Taking Restorative Justice Seriously

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings those affected by a criminal offense together in an attempt to address the harm caused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process? Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses? Will the process be coopted by bureaucratic impulses? Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate. Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable. I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration. I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality. At the same time, vastly expanding restorative justice entails compromising some key features of restorative justice. I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration.