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Excerpted From: Thalia González, The Legalization of Restorative Justice: A Fifty-state Empirical Analysis, 2019 Utah Law Review 1027 (2019) (182 Footnotes) (Full Document)


ThaliaGonzalezBeginning in the 1970s, restorative justice gained attention with reformists seeking more holistic remedies to address harm, conflict, and crime, while simultaneously increasing individual accountability without reliance on conventional punitive approaches in the criminal justice system. Like many reform movements, the restorative justice movement has focused on contrasting its values and principles with those of the status quo. Early restorative justice practices were largely variants of victim-offender mediation and family group conferencing models used in juvenile justice and child welfare settings. In the 1990s, American criminologist Howard Zehr published a seminal work in the field that grounded the identity of restorative justice as distinctly legal. In Changing Lenses, Zehr positioned a legal view of restorative justice: a new lens by which legal systems could define and respond to crime, punishment, and harm. He argued that retributive justice recognizes crime as "a violation of the state, defined by lawbreaking and guilt. Justice determines blame and administers pain in a contest between the offender and the state-directed by systematic rules." By contrast, restorative justice views crime as a conflict not between the individual and the state, but fundamentally between individuals. His work oriented the legitimacy of restorative justice in relation to law and, in particular, to criminal justice processes. While discourse internal to the movement supported the idea of restorative justice becoming a new legal norm, there is no strong evidence to suggest that this actually occurred during this period. From 1990 to 2000, for example, only fourteen state laws codified the term "restorative justice." While once primarily conceived as a social service associated with the criminal and juvenile justice systems, restorative justice has now migrated across multiple public systems. These include a wide range of practices in formal and informal settings, including community-based circles, conferences and dialogues, reparative sentencing and probation structures, victim-offender mediation, prison-based processes, as well as city-and state-level truth and reconciliation commissions. Presently, some form of restorative justice is being implemented in nearly every state, at state, regional and local levels. As the data in this study indicate, forty-five states have codified restorative justice into statutory or regulatory law. This represents a significant increase from prior accounts of formal state support for restorative justice, which ranged from twenty states to thirty-two states. This "legalization" of restorative justice is not limited to enacted laws. Previously compiled data (2017) indicated that eighty-five state and federal legislatures were at some stage in considering proposed restorative justice legislation. Between January and May 2019, eighteen restorative justice bills were proposed in eleven states. This includes proposed legislation in South Carolina and Arizona, two of the five states currently without any restorative justice laws. While there continues to be a greater representation of restorative justice in state law adjunct to the criminal and juvenile justice systems, a strong trend also has emerged in schools (Pre-K to 12). This pattern is not surprising given the trajectory and growth of restorative justice as a response to ever-increasing attention on the collateral consequences of zero-tolerance policies, exclusionary discipline practices, racial and gender disproportionality, and widespread demands for positive school climate and school safety. The vertical and horizontal transmission and translation of restorative justice in legislation, across public systems, and within social movements, support the normative change hypothesis of this Article. As new norms emerge, no longer are they disseminated solely by "norm entrepreneurs" but instead are carried forward by a range of individuals, networks, organizations, and stakeholders within and across institutions. Given the "expressive power" of law, the legalization of restorative justice and its expanded use in public systems is one likely explanation for the increased attention to the possibility of restorative remedies to address issues ranging from racial harm to sexual violence, discrimination and bias, community violence, environmental injustice, and the school-to-prison pipeline. This Article has two objectives. First, it tracks the increasingly legal nature of restorative justice. To do this, it empirically analyzes an original 50-state dataset of restorative justice laws and I argue that restorative justice has emerged as a new legal norm. However, the applicability of this study's findings is not limited to research agendas. This growing statutory framework, coupled with broader social and political acceptance, may serve as an important signal to impacted communities, activists, educators, and others that restorative justice may function as a remedy across a broad range of justice issues. The internalization and diffusion of restorative justice in state law also creates unprecedented conditions by which attorneys, judges, and policymakers are currently, or will be, positioned to regularly make decisions regarding the use of restorative justice processes in a variety of legal settings. The legal academy simply cannot overlook the significant implications of near-universal codification by states of restorative justice into state law.

Second, this Article advances a new understanding of how to assess normative change. Specifically, I contend that the dominant constructivist theories of norm change present a binary account of legal internalization and, as such, I propose a more nuanced approach consisting of three distinct indicators. These typologies are not meant to be mutually exclusive, nor are they exhaustive. Rather, I view them as an essential first intervention in the literature to better account for the variations in how legal internalization of a new norm manifests in law. In this study, I use these typologies to describe the rise of restorative justice in the domain of legal regulation by states, but they are not limited to this context. Understanding the development of norms vis-à-vis law (in multiple fora) is valuable to a broad audience, from legal scholars to practicing attorneys to grassroots activists and social movements.

Recognizing that there is no precise formula to account for all the complexities of norm emergence across the norm life cycle, I situate my finding--the emergence of restorative justice as a new legal norm--within what is commonly defined as the second (cascade) and third (internalization) stages of the norm life cycle. The liminal position of restorative justice as a new norm does not detract from the significance of this study's findings. In fact, it is consistent with prior examinations of normative change. Norms move in multiple ways as they gain traction across a range of stakeholders and institutions. In some instances, they translate into social or political norms, and in other instances, into legal norms. In either case, the growth of intensity of the norm in a specific area (whether legal, political, social or an admixture of all three) is indicative of change. Further, understanding the emergence of restorative justice as a norm along an internalization continuum more accurately accounts for current levels of saturation and diffusion of restorative justice in statutory and regulatory law between different states as well as within individual states. It may also help explain the prevailing legislative preference for restorative justice over victim-offender mediation, which has characterized the period since 2008. As study data illustrates, restorative justice legislation has outpaced victim-offender mediation since 2008 and has more than twice the representation in state laws as victim-offender mediation and dialogue.

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This Article extends my prior work examining the emergence of restorative justice as a new norm in education and school discipline. As the data of this study indicates, there is an expanding formal legal character of restorative justice within the United States. Thus, normative internalization of restorative justice should not be understood as isolated to one system, but instead developing across a range of systems and indicators.

Studies of this nature are noticeably absent from the literature yet essential, given restorative justice's increasing presence in state law, as well as operationalization within multiple public systems. To address both a theoretical and empirical gap in the literature, this Article intervenes in two important ways. First, it proposes a new theoretical framework for measuring the internalization of norms in law. The typologies presented in this Article, while tested against a specific dataset, apply across legal landscapes in both American and international law. They are not meant to be mutually exclusive, nor are they exhaustive. Instead, their purpose is to better account for how new norms manifest in law. Second, this Article empirically examines the present codification of restorative justice in state law. Drawing on data from an original 50-state survey, it argues that restorative justice has emerged as a new legal norm. Whether viewed at the macro-or micro-levels, there is a clear positive trajectory of the legitimacy of restorative justice within law. While differences certainly exist between states, they represent a productive avenue for future research and do not detract from the overall findings of this project.

The conclusion that restorative justice has emerged as a legal norm has significant implications across multiple academic fields and, as importantly, for the daily practice of law. Empirically recognizing restorative justice as a legal norm pushes scholars to consider fresh areas of research, such as studies that test mechanisms of social influence in the process of legal internalization. Such examinations could provide valuable lessons for lawyers, advocates, and communities seeking to advance similar laws within their jurisdictions. They also might explain variations in state law across jurisdictions, including system preferences. Accepting restorative justice as a legal norm, and in particular, understanding the saturation of restorative justice across the country at a more nuanced level, scholars now may seek to prioritize theoretical or empirical studies interrogating relevant questions of legal ethics or constitutional protections in restorative justice processes and practices. Alternatively, they may consider new areas for restorative justice remedies outside the current systems.

However, the applicability of this study's findings is not limited to research agendas. This growing statutory framework of restorative justice, coupled with its broader social and political acceptance, may serve as an important signal to impacted communities, activists, educators, and others for whom restorative justice can function as a remedy across a broad range of justice issues, including racial harm, environmental injustice, and education inequities. The internalization and diffusion of restorative justice in state law has also created new conditions by which attorneys, judges, and policymakers may increasingly make decisions regarding the use of restorative justice at different stages of legal processes. The legal academy should take note that nearly all the states have codified restorative justice in some form. This underscores the pressing need for increased curricular attention in law schools on restorative justice. With only a handful of law schools currently offering restorative justice courses, law students may ultimately be inadequately prepared to represent the needs of their clients and effectively work in systems that increasingly utilize restorative justice practices, processes, and remedies. Further, for those students interested in developing alternatives to pressing contemporary justice issues, such as mass incarceration, they must not only know how the existing criminal justice system works but also understand what alternative structures might look like.

Thalia González is a Senior Scholar in the Center on Poverty and Inequality at Georgetown University Law Center and an Associate Professor at Occidental College.

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