The State of Restorative Justice in American Criminal Law

Abstract

Restorative justice has been part of the American criminal justice system for more than three decades. Yet, it has only recently expanded into mainstream reform conversations—particularly those addressing mass incarceration and securing justice—and has gained a new urgency following nationwide protests in response to racial violence and anti-Blackness. Such increased attention necessitates that reformists think carefully about the existing legal landscape of restorative justice to ensure that the construction and refinement of restorative justice laws do not yield undesirable state and local practices. Drawing on a dataset of 264 laws, including statutes, court rules, and regulations in 46 jurisdictions, this Article sets forth a comprehensive empirical analysis of the legalization and operationalization of restorative justice within the American criminal justice system. Findings show that while some uniformity exists across the country, the vast majority of restorative justice laws are highly localized with significant discretion in decision-making. Additionally, given the absence of a universal definition of restorative justice, each jurisdiction must interpret what is or is not a “restorative” in its attempt to reach aspirational goals of system reform. This Article’s analysis affirms that there remain continued risks for participants (offenders, victims, and practitioners) in restorative justice processes, in part because of the significant absence of formal, state-level confidentiality protections. Results also indicate an emerging trend: the use of fees to access restorative justice (e.g., “pay to play”). In isolation, these findings would warrant consideration; however, when viewed in totality and contextualized in the contemporary social and political landscape, this study demands careful examination of the risks and benefits of the rapid legalization and expansion of restorative justice in law and policy. While current restorative justice schemes offer important alternatives to the status quo, in present form, restorative justice cannot be viewed as a panacea for all the ills that plague the criminal justice system or society at large. Rather, reformists must look to these laws as a basic infrastructure from which to begin to radically reorient the criminal justice system.

Keywords: Restorative Justice, Criminal Law, Juvenile Justice, Criminal Justice, Policy Reform, Legislation

JEL Classification: P41, P46, P48