Paradigm Muddle: The Threat to Restorative Justice Posed by Its Merger with Community Justice

Contemporary Justice ReviewVol. 7, No. 1, March 2004, pp. 13–35

ISSN 1028–2580 (print)/ISSN 1477–271X (online) © 2004 Taylor & Francis LtdDOI: 10.1080/1028258042000211987

Paradigm Muddle: The Threat to Restorative Justice Posed by Its Merger with Community JusticePaul McColdTaylor & Francis LtdGCJR041012.sgm10.1080/1028258042000000000Contemporary Justice Review1028-2580 (Print)/1477-2248 (Online)Original Article2004Taylor & Francis Ltd71000000March 2004PaulMcColdInternational Institute for Restorative PracticesPO Box 229BethlehemPA 18016-0229USA267 246 [email protected]

The restorative justice movement has great potential to reform the way society responds tocrime and wrongdoing. One might logically assume that the greatest challenge to the newrestorative justice paradigm is the traditional punitive criminal justice paradigm itself. Amore immediate threat, however, is posed by merging community justice, anotherapproach to reforming the justice system, with restorative justice. Community justice hassuperficial similarities to restorative justice but relies on the underlying authoritarianassumptions of the existing criminal justice system and on processes that exclude most ofthose individuals directly affected by the offense. This paper clarifies and contrasts the keyelements of both the restorative justice and the community justice paradigms and explainsthe threat to restorative justice posed by combining and confusing the two.

Keywords: Restorative Justice; Community Justice; Restorative Community Justice; Pseudo-Restorative; Balanced and Restorative Justice; BARJ

‘If one takes care of the means, the end will take care of itself.’

Henry David Thoreau (quoted in Gandhi, 1939)

The future of restorative justice as a distinct paradigm, if there is to be a future forrestorative justice, depends to a great extent upon how clearly it is defined (Braithwaite,1999). Although one expects the advocates of deterrence, retribution, due process, andtreatment—characteristics of existing criminal justice systems—to challenge the valid-ity of the postulates of restorative justice, they have not. Rather, such critics haveattempted to redefine restorative justice from within their own frameworks and warnof the danger of not taking their perspective into account. While this kind of conceptual

Paul McCold is a research criminologist and the Research Director for the International Institute for RestorativePractices in Bethlehem, Pennsylvania, USA. Correspondence to: International Institute for Restorative Practices,PO Box 229, Bethlehem, PA 18016-0229, USA. Tel: 267 246 7937; Email: [email protected]

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absorption into one or more of the existing justice paradigms represents a seriousexternal challenge to the emergence of restorative justice as a distinct paradigm, therehave been a number of excellent responses to this challenge presented elsewhere(Braithwaite, 1994, 2002b; Fattah, 2002; Morris, 2002; Schiff & Bazemore, 2001a; VanNess, 1999; Wright & Masters, 2002).

Ironically, restorative justice has more to fear from its alleged friends than its oppo-nents. Specifically, the Balanced and Restorative Justice (BARJ) program, a majorreform initiative of the Office of Juvenile Justice and Delinquency Prevention (OJJDP)of the United States Department of Justice, has merged the practice of communityjustice with restorative justice without regard for critical distinctions. In doing so, BARJhas muddled the restorative justice paradigm, diluting and distorting it almost beyondrecognition.

Restorative justice was conceived as a different paradigm of justice from the dominant‘obedience through punishment’ paradigm and proposed as an eventual replacementfor existing criminal justice systems (Morris & Young, 2000; Walgrave, 1995; Walgrave& Bazemore, 2002; Wright, 1991, 1996; Zehr & Umbreit, 1982). Because the restorativejustice paradigm is relatively new and is continuing to evolve (compare Braithwaite,1989 to Braithwaite, 2002b; and Zehr, 1990 to Zehr, 2002), there remains insufficientagreement among practitioners, researchers, and academics to yet claim that restorativejustice constitutes a complete paradigm of justice (McCold, 1998). Until more consis-tency emerges, the paradigm is vulnerable to confusion about its basic identity.

This paper will identify the current confusion and highlight the threat to the evolvingparadigm caused by merging restorative justice with community justice. After describ-ing and comparing key elements of both restorative and community justice, the paperwill summarize recent efforts, in publication and training, to combine the two into‘restorative-community justice.’ Although BARJ’s so-called ‘balanced approach’purports to bridge the two paradigms (Schiff & Bazemore, 2001b), it strikes at the veryheart of what makes restorative justice ‘restorative.’

Restorative Justice

A paradigm is a ‘point of view’ or framework for looking at life (Babbie, 1995; Kuhn,1970). Each paradigm is a collection of the major postulates, concepts, and proposi-tions in an area of life that are fundamental to the viewpoint and are taken to be trueor given (Rush, 1994).

Restorative justice is based upon a fundamental truth regarding the nature of crime.Unlike the existing criminal justice systems that see crime as an offense against the lawsof the state and as deviant behavior that needs to be suppressed, punished or treated,restorative justice looks at crime through a different lens. Crime harms people and rela-tionships. It is seen as a wrongful interpersonal conflict involving concrete injury tospecific people and their relationships (Zehr, 1980, 1985, 1990). Additionally, theconflicts arising out of crime are the ‘property’ of those involved. Lawyers in court-rooms steal people’s conflicts, taking from them the opportunity to resolve thoseconflicts themselves (Christie, 1977).

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Healing, repair of harm to people and relationships, is the goal of restorative justice.Restorative justice replaces punishment of the offender as the basis for justice withattempts to heal the injuries of those directly involved in a crime: victim, offender, andtheir respective communities, comprised of family members and friends who careabout them (Zehr, 2002). Current criminal justice systems respond to harm with moreharm but restorative justice responds to harm with healing. It asserts that only acts ofrestoration, not further harm, will effectively counterbalance the effects of crime.

Critical to restoration is the central involvement of those most directly affected bythe crime. Victims, offenders, and their communities of care must have the opportu-nity to engage in dialogue and potentially reach mutual agreement. Through collabo-rative problem-solving restorative justice brings redress to victims, responsibility tooffenders, and empowerment to everyone who participates in the restorative process.Since the victim and offender ‘own the conflict,’ their participation is essential forvictims to find answers to their questions and to satisfy their needs and for offenders tolearn the consequences of their behavior.

Indigenous restorative practices may be as old as humanity (Weitekamp, 1998).Contemporary restorative justice, however, began in the 1970s with victim offenderreconciliation, victim offender mediation, and community mediation. By the early1990s restorative justice included family group conferences, community group confer-ences, peace circles, sentencing circles and healing circles (McCold, 2001). All of thesedirectly involve the victim, offender, and in the latter processes, their family and friendsin face-to-face meetings under the guidance of a facilitator. Integral to the restorativeprocess is the opportunity for people to express their emotions, tell their stories, andhave a say in the resolution.

For restorative justice to be ‘restorative’ it must involve those most directly affected.Every effort must be made to maximize the involvement and exchange of informationbetween the affected parties (Zehr, 2002). Neither the state nor any individual or groupappointed by the state can restore people by replacing the primary stakeholders, doingthings to them or for them. Restorative justice requires that justice be done with offend-ers, engaging them in an active and responsive way, and, whenever possible, with victimsand others affected by the specific incident (Wachtel, 2000; Wachtel & McCold, 2001).

Indeed, this switch of decision-making forum, from a court-based model to a communityconference model, is potentially one of the most radical aspects of the entire youth justicereform agenda, though not all recent commentators appear to have recognized this.(Dignan & Marsh, 2001, p. 99)

The essence of restorative justice is not the end, but the means by which resolutionis achieved. This is the point on which community justice differs most sharply fromrestorative justice and where the forced merger between the two is most destructive tothe fundamental premises of restorative justice.

Community Justice

Community justice includes a wide variety of programs organized on the principle oflocalism (Yarn, 1999). Community justice prefers neighborhood-based, more accessible

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and less formal justice services that shift justice intervention to the locality affected bycrime. It seeks to minimize the aggregate effects of crime on the communal life of neigh-borhoods (Crawford & Clear, 2001).

Community justice is a new approach to crime that explicitly includes the community incriminal justice processes.1 It is expressly concerned with improving the quality ofcommunity life and the capacity of local communities to prevent crime and to effectivelyrespond to criminal incidents when they occur. (Karp & Clear, 2002, p. xiii)

The goal of community justice is to empower citizens, local voluntary groups andneighborhood associations as partners in the justice process. Its advocates emphasizecollaboration among justice agencies and between citizens and public officials.Community justice programs include community policing, zero-tolerance policing,neighborhood courts, Neighborhood Watch, half-way houses, police-probation part-nerships, neighborhood prosecution, volunteer crime panels, lay magistrates courts,peer courts, drug courts and probation and parole supervision (especially neighbor-hood rather than case-load based) (Crawford & Clear, 2001).

From the perspective of community justice, crime is viewed as a violation of law thatharms the local community, directly affecting nearby residents. Crime results in publicfear of certain places, reducing guardianship of those areas which further encouragescrime, eventually leading to general neighborhood decay (Byrne & Sampson, 1986;Wilson & Kelling, 1982). Crime itself is caused by young people growing up in thesedysfunctional areas with high neighborhood disorder, poor public services, high fear ofcrime, and poor quality of life (Bazemore & Schiff, 2001). Therefore, crime both causes,and is caused by, dysfunctional neighborhoods. From the perspective of communityjustice, recent criminal justice policies based primarily upon incarceration makematters worse.

In essence, the current system in the United States involves a massive, officially-managedeconomic transaction of the following sort: residents of affluent communities transfertheir wealth in the form of tax revenues to rural communities (where the prisons are) topay the salaries and living expenses of people who ‘watch’ the residents of poor communi-ties for a couple of years, then send them home…. The irony is that almost nothing fromthis investment goes into the economic infrastructure of the offenders’ communities. Thejustice system investment in these communities is solely ‘addition by subtraction’: remov-ing certain citizens in the hope that it will be easier for those who remain to improve theircircumstances. (Crawford & Clear, 2001, p. 145)

The goal of community justice is to strengthen neighborhoods and their moral orderto prevent crime (Crawford & Clear, 2001). Community justice seeks to prevent crimethrough community building—using government partnerships with citizens andcommunity groups to hold offenders accountable. Community justice believes it has amore radical reform orientation than restorative justice, seeking not just to handlecases, but also to create a collective experience of justice (Crawford & Clear, 2001).Most community justice programs are oriented toward traditional criminal justiceobjectives of increased surveillance and detection of offenders.

One often-cited example of community justice is citizen volunteer sentencingpanels, also called youth aid panels, neighborhood boards, peer courts or community


diversion boards. This model of justice reform was first a popular innovation in the USduring the 1920s (Bazemore & Umbreit, 2002; also see Steinberg, 1989). In this modelof community justice, judicial authority to sanction offenders is given to an individualor a group of citizen volunteers (or paid lay magistrates).

In 1995, Vermont developed ‘reparative probation,’ a statewide system of citizenvolunteer sentencing boards dealing with both adults and juveniles and now probablythe most developed of the board models of community justice. Vermont’s reparativeboards range from being fairly punitive to moderately collaborative. However, despiterhetoric about providing victims with a role in determining the consequences foroffenders, most cases processed by Vermont’s reparative boards do not involve offenseswith a direct victim and, even when they do, victims participate less than 13% of thetime (Karp, Sprayregen, & Drakulich, 2002). Still, Vermont’s boards are touted as abest practice of community justice. ‘The Vermont Model removes the advocates andattorneys and puts the offender in direct response to the citizens. If community justicecannot emerge from this arrangement, it is hard to see how it can emerge from any newstrategy’ (Karp, 2002, p. 60).

Except for imprisonment, almost any criminal justice effort presumed to combatcrime in high crime areas seems to qualify as community justice, whether it involvescitizen input or not (for example, police-probation partnerships). Thus, communityjustice encompasses any program intended to strengthen a neighborhood’s capacity toself-regulate or repair the aggregate effects of crime on the quality of life in specificplaces. While this includes some restorative or restorative-like programs, it is notlimited to such programs. Indeed, for community justice, restorative justice is only oneof many ways to empower citizens. From the perspective of community justice advo-cates, restorative justice is helpful, but terribly limited in its possibilities.

Paradigm Similarities

Restorative justice is related to and often confused with community justice. Advocatesof both restorative and community justice use similar reform language, have similarcritiques of the current justice system and seek similar constructive outcomes. Both callfor an expanded definition of justice stakeholders, both encourage victim support andservice interventions and both seek to curtail and limit reliance on criminal justiceprofessionals. Both movements draw upon, and simultaneously seek to reinvigorate asense of connectedness among people. Both approaches assume that crime arises whereconnectedness and normal community controls have broken down, so the strengthen-ing of relationships is in itself crime-preventive. Finally, both community justice andrestorative justice assume that participation in the response to crime allows the partiesopportunities for the clarification of social norms.

Unique among the many and varied community justice programs are numerousneighborhood dispute resolution centers across the US offering a variety of services,including arbitration and mediation of criminal offenses (McCold, 2001). Thesecriminal mediation programs, which directly involve stakeholders in dealing withcrimes, are perhaps the strongest link between the practice of community justice andrestorative justice.2

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Paradigm Differences

As shown in Table 1, community justice and restorative justice have different origins,target their interventions at different levels of the problem, hold different conceptionsof crime, have very different justice objectives, and have different standards of what isrequired for justice to been done. But most significantly, they use different means toachieve justice, differ in their concept of empowerment, have different normativepriorities, define the stakeholders differently and view ‘community’ in diametricallyopposite ways.

Restorative justice programs have been primarily nongovernment-based, usuallyoperating outside the formal system and, at times, distrustful of its motives. Commu-nity justice, by contrast, was largely created by the US criminal justice system(Bazemore & Schiff, 2001), more as a way to augment and improve the current systemthan as an alternative to replace it.

Most restorative justice practice has been primarily at the micro-level—informalresponses to individual incidents of crime. Community justice has focused on wholeneighborhoods or broader geographical localities. Restorative justice intervenes withindividual victims, their offenders, and their respective families and friends. Commu-nity justice is concerned primarily with aggregate interventions and collectiveoutcomes. ‘Restorative justice is about cases while community justice is about places’(Crawford & Clear, 2001, p. 129).

In restorative justice, crime’s harm is measured subjectively, as experienced by thosedirectly affected. The most important harm done to victims and families, from their

Table 1 Differences between Restorative Justice and Community Justice (Adapted fromCrawford & Clear, 2001, pp. 127–128)

Restorative justice Community justice

Origins Originated from informal, faith-based and indigenous focus, generally operating outside the formal system

A creation of the formal criminal justice system in the US

Locus of intervention

Practices at the micro level of primarily informal responses to individual incidents of crime

Concerned with collective interventions and outcomes

Emphasis on repairing harm as a way of intervening in reaction to observed crimes

Explicitly focused also on the prevention of crime through improving neighborhood conditions

View of crime Harm to people and relationships Harm to quality of life in a locality

An offense against people, not an a violation of a law

An offense against specific places and a violation of a law

Recognize that crime is not, primarily, an offense against the state

Recognize that crime is more than an offense against the state

Justice focus Repair of harm to people and relationships

Community building (citizen-state partnership) for preventing crime


Table 1 Continued

Restorative justice Community justice

Concern for specific emotional effects on stakeholders

Concern for aggregate fear of crime effects

Concern for process integrity and constructive outcomes

Concern with aggregate outcomes and increased resources

Goals Repair of the effects of a specific crime to the satisfaction of those directly affected

Improvement of community life in particular places where crime has damaged community life

Repairing and strengthening the bonds that exist among family and friends and between groups of families

Strengthening the capacity of localities to respond to crime without imprisonment

Means to justice Direct decision making by affected parties

More accessible and less formal justice services

Offender actions to demonstrate remorse and make it right

Offender sanctions or obligations

Change in the decision-making process

From government officials to those directly affected

To local residents in partnership with government officials or to government agencies in partnership with each other

How family, school and workplace communities can assist in the processes of restoration and conflict resolution

How residents can assist in the processes of crime prevention and offender sanctioning

Normative orientation

Involve in decision-making those harmed by the crime

Neighborhood concerns for disorder

Preferring to empower victims and offenders and their support systems as partners in the justice process

Preferring to empower residents and local and voluntary groups or associations as partners in the justice process

Stakeholders Those directly affected by a specific crime

All residents of an area affected by crime generally

Victim, offender, and their families and extended families

Justice system and local residents

Primary offender Those whose behavior harmed the person or property of another, or violated expectations of trust

Social structures (especially local networks) that support racism, sexism, inequalities, poverty

Primary victim The individual who suffers direct effect, or at whom the crime was aimed

Residents of high crime neighborhoods

Secondary victims Family and friends of victim and offender and others directly involved

Those growing up in high crime neighborhoods, oppressed minorities, women, children

View of community

Communities of care—the networks of obligation and respect between an individual and those who care about him or her the most

Communities are local hierarchical formations, structured upon lines of power, dominance, and authority

Natural relational networks not bounded by geography

Neighbors and local nongovernmental organizations

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perspective, is emotional and relational rather than financial in nature (Baker, 1994;Burnside & Baker, 1994; Hoyle, 2002; McCold & Wachtel, 1998; Moore, 1996;Nathanson, 1997; Scheff, 1997; Schluter, 1994; Strang, 2001). The harm done directlyto the victim and to the relationships among victims, offenders, and their communitiesof care is the focus of repair for restorative justice. Restorative justice is deemedsuccessful when all the direct stakeholders, especially the victim, report they are satis-fied that justice was done in their case. Community justice is considered successful onlywhen the quality of life in a given place improves (Crawford & Clear, 2001).

Both paradigms value strengthening social bonds to achieve informal social control.Community justice advocates, however, perceive the restorative justice emphasis onrepairing harm as helpful only in responding to crimes after they happen, whilecommunity justice includes a focus on prevention (Crawford & Clear, 2001; but seeBraithwaite, 2002a). Further, the two paradigms have different approaches to socialcontrol. The difference boils down to a question of who should be encouraged toprovide ongoing support to victims and control of offenders—their families and lovedones, or a justice professional with the assistance of a volunteer stranger from thecommunity?

The two paradigms have very different meanings for the same terms—victim,offender, and community. For restorative justice, victims are individuals harmed by aspecific crime, offenders are people who have done harm and need to take responsibil-ity for their behavior, and community comprises family and friends of those directlyaffected. For community justice, victims are those who live in high crime areas andindividual crime victims are local residents who need additional support services.Offenders are a subset of the local residents who need surveillance and rehabilitationservices. Together, all the local residents constitute the community, a physical place,such as a neighborhood.

These different concepts of community (Bazemore, 1997; Clear, 1996) lead to verydifferent visions of how informal social control might be accomplished. Because restor-ative justice defines community as natural networks of personal relationships, commu-nity is perceived in a very positive light. Restorative justice proponents trust thosenetworks of care to reintegrate and support victims and offenders, recognizing thefamily as the primary support system (McCold, 1996; McCold, 1998; McCold &Wachtel, 1998). Community justice advocates are ambivalent about their regard forcommunity. While on one hand they encourage community involvement, they also seethe community as comprised of formal and informal hierarchies, structured upon linesof power, dominance and authority, which are often the cause of many social injustices(Crawford & Clear, 2001).

Why Community Justice is not Restorative Justice

The fundamental difference between the two paradigms is highlighted by the extent towhich they trust and rely on the community. In restorative justice, because the stake-holders own the conflict, they have moral authority and legitimacy to be part of theoutcome. In community justice, stakeholders’ legitimacy is based on the fact that they


live and work in the neighborhood affected by crime. While their participation ingovernment is encouraged, the criminal justice processes are still controlled and theoutcomes still determined by those lawfully appointed to carry out justice (NationalCouncil on Crime and Delinquency, 1971). Those processes may, for example, includea panel of citizens appointed by the authorities to handle certain less serious cases butit need not actively involve either the victim or offender or their families and friends.

Because community justice is focused on a geographical place, its advocates believerestorative justice advocates are naive about community. To them, restorative justiceassumes an organic wholeness not found in most neighborhoods. Further, to themrestorative justice appears to ignore intra-community conflict and the diversity of valuesystems. They fear that restoring troubled relationships in an unequal society maymean restoring unequal relations and reaffirming inequality (Crawford & Clear, 2001).For community justice advocates, defining a unique community for each incident isunacceptable without ensuring that the interests of the wider society are included. Forthem, personal communities of care simply cannot induce compliance. Justice mustexact compliance by means of regulation, sanction or coercion (Crawford & Clear,2001). Regardless of the merits of that assertion, it highlights how community justiceultimately relies on the existing criminal justice systems—in stark contrast to restor-ative justice which transfers substantial power and decision-making to victims, offend-ers, and their communities of care.

What is community? Community is a feeling, a perception of connectedness— personalconnectedness both to other individual human beings and to a group. Building commu-nity, then, involves building bonds between human beings. Where there is no perceptionof connectedness among a group of people, there is no community.... In and of itself,community is not a place. In many areas, geographical units do not constitute or corre-spond to communities. The resident population may lack a sense of shared interests andthere may be relatively few interpersonal connections between neighbors. (McCold &Wachtel, 1998, p. 72)

Restorative justice cannot rely on a geographically-based approach to communitybecause community bonds are usually weakest where crime is greatest. With a fewexceptions, sustaining citizen participation, interest, and enthusiasm for crime controlover time has proved insurmountable, even in highly functional communities.Communities organized solely or primarily around concerns about crime are oftenshort-lived. As Skogan notes, ‘concern about crime simply does not provide a basis forsustained individual participation’ (Skogan, 1988, p. 49, quoted in Crawford & Clear,2001, p. 142).

For restorative justice advocates, community justice’s insistence on geographicalproximity ignores the relational reality of today’s mobile societies. Existing socialbonds and sources of informal social control are not defined by geography (McCold &Wachtel, 1998; Moore & McDonald, 1995). Social bonds and the potential for informalcontrol are based on significant personal relationships—with parents, grandparents,spouses, brothers and sisters, aunts and uncles, respected friends and confidants, class-mates, teachers, coaches, playmates, and workmates. Their desire to participate in thejustice process comes from their relationship to people involved not from civic duty(Braithwaite, 2002b).

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Community justice attempts to create relationships with neighborhood volunteerswho are complete strangers. In contrast, the social bonds of friends and extended familymembers already exist and are easily identified and mobilized. Restorative processesenlist and actually strengthen these social bonds because they form the basis for mostinformal social discipline in society (Braithwaite, 1989; Wachtel & McCold, 2001).

By placing little value on satisfying any given victim or on providing opportunitiesfor the offender to face those specific people who were injured, community justiceexcludes those most immediately and directly affected by crime. When victims haveno direct control over the outcome of their case, when offenders and their familieshave no voice in being part of the solution, all are disempowered and revictimizedthrough exclusion. Cobb (1993) defines ‘empowerment’ as a set of discursive prac-tices that enhance the participation of disputants. From a narrative theory perspec-tive, participation is the joint telling of the story by the disputants. Empowerment is afunction of the narrative structures and narrative dynamics that shape the stories andtheir meanings.

Without a process to express their feelings, tell their stories, be validated, react to thefeelings of others, to have apologies offered, and to offer apologies and make amends,the relationships most directly injured by the crime cannot be repaired. Withoutproviding the victim with some measure of control over the outcome of their case,justice can only act to revictimize those most disadvantaged by crime by stealing theirconflict from them. Community justice retains all critical decision-making power inthe hands of dispassionate strangers, either justice officials or citizen volunteers whoare unrelated to those directly involved. Making decisions and doing things to offend-ers and for victims, while excluding the families of both, fails to empower anyone butthe existing justice apparatus.

Restorative justice envisions a different moral order to community justice, estab-lished on the principle that a person is responsible for how his or her behavior affectsothers (Braithwaite & Strang, 2000). A moral order based upon respect for others andpersonal responsibility for behavior is very different to a vision of a moral order basedupon obedience to the rules of law or concern about the aggregate quality of life in theneighborhood.

The purpose of this section is not to criticize the values or goals of communityjustice, nor to disparage the efforts undertaken in the name of community justice. Thepurpose is to make the distinctions between the two reform approaches apparent.Except as noted above, the origins, practices, concepts, assumptions, and goals ofcommunity justice are simply not those of restorative justice. The danger in mergingthe two is that the postulates and goals of restorative justice are given little value withincommunity justice. While restorative justice is seen as helpful within communityjustice, it is seen as neither a necessary nor a sufficient response to crime.3

Restorative-Community Justice and BARJ

Since the 1970s, community justice has been the dominant criminal justice reformmovement in the US. Community policing has become the standard of professional


policing for nearly every police department in the country. The number of citizensunder community supervision in the US doubled between 1980 and 1988 (Sourcebookof Criminal Justice Statistics, 2002). However, by the early 1990s, community justicefaced growing academic and practitioner criticism as a movement without commu-nity, representing more of the same, masquerading as reform (see, for example,Greene & Mastrofski, 1988; Hall, 1990; Hunter & Barker, 1993; Riechers & Roberg,1990; Walker, 1993).

Restorative justice in the early 1990s, on the other hand, was gaining momentum,albeit on a modest scale. Except for community mediation centers supported by USfederal dollars, restorative justice largely comprised grassroots victim-offender repara-tion and victim-offender mediation programs that had grown up in North Americaand Europe during the 1970s and 1980s. The practice of restorative justice was justbeginning to expand beyond mediation, with the introduction of juvenile justiceconferencing in New Zealand and Australia, the Navajo court in the US and sentencingcircles in Canada also beginning to be recognized as primary restorative justicepractices (McCold, 2001).

In 1993, incorporating a breath of fresh air from restorative justice into communityjustice, the Office of Juvenile Justice and Delinquency Prevention of the US Departmentof Justice launched a national initiative called the Balanced and Restorative Justice(BARJ) project through a grant to Florida Atlantic University (FAU). In 1994, FAUinvolved the Center for Restorative Justice and Mediation, through a subcontract withthe University of Minnesota. The goals of this juvenile justice project were to providetraining and technical assistance and develop a variety of written materials to informpolicy and practice to include both community and restorative justice goals (see, forexample, Bazemore & Umbreit, 1997; also see Bazemore, 1992, 1994; Bazemore &Cruise, 1995; Bazemore & Dooley, 2001; Bazemore & Karp, 2002; Bazemore & Maloney,1994; Bazemore & McLeod, 2002; Bazemore & Schiff, 1996; Bazemore & Umbreit, 1994,1995; Maloney, 2001; Maloney & Holcomb, 2001; Maloney, Romig, & Armstrong, 1998;Maloney & Umbreit, 1995; Martin, 2002).

In spite of significant differences in focus, assumptions, key concepts, goals, andmethods between the two paradigms, the academic leadership of BARJ envisioned apractical convergence between community and restorative justice (Bazemore & Schiff,2001). To these advocates, restorative justice practices are merely a particular subset ofpractices under the larger umbrella of community justice. This encompassing vision,called ‘restorative-community justice’ or the ‘balanced approach,’ proposes aggregatecommunity-focused responses to crime and conflict. The primary goal of restorative-community justice is to enable citizens and community groups to ‘mobilize informalsocial control and socialization processes’ (Bazemore & Schiff, 2001, p. 5).

The BARJ project outlines an alternative philosophy of restorative justice, distinctfrom that which had been developing within the restorative justice movement itself.This new philosophy requires juvenile justice professionals to devote balanced atten-tion to three goals: offender accountability, offender competency development andcommunity protection. In this way, BARJ is intended to address an assumed publicneed for:

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● sanctioning based on accountability measures that attempt to restore victims andthe victimized community that clearly denounce and provide meaningful conse-quences for offensive behavior;

● offender rehabilitation and reintegration; and ● enhanced community safety and security (Maloney, 1998).

Restorative-community justice obligates the offender to make right the wrong to thevictim, but unlike restorative justice, assumes an additional burden on the offender torepay the neighborhood symbolically through sanctions involving meaningful conse-quences.

For restorative-community justice, development of youth competency requires thatoffenders entering the juvenile justice system should be more capable when they leave.Traditional individual treatment interventions may be necessary for an individualyouth, but the assumption is that competencies are best developed when young offend-ers become active participants in the process by providing service to others in thecommunity—not just passive consumers of services (OJJDP, 1998).

Competency development must involve practicing skills in community settings andshould be designed to increase interaction with conventional adults other than the serviceprovider. Valued competencies are defined by community needs and norms. (OJJDP,1998, p. 25)

While explicitly rejecting rehabilitation as a rationale for justice intervention, keycompetencies proposed for offenders range from ‘preparation and experience forwork, career, and family life’ and ‘awareness of life’s options and steps for makingchoices’ to ‘good oral, written and computing skills and ability to learn’ and ‘goodcurrent health status and evidence of knowledge, attitudes, and behaviors that willensure future well-being, including non-violence, exercise, good nutrition, and effec-tive contraception and safe sex practices’ (OJJDP, 1998, p. 20).

Beyond developing more competent offenders, BARJ also adds the traditionalcriminal justice goal of protecting the public from young offenders in the juvenilejustice system. This can be accomplished in a number of ways, including providingvolunteer adult guardians, family monitoring, day reporting centers as alternatives tosecure facilities, electronic monitoring, house arrest with random checks, randomurinalysis, and—for failure to comply or those who pose a high risk—residential place-ment or confinement in a secure facility (OJJDP, 1998). Other BARJ practices includeintensive supervision probation, police supplying the names of certain bars known toserve drunk drivers to licensing boards and police/probation officer team patrols atoffenders’ homes, schools, or worksites to enforce curfews or court orders and beatprobation (OJJDP, 1998).

Perhaps the most common BARJ activities are court-ordered community serviceprojects. In Florida, offending youths work with adult mentors in the community toplan, implement and manage community service projects that directly benefit localneighborhoods, fulfill court-ordered community service hours and earn money towardrestitution for victims. In another Florida program, serious juvenile offenders workwith national park staff to maintain and restore a wildlife preserve with payments


directly deducted from offender paychecks for victims or deposited into a victim fundwhen the original victims cannot be located. In Oregon, probation officers created acommunity work service corps that has built a 70-bed shelter for the homeless andstocked firewood for the county’s impoverished elderly. In Pennsylvania’s ‘Paint YourHeart Out’ project, probation youth and staff painted homes for low-income, elderly,and disabled residents (OJJDP, 1998).

Who could argue with involving young people in such positive activities? Unlesseach offender, his or her victims, and others they have harmed are given an opportunityto participate directly in the decision-making, it is not restorative justice. The juvenilejustice system is still operating in its traditional modality, doing things to or for peoplebut not with them. Howard Zehr explains the contradiction between this approach tocommunity service and restorative justice:

In my view, community service falls into the ‘potentially restorative’ category. As currentlypracticed, community service is at best an alternative form of punishment, not restorativejustice. In New Zealand, however, community service often is part of the outcome of afamily group conference. All in the group have participated in developing the plan, thework is connected to the offense as much as possible, and within the plan are specificsabout how the community and family will support and monitor the agreement. Here it haspotential for being seen as repayment to or a contribution to the community, mutuallyagreed upon by all participants. With this kind of re-framing, community service may havean important place in a restorative approach. (Zehr, 2002, p. 57)

Paradigm Muddle as a Threat to Restorative Justice

Contradiction seems endemic to the academic literature associated with community orrestorative-community justice. On one hand, the reader is forewarned that the defini-tion of programs involved in the merger of restorative and community justice para-digms has been painted with a broad brush:

Depending upon who is describing it, the group of interventions currently being labeled as‘community justice’ or ‘restorative community justice’ may therefore refer to a wide arrayof programs, practices and ‘community-based initiatives’ including community policing,‘weed and seed’ programs, neighborhood revitalization, and drug courts, as well as thesanctioning and victim reparation programs and processes now commonly associated withrestorative justice. (Bazemore & Griffiths, 1997, p. 29)

On the other hand, the reader is advised of the importance of careful definition:

A coherent definition and vision should serve as a unifying focus for reflection and exper-imentation among practitioners and scientists, and should inform policy makers and thepublic about what restorative justice is and is not. (Bazemore & Walgrave, 1999, p. 46)

But then again, the reader is warned that restorative justice may be difficult to define:

It is certainly possible that some of the rhetoric associated with what appears to be anemerging new justice movement is simply an attempt to ‘repackage’ traditional criminaljustice programs, policies, and philosophies. Indeed, some of the practices and agencypolicies now being called ‘restorative justice’ will be difficult to distinguish from long-standing offender diversion programs or alternative dispute resolution processes. And

26 P. McCold

some of what is being labeled ‘community justice’ may look scarcely different from thecommunity corrections or team policing-experiments of the 1970s. (Bazemore & Schiff,2001, pp. 4–5)

Contradicting Bazemore’s earlier call for ‘coherent definition and vision’ (Bazemore& Walgrave, 1999), in ‘Understanding restorative conferencing: A case study in infor-mal decision-making in the response to youth crime’ two years later, Bazemore andSchiff (2001) explicitly express their preference for avoiding a definition for restorativepractices. They see a danger in attempting to categorize practices and initiatives asrestorative or not restorative. Now, in the authors’ view, no practice or policy is inher-ently restorative or representative of community justice. Further, practices and policiesnot currently thought to be part of the restorative or community justice frameworkmay become so merely by incorporating certain principles. In addition to restorativevictim-offender encounters, the authors include in this broader framework court-imposed restitution, offender public works projects and a variety of policy strategiesintended to empower local residents as primary stakeholders in the justice process(Bazemore & Schiff, 2001).

After publishing articles and papers referring to community justice as restorativejustice, these restorative-community justice advocates use their own writing as suffi-cient evidence to justify calling either approach restorative. Published articles ‘havealternatively referred to either "restorative" or "community" justice as they deemedappropriate to the context ... we believe the occasional use of both terms to describe thesame phenomena provides further evidence of convergence rather than divergence’(Schiff & Bazemore, 2001b, p. 334).

Bazemore and Griffiths (1997), Bazemore and Karp (2002), Bazemore and Umbreit(1998, 2002), and Schiff and Bazemore (2002) lump together victim-offender reconcil-iation, victim-offender mediation, family group conferencing, community conferenc-ing, peacemaking circles, and sentencing boards into a new category they call‘restorative conferencing,’ a term previously limited to the New Zealand practice offamily group conferencing, the Wagga Wagga (Australia) model community groupconferencing or one of their derivatives.4 Bazemore acknowledges that such broadapplication of the term will be viewed by some practitioners as controversial and thatproponents of boards and circles do not describe their practice as ‘conferencing.’Bazemore and Schiff explain their purpose is not to minimize the practice differences,but to focus attention away from these ‘rather minor practical and administrative vari-ations’ (Schiff & Bazemore, 2002, Chap. 3, fn. 3) that ‘may be rather parochial, arbi-trary, and temporary’ (Schiff & Bazemore, 2002, Chap. 1, fn. 2). They impune attemptsto develop definitions that make such distinctions as efforts ‘by various organizationswith a vested interest in one model or another’ (Bazemore, 2000, p. 236) in what‘amount to a kind of product differentiation apparently aimed at promoting certainmodels as "true conferencing" or even as "true restorative justice"’ (Schiff & Bazemore,2002, Chap. 3, fn. 3). Such an ad hominem attack, impugning the motives of those whovalue careful definition, is not a substitute for logical argument nor does it contributeto scholarly development of the paradigm.


Consider the differences between the following examples of a community justiceprocess and a restorative justice process in terms of who makes the decisions and howthey are made:

Community Justice Citizen Sentencing Panel.

The reparative board convened to consider the case of a seventeen-year-old who had beencaught driving with an open can of beer in his father’s pickup truck. The youth had beensentenced by a judge to reparative probation, and it was the board’s responsibility to decidewhat form the probation should take. For about thirty minutes, the citizen members of theboard asked the youth several simple, straightforward questions. The board members thenwent to another room to deliberate on an appropriate sanction for the youth. The youthawaited the board’s decision nervously, because he did not know whether to expect some-thing tougher or much easier than regular probation. When the board returned, the chair-person explained the four conditions of the offender’s probation contract: (1) begin workto pay off his traffic tickets, (2) complete a state police defensive driving course, (3)undergo an alcohol assessment, and (4) write a three-page paper on how alcohol had nega-tively affected his life. The youth signed the contract, and the chairperson adjourned themeeting. (Bazemore & Umbreit, 2002, p. 73)

Restorative Justice Community Group Conference.

A police officer facilitated a community conference involving a fifteen-year-old male anda sixteen-year-old female, who broke into the flat of an elderly woman who lived alone andstole a variety of property (value around $5,000). Both offenders were living at a nearbycaravan park and had watched the victim leave her home. Participating in the conferencewere the male offender, his mother, brother and sister; the female offender, her mother,sister, boyfriend and two other friends; the victim, her daughter and grand-daughter. Bothoffenders talked about the circumstances and were confronted by the elderly victim whodisclosed that she had been broken into on two prior occasions. The victim talked aboutliving in fear for about two months. She was distressed about the loss of a wooden box herbrother gave her when she was fourteen. The victim’s daughter spoke about her concernfor her mother over the past few months. The mother of the female offender spoke aboutthe fact that her daughter had not lived at home for about two years. There was consider-able emotion between the offender, her sister and mother over many issues. The confer-ence participants were moved by the anguish shown by the elderly victim. The discussionon the $400 compensation resulted in arrangements whereby the two offenders wouldmake repayments each fortnight into a bank account nominated by the victim’s daughter.Both offenders agreed to undertake twenty hours community work. The female offenderwas to work with her mother with a local scout group. The male offender was to work atthe St. Vincent de Paul Society. (Moore & O’Connell, 1994, pp. 81–82).

Do the differences between these processes amount to ‘minor practical and admin-istrative variations’ as asserted by Bazemore and Schiff (2001)? How is a ‘coherent defi-nition and vision’ called for by Bazemore and Walgrave (1999) advanced by ignoringobvious differences?

The ill-conceived restorative-community justice paradigm would require a concep-tual tent large enough to encompass the whole of community justice and restorativejustice. Its goals, focus, and processes would have to be much wider than those for restor-

28 P. McCold

ative justice alone. Thus, the wider community justice perspective would have to be the‘default perspective’ for a merged restorative-community justice paradigm. Crimewould no longer be an offense against people and relationships but a violation of lawthat harms society. At the restorative-community justice table of stakeholders, thegovernment would have to be a direct stakeholder as: (1) representative of the victimizedstate; (2) responsible for holding the offenders accountable; (3) responsible for publicprotection; and (4) responsible for developing offender competencies. The needs of thevictim would become secondary to the needs of society and government. Theft of theconflict from those directly affected would be inevitable under such an arrangement.

In order to sidestep the irreconcilable differences between restorative justice andcommunity justice, advocates of restorative-community justice have consistentlymisused, ignored or minimized the fundamental concepts of the restorative justiceparadigm. The offender’s obligation to the victim has become primarily an obligationto the public. Civic-minded strangers have replaced family and friends as the commu-nity. Reparation is now a fine paid to a victim fund or unpaid labor in a public worksproject rather than an act performed by the offender to restore relationships and repairharm to the victim. Empowerment has been transformed from an opportunity for allthose affected by a crime to tell their story and have a say in the outcome to an oppor-tunity for offenders, victims and volunteers to cooperate with services provided bygovernment. Relational and emotional harm is ignored or trivialized. Victims continueto be marginalized, while families are excluded and blamed for the problem.

Conclusions

Restorative justice is not community justice. This paper has identified numerous waysin which community justice is different from restorative justice and explained howmost community justice programs are simply not restorative.

The effort to merge the two distinct paradigms into restorative-community justice,manifested by the US government’s Balanced and Restorative Justice (BARJ) project,has been shown to pose serious threats to the future of the restorative justice paradigm.Restorative-community justice ignores three decades of restorative justice scholarshipand practice by applying the term ‘restorative justice’ to approaches that contradict allthe previously understood definitions. The central threat to restorative justice posed bythe academic advocates of restorative-community justice is death by obfuscation.

The muddle they have created in the academic literature is not nearly as grave as themuddle in criminal program development created by BARJ. Backed by federal author-ity and funds, the Balanced and Restorative Justice project has confused criminaljustice professionals throughout the US. The degree to which the US falls behind therest of the world in development of restorative justice over the coming years may be adirect result of the confusion created by restorative-community justice.

In the restorative practices typology (McCold, 2000; see also McCold & Wachtel,2002), the author proposes a scheme for classifying restorative practices based uponwhich sets of primary stakeholders participate. Practices involving victims, offenders,and their families are fully restorative. Practices involving two of the three are mostly


restorative, and practices involving only one are partly restorative. Programs notinvolving a cooperative approach toward offender responsibility, victim reparation orcommunities-of-care reconciliation are not restorative, no matter how helpful theymight be in other ways.

Lastly, the typology identifies pseudo-restorative programs as ‘those punitive orrehabilitative programs laying claim to the restorative justice terminology—whichmeet none of the true needs of victims, offenders or their communities’ (McCold, 2000,p. 401). By masquerading as restorative justice, both restorative-community justiceand the BARJ project are the type of misleading efforts that the typology defines aspseudo-restorative.

Restorative justice advocates, both practitioners and academicians, must challengethe threats posed by restorative-community justice and BARJ by asserting themselves,demanding clarification and appropriate definition. In Vermont, for example, whereboth reparative boards and community conferencing are active programs, governmentofficials and practitioners must recognize that reparative boards are part of communityjustice and not restorative justice. It is not a question of choosing sides in some sort ofbattle between community justice and restorative justice. Both paradigms seek toreform the current criminal justice system. But if researchers, policy-makers, and thepublic cannot discern which paradigm is which, how can they evaluate the relativemerits of each?

The means by which we seek justice determine the quality of justice we achieve.Existing criminal justice means cannot achieve restorative ends. Attempting to manu-facture restorative outcomes while neglecting restorative processes steals the conflictcaused by crime from its rightful owners. When Judge Barry Stuart in the Yukonstepped down from his bench and formed everyone in the courtroom into a sentencingcircle (Green, 1998; also see Stuart, 1996) and when police Sergeant Terry O’Connellin Wagga Wagga invited victims, offenders, and their family and friends into a restor-ative conference (O’Connell, 1998), they empowered those people who rightfullyowned the incident. While community justice may count restorative justice practiceswithin its domain, it just as readily embraces practices that steal the conflict from thosemost directly affected. In failing to make that distinction, it risks washing away the boldsteps of the pioneers of restorative justice in a wave of muddle.

Notes1.[1] The active involvement of citizen volunteers in criminal justice is not new. John Augustus, a

shoemaker, was the first probation officer in 1841. His services to the Boston courts wereentirely voluntary, as were all the earlier probation services. Since the latter part of the 1950s,there has been a growing emphasis on increasing civic involvement in criminal justice affairs(O’Leary, 1969). As early as 1970, there were an estimated 8,000 volunteers in law enforcementprograms (Law Enforcement Assistance Administration Program and Management EvaluationDivision, 1972) and more than 50,000 citizens volunteering their services to over 1,000 courtprobation departments throughout the US (Scheier, 1970). At least since the 1968 President’sCommission on Law Enforcement and the Administration of Justice and Lyndon Johnson’s‘Great Society’ and ‘War on Poverty’ (Juvenile Delinquency and Youth Development Office,

30 P. McCold

1969; National Council on Crime and Delinquency, 1967; Rector, 1969), community justicehas been a continuous theme of the reform movement within the established American crim-inal justice system. Its widespread acceptance across the US should not be surprising, since it islargely the product of the federal government of the US.

2.[2] The use of arbitration and mediation to divert criminal cases from formal adjudication beganin earnest in the US in 1970 as one strategy of the community justice movement. The FordFoundation created the Institute for Mediation and Conflict Resolution (IMCR) in Manhat-tan to train volunteers in mediation techniques in the wake of the 1960 civil disturbances(Wright, 1996). The community mediation field grew rapidly during the late 1970s and early1980s, spurred on initially by the availability of federal funding from the Law EnforcementAssistance Administration and subsequently by funding from foundations and state and localgovernments. Many organizations, including the American Bar Association, the AmericanArbitration Association and the US Department of Justice’s Community Relations Serviceand the National Institute of Justice, provided national leadership during this period toencourage the growth of programs (McGillis, 1997). Compared to these large federally fundedcommunity justice programs and initiatives, restorative justice programs have been miniscule(McCold, 2003).

3.[3] The development of fully restorative responses to very serious crimes is one part of the grow-ing edge of the restorative paradigm. Most work in very serious cases has not been diversion-ary, so the question of sufficiency remains open. The possibilities for restorative justice toprovide a sufficient response in serious cases have been demonstrated in both indigenousrestorative practices and for juveniles in the New Zealand justice system.

4.[4] It is curious that Bazemore et al. define reparative boards as ‘restorative conferences,’ whichthey are not, but exclude ‘neighborhood mediation programs,’ the one community justiceprogram that is restorative. They justify this exclusion because these ‘the original group ofneighborhood dispute resolution centers differed from the new models in that they generallydealt with a more narrow range of cases, focusing primarily on domestic and neighborhooddisputes rather than crimes per se and also appear to have been motivated primarily by anattempt to relieve overcrowded court dockets’ (Bazemore & Griffiths, 1997, fn. 3).

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Paradigm Muddle: The Threat to Restorative Justice Posed by Its Merger with Community Justice

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