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Journal of Policy Practice
ISSN: 1558-8742 (Print) 1558-8750 (Online) Journal homepage: http://www.tandfonline.com/loi/wjpp20
Restorative Justice Legislation in the American
States: A Statutory Analysis of Emerging Legal
Doctrine
Shannon M. Sliva & Carolyn G. Lambert
To cite this article: Shannon M. Sliva & Carolyn G. Lambert (2015) Restorative Justice
Legislation in the American States: A Statutory Analysis of Emerging Legal Doctrine, Journal of
Policy Practice, 14:2, 77-95, DOI: 10.1080/15588742.2015.1017687
To link to this article: http://dx.doi.org/10.1080/15588742.2015.1017687
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Journal of Policy Practice, 14:77–95, 2015
Copyright © Taylor & Francis Group, LLC
ISSN: 1558-8742 print/1558-8750 online
DOI: 10.1080/15588742.2015.1017687
Restorative Justice Legislation in the American
States: A Statutory Analysis of Emerging Legal
Doctrine
SHANNON M. SLIVA
School of Social Work, University of Texas at Arlington, Arlington, Texas, USA
CAROLYN G. LAMBERT
Consortium on Negotiation and Conflict Resolution, College of Law, Georgia State University,
Atlanta, Georgia, USA
Restorative justice is a relatively new approach to crime response,
developing in the U.S. since the 1970s. Over the past three decades,
these practices have been incorporated into legislation. Using con-
tent analysis of statutes in state criminal and juvenile codes, this
study asks how restorative justice has been translated into law. The
authors find that 32 states now have statutory support for the use
of restorative justice, and that legislation ranges widely from gen-
eral statements of support to structured use of restorative practices
in at least some instances and for some offenders. Implications for
practitioners, policy makers, and scholars are suggested.
KEYWORDS criminal justice policy, policy dissemination,
restorative justice, victim offender mediation
The American response to crime over the past half century has been highly
punitive, with massive growth in the number and scope of criminal laws
as well as in the incarcerated population. Attempts to count the number
of federal criminal statutes alone have yielded best estimates of more than
3,000 laws, with an acknowledgment that such attempts have been given up
as “futile and inaccurate” (Fields & Emshwiller, 2011, p. 1). Even while crime
rates have declined since the 1990s, incarceration rates have continued to
rise. All the while, crime continues to affect tens of millions of Americans
each year, and the present criminal justice system does little to ameliorate
Address correspondence to Shannon M. Sliva, School of Social Work, University of Texas
at Arlington Box 19129, Arlington, TX 76019. E-mail: shannon.graves@mavs.uta.edu
77
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78 S. M. Sliva and C. G. Lambert
the long-lasting effects experienced by victims and communities or to create
meaningful change in offenders. Victims’ critical needs for acknowledgment,
information, privacy, safety, and involvement remain unmet by an adversarial
justice system in which they are not a legal party to their own court case
(Achilles & Stutzman-Amstutz, 2006; Englebrecht, 2011; Waller, 2011), and
national recidivism rates indicate that two of every three criminal offenders
return to the system within three years.
As the concern of how to appropriately provide justice for victims,
offenders, and communities fails to be fully addressed, the discourse about
crime and victimization has grown increasingly politicized. Widely recog-
nized racial disparities in the U.S. criminal justice system result in one out
of three black males being either incarcerated or otherwise under criminal
justice supervision during their lifetimes (Bonczar & Beck, 2003). Minorities
and the very poor are arrested more often, serve longer sentences, and have
higher recidivism rates than their white, middle class counterparts (Jung,
Spjeldnes, & Yamatani, 2010; The Sentencing Project, 2013). Most disparities
in incarceration patterns coincide with low-level property and drug offenses
(Oliver, 2001). In 2006, more than one third of federal prisoners were incar-
cerated on drug crimes, and drug offenders served average sentences of
seven years (Motivans, 2009).
These apparent inequities in the administration of justice trigger increas-
ing concerns about the current American crime response. The latest polls
indicate that only 28% percent of Americans feel a high level of satisfaction
with the criminal justice system (Saad, 2011), and a recent highly publicized
announcement of the U.S. Attorney General declared current drug sentencing
policies “draconian” and announced a new commitment to finding “effective
alternatives to incarceration” (Holder, 2013). Dissatisfaction with solutions
currently available within the justice system has created an opening for a
shift in response after a decades-long focus on punitive sentencing and
incarceration. This shift is evidenced by a wave of decarceration policies
(Brown, 2013), rehabilitation programs, and increased focus on reintegration
and community corrections. The emergence of restorative justice as an alter-
nate framework for thinking about crime has provided a unique response;
however, it is unknown to what extent restorative justice is being used as
a formal tool of state correctional systems. This article provides a compre-
hensive directory of restorative justice statutes and uses content analysis to
describe key features of restorative justice legislation in the United States.
RESTORATIVE JUSTICE AS CRIME RESPONSE
Restorative justice views crime not as a violation against the state (as is
suggested by the current U.S. justice model), but rather as a violation of rela-
tionships that occurs between people (Zehr, 1990). As a result, restorative
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Restorative Justice Legislation 79
justice solutions focus on the need for harms caused during crime to be
repaired to the extent possible. Through this lens, punishment is a sec-
ondary function of the justice system. Instead, restorative justice advocates
believe that the first justice-related need is for offenders to acknowledge their
guilt and make efforts to repair harms to victims physically (through repara-
tions and restitution) and metaphorically (through listening, acknowledging,
and apologizing). In this way, victims’ needs are better met and offend-
ers have the opportunity to fulfill their obligations to both victims and the
community.
Restorative justice encompasses a range of practices, which are
grounded in the following overarching principles:
●a focus on the needs of victims that result from harm, as well as the needs
of affected communities and offenders;
●a requirement for offenders and offending communities to acknowledge
and put right wrongs; and
●use of inclusive processes that involve all of those with a stake in the
matter (Zehr, 2004).
Often, restorative justice practices involve direct contact between victim
and offender in an exchange of accountability and truth telling. Face-to-
face dialogues are most often referred to as victim-offender mediation or
victim-offender dialogues and may occur in a variety of settings from pre-
trial diversionary programs to meetings within the walls of the prison that
have no bearing on the offender’s sentence (Umbreit & Armour, 2010). Other
practices, such as family group conferencing or community circles expand
participation to family members of the parties and community members with
a stake in the harm caused.
Notably, practices are voluntary for both parties and are usually initiated
by the victim. When either the victim or the offender is unable or unwilling
to meet, surrogate parties who have experienced a similar crime in a similar
capacity are sometimes used in a restorative exchange. Whereas research
on the outcomes of restorative justice practices is limited by conceptual and
methodological challenges, studies to date have indicated that satisfaction
with restorative processes by victims and offenders is high and that some
approaches have also been successful in lowering recidivism rates among
offenders (Umbreit, Coates, & Vos, 2002).
RESTORATIVE JUSTICE AS A POLICY SOLUTION
Throughout the 1990s, restorative justice programs entered the public dis-
course and gained popularity as a diversionary practice for juveniles and
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80 S. M. Sliva and C. G. Lambert
first-time offenders (Roach, 2000; Robinson & Shapland, 2008;Umbreit&
Armour, 2010). Endorsements of restorative justice practices have come
from the American Bar Association, NOVA, and national coalition Dignity
in Schools. The restorative justice framework has been extended to police-
based strategies (McCold, 2003), in-prison programs such as mediation,
victim awareness programs, and community service (Dhami, Mantle, & Fox,
2009), and even to large scale violence and interethnic conflict outside of
state criminal justice systems (Ame & Alidu, 2010;Hanser,2009;Umbreit&
Armour, 2010). As the applications of restorative justice expand, Zehr (2002)
suggests that it is not a dichotomous concept, but rather occurs along a
continuum from potentially restorative to restorative practices.
For many, restorative justice does offer a comprehensive theoretical
framework for justice response, capable of either standing on its own or
being used in conjunction with other justice goals (Roach, 2000). As a result,
restorative justice may be used at broad systems levels to create systemic
change (Umbreit, Vos, Coates, & Lightfoot, 2005). A number of countries,
including Austria, New Zealand, and the United Kingdom, have enacted
some form of nationwide commitment to restorative justice principles and
practices. In the United States, statutory recognition of restorative justice is
also growing by means of state legislation aimed at encouraging, authorizing,
or mandating the use of restorative justice either within or as a diversionary
alternative to the traditional court system.
Restorative justice, as a practice and as a policy solution, is uniquely sit-
uated within the realms of criminal justice, social justice, and victims’ rights.
While restorative justice desires positive outcomes for victims, offenders, and
communities, it is first a victim-centered approach. At its roots, it is focused
on meeting the needs of those harmed by crime. The Texas Public Policy
Institute is one of many organizations that have advocated for the use of
restorative justice practices and policies to further crime victims’ rights (Levin,
2007); however, victims’ rights organizations have historically expressed con-
cerns about making sure restorative justice approaches do not have the
unintended effect of re-victimization (Prendergast, 2011). Many restorative
justice approaches also offer opportunities for offenders to repair harms
by means outside of the criminal justice system or through a diversionary
process. These practices have attracted the interest those concerned about
reducing reliance on incarceration as a primary method of serving jus-
tice. Because of its potential to address multiple constituencies and needs,
restorative justice is gaining popularity as a policy solution (Lemley & Russell,
2002).
However, research on the advancement of restorative justice policy has
been extremely limited. Lightfoot and Umbreit (2004) identified 29 states with
statutes referencing victim-offender mediation (VOM), a specific restorative
justice practice. (See Umbreit, Lightfoot, & Fier, 2003 for earlier iterations
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Restorative Justice Legislation 81
of this analysis.) State provisions range from general to specific, with seven
states having a comprehensive structural framework for VOM within their
legislative code. Pavelka (2008) identifies 26 states, which articulate the use
of balanced or restorative justice in state code or statute, with a focus on
exploring policy solutions for juveniles.
While a few case studies have explored the implementation of
restorative justice policies (see Coates, Umbreit, Vos, 2004; Lemley and
Russell, 2002), the literature offers little to explain how and why restorative
justice is spreading as a policy solution. Roach (2000) and others empha-
size the “multiple faces” of restorative justice, and the claim that “there is
something in restorative justice to appeal to everyone” (Roach, 2000, p. 263).
Restorative justice is frequently presented as a bipartisan or non-partisan pol-
icy solution (Levrant, Cullen, Fulton, & Wozniak, 1999;Roach,2000). While
liberal parties view it as an opportunity for rehabilitation of offenders and
community healing, conservatives see its potential to reduce incarceration
costs, to privatize justice functions through community organizations, and
to hold offenders more strongly accountable for harms caused to victims.
Multiple constituencies have been suggested as having a special interest in
restorative justice practices, including criminal justice professionals, commu-
nity groups, crime victims, women, and aboriginal peoples (Roach, 2000).
Critics of system-level use are concerned that restorative justice practices
may be co-opted and corrupted if joined with the criminal justice system or
administered by the state (Levrant et al., 1999).
The recent formation of the National Association for Community and
Restorative Justice and the movement toward professionalization of the
restorative justice field have prompted increased attention to how restorative
justice solutions can be used at the policy level to provide greater access to
this unique response to crime and victimization. Nationally, practitioners of
restorative justice are engaged in advocacy efforts to spur the adoption of
restorative justice legislation at the state level. However, there is no complete
directory of restorative justice statutes or any analysis of its range, geographic
scope, or other patterns of diffusion.
This study begins to address this gap in the literature and to increase
understanding of an innovative framework for justice that has potential to
contribute to a new way of thinking about and responding to crime and
victimization. This study pursues two research objectives: (1) to form a uni-
fied, complete directory of state-level restorative justice statutes in the United
States, and (2) to describe the nature of these statutes and explore patterns
of policy diffusion across states. The result is a clearer understanding of the
extent to which restorative justice is now being used as a policy solution
across the United States and under what conditions it is being accepted as a
viable justice alternative.
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82 S. M. Sliva and C. G. Lambert
METHOD
This study uses content analysis of statutes in state criminal and juvenile
codes containing references to restorative justice. Hall and Wright (2008)
provide an overview of the historic use of content analysis as a viable method
for statutory analysis by legal scholars. It has been effectively used to study
statutory guidelines for probation officer functions (Purkiss, Kifer, Hemmens,
& Burto, 2003), security guard regulation (Maahs & Hemmens, 1998), and
probation privatization standards (Schloss & Alarid, 2007). Likewise, content
analysis is used extensively in the social sciences as “a research method for
the subjective interpretation of the content of text data through the systematic
classification process of coding and identifying themes or patterns” (Hsieh &
Shannon, 2005, p. 1278). This analysis is primarily directed in nature, using
a priori codes to classify levels of support, points of implementation, special
contexts, and other defining features of restorative justice policy.
Sampling Procedures
Data collection for this study was conducted using WestLaw, an online inter-
active research service provided on a subscription basis to the College of Law
at Georgia State University. Westlaw contains information at both the fed-
eral and state levels, including the full text of legislation and administrative
materials. The initial WestLaw search applied 20 search terms to legislation
in all 50 states (See Table 1). The terms “Accountability,” “Community-
based,” and “Restoration,” produced an unwieldy number of results and
were excluded from the dataset early on. The remaining 17 search terms
produced 822 results that were screened against the following definition of
restorative practices:
Restorative justice is the practice of bringing together those who have
a stake in a particular offense to repair the harms caused by crime and
promote restoration and reconciliation, to the extent possible, between
victim, offender, and community.
TABLE 1 Search Terms Used to Screen Statutes for Restorative Justice
Search Terms Search Terms (Cont.)
Accountability Family Conference
Accountability Costs Family Conferencing
Accountability Court Family Group Decision Making
Balanced Justice Offender Mediation
Circle Processes Reconciliation
Community-Based Restoration
Community Circles Restorative Discipline
Community Conferencing Restorative Justice
Drug Courts Victim Impact
Family Circles Victim-Offender or Victim and Offender
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Restorative Justice Legislation 83
For the purposes of this work, restorative justice legislation refers to those
legal statutes and regulations referencing or providing any level of support—
from general encouragement to a strict mandate—for the use of restorative
justice or an explicit restorative justice practice in criminal and juvenile justice
settings. References to practices that “sound like” restorative justice without
including the term itself or the name of a specific practice were excluded,
although the authors certainly recognize that such statutes could indeed pro-
vide support for the use of restorative justice in state criminal and juvenile
justice systems.
Several terms, including “Drug Courts” and “Accountability Courts,” pro-
duced results that fell outside the parameters of the definition. Ultimately,
the initial search results were narrowed to 165 pieces of legislation identified
using the search terms “Restorative Justice,” “Victim-Offender OR ‘Victim and
Offender,’” “Offender Mediation,” and “Community Conferencing.”
Data Coding
Selected statutes were uploaded into nVivo software for narrative coding.
An initial review of the statutes assisted researchers in identifying a pri-
ori codes important to the understanding of restorative justice legislation.
Researchers then developed a codebook to assist in applying codes consis-
tently across readings and raters. The following coding definitions were used
to guide the analysis:
Level of Support. Readers identified the level of statutory support for the
use of restorative justice practices using one of three terms. Statutes offer-
ing ideological support list restorative justice or specific restorative justice
practices, such as victim offender mediation, as an acceptable or desired
application of justice, but do not provide structure for implementation.
Statutes offering active support list restorative justice practices as a desired
or encouraged application of justice and provide some structure for imple-
mentation, such as funding, personnel, or a description how and when the
practice will be used, distinct from other listed practices. Statutes offering
structured support strongly encourage or mandate the use of restorative jus-
tice practices and provide significant support for implementation, such as
confirmation of funding and administrative guidelines. Notably, some statutes
within the same state were inextricably linked. For instance, authorization
for a restorative justice pilot program might appear in one statute, whereas
the definition, structure, or funding for this program might appear in other
statutes. Where this appeared to be the case, all related statutes were coded
with the same level of support, taken as a whole.
Point of Implementation. Readers determined at what point in the jus-
tice process statutory support was provided using one or more of three
terms: diversionary, intermediate sanctions, and post-sentencing. In some
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84 S. M. Sliva and C. G. Lambert
cases, the statute did not provide enough information to assign any of these
three codes. Statutes were coded diversionary when restorative justice prac-
tices were offered or imposed prior to adjudication, offering the opportunity
to divert offenders from the traditional justice system. Statutes were coded
intermediate sanctions when restorative justice practices were offered or
imposed after adjudication as a part of sentencing. Restorative justice as an
intermediate sanction was used either in place of or in addition to other sen-
tencing options. Statutes were coded post-sentencing when restorative justice
practices were offered after sentencing with no bearing on the offender’s
adjudication or sentence.
Special Contexts. Readers also looked for special contexts in which
restorative justice practices received statutory support. Some statutes pro-
vided support only for juvenile offenders. Some statutes provided support
only for community-based programs. Some provided support only for school-
based disciplinary processes. Other contexts to which restorative practices
were restricted included prisons and community supervision programs.
Other Defining Features. Readers also open-coded other defining fea-
tures of each statute including the type of restorative justice practice
indicated, which offenders or offenses were eligible for (or excluded from)
participation, whether volunteers or surrogates were used, and whether a
pilot program or community board was indicated. For the sake of clarity and
brevity, only the codes with the most significant findings are shared in the
results. Yet it is clear from our work that there are many future opportunities
to explore the applications of restorative justice in legal statutes.
Interrater Reliability. Codes were applied to the selected statutes by
two readers. A coding trial on five randomly selected statutes revealed high
interrater reliability and helped to clarify coding definitions that were applied
differently. Finally, codes were applied to all statutes separately by each
reader. Any discrepancies between ratings were discussed by the research
team until a consensus was reached.
A Disclaimer
It should be noted that statutory analysis is interpretive by nature. The court
is often called upon to interpret the law, and multiple interpretations are
common. Coding in this study is likewise subjective to the readers. Readers
applied codes with a goal of making the most literal and least ambitious
interpretation. For instance, when one reader could justify coding a statute
at a structured level of support and the other only active, the lower level of
support was used. While other interpretations are possible for many statutes,
this coding effort most closely reflects that which is actually present in the
language. In addition, the authors recognize that some relevant statutes may
have missed by selected search terms, or that statutes excluded from the
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Restorative Justice Legislation 85
study may well support restorative justice without stating this explicitly. It is
the goal of this study to provide a starting point for resource centralization
and further research.
RESULTS
As of March 2014, we found that 32 states had statutory support for the
use of restorative justice or specific restorative justice practices in their crim-
inal or juvenile justice codes (See Table 2). Within these states, 165 total
statutes were identified. The number of statutes within each state ranged
from a single mention (Arizona, Maine, New Mexico, Pennsylvania, Virginia)
to 37 separate statutes (Colorado). A complete listing of statutes has been
reserved from this article in order to conserve space, and can be accessed in
its most updated form, along with regulatory rules and court rules, through
an online directory that will be maintained by the Consortium on Negotiation
and Conflict Resolution at Georgia State University beginning January 2015 at
the following URL: http:\\law.gsu.edu\centers\consortium-on-negotiation-
and-conflict-resolution\programs-and-research\.
“What” Restorative Justice Practices Are Supported?
Twenty states (70%) used the phrase “restorative justice” to describe available
or desirable practices and programs. Others referenced a specific practice,
which we understood as distinct to the restorative justice paradigm, includ-
ing victim-offender mediation, victim-offender dialogue, victim-offender
conferencing, or victim-offender reconciliation. Many statutes provided a
definition for restorative justice or listed practices that would be considered
restorative justice. The most frequently referenced practices included victim-
offender meetings in any form (21 states, 68%), victim impact panels and
classes (12 states, 43%), community boards (5 states, 18%), and sentencing
circles (3 states, 11%).
“Where” Is Restorative Justice Supported?
The 32 states with restorative justice statutes showed indistinct patterns of
diffusion (see Figure 1). States in the Midwest U.S. Census regions were
more likely to have at least one statute. However, states with the largest
number of statutes and the most structured statutes (Colorado, 37; Vermont,
21) were in the West and Northeast regions.
Seventeen states (61%) specified that at least some elements of sup-
ported restorative justice would be “community-based.” However, the
meaning of this phrase was sometimes unclear. It was used variously
to describe programs established within community agencies rather than
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TABLE 2 State Level Support for Restorative Justice at Points in the Criminal Justice Process
State
Number of
Statutes
Available Diversionary/
Pre-Trial
Available As Intermediate
Sanction
Available
Post-Sentencing
Indicated For Juvenile
Population
Available For General
Population
Alabama (I) 3 Yes Yes Yes
Alaska (A) 3 Yes Yes Yes
Arizona (I) 1 Yes Yes
Arkansas (I) 1 Yes
California (A) 8 Yes Yes Yes
Colorado (S) 37 Yes Yes Yes Yes Yes
Delaware (A) 5 Yes Yes Yes Yes Yes
Florida (A) 2 Yes Yes
Hawaii (I) 2 Yes Yes Yes Yes
Illinois (I) 2 Yes Yes Yes
Indiana (I) 3 Yes Yes Yes Yes Yes
Kansas (I) 2 Yes Yes
Louisiana (A) 5 Yes Yes Yes Yes Yes
Maine (I) 1 Yes
Minnesota (S) 7 Yes Yes Yes Yes
Mississippi (I) 3 Yes Yes
Missouri (S) 5 Yes Yes Yes Yes
Montana (S) 9 Yes Yes Yes Yes Yes
Nebraska (A) 5 Yes Yes
New Hampshire (S) 5 Yes Yes Yes Yes
New Jersey (A) 2 Yes Yes
New Mexico (I) 1 Yes
North Carolina (A) 3 Yes Yes Yes
Ohio (I) 3 Yes Yes Yes
Oklahoma (A) 2 Yes Yes Yes
Pennsylvania (A) 1 Yes
Tennessee (A) 7 Yes Yes Yes Yes
Texas (S) 9 Yes Yes Yes
Vermont (S) 21 Yes Yes Yes Yes Yes
Virginia (A) 1 Ye s
Washington (I) 3 Yes Yes
Wisconsin (A) 3 Yes Yes Yes Yes
(I)—Highest Level of Support is Ideological.(A)—Highest Level of Support is Active.(S)—Highest Level of Support is Structured.
86
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Restorative Justice Legislation 87
FIGURE 1 Map of states with statutory support for restorative justice by census region.
the actual correctional system, programs offered in community supervision
settings, and programs involving community input.
“When” Is Restorative Justice Used in the Criminal Justice Process?
There was significant range in statutory support regarding “when” during
the criminal justice process restorative justice practices would be used. The
majority of statutes clearly indicated support for restorative justice at one
or more points in the process, while a few suggested only general support
(see Table 2). Thirty-nine statutes (24%) in 21 states (66%) indicated the
use of restorative justice for diversionary or pre-trial processes. Sixty-four
statutes (39%) in 19 states (59%) encouraged the use of restorative justice
as an intermediate sanction. Twenty-three statutes (16%) in 11 states (35%)
provided some support for restorative justice post-sentencing or otherwise
indicated that the restorative process would have no involvement with or
bearing on sentencing.
“Who” Is Restorative Justice For?
Restorative justice statutes found in the criminal code may generally be
interpreted for use with both adults and juveniles (NCJRS, 1999). However,
several statutes were located in the juvenile or children’s code or otherwise
indicated for use with juvenile offenders (see Table 2). Statutes in 23 states
(72%) expressly provided access to restorative justice for juveniles. A separate
grouping of 23 states (72%) provided access to restorative justice in the
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88 S. M. Sliva and C. G. Lambert
general criminal code, making it potentially available to both adults and
juveniles. Note that these two categories are not mutually exclusive, and that
some states provide access to restorative justice in both the criminal code
and the juvenile or children’s code.
Four states (Colorado, Florida, Louisiana, Pennsylvania) provided statu-
tory support for the use of restorative justice specifically in school settings.
Again, it should be noted that all but Pennsylvania also offered restorative
justice in other contexts. Some placed limitations upon who might provide
or receive restorative justice services. Three states (California, Minnesota,
and Montana) expressly restricted access to at least some components of
restorative justice to first time offenders. Four states (Florida, Montana,
Vermont, and Wisconsin) limited at least some access to non-violent offend-
ers. Minnesota and Colorado expressly provide for the use of surrogates
when victims and offenders cannot be matched.
“How Much” Support Exists?
Statutes range significantly in the level of support provided for the use of
restorative justice in the criminal or juvenile justice system. Seventy-one
(43%) of the statutes in 27 states (84%) were ideological in nature, offering
a nod to restorative justice or listing it as one of many possible alternatives.
Forty-four (27%) statutes in 18 states (56%) were coded active, providing
some additional structure or guidelines for the use of restorative justice.
Fifty-one (36%) of the statutes in seven states (22%) were coded structured,
providing either a mandate to use restorative justice in some context or a
high level of structure for its use.
DISCUSSION
While many states’ criminal and juvenile codes contain references to
restorative justice generally or specific restorative justice practices, few pro-
vide detailed support and structure to ensure implementation. According to
our findings, only Colorado, Minnesota, Missouri, Montana, New Hampshire,
Texas, and Vermont have structured support for a restorative justice practice
within their code. It should be noted that even these seven states—which
have structured support for some aspects of restorative justice in some
settings—do not mandate restorative justice as a system-wide criminal jus-
tice response. Nationally, restorative justice remains a marginally supported
justice practice at the level of state policy.
Levels of support within each state do vary widely depending on con-
text. For instance, Colorado’s criminal code provides a structured level of
support for use of restorative justice with juveniles in diversionary settings
and as an intermediate sanction. However, only active support is legislated
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Restorative Justice Legislation 89
for post-sentencing practices in prison settings. Likewise, many states may
have structured support in one regard and yet only ideological support in
another. It is also noteworthy that while most states with legislative sup-
port for restorative justice had at least one ideological statute, the number of
states with stronger support decreases at each level. This pattern implies that
restorative justice policies may be adopted through a process of gradualism,
with states building from ideological to active to structured support.
Within state law, restorative justice is primarily used as a diversionary
tool or as a part of sentencing. Often, this type of support is ideological
in nature, listing restorative justice as one available diversionary strategy or
one available sanction. When it is used post-sentencing, it is almost always
in the context of victim-offender mediated dialogue (VOMD). In fact, across
all contexts, VOMD is the most supported practice. Other practices, such as
sentencing circles or reparative boards, are referenced only occasionally.
When legal provisions are articulated expressly for juveniles, restorative
justice looks different. Diversionary practices are more common in juve-
nile justice settings, indicating an intention to redirect juveniles away from
the criminal justice arena and toward more supportive processes and set-
tings. In Louisiana, Florida, Pennsylvania, and Colorado, statutes encourage
the use of restorative justice as an early disciplinary technique in school
settings. These statutes are most often ideological, and occasionally pro-
vide more active support by prioritizing funding for schools using restorative
practices.
Exclusions for violent or repeat offenders in all settings indicate that
there is at least some predictable hesitation to support restorative prac-
tices for use with more serious offenders. Restorative approaches are being
offered in some states, however, as primarily an opportunity to provide
for healing for victims. In Maine, the only mention of restorative justice
is in a statute governing the Office of Victim’s Services and guarantees the
right of victims to be informed of any available restorative justice programs.
In California a principal goal of sentencing for hate crimes is to provide
restorative justice for the immediate victims and those terrorized by hate
crime.
Challenges With Definitional Issues
Restorative justice has frequently faced definitional issues that interfere with
research and advocacy efforts, and this challenge also appeared in our work
with statutes. Many states included a definition of “restorative justice” in the
introductory sections of the code in which statutory support was articulated.
For the most part, these definitions matched definitions for restorative justice
in the literature. However, many other states did not provide a definition for
restorative justice or provided a definition that included elements inconsis-
tent with the restorative justice literature. Title XIII of Missouri’s statutes on
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90 S. M. Sliva and C. G. Lambert
Correctional and Penal Institutions, Chapter 217.777 includes the following
statement under the Article “Community corrections program alternative for
eligible offenders:”
The program shall be designed to implement and operate community-
based restorative justice projects including, but not limited to: preventive
or diversionary programs, community-based intensive probation and
parole services, community-based treatment centers, day reporting cen-
ters, and the operation of facilities for the detention, confinement, care
and treatment of adults under the purview of this chapter.
While this statute received a “structured” rating based on our study criteria,
it is not entirely clear whether the state intends to offer restorative justice
services in each of the settings listed, or if the state considers the listed
initiatives—community-based treatment centers, day reporting centers, and
so on—to be restorative justice practices in their own right. Many definitions
also listed victim impact statements, classes, and panels as an element of
restorative practices, whereas the fit of these activities with restorative justice
definitions has been an area of dispute for practitioners. Debate regarding the
scope of restorative justice, from the purist perspective to the more inclusive
approaches cited here, continues in the field.
This concern is likewise highlighted by the fact that our study is
intended to provide a comprehensive directory of all restorative justice
related legislation, and yet our findings have at least some inconsistencies
with previous work on restorative justice policy. Pavelka (2008) identifies
26 states as supportive of restorative and balanced justice for juveniles via
legislative statute. We found that many of Pavelka’s statutes did not meet
our inclusion criteria. We excluded those statutes which referenced “bal-
anced justice” without the word “restorative” and did not reference a known
restorative justice practice. For the sake of clarity, we also excluded statutes
which “sounded like” restorative justice but did not explicitly state the term.
Lightfoot and Umbreit (2004) identified 29 states with statutory support for
VOMD, and yet we were able to discover only 21 states expressly supporting
victim offender meetings. These inconsistencies suggest that more work may
be needed to provide a complete directory of restorative justice legislation
and that definitions may need to be expanded.
Limitations in Linking Policy to Practice
Although all of the statutes included in this data set contain the term
restorative justice or a reference to a specific restorative justice practice,
significant unknowns remain as to the restorative justice practice in these
jurisdictions. Even in states with the most supportive statutory language, it is
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Restorative Justice Legislation 91
impossible to tell how restorative justice is being implemented without dig-
ging in to the details. For example, the Colorado Children’s Code (C.R.S.A.
§ 19-2-510.5) establishes a restorative justice pilot project with the following
stated intent:
(I) Establish a pilot program to facilitate and encourage diversion of juve-
niles from the juvenile justice system to restorative justice practices, both
to provide data to assess the efficacy of restorative justice to reduce
recidivism, assist in repairing the harm caused to victims and the commu-
nity, increase victim, offender, and community member satisfaction, and
reduce cost; and to promote the restorative justice principles of recon-
ciliation, responsibility, reintegration, respect, relationship-building, and
restitution; and (II) Facilitate and encourage diversion of juveniles from
the juvenile justice system when diversion may prevent juveniles from
committing additional criminal acts, restore victims of crime, facilitate the
juveniles’ ability to pay restitution to victims of crime, and reduce the
number of cases in the juvenile justice system.
While this statute provides detailed direction regarding the number of
pilots, structural guidelines, reporting requirements, and funding alterna-
tives, there is no reference to the specific elements of the pilot programs
beyond the label “restorative justice.” To gain a clear understanding of the
restorative nature of the pilots, researchers must delve into the supporting
documentation for the individual pilot programs.
Victim-offender meetings are subject to the same interpretive con-
cerns. Victim-offender meetings in some form are the most common type
of restorative justice referenced in the criminal justice system, yet there
is no way to know how these programs are structured or whether they
meet the definitional restrictions identified without researching the operating
guidelines of the programs themselves.
It is clear from the number of statutes contained in juvenile and chil-
dren’s codes across the country that restorative justice approaches are
considered useful in the juvenile setting. This number, however, may not
reflect an accurate representation. In most states, courts with juvenile juris-
diction are not called juvenile courts. The names of these courts, and the
corresponding code in which applicable legislation may appear, vary by
state and may include District, Superior, or even Probate. As a result, an
accounting of the statutes contained in juvenile or children’s code may
under-represent the number of statutes applicable to juveniles.
To truly understand the practice implications for restorative justice under
the statutes contained in this, or any, data-set, it is critical to look beyond
the contents of the legislation to the administrative guidelines and other
supporting documentation generated at the practice site.
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92 S. M. Sliva and C. G. Lambert
Implications for Practice, Policy, and Research
The findings from this study have significant implications for criminal justice
practitioners, policymakers, advocates, and scholars. Support for restorative
justice at some level is widespread across the United States, and much
restorative justice legislation is open-ended, meaning that it is flexible to
interpretation. Practitioners in the criminal justice system and restorative jus-
tice programs should be aware of statutory support for restorative justice
in their jurisdictions and use this support to expand and evaluate practice
initiatives. Tracking the results of programs and practices authorized under
this legislation can show its value for expansion or dissemination. In some
cases, practitioners may uncover available funding for evidence-based
programs.
Policy makers and restorative justice advocates can collaborate with
practitioners to add to the knowledge base about the impact of restorative
justice policy, especially as a result of specific statutory guidelines. This
includes identifying best practices for lawmaking. Advocacy and research
organizations should assist with the centralization of policy resources by
expanding and fine-tuning the directory of restorative justice statutes, which
is initiated by this research project and housed at the Consortium on
Negotiation and Conflict Resolution at Georgia State University. Tracking best
practices in restorative justice policy would be useful in the development of
future model codes to support restorative justice practices in states where
such codes do not currently exist.
Beyond their involvement in the above-mentioned activities, researchers
should continue to explore patterns between and among states. This study
begins to make general observations about the geographic spread of
restorative justice legislation and common characteristics between states;
however, it is unable to predict the likelihood of future policy adoptions
based on state-level variables like political preference and economic stabil-
ity. In addition, research is needed to learn how extensively and accurately
restorative justice statutes are affecting actual practices in the state, as well
as what the outcomes of implementation are.
CONCLUSION
Restorative justice is referenced broadly in state codes across the United
States, but with few mandates and little structure to support systemic use.
Much work remains to be done to learn whether restorative justice practices
present a practicable policy solution for addressing crime and securing jus-
tice. This work concerns not only the success of restorative practices, but also
the intent, implementation, and impact of statutory support for system-level
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Restorative Justice Legislation 93
use. It is the goal of this exploratory study to provide a starting point for
collaborative dialogue between practitioners, policy advocates, and scholars
who are eager to consider the viability of alternative forms of justice.
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