Shame, Anger, and Guilt: The Hierarchy of Emotions in Restorative Justice
Restorative Justice in Domestic Violence
It is hard to think of too many crimes that are more personal than a domestic violence assault considering that those crimes generally involve spouses and family. It seems intuitive that the victimization of an individual in general is a personal matter wrought with emotional responses to the crime that has been committed against the victim. With that in mind, it is interesting to consider that criminal matters in the United States are not considered crimes against that individual victim but crimes against the state (Jackson, 2009).
This can be seen in the way court cases are named; People v. Johnson or the People of the State of California v. The Defendant, for example. Domestic violence, and even the previous example in sexual assault, is arguably a very personal issue and that belief is one thing that restorative justice in centered on. A study conducted on the use of restorative justice programs with domestic violence crimes also demonstrated a positive effect on recidivism rates.
Mills, Barocas, and Ariel (2013) conducted a comparison study on the recidivism rates of domestic violence batterers that went through a traditional domestic violence treatment program and a treatment program based on restorative justice principles. There have been numerous studies into the domestic violence epidemic in the United States because of the large number of individuals that are victimized each year. For example, in 2008 there were 652,700 nonfatal domestic violence victims, and domestic violence accounts for nearly a quarter of all nonfatal attacks on women in the U.S. (Mills et al., 2013).
In general, the response to the domestic violence problem has been mandatory arrest policies for police departments across the country, but Mills et al. (2013) point out that there is a lot of uncertainty about the effectiveness of those policies. Most courts across the country also have mandatory domestic violence treatment or counseling for convicted batterers that Mills et al. set out to compare against a restorative justice program.
There are nearly 2,000 batterer intervention programs across the country that are mandatory for convicted domestic batterers, but those programs are not interactive like restorative justice programs are designed to be, and in general the traditional programs focus on changing sexist behaviors that are perceived to be the root cause of domestic violence (Mills et al., 2013). The restorative justice program called Circles of Peace was implemented in one Arizona town and the recidivism rates between the traditional program and Circles of Peace attendees were compared in the study.
The Circles of Peace program worked like a kind of interactive group therapy program that involved the offender, a “Circle Keeper,” a support person for the offender, and sometimes the victim or community members (Mills et al., 2013). Similar to drug treatment programs, Circles of Peace strive to provide methods to maintain changed behavior in the offender, help prevent relapses, identify triggers, and increase coping strategies (Mills et al., 2013). The different between the goals of the traditional programs and Circles of Peace is immediately apparent.
The traditional methods involve an instructive classroom like program teaching the offenders about the issues, and primarily attempting to defeat sexist attitudes. Circles of Peace creates a dialogue between various involved individuals and sees its most important goals as being to “interrupt fear, shame, and isolation felt by families in crisis” (Mills et al., 2013, p. 72). Drawing on the information stated previously about the effects of shame versus guilt, it is clear that Circles of Peace strives to create an environment favorable to reducing recidivism by minimizing or eliminating shame which often causes isolation. It is obvious that isolation or the feeling of wanting to run off and hide will inhibit the ability to have open and honest dialogue about the issues.
After surveying 153 participants who were randomly split between traditional programs and Circles of Peace, Mills et al. (2013) found promising results regarding the restorative justice program. The findings of the study found that individuals who completed the traditional program were more likely to be rearrested for domestic violence and even more likely to be rearrested for a crime that was not domestic violence related. In fact, the individuals that attended Circles of Peace experienced fewer recidivist arrests than the traditional program by more than 11% (Mills et al., 2013).
The example created by the study of Circles of Peace again shows another success story of a criminal issue that has been historically hard to deal with and one that is likely more personal than other forms of crime. Mills et al. (2013) note that their study was conducted on a relatively small scale and that the findings are not significantly better than the traditional program, but the findings do demonstrate that restorative justice programs are successful, a claim that is debated by many people in the United States.
There has been an increase in the desire to make justice personal for victims rather than the use of justice like a mechanical scale handled by the state. Restorative justice has begun to fill that need in the criminal justice system by making victims involved in the process, striving to find satisfactory justice for the victims, and making the offenders take responsibility. Although there is still debate regarding the effectiveness of restorative justice programs there are many successful examples in the academic literature.
A case of common theft or minor assault might be the easiest example of when restorative justice would be successful because in those cases justice might merely mean replacing or returning the stolen item or paying some form or restitution. It is important to recognize, however, that restorative justice does not mean mere compensatory justice (Wenzel et al., 2008).
These restorative justice programs are also fully compliant with and justified by a form of deontological ethics, like the one posited by W.D. Ross. Not only are the programs efficient at reducing recidivism they adhere to the duties of deontological ethics and create a more personalized form of justice. Restorative justice programs take the concept of justice down to a small scale and consider each situation on its own.
This is another aspect that coincides with Ross’ ethic because he clearly recognized that each situation may be unique and require a different hierarchy of those prima facie duties (Simpson, 2015). Using restorative justice supported by the prima facie duties just means putting the definition of justice in the hands of the individuals involved rather than justice being defined by the state.
While it might seem counterintuitive for such harshly regarded or personal crimes like sexual assault or domestic violence to be considered for restorative justice studies have clearly shown otherwise. Restorative justice can provide that non-compensatory justice reinforced by Ross’ deontological ethic by striving to restore the situation to the way it was before the offense through healing and resolution. The studies mentioned herein have demonstrated that utilizing programs that focus on guilt, empathy, and accountability of the offender tend to reduce recidivism and increase victim satisfaction. There is clearly a hierarchy of sought after emotions in the criminal justice system that help attain the goals of healing and justice and that hierarchy places guilt and empathy higher than shame and traditional retribution.
Bandes, S. (2009). Victims, “closure,” and the sociology of emotion. Law and Contemporary Problems, 72(2), 1-26.
CBS Local. (2015). Arapahoe county DA: ‘Jurors did a hell of a job’. CBS Denver News. Retrieved from http://denver.cbslocal.com/2015/08/07/arapahoe-county-DA-jurors-did-a-hell-of-a-job/
Jackson, A. (2009). The impact of restorative justice on the development of guilt, shame, and empathy among participants in a victim impact training program. Victims & Offenders, 4(1), 1-24. doi: 10.1080/15564880801938185
Koss, M. (2014). The RESTORE program of restorative justice for sex crimes: Vision, process, and outcomes. Journal of Interpersonal Violence, 29(9), 1623-1660. doi: 10.1177/0886260513511537
Mills, L., Barocas, B., & Ariel, B. (2013). The next generation of court-mandated domestic violence treatment: A comparison study of batterer intervention and restorative justice programs. Journal of Experimental Criminology, 9(1), 65-90. doi: 10.1007/s11292-012-9164-x
Mingus, W., & Burchfield, K. (2012). From prison to integration: Applying modified labeling theory to sex offenders. Criminal Justice Studies, 25(1), 97-109. doi: 10.1080/1478601x.2012.657906
Mitchell, D. (2013). Some shooting victims attend Aurora theater reopening event. Fox News. Retrieved from http://www.kdvr.com/2013/01/17/some-shooting-victims-attend-Aurora-theater-reopening-event/
Prescott, J. (2012). Do sex offender registries make us less safe? Laws purporting to protect the public may be increasing sex offender recidivism rates. Regulation, 35(2), 48-55.
Robinson, P. (2008). Competing conceptions of modern desert: Vengeful, deontological, and empirical. Cambridge Law Journal, 67(1), 145-175.
Rodogno, R. (2008). Shame and guilt in restorative justice. Psychology, Public Policy, and Law, 14(2), 142-176. doi: 10.1037/a0013474
Tewksbury, R. (2006). Sex offender registries as a tool for public safety: Views from registered offenders. Western Criminology Review, 7(1), 1-8.
Wenzel, M., Okimoto, T., Feather, N., & Platow, M. (2008). Retributive and restorative justice. Law and Human Behavior, 32(5), 375-389. doi: 10.1007/s10979-007-9116-6
Winick, B. (1997). The jurisprudence of therapeutic jurisprudence. Psychology, Public Policy, and Law, 3(1), 184-206. doi: 10.1037/1076-89188.8.131.52
Wood, J. (2003). Justice as therapy: The victim rights clarification act. Communication Quarterly, 51(3), 296-311. doi: 10.1080/01463370309370158