Grasping the Third Rail: Restorative Justice and Violent Crime

Authors

Olwyn Conway, The Ohio State University Moritz College of LawFollow

Abstract

Restorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and procedural protections already watered-down in our misdemeanor courts. Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.

As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives. These offenses have become the “third rails” of restorative justice. Yet it is precisely in these cases that conventional criminal system responses are failing. It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending. So why are they considered off-limits? This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.

It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime.

Recommended Citation

Olwyn Conway, Grasping the Third Rail: Restorative Justice and Violent Crime, 81 Wash. & Lee L. Rev. 1379 (2024).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol81/iss4/4