COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

AMERICAN JOURNAL
of LAW and EQUALITY

COMMUNITY-BASED AND RESTORATIVE-JUSTICE
INTERVENTIONS TO REDUCE OVER-POLICING

Adriaan Lanni*

Residents of marginalized communities suﬀer simultaneously from “over-policing and
underprotection.”1 The various forms of over-policing are well-documented. Socioeco-
nomically disadvantaged neighborhoods are subject to harsh police tactics, wie zum Beispiel
order-maintenance policing and aggressive investigatory traﬃc and pedestrian stops not
typically experienced in predominantly white and middle-class neighborhoods.2 Intense
police surveillance combined with harsh sentencing policies have led to high incarceration
rates that have devastating social and economic eﬀects on these communities.3 Over-
policing and harsh criminal policies tend to erode trust in the police and the criminal jus-
tice system more generally.4 One survey of residents in six low-income communities
found that a majority of respondents viewed police as racially and ethnically biased, while
fewer than half thought the police acted in a procedurally just way, agreed that their police
department met various measures of legitimacy, or agreed that “the laws of our system are

*Touroﬀ-Glueck Professor of Law, Harvard Law School. Kevin Bendesky, Ava Cilia and Riley Doyle Evans, and Nicole
Fintel provided excellent research assistance. I am indebted to Randall Kennedy, Martha Minow, Carol Steiker, Und
Matthew Stephenson for helpful comments.

3
4

Monica Bell, Police Reform and the Dismantling of Legal Estrangement, 126 YALE L.J. 2054, 2117 (2017); see also
Daanika Gordon, The Police as Place-Consolidators: The Organizational Ampliﬁcation of Urban Inequality, 45 L.
& SOC. INQ. 1, 17–23 (2020) (providing case study in which inner city neighborhood was simultaneously over-
policed and underserved); Anthony A. Braga et al., Race, Ort, and Eﬀective Policing, 45 ANN. REV. SOCIOL. 535,
542 (2019).
Gordon, supra note 1 (comparing policing tactics in middle-class and inner-city neighborhoods); Glocke, supra
Notiz 1, at 2114–18; Braga et al., supra note 1, at 540–42.
Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 BIN. CRIM. L. REV. 191, 201–11 (1998).
Glocke, supra note 1, bei 2059, 2100; Braga et al., supra note 1, bei 540.

© 2022 Adriaan Lanni. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International
Lizenz (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00040

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generally consistent with the views of the people in your community about what is just
and right.”5

Gleichzeitig, disadvantaged communities tend to receive inferior service and pro-
tection from police.6 In many cities, police take much longer to respond to 911 calls in
disadvantaged communities, if they come at all;7 in Buﬀalo, Zum Beispiel, the median re-
sponse times in the predominantly Black East Side district was almost 125% longer than in
South Buﬀalo neighborhoods.8 The chair of the Buﬀalo Police Advisory Board summa-
rized the experience of being over-policed and underserved in low-income communities
of color: “On the one hand, you have patrol cars driving up and down the street. . . .
There’s this almost communal trauma from just this overbearing presence . . . always
Dort, always sort of watching you, but not ever there to help. Not ever there to make
you feel safe.”9

Is there a way to make marginalized communities safer without intense police surveil-
lance and harsh punishments? I propose relying more on two alternatives to traditional
policing and punishment. Erste, communities should consider non-police alternatives to
preventing and responding to harm whenever possible, including alternative ﬁrst re-
sponders, civilian traﬃc enforcement, community violence interrupters, and school and
community restorative-justice programs. Zweite, communities should be given the option
to develop restorative-justice programs as an alternative to the traditional criminal process
for some crimes.

ICH. PROMOTING COMMUNITY SAFETY THROUGH NON-POLICE ALTERNATIVES

Many communities have begun to experiment with programs to reduce the role of the
police. Small civilian alternative ﬁrst-responder programs addressing behavioral health cri-
ses have existed for some time; proposals to use civilians to respond to quality-of-life and
other low-level complaints and to conduct traﬃc enforcement are just beginning to get
traction. Communities have also developed violence-interruption programs and school
and community restorative-justice programs. This section brieﬂy reviews some of these

6
7

8
9

NANCY LA VIGNE ET AL., HOW DO PEOPLE IN HIGH-CRIME, LOW-INCOME COMMUNITIES VIEW THE POLICE? 8–11 (Feb.
2007), https://www.urban.org/sites/default/ﬁles/publication/88476/how_do_people_in_high-crime_view_the
_police.pdf.
Glocke, supra note 1, at 2114–16; Gordon, supra note 1, at 17–23.
Gordon, supra note 1, bei 21; Glocke, supra note 1, bei 2116; Steve Neavling, Police Response Times Are Slowest in
Detroit’s Poorest Neighborhoods, MOTOR CITY MUCKRAKER ( Jan. 25, 2019), https://motorcitymuckraker.com
/2019/01/25/part-4-police-response-times-are-slowest-in-detroits-poorest-neighborhoods/; Geoﬀ Kelly, Where’s
a Cop When You Need One?, INVESTIGATIVE POST (Dec. 7, 2021), https://www.investigativepost.org/2021/12/07
/wheres-a-cop-when-you-need-one/
Kelly, supra note 7.
Id.

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COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

programs to provide an idea of how they work and what data there is about their eﬀec-
tiveness. These types of programs may be one way for disadvantaged communities to im-
prove service and promote community safety while reducing the burdens of over-policing.
One of the most promising ideas is to use alternative ﬁrst responders whenever pos-
sible. The Crisis Assistance Helping Out on the Streets (CAHOOTS) program in Eugene,
Oregon, is one of the largest and best-known alternative-responder programs; several cit-
ies have recently introduced smaller programs based on this model.10 In the CAHOOTS
Modell, two-person teams—a mental health crisis worker and an emergency medical
technician—respond to 91111 and nonemergency calls involving mental health crises, In-
toxication or substance abuse, and homelessness.12 The CAHOOTS team provides volun-
tary services, including crisis intervention, counseling, and referral and transportation to
social services.13 These teams can oﬀer a more appropriate and less intimidating and dis-
tressing response to behavioral health crises than the police. They also reduce the danger
of a mental health crisis escalating into police violence. The risk of violence is signiﬁcant:
twenty-three percent of the more than six thousand people fatally shot by police oﬃcers
zwischen 2015 und März 2021 were experiencing a mental health crisis.14 Alternative ﬁrst-
responder programs also have the potential to signiﬁcantly reduce potentially volatile
police-citizen interactions in disadvantaged communities while providing a relatively
cost-eﬀective way to oﬀer emergency services. The Eugene and Springﬁeld CAHOOTS
program budget is minuscule compared to that of the police department, yet in 2019 Es
responded to nearly twenty percent of the calls coming through the Eugene public safety
communications center and required police backup in only about one percent of its calls.15
Responding to behavioral health crises may not be the only job that civilians can do
better than traditional police oﬃcers. The Center for American Progress and Law Enforce-
ment Action Partnership have proposed that civilian community responders should

Jackson Beck et al., Behavioral Health Crisis Alternatives, VERA INST. OF JUST. (2020), https://www.vera.org
/behavioral-health-crisis-alternatives.
One of the challenges in implementing this model is training 911 operators to recognize which calls can safely be
diverted to alternative ﬁrst responders. Some programs, such as the Crisis Response Unit in Olympia,
Washington, use police radios so that staﬀ can send a mobile team without relying on referrals from 911
dispatchers. Id.

12 Whitebird Clinic, CAHOOTS Eugene and Springﬁeld, Oregon Brochure, https://whitebirdclinic.org/wp-content

13
14

/uploads/2020/06/11×8.5_trifold_brochure_CAHOOTS.pdf; see also Beck et al., supra note 10.
Beck et al., supra note 10.
VERA INST. OF JUST., INVESTING IN EVIDENCE-BASED ALTERNATIVES TO POLICING: CIVILIAN CRISIS RESPONSE, 4 n.5 &
accompanying text (2021) (relying on Washington Post Police Shootings Database), https://www.vera.org
/downloads/publications/alternatives-to-policing-civilian-crisis-response-fact-sheet.pdf.
Beck et al., supra note 10 (noting that the CAHOOTS program in Eugene and Springﬁeld has a $2 million dollar
budget, about two percent of their police departments’ budgets; that of the estimated 24,000 calls responded to in
2019, nur 311 required police backup, and that in Eugene CAHOOTS resolved almost twenty percent of all calls).

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respond to minor complaints, such as those involving disturbances/disorderly conduct,
suspicious persons, trespassing, noise complaints, and other quality-of-life concerns.16
These sorts of complaints make up a signiﬁcant share of calls for service—approximately
twenty percent of calls in Detroit between 2016 Und 2020, for example.17 Traditional police
responses to these quality-of-life complaints erode trust in the police in marginalized com-
munities because of the perception (and reality) that police handling of quality-of-life is-
sues often involves the use of harsh and racially discriminatory methods to respond to
behavior that does not threaten community safety.18 Paid community members trained
in de-escalation and mediation may be able to resolve many of these complaints peacefully
without police involvement. While the idea of having community members respond to
911 calls involving quality-of-life complaints is new, engaging trained community mem-
bers (“violence interrupters”) to mediate conﬂicts has been done successfully for some
time.19 Given the negative impact of harsh order-maintenance policing on marginalized
communities of color, these communities might consider creating programs to refer
quality-of-life and other low-level calls to civilian community responders. The success
of alternative behavioral health responder models such as CAHOOTS suggests that civil-
ian community responder programs could oﬀer the possibility of more reliable service at a
fraction of the cost of police responses to quality-of-life complaints.

In a related vein, some cities are exploring the possibility of having unarmed civilians
housed in the department of transportation enforce minor traﬃc violations.20 The burdens
of over-policing in disadvantaged communities are perhaps most obvious in traﬃc en-
forcement. Many studies have found that Black and Latino drivers are more likely to be
gestoppt, searched, cited, and arrested than white drivers.21 Minor traﬃc violations can be
used as a pretext for abusive investigatory stops.22And a signiﬁcant percentage of fatal

17
18

Amos Irwin & Betsy Pearl, The Community Responder Model, CTR. FOR AM. PROGRESS (2020), https://www
.americanprogress.org/article/community-responder-model/.
Id.
To cite just one egregious example, the DOJ found that from 2011 Zu 2013, African Americans accounted for
ninety-ﬁve percent of Manner of Walking in Roadway charges and ninety-four percent of Failure to Comply
charges in Ferguson, Missouri. UNS. DEP’T OF JUST., INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT (2015).
For discussion, siehe unten.

19
20 Meg O’Connor, What Traﬃc Enforcement Without Police Could Look Like, APPEAL ( Jan. 13, 2021), https://
theappeal.org/traﬃc-enforcement-without-police/ (noting that the City of Berkeley passed a proposal in 2021
to shift traﬃc enforcement from the police to the department of transportation, and listing other
municipalities that have debated similar proposals). In some states, these proposals would require changing
state law to permit civilians to enforce traﬃc laws. See Emilie Raguso, Plans Firm Up to Remove Police from
Traﬃc Stops, but It’s a Long Road Ahead, BERKELEYSIDE (Mai 25, 2021), https://berkeley-rps.org/wp-content
/uploads/2021/05/Berkeley-pushes-ahead-with-plans-for-civilian-traﬃc-stops.pdf (describing the reform eﬀorts
in Berkeley, Kalifornien).
Jordan Blair Woods, Traﬃc Without the Police, 73 STAN. L. REV. 1471, 1475 (2021) (citing studies).
Id.

21
22

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COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

police shootings occur during traﬃc stops.23 One detailed proposal for civilian traﬃc en-
forcement argues that unarmed traﬃc monitors should be given authority to issue cita-
tions for minor traﬃc violations but should not be permitted to run background checks
or otherwise engage in criminal investigation.24 This approach would signiﬁcantly reduce
the frequency of one of the most common and fraught forms of police-civilian encounter,
easing the eﬀects of over-policing in marginalized communities.

Other promising initiatives include community violence-interruption programs. Der
Cure Violence (formerly Ceaseﬁre) model developed in Chicago in 2000 and replicated
in several cities in the United States and abroad oﬀers one example.25 Cure Violence pro-
grams train and pay members of the community to work as outreach workers and violence
interrupters.26 Because these workers have backgrounds similar to those of the at-risk
youth they work with, and in some cases have themselves been involved in gangs or other
illegal activity, they are “credible messengers” who are able to talk with more credibility to
young men who are at risk of criminal involvement.27 In this model, outreach workers try
to build long-term relationships with these young people to persuade them to make better
choices and to help them access services, such as education and job training. Gewalt
interrupters seek to intervene in potentially violent conﬂicts using de-escalation and me-
diation techniques.28 Violence interrupters might, Zum Beispiel, learn from community
members about a brewing feud and help parties establish mutually acceptable boundaries
for territory or broker a ceaseﬁre or truce,29 or they might learn from program partners in
a hospital about a shooting and engage survivors to try to de-escalate the situation and
prevent retaliation.30 Cure Violence programs seem to be eﬀective at reducing violence.
One recent study in Philadelphia found that shootings in crime hot spots decreased

23 Wesley Lowery, A Disproportionate Number of Black Victims in Fatal Traﬃc Stops, WASH. POST, Dec. 24, 2015

(ﬁnding that eleven percent of fatal police shootings in 2015 occurred during traﬃc stops).

24 Wald, supra note 21. Under this proposal, civilian traﬃc monitors would not be expected to pursue ﬂeeing cars
whose drivers refused to stop for them; a photo of the license plate would be suﬃcient to issue a citation for traﬃc
violations. Police could continue to make traﬃc stops to enforce warrants or in a narrow set of serious traﬃc
oﬀenses such as reckless driving. Id.
Jennifer M. Whitehill et al., Interrupting Violence: How the CeaseFire Program Prevents Imminent Gun Violence
Through Conﬂict Mediation, 91 J. URB. HEALTH 84, 85 (2013); JOHN JAY COLL. RSCH. ADVISORY GRP. ON PREVENTING &
REDUCING VIOLENCE, REDUCING VIOLENCE WITHOUT POLICE 8–11 (2020, revised 2021), https://johnjayrec.nyc/wp
-content/uploads/2020/11/AV20201109_rev.pdf.

26 Whitehill et al., supra note 25, bei 85; JOHN JAY COLL. RSCH. ADVISORY GRP. ON PREVENTING & REDUCING VIOLENCE,

supra note 25, bei 9.

27 Whitehill et al., supra note 25, bei 85.
28

JOHN JAY COLL. RSCH. ADVISORY GRP. ON PREVENTING & REDUCING VIOLENCE, supra note 25, bei 2; Whitehill et al.,
supra note 25, at 90–91.

29 Whitehall et al., supra note 25, at 90–91.
30

JOHN JAY COLL. RSCH. ADVISORY GRP. ON PREVENTING & REDUCING VIOLENCE, supra note 25, bei 11.

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signiﬁcantly compared with matched comparison areas.31 Studies of several violence in-
tervention programs that engage young hospital patients who have sustained violent in-
juries have found that these programs decrease the likelihood of arrest, re-injury, oder
both.32 Chicago’s Safe Passage program is another example of a community-based alter-
native to policing. Safe Passage, which hires civilians trained in de-escalation strategies to
patrol routes near schools at arrival and dismissal times, appeared to reduce violent crime
by fourteen percent in those areas, with little displacement.33 Because violence-
interruption programs rely on well-trained individuals with local community ties and, von-
zehn, backgrounds similar to those of the youth they work with, scaling up these programs
is not a simple process.34 But the strong evidence that violence-interruption programs can
be eﬀective suggests that this approach is worth pursuing.

School and community restorative-justice programs are another promising approach
to preventing crime without police involvement. School restorative-justice programs that
replace criminal and punitive disciplinary procedures with restorative approaches may al-
leviate police surveillance in schools and reduce the burdens of high incarceration rates in
marginalized communities by disrupting the school-to-prison pipeline. It has been well-
documented that zero-tolerance policies that emphasize the use of suspension and expulsion
put students at increased risk of dropping out, risky and illegal behaviors, and involvement
with the criminal justice system.35 And this punitive school discipline has a disparate impact
on students of color. Zum Beispiel, studies have shown that Black students are more
likely to be suspended, expelled, and arrested at school than white students and that
“black students are more harshly sanctioned for comparable or lesser infractions than
white students.”36 Restorative-justice circles may oﬀer an alternative. Restorative-justice
circles bring together aﬀected students and teachers to discuss and cooperatively address
conﬂicts and problematic behaviors; schools also use ongoing community-building cir-
cles to promote a positive school culture.37 Rigorous academic studies of the eﬀects of

32
33
34

Id. at 9–11 (discussing studies); Catarina Roman et al., Quasi-experimental Designs for Community-Level Public
Health Violence Reduction Interventions: A Case Study in the Challenges of Selecting the Counterfactual, 14 J.
EXPERIMENTAL CRIMINOLOGY 155–85 (2018) (discussing Philadelphia program).
JOHN JAY COLL. RSCH. ADVISORY GRP. ON PREVENTING & REDUCING VIOLENCE, supra note 25, bei 11 (citing studies).
Id.
Id. bei 9 (noting that identifying and retaining appropriate staﬀ can be challenging in violence-interruption
Programme).

35 Mara Schiﬀ, Can Restorative Justice Disrupt the ‘School-to-Prison Pipeline?' 21 CONTEMP. JUST. REV. 121, 123–24

36
37

(2018).
Id. bei 124.
Thalia Gonzalez, Keeping Kids in Schools: Restorative Justice, Punitive Discipline, and the School to Prison Pipeline,
41 J.L. & EDUC. 281, 298–321 (2012) (describing the use of restorative justice in various school systems).

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COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

restorative-justice practices in schools are limited, but schools and school systems adopting
restorative-justice practices report a decrease in suspensions, expulsions, and police re-
ferrals, an improvement in graduation rates and academic achievement, and a reduction
in racial disparity in discipline.38

Restorative practices can also be used in the community to steer at-risk individuals
away from criminal behavior. In these programs, nonproﬁt organizations or community
groups organize peacemaking circles in which community members are invited to partic-
ipate in a series of guided conversations on themes such as manhood, violence, how to
leave gangs, healthy relationships with women, and goal setting.39 These programs some-
times also hold conﬂict circles, which respond to tensions between gangs or individuals
by bringing the antagonists together to make an agreement not to instigate conﬂict.40 A
qualitative sociological study of one such group suggests that circles may have averted
gang violence and helped gang-involved individuals make the transition to stable
employment.41

Natürlich, none of these programs eliminates the need for police to respond to violent
crime. Aber, taken together, they may reduce violence and promote safety while reducing
negative police-civilian interactions.

II. RESTORATIVE ALTERNATIVES TO THE CRIMINAL ADJUDICATION PROCESS

My second suggestion is to develop restorative-justice programs as alternatives to the tra-
ditional criminal process.42 Restorative justice is not just a way to reduce the eﬀects of
harsh punishments on marginalized communities. Restorative justice is more responsive
to the needs of crime victims and promotes community safety by reducing recidivism rates
and helping oﬀenders become reintegrated in the community. This part ﬁrst describes
how restorative justice is used in the criminal context and suggests why it oﬀers a better
response to crime than the traditional criminal process, particularly for disadvantaged
communities. I then review various options in designing restorative-justice programs,
including personnel, referral procedures, and eligibility criteria.

38
39

40
41
42

Schiﬀ, supra note 35, at 126–28; FANIA DAVIS, THE LITTLE BOOK OF RESTORATIVE JUSTICE 48–52 (2019).
CAROL BOYES-WATSON, PEACEMAKING CIRCLES AND URBAN YOUTH: BRINGING JUSTICE HOME (2008) (describing ROCA);
CIRCLES AND CIPHERS, https://www.circlesandciphers.org (weekly young men’s circle at Circles and Ciphers in
Chicago).
BOYES-WATSON, supra note 39.
Id.
For a detailed analysis of the tradeoﬀs involved in incorporating restorative justice throughout the criminal legal
System, see Adriaan Lanni, Taking Restorative Justice Seriously, 69 BUFF. L. REV. 635 (2021).

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A. Restorative justice in the criminal context
Restorative justice takes many forms, but in the criminal context it typically involves a
meeting between the victim,43 the oﬀender, and other members of the community. In diesem
meeting, the oﬀender expresses remorse for the harm caused and the group agrees on ac-
tions the oﬀender can take to repair the harm and prevent re-oﬀending. Police or prose-
cutors typically refer cases at their discretion to independent nonproﬁt organizations to
conduct these restorative processes, often with the help of community volunteers. Gener-
ally, cases will not be referred to restorative justice without the victim’s consent; surrogate
victims (community members who have experienced a similar harm) can be used when
the victim does not want to participate in the process. Defendants can be oﬀered the op-
tion to participate in restorative justice at various stages in the criminal process. Restor-
ative programs can be used as a form of diversion from the criminal process, als
alternative form of sentencing, oder, in more serious cases, as a way to reduce the criminal
Satz.

As described in more detail below, restorative processes oﬀer victims more satisfaction
than the criminal process and do a better job of holding the oﬀender accountable and
reducing recidivism while avoiding or reducing incarceration. The advantages of restor-
ative justice are particularly acute for marginalized communities, for three reasons. Erste,
restorative justice oﬀers a meaningful response to harm that reduces the burden over-
policing and harsh crime control policies place on these communities. Zweite, the local-
ization and community involvement in restorative-justice programs allow communities
that are disproportionately aﬀected by both crime and harsh criminal policies to make
their own assessment of the extent to which they want to moderate criminal punishments
with restorative alternatives.44 Third, incorporating restorative-justice programs may en-
hance legitimacy and community trust in the criminal process.

Restorative justice is not just a way for communities to avoid harsh criminal policies.
As many proponents have pointed out, restorative approaches do a better job of meeting
the needs of victims than the traditional criminal process. By giving victims a voice and
role in the resolution of the case, restorative processes can help victims overcome a feeling

43 Many restorative justice practitioners avoid using the terms “victim” and “oﬀender” because the two categories are
often not as distinct as these labels suggest and because both “victim” and “oﬀender” can be stigmatizing labels.
“Responsible party” and “impacted party” are often used as replacements. I support this approach and use these
terms in my practice but use “victims” and “oﬀenders” in this article to avoid confusion for readers who are
unfamiliar with the ﬁeld.
Referral policies are typically determined by individual police departments and district attorneys’ oﬃces.
Restorative-justice providers can further localize the process by involving volunteers or paid members of a
smaller community, such as a neighborhood or zip code, if desired.

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COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

of powerlessness and regain a sense of control.45 By contrast, traditional criminal processes
do little to promote victim healing and restore a sense of safety and can in many cases be
psychologically harmful.46 Moreover, restorative-justice proponents point out that vic-
tims’ desire for safety and justice does not necessarily mean they want oﬀenders to receive
long terms of incarceration.47 In fact, surveys of crime victims indicate that many victims
prefer a justice system focused on rehabilitation over punishment, favor noncustodial
forms of accountability, and believe that prison is more likely to make people commit
crimes than to rehabilitate them.48

Empirical research supports the claim that restorative justice oﬀers more to victims
than the criminal process. Multiple randomized control studies have found that restorative
justice outperformed the criminal process on a variety of metrics related to victims’ psy-
chological well-being and sense of fairness.49 For example, a multiyear randomized study
from Australia of cases involving personal property crime and mid-level violent oﬀenses
found signiﬁcant psychological beneﬁts for victims who participated in restorative justice:
victims of violent crimes who went to court were ﬁve times more likely to believe they
would be revictimized by the oﬀender than victims whose cases were referred to restor-
ative justice.50 Similarly, this study found that victims who participated in a restorative

48
49

DANIELLE SERED, UNTIL WE RECKON: VIOLENCE, MASS INCARCERATION, AND THE ROAD TO REPAIR 23–31 (2019); HOWARD
ZEHR, CHANGING LENSES: RESTORATIVE JUSTICE FOR OUR TIMES 31–35 (2015). For a discussion of scientiﬁc literature
suggesting that the passive role assigned to victims in the criminal process can be harmful, while a more active role
that promotes a sense of control fosters victim recovery, see Linda G. Mills, The Justice of Recovery: How the State
Can Heal the Violence of Crime, 57 HASTINGS L.J. 457, 462–63 (2006).
Jim Parsons & Tiﬀany Bergin, The Impact of Criminal Justice Involvement on Victims’ Mental Health, 23 J.
TRAUMATIC STRESS 182 (2010); Uli Orth, Secondary Victimization of Crime Victims by Criminal Proceedings, 15
SOC. JUST. RSCH. 313 (2002); Patricia Resick, Psychological Eﬀects of Victimization: Implications for the Criminal
Justice System, 33 CRIME & DELINQ. 475 (1987).
SERED, supra note 45, bei 29; Heather Strang & Lawrence Sherman, Repairing the Harm: Victims and Restorative
Justice, 1 UTAH L. REV. 15, 19–20 (2003); ZEHR, supra note 45, bei 195; see also Tinneke Van Camp & Jo-Anne
Wemmers, Victim Satisfaction with Restorative Justice: More Than Simply Procedural Justice, 19 INT’L REV.
VICTIMOLOGY 117 (2013) (noting that victims most commonly seek validation rather than retribution).
ALLIANCE FOR SAFETY AND JUSTICE, CRIME SURVIVORS SPEAK 14, 15, 16, 20 (2016).
Strang & Sherman, supra note 47, at 25–33; Caroline Angel et al., Short Term Eﬀects of Restorative Justice
Conferences on Post-Traumatic Stress Symptoms Among Robbery and Burglary Victims: A Randomized Control
Trial, 10 J. EXPERIMENTAL CRIMINOLOGY 291 (2014) (ﬁnding that symptoms of post-traumatic stress disorder were
signiﬁcantly lower in victims of burglary and robbery who were randomly assigned to a restorative process);
Barton Poulson, A Third Voice: A Review of Empirical Research on Psychological Outcomes of Restorative
Justice, 1 UTAH L. REV. 167, 172, 179, 181, 188 (2003) (discussing randomized control study of family
conferencing program that found that victims who experienced the restorative process were more satisﬁed
than those whose cases were assigned to court (96% vs. 76%), were more likely to think their case was
handled fairly (96% vs. 80%), and were more likely to think the oﬀender was adequately held accountable for
the oﬀense (93% vs. 75%).
Strang & Sherman, supra note 47, at 25–29.

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conference felt more secure, less anxious, and less afraid of the oﬀender and had a greater
sense of closure than those whose cases were resolved in the criminal process.51

Restorative processes can also hold oﬀenders accountable in a more meaningful way
than criminal punishment. What distinguishes criminal harm from other types of physical
and material harm is the moral or expressive injury that accompanies it: the oﬀender has
shown contempt for the rights of the victim and for society’s rules.52 Traditional punish-
ment is one way for society to correct this false message by expressing condemnation for
the oﬀender’s actions.53 But another approach—one that is arguably more direct and more
satisfying—to correcting this expressive harm is for the oﬀender himself to acknowledge
the harm caused and the wrong done; to “even the score” by apologizing to the victim,
expressing remorse, and voluntarily trying to repair the harm; and to reaﬃrm society’s
rules by agreeing to abide by them in the future.54

In contrast to the restorative approach’s focus on accountability, the adversarial crim-
inal process encourages oﬀenders to deny responsibility.55 Except in the few cases that go
to trial, defendants never hear an account of the eﬀect their actions have had on the vic-
tims.56 Oﬀenders often feel, with some justice, that the way they have been treated in the
criminal process and/or the sentence they have received is unfair. Preoccupation with their
own mistreatment distracts oﬀenders from accepting responsibility for their actions and
experiencing remorse for the harm they have caused.57

Restorative processes also do a better job at rehabilitating and reintegrating the of-
fenders. Restorative agreements vary with each case but typically involve symbolic repa-
ration in the form of an apology, community service, material restitution if the victim has
suﬀered ﬁnancial losses, and education about the impact of the relevant oﬀense, wie zum Beispiel
readings or videos about the community eﬀects of gun violence. Agreements may also in-
clude items aimed at addressing the underlying causes of the oﬀending, such as mental
health or drug treatment, counseling, Ausbildung, job training, and reﬂective exercises
that may promote individual skills like decision-making, goal-setting, and recognizing
multiple perspectives, as well as reﬂection on bias and systemic injustice and their his-
torical roots.58 Studies suggest that restorative processes do a better job of reducing

51
52
53
54
55
56
57
58

Id. at 29–33.
Stephen P. Garvey, Restorative Justice, Punishment, and Atonement, 1 UTAH L. REV. 303, 306–07 (2003).
Id. bei 308.
Sehen, z.B., ZEHR supra note 45, bei 238.
Id., bei 45-47; SERED, supra note 45, at 92–94.
ZEHR, supra note 45, bei 45; SERED, supra note 45, at 93–94.
ZEHR, supra note 45, at 46–47.
For an example of particularly extensive restorative agreement in an assault case, see SERED, supra note 45, bei 144.

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COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

recidivism than the criminal process.59 Interestingly, some studies suggest that this eﬀect is
most pronounced for violent oﬀenses and somewhat larger for adult as opposed to juvenile
oﬀenders.60

Perhaps most important for disadvantaged communities, restorative justice can
achieve these positive results while minimizing the harsh criminal punishments that have
had devastating eﬀects on individuals and communities. For all these reasons, these com-
munities should have access to community-based restorative-justice programs.

B. Options in designing restorative-justice programs
Restorative-justice programs vary widely in terms of their personnel, scope, and de-
sign. Tatsächlich, one of the virtues of restorative justice is the opportunity it gives local com-
munities to determine for themselves what types of oﬀenses might merit a restorative
rather than a punitive response. While individual restorative-justice programs should be
tailored to local needs, it may be helpful to think through some of the major choices in
designing restorative-justice programs in over-policed communities.

An initial question is who should run and participate in restorative processes. Lokal
community involvement in a restorative-justice program is critical in over-policed com-
munities. This involvement ensures that the program is viewed as legitimate and respon-
sive to the community’s needs. Restorative-circle processes sometimes include community
members as well as those most directly involved in the incident (the victim, oﬀender, Und
their supporters).61 For marginalized communities, input from community members
would be vital in ensuring that the types of cases taken by the program and the agreements
reached in restorative processes align with community members’ assessment of how to
address particular incidents given the burdens of both crime and harsh criminal punish-
ment. Many restorative-justice programs rely on trained volunteers from the community
to facilitate restorative processes. But communities that choose a restorative approach for a
wide range of oﬀenses would likely ﬁnd the caseload too large for unpaid volunteer facil-
itators to handle. Some restorative-justice proponents resist any move toward profession-
alization62 and would view the use of paid facilitators as a serious drawback. But there may
be some advantages to abandoning a volunteer model, particularly if local community

61
62

E.g., Lawrence Sherman et al., Are Restorative Justice Conferences Eﬀective in Reducing Repeat Oﬀending? 31 J.
QUANT. CRIMINOLOGY 1 (2015); DAVID O’MAHONEY & JONATHAN DOAK, REIMAGINING RESTORATIVE JUSTICE 175–95
(2017).
HEATHER STRANG ET AL., RESTORATIVE JUSTICE CONFERENCING (RJC) USING FACE-TO-FACE MEETINGS OF OFFENDERS AND
VICTIMS: EFFECTS ON OFFENDER RECIDIVISM AND VICTIM SATISFACTION 26–27 (2013).
HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE (2015).
Susan M. Olsen & Albert W. Dzur, Reconstructing Professional Roles in Restorative Justice Programs, 1 UTAH L.
REV. 57, 59 (2003).

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members are paid to serve as facilitators in a part-time or full-time capacity. Recruiting
and training paid facilitators from the local community would promote diversity,63 con-
tinuity, Erfahrung, and quality in the facilitator pool and encourage consistent treatment
of cases without sacriﬁcing attention to local circumstances.

Another critical question is who decides which oﬀenders are diverted from the tradi-
tional system into restorative-justice programs. The broad discretion currently given to
police and prosecutors’ oﬃces to determine who gets a referral may amplify racially
and ethnically disparate criminal-justice outcomes in disadvantaged communities. Police
departments and prosecutors’ oﬃces typically have policies that list factors to be consid-
ered in deciding whether or not to refer an oﬀender who has committed an eligible oﬀense,
but these policies often leave a great deal of discretion to the referring agency.64 Critics
worry that explicit and implicit bias may lead to fewer referrals for poor oﬀenders and
people of color, and the few (though now somewhat dated) existing studies of referral
practices lend some support to the worry that bias may aﬀect these discretionary deci-
sions.65 The easiest solution to the bias problem in referrals is to create rules for the au-
tomatic referral of cases involving eligible oﬀenses, which would signiﬁcantly reduce police
and prosecutors’ discretion. New Zealand uses a similar practice in adult cases, requiring
automatic referral of all cases before sentencing to determine if a restorative process is
appropriate in the particular case.66

Perhaps the most important choice for communities introducing restorative justice in-
volves the eligibility criteria for referral. Will the program be limited to juveniles or ﬁrst
oﬀenders? Will it include misdemeanors, felonies, serious violent crimes? While each com-
munity should determine its own referral criteria, there may be good reasons for margin-
alized communities to support referral policies quite diﬀerent from the current practice in

On the diﬃculty of recruiting volunteers who are representative of the community, see Adam Crawford, Der
Zustand, the Community, and Restorative Justice, in RESTORATIVE JUSTICE AND THE LAW, 101, 121 (Lode Walgrave
Hrsg., 2002).
For an example of a referral policy from a Nova Scotia police referral program, see Diane Crocker, The Eﬀects of
Regulated Discretion on Police Referrals to Restorative Justice, 36 DALHOUSIE L.J. 393, 397–99 (2013).
Zum Beispiel, a study of a juvenile restorative justice diversion program in Maricopa County, Arizona, found that
both Black and Latino oﬀenders were less likely than white oﬀenders to be selected by probation oﬃcers and the
prosecutor’s oﬃce for placement in a restorative-justice program. Nancy Rodriguez, Restorative Justice,
Communities, and Delinquency: Whom Do We Reintegrate, 4 CRIMINOLOGY & PUB. POL’Y 103, 119 (2005). Der
raw statistics of referrals in South Australia (according to a 1999 Bericht, ﬁfty-four percent of non-aboriginal
youth versus thirty-one percent of aboriginal youth were diverted from court) also raise the possibility of
discrimination in referral decisions, but the report does not eliminate other potential reasons for the
diﬀerences in referrals, such as the criminal history of oﬀenders. For discussion, see Kathleen Daly, Restorative
Justice in Diverse and Unequal Societies, 17 LAW IN CONTEXT 167, 179 (2000).
2002 Sentencing Act s. 24A (N.Z.).

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COMMUNITY-BASED AND RESTORATIVE-JUSTICE INTERVENTIONS

Die Vereinigten Staaten, which tends to focus on juvenile and minor oﬀenses and avoid referrals
for more serious crimes.67

Disadvantaged communities already subject to excessive police surveillance and con-
trol will likely want to be careful to avoid introducing restorative-justice programs that will
expand residents’ involvement with the criminal legal system. There is a danger that
programs intended to divert oﬀenders from the criminal justice system may result in “wid-
ening the net” of state control.68 For example, criminal justice actors may refer oﬀenders,
especially juveniles, whom they think might beneﬁt from a restorative process for minor
oﬀenses that would ordinarily not be pursued in court at all, or that would ordinarily re-
sult in less onerous requirements under a conditional discharge or an adjournment in con-
templation of dismissal. An oﬀender who fails to complete a restorative agreement might
ﬁnd himself returned to the criminal process to face punishments that he would never
have faced absent the referral.69 Marginalized communities will want to write referral
policies with an eye toward avoiding net-widening. Insbesondere, referrals from school
resource oﬃcers to restorative-diversion programs embedded in the criminal legal system
should be avoided in favor of restorative responses that operate within schools.

Restorative justice need not be limited to minors or to nonviolent oﬀenses. In New
Zealand, all cases must be evaluated prior to sentencing for referral to a restorative pro-
cess.70 Moreover, restorative justice is mandatory for all serious youth oﬀenses in New
Zealand except murder and manslaughter.71 Restorative theory predicts that a restorative
encounter will be more meaningful in cases of violence, precisely because hearing about
the impacts of a violent crime directly from the victim is apt to make a stronger impres-
sion on oﬀenders. And empirical studies of existing programs ﬁnd that restorative pro-
grams are more eﬀective at reducing recidivism when the case involves violent crimes
rather than property crimes and are slightly more eﬀective for adult serious oﬀenders than
for juveniles.72

Restorative justice can be implemented in a way that is compatible with a notion
of proportionality for communities that worry that restorative approaches will be too
lenient a response to serious crime. Some restorative-justice theorists have suggested that

67 William Wood, Why Restorative Justice Will Not Reduce Mass Incarceration, 55 BRIT. J. CRIMINOLOGY 883, 887

(2015).
E.g., M. Eve Hanan, Decriminalizing Violence: A Critique of Restorative Justice and Proposal for Diversionary
Mediation, 46 N.M. L. REV. 123, 133 (2016); Richard Delgado, Goodbye to Hammurabi: Analyzing the
Atavistic Appeal of Restorative Justice, 52 STAN. L. REV. 751, 761–62 (2000).
Crawford, supra note 63, bei 139.
Sentencing Act 2002 S. 24A (N.Z.).
ALLAN MACRAE & HOWARD ZEHR, THE LITTLE BOOK OF FAMILY GROUP CONFERENCES 218 (2015).
STRANG ET AL., supra note 60, at 26–27.

69
70
71
72

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restorative outcomes should be subject to broad upper and lower limits based on the of-
fense,73 or that additional punishments should be available where needed to insure pro-
portionality in serious cases.74 Where a restorative process takes place after a charge has
been ﬁled, proportionality constraints can easily be enforced through court review of re-
storative agreements or by using a restorative agreement as a factor that can inform a
court’s sentencing decision rather than the presumptive sentence. Jurisdictions in New
Zealand and Canada, where restorative justice is widely used, have adopted precisely these
approaches. Courts in these jurisdictions often have the option of reviewing restorative
Vereinbarungen; studies have shown that courts ratify these agreements in roughly eighty per-
cent of cases.75 In New Zealand, participation in a restorative-justice process will typically
reduce rather than eliminate the prison sentence in very serious cases. To give just one
Beispiel, the High Court of New Zealand recently upheld a ten percent reduction in
the length of imprisonment for participation in a restorative process in a case involving
intentional inﬂiction of grievous bodily harm and suggested that a reduction of up to
twenty percent for participation in restorative justice was reasonable in most cases.76

Some communities might choose a gradual approach to using restorative justice for
serious crimes—perhaps beginning with small pilot programs and/or using restorative
justice to reduce but not eliminate incarceration for serious oﬀenses. And even the most
enthusiastic restorative-justice proponents recognize that restorative justice will not work
for all oﬀenders and cases and will not replace incarceration completely.77 But if pilot pro-
grams are successful at reducing recidivism, over time communities may become more
and more comfortable with restorative rather than punitive approaches to serious crime.
Expectations about what level of punishment is “deserved” for a given oﬀense are inﬂu-
enced by the anchoring eﬀect of the existing system of mass incarceration. In an ideal
Welt, a restorative approach to crime would itself become constitutive and reset expec-
tations that long and dehumanizing prison terms are the proper response to serious harm.

Carolyn Hoyle, The Case for Restorative Justice, in DEBATING RESTORATIVE JUSTICE 1, 64 (Chris Cunneen & Carolyn
Hoyle eds., 2010).

74 Michael Cavadino & Jim Dignan, Reparation, Retribution, and Rights, 4 INT’L REV. VICTIMOLOGY 233 (1997).
75

John Braithwaite, In Search of Restorative Jurisprudence, in RESTORATIVE JUSTICE AND THE LAW, supra note 63, bei
150–51 (citing studies ﬁnding that in New Zealand, courts ratiﬁed eighty-one percent of conference decisions and
when they did change them were eight times more likely to reduce the order, and that courts in Manitoba ratiﬁed
eighty-three percent of restorative plans and were ﬁve times as likely to modify by addition of requirements as
deletions).
SG v. Heta, [2018] NZHC 2453 bei [65] (N.Z.).
SERED, supra note 45, bei 133; Jim Dignan, Restorative Justice and the Law: The Case for an Integrated, Systemic
Approach, in RESTORATIVE JUSTICE AND THE LAW, supra note 63, bei 168; JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND
RESPONSIVE REGULATION 32–33 (2002).

76
77

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Another question relates to deterrence. Would the adoption of restorative approaches
encourage crime by eliminating or reducing the deterrent eﬀect of harsh penalties? It’s
impossible to say for sure, but any reduction in general deterrence due to a decrease in
punishment severity can be at least partially oﬀset by gains in compliance generated by
enhanced legitimacy and transformative approaches to community safety. If used broadly
enough, restorative justice may contribute to compliance with the law by enhancing the
community’s perception of procedural justice and the legitimacy of the criminal legal sys-
tem.78 Increased community trust might also lead to higher rates of reporting crime and
cooperation with law enforcement, thus strengthening deterrence.79 The potential eﬀects
of increasing reporting rates on deterrence should not be underestimated: a recent national
study found that ﬁfty-two percent of violent victimizations and forty-two percent of cases
involving a weapon went unreported.80 Moreover, pairing restorative processes with the
transformative approaches to community safety and harm prevention, such as violence in-
terrupters and alternative ﬁrst responders, discussed earlier may also help lower crime rates
without over-policing and harsh criminal punishments.

III. CONCLUSION

In this paper I have tried to describe some alternatives to traditional policing and the crim-
inal process that would both reduce the negative impacts of over-policing and harsh pun-
ishment and promote safety and protection for underserved communities. In some
instances, hard evidence supports these alternatives. Zum Beispiel, we have seen that
violence-intervention programs can reduce violence and that restorative-justice programs
have produced better outcomes for both the oﬀender and the victim. In anderen Fällen,
common sense alone suggests the value of alternative approaches. There seems to be no
good reason to suppose that armed police oﬃcers should spend so much time in disad-
vantaged communities responding to mental health emergencies, particularly when civil-
ians can provide better-trained and more reliable service at a lower cost.

Um sicher zu sein, there are diﬃcult questions about how to expand these alternative
programs in over-policed communities—for example, whether violence-prevention pro-
grams can be expanded and copied in new settings and whether restorative justice would
work if scaled up to address more serious crimes.81 This concern about getting it right is

78
79

80
81

LAWRENCE SHERMAN & HEATHER STRANG, RESTORATIVE JUSTICE: THE EVIDENCE 78–81 (2007).
Hadar Dancig-Rosenberg & Tali Gal, Restorative Criminal Justice, 34 CARDOZO L. REV. 2313, 2334 (2013); John
Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 CRIME AND JUST. 1, 60 (1999).
LYNN LANGTON ET AL., UNS. DEPT. JUST., VICTIMIZATIONS NOT REPORTED TO THE POLICE, 2006–2010, at 5–8 (2012).
For an in-depth discussion of the prospects for scaling up restorative justice, see Lanni, supra note 42.

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appropriate; painful experience suggests that missteps create real blowback. Yet there is
another fundamental truth, which is that the status quo is profoundly dysfunctional.
Traditional policing and criminal adjudication do not enjoy even modest levels of legiti-
macy in marginalized communities. Striking the proper balance between prudence and
ambition is beyond the scope of this paper. What I hope I have shown is that there are
promising alternatives to over-policing. After decades of living under a broken system, Die
residents of our most vulnerable communities are entitled to try something new.

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