The Death Penalty Information Center has created a webpage dedicated to restorative justice, a sentencing alternative in criminal cases, including limited use in death penalty cases. This resource highlights the foundations of restorative justice, common approaches, recent studies related to the practice, and examples of its use.
As discussions surrounding the death penalty have shifted away from moral arguments, the comparison of capital punishment to its viable alternatives has conversely grown. The most common alternative to the death penalty in the U.S. is a sentence of life without parole (LWOP). Many states have begun to look beyond incarceration as a means to punishment and have instituted alternative practices aimed at reducing violent and non-violent crime in non-traditional manners. Among these alternatives, restorative justice has been implemented with greater hope of addressing the root causes of criminality and preventing recidivism.
Restorative justice is a set of practices and beliefs that approaches criminal behavior with the intentions of restitution and resolution, rather than retribution. Unlike the traditional legal system, restorative justice views criminal behavior as “a violation of community and interpersonal relationships. Restorative justice practices intend to look at the impact of each crime and determine what is necessary to mitigate harm caused, while still holding the person accountable for his actions.” Under these practices, success is measured by the reparation of the harms caused, instead of the punishment handed down. Restorative justice tends to involve more people in its processes than the current legal system does, as “victims, defendants, community members, and justice professionals come together to discuss the harms brought about by criminal behavior.” Effectively, restorative justice works to address the dehumanization that many victims and defendants both feel in the traditional criminal legal system.
While restorative justice offers a safe and open space for relevant parties to resolve harm, some defense attorneys believe the practice may present more problems for their clients. These individuals raise concerns about a defendant’s Constitutional right against self-incrimination, as “restorative justice is founded on the principle of accountability [and] it is almost inevitable that a defendant will make an admission of his own guilt during the restorative justice process.” If an individual has not been formally sentenced or is facing separate criminal charges, there is currently no formal process to exclude any incriminating statements from being used against him in the future. These concerns are prominent among attorneys for individuals facing the death penalty, as the restorative justice process may further complicate the already lengthy appeals process associated with capital punishment. Despite these concerns, those working in the restorative justice realm believe that the practice, with proper training, can be used to address any crime.
