total and comprehensive health and wellness.

How restorative justice and transformative justice overlap and depart from each other in philosophy and practical actions has been a topic of discussion and debate. Both processes may be complementary bedfellows or incite sparks of departure and perceived conflict. At the Restorative Justice for Oakland Youth (RJOY) we practice restorative justice with a transformative framework. All of the programs, actions, movement building and interventions that we develop and deliver have core concepts that are at once following restorative justice and transformative justice tenants, where possible. There is one area of significant departure from transformative justice in that we are willing to work with police officers and workers within the carceral system to help transform it and in order to have contact with our potential service users. That means that we are not opposed to holding circles and conducting other work in prisons and jails and meeting with police officers and officials.

Restorative and transformative may be complementary bedfellows or incite sparks of departure and perceived conflict

While we may agree that the carceral system in the US (through the implementation of slave patrols) was developed to oppress marginalized communities and continues to live out the legacy of that mission through indoctrinated methods of racism, classism and social control as evidenced by the repeated and senseless killing of unarmed Black men, we also believe that it is useful and effective to attempt to transform the system from working within it.

How is a restorative solution preferable to a punitive one?

It is absolutely possible, critical and essential to move from a penal and punitive model to a restorative model that promotes individual and collective responsibility for harm caused. Implementing a holistic restorative justice approach results in reduced recidivism. In San Quentin State Prison in California, people who participated in a restorative justice program focused on accountability, remorse, victim impact awareness, authentic apology and forgiveness had less than a 2% recidivism rate (Benham, 2014) as opposed to the standard 64% recidivism rate (Linden, 2015).

Restorative justice is preferable to the usual punitive penal system because it works. It leads to a healthier, happier, more safe, satisfied and productive society (Long, et. al., 2022). For example, a man that we worked with was incarcerated for 30 years for convictions of homicide and rape. He learned restorative practices while in prison, of deep accountability, truth telling and atonement for the harm that he caused by being radically honest and not shrinking from the responsibility to repair the harm that he caused. Against all odds he was released from prison and has dedicated his life to ensuring that other similarly disadvantaged youth do not follow his path. He is happy, healthy, accountable and highly unlikely to recidivate. The healing power of restorative justice is an indisputable truth. The problem, however, is with how it is often implemented. Especially in racially, culturally and economically diverse and heterogeneous societies there is often not a deep commitment to build equity and treat marginalized people fairly. “Those people,” the ones who are different from the mainstream policy makers, and seen as the “other,” are essentially deemed disposable. In more homogeneous societies, countries and systems, the people causing harm are valued more, as they are viewed as “our people”. They look like us and have shared cultural experiences so it is more difficult to discount their humanity and dispose of them in a punitive penal system.

The healing power of restorative justice is an indisputable truth but its implementation must be comprehensive to be wholly effective

To predict the efficacy of an implemented restorative approach we must evaluate key components, such as, is it applied comprehensively throughout a criminal legal and community system? Is it relegated to justice in the carceral system or only for people who have already been charged with a crime or at risk of being charged? Community members need access to restorative justice community building opportunities that are available before any harm happens. In community-wide, Tier 1, healing circles community members have the option of bringing their concerns, anger, vulnerability and conflicts to a group of peers for advice, support, ideas and repair, prior to these issues rising to the level of deep community harm. The implementation of restorative justice must be comprehensive to be wholly effective because a fragmented implementation will yield fragmented results.

A restorative justice Tier 2 Harm Circle process offers a fair system of accountability and repair for all parties involved in conflict, people who have caused harm and people who have been harmed. In the usual punitive penal system, those who have been harmed rarely receive a direct apology from those who have caused harm. Harmed people are not advised of the circumstances underlying the social and emotional state of the person causing harm when they committed the offense and they do not typically have a voice in repair or restitution. The person causing the harm does not get the opportunity to take responsibility, account for the harmful impact of their actions and express remorse for their wrongdoing.

In conclusion, restorative justice conflict circle processes as well as transformative justice political action and system change efforts combine to bring holistic justice and healing that is achievable and responsive to real social problems.


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Circle group therapy session. Author: Fizkes (Shutterstock).