“Restorative Justice as a Democratic Practice”

The title of this post is the title of this new article recently posted to SSRN authored by Daniel McConkie.  Here is its abstract:

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens.  Unfortunately, the state-centered, professionalized system sidelines citizens at every stage, failing to give them voice and power.  Instead, the system should be consistent with criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings.  That form of citizenship is essential to democracy, or rule by the people.

Restorative justice, especially where it is centered in community courts, is an ideal reform to strengthen criminal justice citizenship, and therefore democracy itself.  Restorative justice seeks to address and repair crime’s harms through a deliberative process that fosters mutual understanding and acceptance of responsibility; involves the stakeholders of crime directly in the process; posits a smaller role for the state; and promotes the rehabilitation and reintegration of wrongdoers into civil society.  Restorative justice strengthens democracy by fostering each of the three key aspects of criminal justice citizenship.  First, restorative justice can provide many opportunities for lay participation and collective civic action to address not only individual crimes but also broader issues in a community. Second, restorative justice processes foster deliberation.  They give voice to the key stakeholders and encourage dialogue, understanding, collaboration and creativity in repairing harms.  Third, restorative justice strengthens membership, which refers to citizens’ belonging to a community as civic equals.  It does so by inviting key stakeholders, broadly defined, to play a role in seeking to repair the harms of crime.  This promotes a shared commitment to the social order and accountability to others.

In order to realize the benefits of restorative justice as a democratic practice, reformers should continue to promote grassroots community court experiments that involve as many stakeholders as possible.  These experiments can help to reduce the size of the carceral state.