Monday, December 24, 2012

Victim Impact Statements and Restorative Justice in a Retributivist World

Victim Impact Statements and Restorative Justice in a Retributivist World

This is my term paper for a seminar on punishment and retribution.  The seminar was the highlight of my MA program.  Before reading, it will probably be helpful to go over the key concepts:

Key Concepts:
Victim Impact Statements (VIS):  In a criminal trial,  most states  permit victims to make a statement of how the crime has affected them.  The idea behind VIS is to recognize the non-material harms that victims experience and to allow the victim to voice their opinion about sentencing. VIS can take place during the trial phase, and in the last 20 years there's been a movement toward allowing them during the sentencing phase.  Most of my arguments relate to VIS during the sentencing phase. 

There is opposition to VIS for several reasons.  Here are the two main ones: (a) The emotional nature of the testimony can sway judge and jury(in states that have juries at sentencing) toward an otherwise harsher sentence; (b) the offender could not have known that the victim/victim's family would have reacted a certain way (i.e., there's a tremendous spectrum of psychological reactions to crimes--the offender should not be punished for what he could not have reasonable expected as a consequence of his actions).  We can reasonable foresee the physical and material consequences of our actions, but not the psychological.

Retributive Justice:  This is the philosophical (or in most--instinctual) position that if someone does something wrong, they deserve to punished to the extent that they are blameworthy.  'Blameworthy' includes the notions of intent and harm.

Restorative Justice:  The philosophical position that:(1) Crime does harm and justice should focus on repairing that harm (rather than on punishing offenders). 
(2) The people most affected by the crime should be able to participate in its resolution. 
(3) The responsibility of the government is to maintain order and the responsibility of the community is to maintain peace. 

Crime does not simply appear out of nowhere.  Especially when it is pervasive in a society, it is not random—human beings have reasons for their actions. Crime is a symptom. It is a symptom of inadequacy of education and of health. It is a symptom of meagerness of care and concern for one another. In Conflicts as Property, Christie argues crime is a symptom of too few conflicts. We need more conflicts but of a specific kind—conflicts over one's honour. When people cease to care about how they are perceived by others in the community it means “there is less honour to respect” and “we simply mean less to each other” (p. 6). Where honour crimes are taken seriously, people matter to each other.

Christie's vision of a system of justice is revolutionary and—for some—an inspiring ideal. His idea is a reaction to the modern depersonalized Western legal system where conflicts are actively avoided and their resolution is contracted out. The cost is the loss of community and important human relationships. Christie's model strongly advocates empowerment of all stakeholders in a conflict—victim, offender, and community--to contribute to a resolution. However, for those who find inspiration in his lofty vision it is not long before the practical considerations bring us crashing back to earth. It is a daunting task to even begin figuring out how to establish a restorative justice in the face of long entrenched antithetical ideas and practices. Regardless of how advocates suggest a transition, the consensus of the practically-minded is evolution over revolution.

It is tempting to see victim impact statements (VIS) as an incremental step in the direction of restorative justice. Victims not only have the opportunity to express to the offender and to the court the psychological impact of the crime, but in many cases may express their feelings toward the offender and add their sentencing preferences. Consistent with restorative justice, the victim is partially empowered and participates in the outcome of the case. No one is claiming that this is full restorative justice, but it is interesting to consider whether VIS are a step towards restorative justice, neutral, or a detriment to it.

I will argue that despite the initial appearance of VIS being consistent with restorative justice, they are in fact an impediment to it; however, proponents of restorative justice ought not to reject VIS. Instead they should adopt a pluralist stance toward systems of justice and seek to develop and promote complimentary restorative practices that counter-balance the disadvantages of VIS while preserving their system-relative benefits. To support my thesis I first discuss, in the context of restorative justice, the purported benefits of VIS; second I examine some of the ways in which VIS are antithetical to restorative justice and why; third, I evaluate restorative alternatives to VIS; fourth, I discuss why restorative justice proponents should not outright oppose VIS; and finally I propose a pluralist approach to justice that seeks to offset the disadvantages of VIS while preserving their advantages.

Quick Overview of the Principles of Restorative Justice
Before proceeding it will be helpful to give a brief overview of restorative justice to provide a framework within which to evaluate the issue of VIS. Restorative justice can be described from two complimentary points of view: principles and values. The principles are:

(1) Crime does harm and justice should focus on repairing that harm (rather than on punishing offenders).
(2) The people most affected by the crime should be able to participate in its resolution.
(3) The responsibility of the government is to maintain order and the responsibility of the community is to maintain peace. (

The central values of restorative justice are:

(1) Peaceful social life: Not just the absence of conflict, but pursuit of harmony. When there is conflict it is dealt with in such a way that will restore and strengthen the peace of the community. The operational norms for conflict that support (1) are resolution of both the conflict and its aftermath, and protection of the emotional and physical safety of all parties.
(2) Respect: Regarding all people as worthy of particular consideration and attention as individuals. In conflicts the operational norms are inclusion and empowerment.
(3) Solidarity: Support and nurturing of feelings of agreement and connectedness among all community members through shared interests, sympathies, purposes and responsibilities.
(4) Active responsibility: Taking responsibility for ones' actions rather than being held accountable by others. In conflict, the operational norms that support (4) are collaboration and making amends. (

With the framework of restorative values and principles in place we can proceed to evaluate VIS in the context of restorative justice.

Benefits of Victim Impact Statements
The general purpose of introducing VIS was to promote victim involvement in criminal court decision-making and to improve victim satisfaction with the judicial process (Davis & Smith, 1994). Specifically, VIS allow victims to express to the offender and to the court their attitude toward the offender and their desires regarding sentencing (Sommers, forthcoming). Furthermore, VIS allow the specific emotional harms and suffering victims have endured to be meaningfully expressed and accounted for in the offender's culpability.1

This inclusion of particular harms marks the legal system's recognition that the harms were sustained by a particular person, as opposed to only recognizing general harms that apply to a class of crimes. This change is important because it demonstrates the legal system's recognition that the harms were suffered not by society in general, and not by some abstract average victim, but by a particular person. Therefore, that particular victim should have his harms recognized and have a say in sentencing outcomes. In the context of Christie's restorative justice, with VIS we might say that the law also recognizes the victim's partial ownership of the conflict.

Victim Impact Statements and Restorative Justice
To understand why VIS might not be consistent with the values and objectives of restorative justice it is helpful to include some general comments to provide a framework for the more specific criticisms. Recall that restorative justice is predicated on the idea that those closest to the conflict--i.e., the victim and the offender--should be able to participate in its resolution.

General Comments
Imagine yourself as a victim in a courtroom. The first thing you will notice is the physical layout of the environment. Is this an environment conducive to the type of dialogue between victim and offender that might be favourable to a conflict's resolution? It hardly seems possible. The court room is designed to facilitate dialogue between the judge, the prosecution, and the defence attorney. While it is true that there is a place for the victim to observe the trial, give evidence when appropriate, and share the emotional harms she has suffered, her role is largely ceremonial.

The dialogue is by design carried out between the lawyers, the judge, and the jury. The courtroom setting is antithetical to restorative justice because it is designed such that those who are only impersonally related to the conflict have a central role in the conflict rather than what restorative justice advocates—that those closest to the conflict have ownership and engage in the harm's resolution and restoration. Under the physical and procedural conditions of the courtroom, the victims restorative interests are likely not served by her passive observance, occasional interjection of testimony, and expression of sorrow in conformity with the norms and procedures of the court (i.e., via VIS).

Victim Impact Statements and Restorative Justice
There is more to be said about the role of courtroom norms that impede restorative justice. Part of the restorative process is for the victim to meaningfully express to the offender the pains and sorrows she has suffered at his hand. On its face, VIS seem to provide a good platform for this expression. But put yourself in the place of a rape victim or a murder victim's family. Is the cool formal setting the ideal setting to express personal and traumatic emotions? Is this an environment in which people will feel comfortable with such expressions of affect?

One might reply that despite the drawbacks to the courtroom environment as a venue for emotional expression, it is still fair in that it gives all victims an equal opportunity to express themselves. But the courtroom setting also presupposes that all victims will benefit equally from the opportunity to express themselves. Even if there are individuals comfortable with expressing their deepest most painful emotions in front of a room full of strangers, it is hardly plausible that every victim will feel this ease.

Furthermore, not everyone is gifted with the ability for eloquent public speech—much less comfortable with it. If we are truly committed to creating an opportunity for victims to convey intense private emotions, we cannot assume a one-size-fits-all approach to venues, environments, and procedures. The environment and procedure ought to be tailored to the individual, not the other way around. Part of our goal is to help restore the victim, and that partly requires we also consider victim input regarding the environment in which they would best achieve this end. Procedural equality is not equality of outcome2.

There is a further problem with VIS and the environment in which they take place; this has to do with the role that is implicitly and explicitly assigned to the victim. That is to say, within the courtroom context the victim is always regarded as “the victim”--that is his normative role and reading a VIS in this environment serves to further reenforce this role. How can we expect him to transcend this role and heal if the norms of the environment preclude it. In order for the victim to heal, he must eventually shed his identity of “victim”. The courtroom imposes this identity—for better or for worse, but mostly for worse.

What is needed for healing is an environment where roles are fluid, where institutional and social expectation don't restrict or impose a way of being (Arragio & Williams, 2003). The victim expressing his suffering is not on its own objectively detrimental to restorative justice; however reading a VIS in the courtroom environment only serves to reinforce the victim identity which is in the long-run hostile to the victims full restoration. Creating an environment that allows for fluid identities is also important for achieving a fruitful dialogue between offender and victim. I will elaborate on this point later in the paper.

Another aspect of VIS that are inimical to restorative justice is the purpose they serve. As I have said, prima facie they seem to support victim empowerment through involvement. But involvement in what? The involvement is confined to providing information relevant to culpability and desires regarding the offender's punishment. This, however, is only a small portion of what restorative justice seeks to achieve. What is missing is involvement and empowerment in the overarching goal of restorative justice: the restoration of all three stakeholders—the victim, the offender, and the community.

Punishment as an endpoint without restoration in the restorative justice paradigm is not full justice, it is but one step along the way. VIS do not empower to victim to restore the harm or to engage in dialogue with the offender or to help the victim understand the offender's motives. VIS ultimately only serve to establish culpability for the purpose of determining severity of punishment. This aspect of VIS in turn only perpetuates the status quo retributive framework. Only punishing offenders, and perhaps partially restoring victims, is a far too narrow goal in terms of restoration.

VIS also purport to restore dignity and self-respect to the victim. But dignity and self-respect come from genuine empowerment. To see why VIS can't achieve this in the courtroom consider school-yard justice as an analogy to a criminal justice court. Suppose a child is being picked on by a bully. To resolve the problem he hires another bigger bully to hold the first bully down while he kicks him. While there are problems with the analogy, it will serve to make the point: Is there any dignity in what the bullied child did? He may feel better about himself, but where is the dignity in having others fight his battles for him?

In a criminal trial the offender's fate is unilaterally imposed by the state in conjunction with the victim. The imbalance of power is tremendous. Where is the dialogue? Where is the restoration of victim and offender? Even if the victim is merciful and pardons the offender—it is a top down approach. It likely had little to do will a genuine understanding of each others' particulars and much to do with the victim's default disposition. Restorative justice requires dialogue, exchange of reasons, feelings, treatment of the other as a particular, and all of these require at least the semblance of equality3 while working toward a solution.

Victim Impact Statements from the Offender's Point of View within Restorative Justice
Many of the problems with VIS from the victim's point of view also apply to the offender's point of view. Let's return to the courtroom environment. Any semblance of a restorative outcome requires dialogue and the ability for genuine expression. How likely is this to occur in the courtroom when a VIS is being read? This is no dialogue. From the point of view of the offender, this is a public shaming at best and a violent diatribe at worst. Some might argue that for the offender to understand the harms he has perpetrated that such an act is required and permissible. But not if our objective is restoration. For restoration to occur, the offender must be able to feel like he is a member of the community and empowered to make amends. Public shamings do little to engender this feeling.

Let me elaborate on this point because there is a possible objection to what I have said. It is consistent with the restorative tradition that the victim be able to freely express his emotions regardless of their forgiving or hateful nature. This I do not deny. My argument concerns the venue and the manner in which the process manifests. The conflict is between the the victim and the offender. These same emotions can be expressed to the offender without an audience without compromising the message. If our goal is restoration of all stakeholders, including the offender, it would seem that he would be more willing and able to open himself and seriously consider the emotions and message of the victim if he isn't being subjected to public opprobrium. Again, if our objectives go beyond the simple establishment of culpability and punishment, voluntary earnest offender participation is required. This may not always occur, but restorative justice is committed to cultivating its preconditions.

Like the victim, in the courtroom the offender is also cast in a role which inhibits restoration. The environment assigns to him one role and one role only. Under such constraints how can we reasonably expect the offender to allow himself to feel and express genuine emotion, and a cultivate a desire to make good. The entire room sees him as the adversary. Restoration requires that he be able to take on another role. The courtroom, especially during the reading of VIS is not a venue conducive to the offender considering points of view outside of his own. With the state and the victim aligned against him, it is only natural that offenders may take to defensive posturing and retreat within their shell to preserve whatever shred of personal dignity they may have left.

A further problem with the unilateral increase in victim's power and the resulting potential defensive posturing of the offender is a decrease in the willingness of both parties to engage in genuine restorative action. When the asymmetry of power is perceived to be too great, there is a question about the genuineness of any desire to engage in restorative actions. The offender's motives to engage in restorative procedures become suspect because they may only arise out of his fear of a harsher sentence being imposed in the absence of participation. To achieve the goals of restorative justice, empowerment of both victim and offender are vital—VIS shift the balance of power such that offender empowerment is critically harmed.

I have said that an ideal justice must be felt and justifiable to all shareholders. When we introduce VIS it becomes even more difficult for a judgment to meet these standards. This is not necessarily because of a particular outcome--evidence suggests that victim input on sentencing has a negligible effect on sentence severity (Erez, 1999). Rather it has everything to do with the procedures by which judgements come about.

Restorative justice is as much about a result as it is about a process. It is the unilateral nature of VIS that are contrary to restorative justice. When one party is perceived to have a disproportionate influence over the process and the other party has little or none, justifying the result in terms of offender-relative reasons becomes more difficult—to say nothing of it being felt. Restorative justice is about both parties contributing to a restorative outcome within the context of community norms. The unilateral nature of VIS and their perceived influence on outcome take us farther from this ideal.

Systemic Reasons for which Victim Impact Statements Are Incompatible with Restorative Justice
As I have said, it is tempting to see VIS as a step in the direction of restorative justice. And it is true that the apparent victim empowerment engendered by VIS do seem to capture some elements of restorative justice. But this ignores the fact that restorative justice is not a unilateral or even a bilateral endeavour—it is trilateral. The implication is that any unilateral increase in the power of one stakeholder will likely increases the disparity in relative power to the others. Because of the divergent interests, the nature of restorative justice is such that you cannot simply tinker with one variable without affecting the equilibrium of the whole.

Despite my misgiving about VIS in the context of restorative justice, I don't think VIS in themselves are intrinsically antithetical to restorative justice (although I think there are better means of attaining the same ends). The main problem with VIS have to do with the prevailing norms of the criminal justice system and the way VIS were unilaterally introduced into the justice system without a corresponding adjustment in the offender's sphere.

For instance, it is clear that VIS do increase the possibility of victim restoration but at the cost of total restoration. But if at the same time VIS had been introduced there had been a corresponding increase in resources for offenders to—for example—reintegrate into society, then we might say there is a net gain in restorative justice. But it is the nature of any system with divergent interests that an increase in one stakeholder's power will change the equilibrium—and not necessarily as a net gain to the whole.

Restorative Solutions?
If I have correctly assessed the (in)compatibility of VIS with the goals and values of restorative justice, the answer to the first question I posed at the beginning of the paper is simple: No, VIS are not a step in the direction of restorative justice. QED.

But not so fast. Criticizing is the easy part—if this weren't true, political pundits would be out a job. A more difficult task is when we consider what might replace VIS that would both maintain the advantages of VIS but also be a step towards establishing a more restorative model within our current justice system. That is, what sort of procedure simultaneously (a) allows victims the ability to meaningfully express the harms and suffering they have experienced as a result of the crime, (b) harmonizes with our commitment to victim empowerment and active involvement in their own conflicts, (c) at the same time cultivates and protects restorative principles and values for offenders, and (d) doesn't require the implausible wholesale abandonment of our current judicial system? Simultaneously accomplishing these goals is a tall order indeed. Perhaps, a first step is to set reasonable expectations.

The restorative tradition offers a cornucopia of alternative venues and modalities for victims to express their suffering, pain, and anger—so long as it is not in the courtroom, and especially not during sentencing (Arragio & Williams, 2003). Many of the reasons for this aversion to the courtroom I have already outlined above. As an alternative t o VIS, advocates of the restorative tradition propose “community-situated victim-offender mediation settings” which emphasize a healing and peacemaking process (Pepinsky&Quinney, 1991), narrative therapy (Held, 1995), and critical discourse (Arrigo,
1999). From the restorative perspective, these modalities offer the best contexts within which victims can express their emotions without obstructing restorative justice. In other words, restoration-directed environments and procedures allow victims to engage in the activity that restorative proponents see as the most important benefit of VIS-- giving victims the opportunity to address their feelings of pain, anger, and resentment (Milovanovic, 1999), (Arragio & Williams, 2003).

Difficulties for Restorative Justice
But these restorative modalities fail to recognize other important advantages of VIS. For many victims, VIS engender a feeling of empowerment because they have a say and actively participate in the outcome of the trial. That is, their desires are taken into account—not just their “feelings”. To postpone the victim's expression of such desires until after the trial renders them meaningless. What good does it do the victim to express hypothetical sentencing desires? Where is the (perceived) empowerment4? Excluding sentencing desires from victims' input renders victim involvement largely ceremonial.

This isn't even the full story. Disregarding victim sentencing desires means we have “stolen” additional aspects of the conflict from the victim. In an increasing number of jurisdictions, pre-sentencing restorative options are being made available. If a case has gone to trial in one such jurisdictions, then almost by definition the victim has rejected their opportunity to engage in restorative justice5. This means that for whatever reason the victim is likely not interested in restorative types of processes. And since a central tenet of restorative justice is that engagement be voluntary, we must respect this choice.

A problem emerges. The victim doesn't want to engage in restorative processes, but we've taken VIS off the table. Is it desirable that the victim be given the hard choice between pre-trial restorative procedures or forfeiting his say in sentencing? As advocates for restorative justice we ought to consider carefully forcing a choice between engagement and reducing the victim's role to describing harm. Where is the empowerment? Where is the victim's ownership of the conflict?

A Way Forward: Justice Pluralism and Reframing VIS
Before I make my specific suggestions, I must express some general comments to build context. Broadly speaking, the nature of victim and offender roles in the current criminal judicial system is adversarial. It is such that a gain to victim rights entails a loss to the offender, and vice versa. As Christie points out, there is little incentive for restoration in the current paradigm. The conflicts are “owned” by the court professionals, not by the victim and offender. This incentivizes winning and losing-type motivations—not those of reconciliation and restoration.

With this in mind, proponents of restoration must ask whether it is even possible to incorporate any restorative-minded procedures incrementally into the current paradigm without upsetting the balance of power between victim and offender to which I referred earlier. While I think there are restorative-friendly innovations that can be introduced that concern the role of decision-makers, I'm very skeptical about innovations when it comes to expanding victim or offender power. My skepticism arises from the current adversarial normative roles of victim and offender, and the facts about who currently “owns” legal conflicts.

Within the context of these comments I will address the next issue of my paper: What should be the attitude of restorative justice proponents vis a vis VIS? My suggestion is that restorative justice proponents ought to cautiously endorse policies in the standard justice system that empower victims or offenders such as VIS. However, they should focus most of their efforts toward promoting and encouraging the development of parallel pre and post trial restorative options.

We have already acknowledge that VIS can in many ways be detrimental to restorative goals but removing VIS leaves little recourse to victims6 that do not wish to engage in restorative justice—be it pretrial or post-sentencing. One thing to consider is that the restorative criticisms of VIS assume a worst-case scenario in the courtroom (from both victim and offender points of view). I think this is overly pessimistic. While there is empirical evidence suggesting not all victims benefit from VIS (for a variety of reasons), there are also victims who find the process satisfying, empowering, and restorative (Erez, 1999, Cassell 2009. Cited p. 26 in Sommers forthcoming).

Within the context of the prevailing legal system, there are very good reasons to support VIS—although the environment may not always lead to restorative-friendly results. Restorative justice is not in the business of satisfying one party at the expense of others or of the whole. Perhaps the mistake is to view VIS through the lens of restorative justice—something akin to evaluating the norms of a foreign culture according to one's own cultural norms. Instead of judging the “cultural norms” of the traditional paradigm, what we ought to do instead is develop and promote restorative pathways that work in conjunction with the current legal system. VIS seem to be on the whole a good thing viewed within the normative context of the prevailing system.

The Fallacy of the Finality of VIS
Another thing to consider is that it is not as though the damage or ill effects of VIS to restorative justice can never be undone. Restorative justice is not a one-off affair, it's a process—and there is no reason to suppose there won't be ups and downs, with or without VIS. There is also no reason to suppose the negative effects of VIS will in all cases be greater than impasses in purely restorative cases. If restorative methods can ultimately recover from impasses in the latter kind of case, why should we suppose they are too weak for restoration in the former? (O! Ye of little faith!)

For cases that do go to trial, restorative advocates prefer that that the victim express himself after the trial (Arragio & Williams, 2003). While this may be preferable, there is no necessary reason to adopt a binary stance. The victim can express himself in court and gain the advantages of VIS, and restorative justice might suffer in the short-term. But as I've said, restorative justice is not a singular event like VIS—the door is still open for restorative procedures after a trial, regardless of what transpired earlier. And perhaps if a victim feels that having a say in his offender's sentence is a necessary precondition for his (i.e., the victim's) being restored, there is a compelling argument for its inclusion7. As proponents of restorative justice, perhaps we ought to direct our efforts at promoting and developing post-trial restorative modalities.

Guiding without Compromising Autonomy
Also, as proponents of restorative justice, we hope to avoid an adversarial trial to begin with. Where there are opportunities for restorative procedures we ought to consider ways to decrease the likelihood of cases going to trial in the first place. But this raises a paradox for restorative justice--for both pre- and post-trial modalities. How to you guide people toward restorative processes and at the same time maintain an ideological commitment to the engagement of both parties being voluntary? One possibility comes from empirical psychology. We know that whatever option is the default, that is what most people will adopt.8 In the context of the criminal justice system, instead of making engagement in restorative procedures opt in, we make them opt out. We preserve the voluntary nature of restorative justice, but will increase the probability that people will try restorative procedures before and after going to trial.

Reducing the Asymmetry
Up until now in this section, I've only discussed a non-binary approach from the victim's perspective which implies a cautious tolerance of VIS. But of course, from a restorative point of view, one of the primary objections to VIS is the effect is has on the offender's (in)ability to be restored. If our guiding value is restoration of the whole—that is, of all three stakeholders—how can we even begrudgingly endorse VIS? As I have said, the current adversarial paradigm is such that a gain in power by one stakeholder almost always entails a relative loss to the other—and a net loss to restoration.

I think if we distill many of the objections to VIS from the point of view of restoring the offender, one central theme emerges: The community is essentially saying to the offender “we value the victim's restoration more than yours”9. Sending this very message itself adds to the difficulties of restoring the offender. To the degree he is made to feel like an outsider, to that degree restoration and reintegration will be more difficult. So what is an advocate of restorative justice to do if we acknowledge the tangible good but also the bad that come from VIS? Perhaps we ought not to throw that baby out with the bath water.

What we ought to do is lobby for increased restorative resources for the offender to counter-balance the disequality in power that VIS bring. This is, of course, in addition to developing and pressing for post-sentencing restorative procedures as I have outlined above. The benefits of VIS to victims are fairly clear, but the harms are not irreversible provided there are post-sentencing victim-offender restoration procedures in place. In addition to these procedures proponents of restorative justice need to advocate for an increase in educational programs for offenders that will aid and encourage restoration and reintegration10.

It's not enough to simply criticize VIS. VIS are mostly contrary to restorative aims to the degree that there is an imbalance of restorative opportunities and resources between victim and offender. But the imbalance need not be resolved solely by removing the source of the imbalance. The disequilibrium can also be addressed by adding resources to the other side of the equation. Such a policy diminishes the volume of the community voice that says to the offender “we care about the victim's restoration more than yours” and moves toward replacing it with another message: “we also care about your restoration”.

A quick aside about the nature of programs for post-sentencing offenders. I think we ought to follow Christie's ideals on this matter. Restoration programs must presuppose that crime is often the product of unmet needs for social, educational, medical, religious resources (Christie, 1977). I would add one element to restorative programs—as far as possible they ought to be bottom up rather than top down. Whenever possible, rather than a group of experts or the court deciding what sorts of resources the offender requires, we should assume the offender knows best what he needs. Restorative programs should focus on providing resources for the offender to develop and follow his own path to restoration. The community and social workers ought to see themselves as facilitators rather than programmers. The emphases must be as much as possible directed toward cultivating personal active responsibility and empowerment.

Regarding the question, “Are VIS a step in the direction of restorative justice?”, the answer is “no”. However, it does not follow that advocates of restorative justice necessarily ought to oppose them. I argue we ought to take a pluralist approach to justice. The conventional criminal justice system and the restorative justice system should be view as two distinct cultures. It is difficult to import values and practices piecemeal from one into the other. VIS in the context of the culture of the conventional system are a net benefit but viewed through the restorative lens they are problematic. But these problems are not insoluble.

Advocates of restorative justice can develop and promote long-term restorative practices that compliment post-sentencing to offset the short-term disadvantages of VIS. To decrease the number of cases going to trial in the first place, advocates can takes advantage of the psychological bias to adopt the default practice and push for legislation that makes restorative practices 'opt out' instead of 'opt in'. Finally, rather than reject VIS out of hand because of its detrimental effects on restoration as a whole, proponents can work to restore balance within the conventional paradigm and work for greater offender-directed restorative resources and initiatives. In doing so, they raise the possibility of restoration by changing the community message to the offender from “we care about the victim's restoration” to “we also care about your restoration”.

As proponents of restorative justice we would prefer that all cases were handled within the restorative paradigm, but the practically-minded recognize the conventional structures are entrenched for now. So long as they are, our goal should be to adopt a pluralist approach that encourages restorative methods first and compliments the existing system in a way that compensates for its restorative shortcomings.

1. There is some empirical evidence showing that VIS don't achieve the goals they purport to (Davis & Smith, 1994), (Erez & Bienkowska, 1993). The purpose of my paper is not to challenge or support these conclusions in the context of conventional criminal trials, but it is important to note that recent literature has challenged assumptions about victim satisfaction with VIS. At this point in my paper, my objective is to evaluate the degree to which VIS can be seen as compatible with restorative justice.
2. Related to the problem of unequal weighting of VIS is the suggestion by some empirical evidence that the victim's race and/or social status play a role in the degree to which decision-makers are sympathetic to their statements (Phillips, 1997).
3In terms of respect. I.e., value #2: Respect: Regarding all people as worthy of particular consideration and attention as individuals.
4There is research suggesting that victim desires have a negligible impact on sentencing. If this is true, there is a separate question as to whether this illusion of empowerment is constructive or healthy.
5It's possible that the offender rejected the offer, but the data shows that offender willingness is greater than victim willingness to participate. Similarly, the case might have gone to trial because initial restorative efforts failed.
6I will consider what this means from the offender's point of view shortly.
7We might wonder why this hypothetical victim didn't engage in pre-trial restorative procedures if sentencing input is so important to him.
8See Gigerenzer, Gut Feeling. He give an comparison European and American organ donor rates. Countries in which organ donorship is opt is have rates of about 10-20% whereas opt out countries have 80-90% compliance rates. When countries switched from opt-in to opt-out, there was a corresponding shift in the rates.
9Whether this is the intent is an open question. My point is that from the point of view of the offender, this is how the experience of VIS is likely subjectively felt.
10Anecdotal evidence that resources are actually being taken away: I recently volunteered to teach in the Nevada prison system and was told their funding for post-GED education has been cut a few years ago.