By Kyla Schweber | Articles Editor

December 6, 2023

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Restorative practices have been adopted and utilized in nearly every state[1], either with legislation or by promoting its use through independent organizations. Vermont has been at the forefront of implementing Restorative practices by codifying them into its state legislation and providing community-based services.[2] Community Justice Centers (Centers) throughout the state provide the essential groundwork for employing Restorative practices to assist the formerly incarcerated population with their re-entry.[3] With help from volunteers, these Centers provide housing, community, and employment support.[4] With a total of 18 centers throughout the state,[5] variations in applying Restorative practices can be problematic. “The decentralized system of delivering alternative justice programs results in inconsistencies in the types and quality of services that are offered in each county.”[6] Notwithstanding these inconsistencies, Vermont has seen success in reducing recidivism.[7]

Despite widespread adoption at the state level, the United States has yet to codify some form of Restorative practice at the federal level. Adopting federal legislation, would allow for more consistency between states, provide guidance on how to implement Restorative alternatives to the traditional adversarial system, and require data collection for important characteristics to better understand how marginalized communities are disproportionately affected.

New Zealand has made some form of Restorative practice available at nearly every stage of its justice system.[8] Focusing on sentencing, New Zealand’s Sentencing Act of 2002[9] (Act) codifies mandatory consideration of Restorative practices during this stage. This Act provides a reasonable and realistic form of federal legislation the United States could implement.

Within the United States, The Mandatory Consideration of Restorative Practices during Sentencing Act would require judges to consider integrating Restorative Practices into prospective sentences for all types of crimes, considering the wishes of those indirectly or directly harmed by the criminal conduct. Because of the great discretion afforded to judges within the legal system, mandatory consideration can easily be combined with current and prospective sentences. This Act does not require the use of Restorative practices. Instead, the purpose and overall goal is to encourage increased reliance on Restorative practices within the legal system.

Requiring judges to consider the victim’s wishes, the steps the defendant took in taking responsibility, and alternatives to punishments—or included in traditional sentences—provides a reasonable and realistic way to initially codify Restorative practices at the federal level within the United States.

[1] Thalia Gonzalez, The Legalization of Restorative Justice: A Fifty-State Empirical Analysis 2019 U. L. Rev. 1030–31(2020). Forty-five states have adopted and codified some form of Restorative practices into law. Id. The five states absent from this list are Arizona, North Carolina, North Dakota, Ohio, and Oklahoma. Id.

[2] 28 V.S.A. § 2a; Restorative Justice, Dep’t of Corrections, https://doc.vermont.gov/content/restorative-justice (last visited Dec. 3, 2023).

[3] Who We Are, Vt. Cmty. Just. Network, https://www.vcjn.org/who-we-are (last visited Dec. 3, 2023).

[4] Id.

[5] Id.

[6] Willa Farrell, Pretrial Services and Court Diversion Report pursuant to 13 V.S.A. § 7554c (f) and 3 V.S.A. § 164 (d) 4 (2021).

[7] Jordyn Haime, Restorative Justice Part 3: In Vermont, Restorative Justice Under Statute May Not Lead to Equitable Services, Granite State News Collaborative, https://www.collaborativenh.org/race-and-equity-project-stories/2021/4/20/restorative-justice-part-3-in-vermont-restorative-justice-under-statute-may-not-lead-to-equitable-services (last visited Dec. 3, 2022).

[8] Jim Boyack & Helen Bowen, Adult Restorative Justice in New Zealand/Aotearoa, Int’l Inst. for Restorative Pracs. (Aug. 30, 2003), https://www.iirp.edu/news/adult-restorative-justice-in-new-zealand-aotearoa.

[9] Sentencing Act 2002, s 24A (N.Z.).