Can Criminal Justice Systems Harness Restorative Power? The Impact of Legislative Mandate and Policy Design on the Implementation of Restorative Justice Practices

Abstract

Restorative justice is regarded in modern criminal justice systems as one approach to address some of the shortcomings of conventional justice models. Many governments have begun to legislate for restorative policy and practice, and to take a more direct role in the development of restorative justice programs. Given this reality, this thesis asks how the introduction of restorative justice legislation affects the operation of restorative justice programs. The answer to that question is guided both by academic considerations of restorative justice practice and by policy design scholarship. I apply the resulting theoretical framework to three jurisdictions—New Zealand, New South Wales, and Vermont—in which restorative justice is comprehensively integrated via legislative acts into the criminal justice system.

I use a textual analysis of the mandating statute and an evaluation of the restorative justice mechanism to build an understanding of how legislative decisions can shape the restorative landscape within a criminal justice system. The textual analysis is driven by the work of restorative justice researchers who consider how legislative provisions for restorative practices may be incorporated into existing justice institutions and what restorative justice components should be included in legislative mandates. The analysis also relies on an understanding, fueled by policy design scholars, of how various policy tools can affect policy implementation. In this thesis, one notable area of policy design is the level of discretion that is granted to local implementors; I apply the statute typology created by Ingram and Schneider (1990) that categorizes legislative acts according to that discretion.

The evaluation of each jurisdiction’s restorative justice program is based on metrics for restorative success from Bazemore and Schiff (2005) and Marsh and McConnell’s (2012) designation of programmatic, process, and political policy success. I employ a combination of qualitative and quantitative data, collecting longitudinal statistics from each jurisdiction’s criminal justice system and conducting interviews with restorative justice practitioners in each location.

Overall, this analysis reveals that the design of restorative justice policy requires extensive negotiation. It is difficult to balance all the dimensions of a restorative justice process and meet the needs of all involved parties. When integrating restorative programs into modern criminal justice, the challenge becomes amplified, and jurisdictions must navigate occasionally conflicting priorities and account for procedural tradeoffs.