On one hand, the inclusion of a restorative process in a sentence is an acknowledgment of how helpful such a process can be for all those concerned in a criminal case. On the other, it could reduce the process to just another hoop that an offender must jump through in satisfying the State. This presents several obstacles.
First, the restorative value of voluntariness isn't observed. At least in my experience, when participation in a restorative process -- as opposed to an orientation or information session -- is ordered, a refusal to meet face-to-face with the victim is seen as a violation of a court order. Obviously, this has consequences for the offender including revocation of a suspended prison sentence.
At the same time, the lack of voluntariness can affect the way victims understand and experience the process. I have seen a victim refuse to participate because the offender was "only doing this because he had to." The lack of offender voluntariness leaves open questions of sincerity/authenticity of apologies and expressions of remorse.
A second frustration comes from the lack of possible elements for an agreement between parties. Often, the offender's sentence includes restitution, community service, an apology letter, substance abuse treatment, and restorative justice. This leaves few options to discuss in terms of "making things right."
At the same time, the fact that the offender has received a sentence from court often means that an agreement may not be enforceable. I've heard a judge describe a conference agreement as simply a moral agreement between two parties. If one doesn't fulfil the agreement, the other has recourse to civil proceedings only. Explaining this reality to victims prior to a conference is difficult and often elicits the question, "Why should I participate?"
Many times when I contact a victim to introduce conferencing, the first question is about restitution. Generally this is, "why haven't I received the money s/he owes me?" For others, the issue may be that their costs were more than the court-ordered restitution. I spoke with one victim who would only consider participation if he could get the "other half of the money" to cover his medical treatment after the crime. Upon hearing my explanation that the court would not enforce additional restitution in a conference agreement, the gentleman said that participation would not be worth his time.
Community service, although ordered, could provide an option for discussion. For some victims, how an offender serves community service is important. In one case, an older woman who had been victim of a home invasion asked that the young offender serve his community service in a senior care centre to learn about the needs and issues of the elderly.
Yet, in some cases, this isn't a possibility. For example, the offender may complete community service hours before entering the restorative justice programme. Or, the agency responsible for monitoring the community service may reject the conference agreement and enrol the offender in a different type of community service. Obviously, this can cause harm for a victim whose wishes aren't respected in the matter.
When talking with victims, I try to be very honest about these issues and possibilities as I don't want to raise unrealistic expectations. Unfortunately, many of the people I speak with aren't interested in participating in a conference.
I've listed all the problems I see arising when restorative processes are simply another sanction given to an offender. I do want to say that I have spoken with victims who simply wanted the opportunity to speak with the offender, tell his/her story, ask questions, and listen to the offender's story. These can be powerful moments of understanding, healing, and transformation. In cases where victims don't want to participate, community representatives have done an excellent job of sharing their experiences of crime with offenders responding with new understanding and remorse.
I remind myself of these powerful moments when I'm frustrated with the limitations of a court-ordered process. At the same time, I advocate for restorative processes being used pre-sentence where the agreement can be considered in sentencing decisions.
What are your thoughts on restorative justice as a part of a sentence? How can we make this process more restorative?