This review is not intended to be a complete or comprehensive analysis of
restorative justice legislation, but a work in progress. This article reviews
legislation from 29 states that either addresses restorative justice directly or
articulates its philosophy. Dimensions of interest included: (1) Identification
of restorative language or phrases, (2) Scope (general to highly specific) (3)
Emphasis/focus (exploration, funding, program authorization, systemic change,
(4) Location (is it in one statute or located in several areas of legislation).
Emphasis and wording within statutes and codes varies widely. Some
legislation emphasizes the balanced approach while others focus on restorative
justice values, with or without the balanced approach. In other words, the focus
may be on defining the mission and implementation or it may be on infusing and
restructuring the justice system itself to reflect restorative justice values
and practices. Examples include:
Pennsylvania S6301 (1995): This act demonstrates a juvenile justice
system guided by a balanced and restorative philosophy:
"…the protection of the public interest, to provide for
children committing delinquent acts programs of supervision, care, and
rehabilitation that provide balanced attention to the protection of the
community, the imposition of accountability for offenses committed and the
development of competencies to enable children to become responsible and
productive members of the community."
Alaska HB47: Sec. 47.12.010: Restorative Community Justice Study (7-1-99)
This legislation promotes a balanced approach but also incorporates key
restorative justice principles – restoration of the community and the
victim, participation of the community in the juvenile justice process.
"…promote a balanced juvenile justice system in the state to protect
the community, impose accountability for violations of law, and equip juvenile
offenders with the skills needed to live responsibly and productively."
Key restorative justice principles are stated directly including:
Making the juvenile justice system more open, accessible, and accountable
to the public
Ensure that victims, witnesses, parents, guardians, juvenile offenders
and all other interested parties are treated with dignity, respect,
courtesy, and sensitivity throughout all legal proceedings
Divert juveniles from the formal juvenile justice process through early
intervention as warranted when consistent with the protection of the public
Ensure that victims and witnesses of crimes committed by juveniles are
afforded the same rights as victims and witnesses of crimes committed by
adults
Encourage and provide opportunities for local communities and groups to
play an active role in the juvenile justice process in ways that are
culturally relevant
Restoration of the community and the victim.
California: Welfare and Institutions Code, Section 1700
This code uses restorative justice terminology but does not mention the
balanced approach and is focused on systemic change. It does incorporate key
restorative justice principles of restoration for victims and communities.
"…to protect society from the consequences of criminal
activity and to that purpose community restoration, victim restoration and
offender training and treatment shall be substituted for retributive
punishment and shall be directed toward the correction and rehabilitation of
young persons who have committed public offenses."
Some pieces of legislation never use the term, ‘restorative justice’
directly, however the general terminology and principles are incorporated. Some
common restorative justice language found in several documents includes the
following:
Holding juvenile offenders accountable for their offenses
Involving victims and the community in the juvenile justice process
Obligating the offender to pay restitution to the victim
Securing safer communities
Equip juvenile offenders with the skills needed to live responsibly and
productively.
Examples include:
Montana: Title 4, Ch. 5, 41-5-102: Montana Youth Court Act (1997)
The purpose clause includes restorative justice language and values
"…to prevent and reduce youth delinquency through a system that does
not seek retribution but provides:
immediate, consistent, enforceable, and avoidable consequences
a program of supervision , care, rehabilitation, detention, competency
development and community protection for youth
in appropriate cases, restitution
Nebraska: LB 594 (1999)
This bill requires the juvenile justice system to promote prevention
efforts that are community-based and involve all sectors of the community. Included
in the goals of the juvenile justice system are
Holding juveniles accountable for their unlawful acts
Stressing the offender’s responsibility to victims and the
community
Recognizing the importance of education for juveniles in the
juvenile justice system
Emphasizing parental involvement and accountability
Utah: Utah Code Section 78-3a-102: Establishment of Juvenile Court (1998
and amended in 1997 General Session)
The purpose clause incorporates some restorative justice terminology and
principles
"Promote public safety and individual accountability by the
imposition of appropriate sanctions on persons who have committed acts in
violation of the law; orders appropriate measures to promote guidance and
control as an aid in the prevention of future unlawful conduct and the development
of responsible citizenship."
78-3a-118 addresses disposition options including:
Repair, replacement or otherwise make restitution for damage or
loss caused by the minor’s wrongful act, including costs of treatment
The court may through its probation department encourage the
development of employment or work programs to enable minors to fulfill
their restitution obligations
Compensatory community service
Other restorative justice legislation addresses a specific social need or
purpose. Examples include:
Hawaii: House Resolution No. 11 (2000): Relating to Restorative Justice
A brief review of restorative justice philosophy and values included.
Restorative justice is specifically identified as a method to address
recidivism and prison overcrowding.
"Resolution is that the philosophy of restorative justice should be
incorporated into criminal justice thinking and that the practice of
restorative justice should be incorporated into current methods of
incarceration in order to more specifically address the problems facing our
criminal justice system, namely, prison overcrowding and recidivism.
Legislation may also authorize funding for the development and/or
implementations of restorative justice programming. Examples include:
Colorado: H1156:
The Department of Public Safety is authorized to use funds or grants to
provide restorative justice programs. Restorative justice terminology is
apparent in the intent clause of this bill:
"…protect, restore and improve public safety by creating a
juvenile justice system that sanctions juveniles and…in certain cases will
also provide the opportunity to bring together affected victims, the
community and juvenile offenders for restorative purposes."
New Mexico: House Bill 219 (Effective 7-1-2000)
Appropriations are made for the purpose of providing an array of services
to children at risk of being referred or children referred to the Juvenile
Justice Division of the Children, Youth and Families Department. The stated
intent is that,
"…a balanced and restorative juvenile justice system be premised
upon the guiding principles of community protection, accountability and
competency development."
Wisconsin: Assembly Bill 533 (1999)
This bill authorizes the creation of three district attorney positions to
engage in restorative justice planning and implementation in three designated
counties and they are also to act as resources for other counties in the
development and operation of restorative justice programming.
Some legislation restructures or redirects the juvenile justice system by
including in its goals the values of restorative justice in whole or in part.
Examples include:
Alaska: HB47 (1999): Restorative Community Justice Study
The Department of Corrections is directed to study the principles of
restorative community justice and produce a plan for implementing these
principles in Alaska. The seven ‘core values’ of restorative justice are
listed and the DOC is instructed to:
Examine restorative community approach
Review and assess the state’s criminal justice policy as it relates
to restorative community approach
Identify programs and practices that don’t fit within the parameters
of restorative community justice
Develop a plan to apply restorative community justice approach to the
state’s criminal justice system.
Idaho: H0032 (1999): Juvenile Offenders, Placement Options
This bill amends and adds to existing law to provide options to the
Department of Juvenile Corrections for the placement of juvenile offenders
committed to its custody. It allows the Department to provide a continuum of
services including community nonresidential placements of juvenile offenders.
The intent clause uses specific restorative justice language:
"it is the policy of the state of Idaho that the juvenile corrections
system will be based on the following principles: accountability, community
protection; and competency development…the court shall impose a sentence
that will protect the community, hold the juvenile accountable for his
actions, and assist the juvenile in developing skills to become a contributing
member of a diverse community."
A specific framework for the operation of the Department of Juvenile
Corrections is set forth:
Provide humane, disciplined confinement to a juvenile offender who
presents a danger to the community
Provide a continuum of services to other juvenile offenders
including, but not limited to community nonresidential placements consistent
with the balanced approach to juvenile justice.
Strengthen opportunities for the juvenile offender’s development of
competency and life skills by expanding the juvenile’s access to
applicable programs and community resources
Hold juvenile offenders accountable for delinquent behavior through
such means as victim restitution, community service programs and
the sharing of correction costs
Invoke the participation of the juvenile offender’s parent or legal
guardian in assisting the juvenile to recognize and accept
responsibility for his delinquent or other antisocial behavior
Develop efficient and effective juvenile correctional programs within
the framework of professional correctional standards, legislative intent
and available resources.
Provide for a diversity of innovative and effective programs
through research on delinquent behavior and the continuous evaluation of
correctional programs
Assist counties in developing meaningful programs for juveniles who
have come into the juvenile corrections system but who have not been
committed to the custody of the department of juvenile corrections.
Provide programs to increase public awareness of the mission of the
juvenile corrections system and encourage public participation in
developing an effective juvenile corrections system designed to aid in
reducing juvenile crime in this state.
Develop and maintain a statewide juvenile offender information system.
It appears that restorative justice values and principles are most often
found in the purpose/intent clauses of juvenile justice legislation, in the
defining of goals for the juvenile justice system and specific programs, and in
sections of bills which identify sentencing options and/or victims rights.
Legislation flows on a continuum from very general, such as an intent clause, to
highly specific, such as specific frameworks, sentencing options or program
parameters.
A point of interest is that several of these states have also enacted
legislation which is reflective of the ‘get tough on crime’ movement within
the juvenile justice system – lowering the waiver age, increasing the number
of waiveable offenses, and mandatory waivers. It may be that restorative justice
legislation acts to keep youth out of the adult loop through early intervention
options and community involvement.
