Learn what restorative justice diversion looks like in practice including the underlying elements of this model and why each one is so essential.
As has already been mentioned, we love restorative justice in all its flavors. The spread of restorative justice to more spaces, offering more opportunities for people to heal from harm, is beautiful and necessary. Other models of diversion programs using restorative justice exist, and they should exist! This toolkit, however, focuses on diversion using Restorative Community Conferencing (RCC) guided by a very specific set of practice and implementation elements. We refer to this as restorative justice diversion (RJD). And while there are many approaches to RJD, this toolkit offers an approach with distinct elements and structures that have evolved, been evaluated, and adapted over time. In this section, you will learn more about the structure and elements of our approach to RJD.
As has already been mentioned, we love restorative justice in all its flavors. The spread of restorative justice to more spaces, offering more opportunities for people to heal from harm, is beautiful and necessary. Other models of diversion programs using restorative justice exist, and they should exist! This toolkit, however, focuses on diversion using Restorative Community Conferencing (RCC) guided by a very specific set of practice and implementation elements. We refer to this as restorative justice diversion (RJD). And while there are many approaches to RJD, this toolkit offers an approach with distinct elements and structures that have evolved, been evaluated, and adapted over time. In this section, you will learn more about the structure and elements of our approach to RJD.
Our model of restorative justice diversion is unique. Our approach to diversion in the US uses Restorative Community Conferencing (RCC) rooted in the core elements that are explained below. The RCC process was adapted from the New Zealand model of Family Group Conferencing (FGC), which you’ll learn about more in 1E: The Evidence. This model of RJD has been active in Alameda County, California since 2008, with the program first being held by Restorative Justice for Oakland Youth. It then shifted to Community Works in 2010, where cases continue to be actively referred by the district attorney’s office today. This model has gone on to be implemented in many other communities across the country since then which can be seen in our timeline below.
The impacts of this growing network of RJD partners can be heard firsthand in the video below.
Restorative justice diversion involves diverting cases that would otherwise result in criminal charges to a community-based organization (CBO) facilitating restorative justice processes. Restorative Community Conferencing is the process used in this model of RJD that allows the person harmed, the responsible youth, caregivers/family members, and community members to come together to discuss what happened, including the causes and impact of the harm. Led by a trained facilitator, this process seeks to identify, repair, and prevent harm based on restorative justice values, which include acceptance of responsibility and meaningful accountability. Together, at the direction of the person harmed, a consensus-based plan is produced for the young person to make things as right as possible by the person harmed, their caregivers/family, their community, and themselves. The young person is supported by their caregivers/family, community members and the facilitating community-based organizations to complete the plan; when the plan is completed, no charges are filed. Below is a brief animated video that walks through a Restorative Community Conferencing process. Since the creation of this video, the Restorative Justice Project has migrated from Impact Justice to EJUSA and is still working to train partners to utilize RCC across the country.
For more information, watch the Introduction to Restorative Justice Diversion webinar led by the Restorative Justice Project (formerly housed at Impact Justice) to learn more about how addressing harm and taking accountability can be meaningful for the person harmed, responsible youth, caregivers/family, and community in this consensus-based process.
The RCC process seeks to honor each participant’s dignity and humanity. When a young person goes through an RCC process, the intended outcomes are: needs met, a disrupted cycle of incarceration, and reduced social and fiscal costs. We describe the evidence-based results of an RCC process further in the next section.
The RCC process consists of three stages: enrollment & preparation, conference, and plan. The average amount of time for this process is 6 months. However, each part of the process is dictated by the needs of those involved and ensuring that all parties are prepared for the next stage of the process. Given this need for flexibility,placing a time-bound restriction on any phase of the RCC process can be limiting. Take a look at the resource below, RCC Stages, to understand what happens once a case is diverted by the youth legal system and received by the community-based organization. The following is a brief summary of what happens during the process, which is more extensively explained and practiced during our RCC trainings.
The trained facilitator at a community-based organization separately prepares all of the people directly impacted (person harmed, responsible youth, caregivers/family, supporters, and community members) to explore the causes and impacts of the harm before the conference. Prep often takes place over a series of initial contacts and in-depth meetings about the process.
Most of the facilitator’s time is spent in the preparation phase. This phase is crucial because it sets the tone and lays the foundation for all of the other stages to follow. We want people to be as informed as possible so that they can have clarity about their needs before the RCC.
After every participant is sufficiently prepared during the months leading up to the conference, everyone gathers in person. The goal of this meeting, called a conference, is for everyone to see each other first as full human beings, to discuss the causes and impacts of the harm, ask questions of one another, and collectively create a plan that meets the needs of all in attendance (including the responsible youth). The conference starts with establishing shared values and guidelines.The person harmed is supported in making choices about what the conference will entail including identifying who will share their experience first, where people will be seated, the type of food available, and more. When the conversation turns to next steps, a plan is created by consensus, and the conference comes to a close.
The young person takes action to complete the requested items that emerged from the conference. These actions are specific to the harm and demonstrate the youth’s efforts in addressing root causes of the harm and making things as right as possible by the person harmed, their caregivers/family, community, and themselves. Facilitators or an Agreements Manager at the CBO supports the young person with each element of the plan, or, ideally, connects the youth with supports in their own life for each stage of plan completion. When the young person completes the plan, all conference participants and the referring juvenile legal agency are notified, no charges are filed, and the young person’s case is closed. A celebration takes place and everyone who was at the conference is invited to attend.
These core elements not only form the standards and values we bring to Restorative Community Conferencing, they serve as the foundation for our entire RJD model, including everything described in this toolkit about setting up a program. We refer to deviating from these elements as “model drift” or as jeopardizing “model fidelity.”
Attempting to standardize any form of restorative justice is problematic, because, as you read in the About section, restorative justice in its essence is a fluid way of life. However, developing an RJD program with good intentions but without acknowledging current systems of oppression runs the risk of RJD programs being co-opted by the juvenile legal system or replicating the oppressive structures we aim to dismantle. We offer these elements of the model as a protective structure against RJD programs becoming another arm of the many systems which currently harm or fail to meet the needs of people who come in contact with them. From our years of experience, we have also seen that these elements help hold an RJD program to the basic core values and principles of restorative justice, such as dignity, respect, relationship, healing, and repair.
These are the core elements of our model. The RJD program is…
When harm happens, we know that the person who was harmed is the only one who knows what is needed to repair the harm. As you read in Step 1B: People Harmed, the traditional criminal legal system fails to meet the needs of people harmed and can often be re-traumatizing. Programs that use this model aim to offer people harmed a process where their voices are heard and their needs are met.
In The Little Book Of Restorative Justice, Howard Zehr explains:
Of special concern to restorative justice in a criminal justice context are the needs of crime victims that are not being adequately met by the criminal justice system. People who have been victimized often feel ignored, neglected, or even abused by the justice process. Sometimes, in fact, the state’s interests are in direct conflict with those of victims. This results in part from the legal definition of crime, which does not directly include victims themselves. Crime is defined as against the state, so the state takes the place of the victims. Yet those who have been harmed often have a number of specific needs from the justice process.
What this element means is that those who’ve been harmed are indispensable to restorative justice processes, because the person harmed is critical to accurately identify what they need to repair the harm. Survivors also get to decide things that would make them feel safe and supported in the process—including details like the seating arrangement, the order of folks entering the room, and the support people and community members invited. Because a person’s needs are dynamic and can change, the RCC process is flexible to meet their needs. The input of the person harmed is fundamental in the creation of the plan to repair the harm.
Restorative justice of any form is born in community – it isn’t “brought” to a community. Community-identified needs and direction-setting is central to the early stages of development and throughout the lifespan of an RJD program—from conceptualization through launch, implementation, and expansion of any kind.
Being held by community means that all RJD processes function fully outside of the youth and criminal legal systems, typically held within community based organizations (CBOs). Cases are facilitated by RJD-trained facilitators, not by police, probation, prosecutors, or other employees of those institutions. Honoring the legacy of harm caused by targeted law enforcement practices and criminal legal system interventions in under-resourced BIPOC communities, restorative processes that include representatives from the system are often discouraged. This also reduces the likelihood of compromising other critical elements of restorative justice like maintaining confidentiality and avoiding net-widening. Participation should be limited to those directly affected by or involved in the harm being discussed, their supporters, and chosen community members. We also encourage organizations holding this work to actively engage in additional community building and circle keeping in order to be aware of and accountable to the visions of safety and healing for the communities they serve.
In addition to these programs being held by communities, advocacy efforts that express the urgency and define the need for RJD must also be led by community members. This is where grassroots community organizing efforts can support RJD programs. At its core, community organizing is a process in which community members convene to discuss the many forms of oppression and challenges they currently face and to dream together of what collective liberation and safety will look like. This is similar to the core of restorative processes, in which families and community members come together to discuss what harms they currently face, and develop a collective vision for healing and liberation. From that ideal stems the actions folks can take to heal harms, unearth root causes, reclaim their power, and realize their vision.
One of the primary goals of our RJD model is reducing the criminalization of BIPOC communities. In the United States and elsewhere, efforts to improve disparate impact of policies on youth of color have often backfired when applied in a uniform way across race. As examples, in Oakland Unified School District and in New Zealand, youth of color have been disproportionately disciplined (OUSD), and incarcerated (NZ), despite efforts to reduce these carceral responses overall. Efforts to reduce school expulsions in Oakland and to reduce youth incarceration in NZ did result in an overall reduction in those harmful practices. However, because they didn’t ground their approach in an explicit effort to end racial and ethnic disparities (RED), both OUSD and New Zealand saw a rise in RED, even as the overall rates of expulsions and incarceration decreased. Indeed, the relative rate of Black youth in Oakland being expelled and Maori youth being incarcerated rose in relationship to their white counterparts as these policies were implemented. In brief, once alternatives to punishment were available, white youth were given more access to them. Furthermore, abundant research shows that despite the exact same adolescent behavior, BIPOC youth are far more likely to have their behavior defined as criminal and worthy of harsher punishment than their white peers.
This is also a trend that plays out in diversion efforts within the youth justice system across the county. According to a report from The Sentencing Project titled Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice, “Nationwide in 2019, 52% of delinquency cases involving white youth were handled informally (diverted), far higher than the share of cases diverted involving Black youth (40%). For Latinx, Tribal, and Asian American youth, the share of cases diverted ranged from 44-48%. These gaps cannot be explained by the seriousness of offenses youth are accused of committing: glaring disparities between Black vs. white youth can be seen within every major offense category.” When we try to reduce numbers without directly and consciously addressing RED, RED will always increase. RED can only be reduced through explicit, concerted, and sustained effort.
To avoid similar problems as you work to implement RJD in your community, you will be asked in later steps to research and identify which zip codes in your county show a high incarceration rate for youth of color, as well as the crimes for which youth of color are disproportionately arrested. This research will help you determine where your RJD program should concentrate its energy in terms of receiving cases and which kinds of arrests to focus on. This is particularly necessary where the referral mechanism involves any level of discretion; research has shown that regardless of the race of decision-makers, where there is discretion, discrimination is likely to occur.
San Francisco offers a model for ensuring equity in the RJD process. In that community, the CBO and district attorney’s office determined which arrest types would qualify for RJD programming. From there, the district attorney (DA) used a randomized computer selection process to choose which cases would be sent to the RJD program, adjusted to the number of cases the CBO had the capacity to work with. Of course, we’d like all eligible cases to be sent to RJD, but until your organization has the capacity to take all those cases (which could be in the hundreds), randomization eliminates discretion and, therefore, the potential for discrimination in the referral process. San Francisco no longer uses the randomized selection process.
Additionally, selecting CBO’s that prioritize hiring folks with lived experience and BIPOC staff is another way to help reduce the likelihood of implicit bias creeping into restorative justice processes and contribute to a level of cultural competence that enables restorative justice processes to effectively serve BIPOC communities.
If each step of your work does not reduce racial and ethnic disparities on the pathway to completely ending racial and ethnic disparities, your program is fundamentally disserving both communities of color and the basic tenets of restorative justice. Some might express concern that a focus on ending RED conflicts with being oriented around people harmed. This isn’t true. Many survivors are people of color, and many are from communities that are overpoliced and directly impacted by racial discrimination at every step of the criminal legal process. By standing true to core restorative justice values of dignity and respect for all people, restorative justice diversion programs can and should address RED in arrests, incarceration, and in RJD participation while still orienting around survivor needs.
An RJD program should aim to divert cases as early on as possible in order to minimize the interaction with the system for both the responsible youth and the person harmed. A pre-charge referral means that a case is referred by the DA or referring agency to the CBO after a young person has been arrested and before any charges are filed. Insisting on pre-charge referrals is important for many reasons.
Young people who have had any interaction with the criminal legal system have a greater chance of being system-involved again. As a young person progresses through the legal system, dispositions often include harmful punishments like incarceration and probation. These punishments have been shown to be ineffective and often contribute to a cycle of mass incarceration and recidivism. Probation violations, not the original harm, are one of the leading causes of youth incarceration in most states in the US. Technical violations of probation often result in pulling youth out of programs. Things like missing school, showing up late to a meeting, and not finding a job can result in numerous violations of probation conditions. When youth are “given” restorative justice as a part of their court or probation plan, they are likely to make the small “technical errors” that can result in their losing the right to participate in the program or being incarcerated. This sets back their progress and can be harmful and disappointing for the person harmed, who may be invested in the process by this point.
Once youth enter the criminal legal system, the system has authority over their lives, and it is very difficult to disengage from that dynamic. There is an added power that the system now has over that young person, and it can put pressure on them to participate in the program. Restorative justice processes should be voluntary. We do not want a young person to feel coerced or have charges looming over their heads during their experience within the RJD process. While an arrest alone has this impact to some degree, a probation officer, a defense attorney, and court hearings surely exacerbate it.
Additionally, once a young person has been charged with a crime, there is less incentive for them to be vulnerable or accountable in a restorative justice process. They already have an arrest on their record, and having a charge further labels them “a juvenile delinquent” and “a criminal.” Carrying these labels can negatively impact their sense of self, which doesn’t allow them to show up to the process as their full, best self. When a young person feels coerced to participate by system actors, rather than approached by a restorative justice facilitator as an ally, their apologies may be less robust, and their acceptance of responsibility may come more grudgingly. Additionally, if a young person has already been assigned legal counsel, they may be discouraged from the truth-telling necessary in an RJD process.
Lastly, accepting a post-charge referral places the community-based organization in a position where any advice its staff give to participants may be misconstrued as legal advice, which staff are not qualified to give, unless they are criminal defense, immigration, or child welfare attorneys. Even if they are lawyers, this leads to role confusion; restorative justice facilitators are not legal representatives of the participants involved. Facilitating RCCs post-charge can lead to a number of potential liability concerns for the implementing organization, as well as model drift.
Cases diverted to a restorative justice diversion program should only be cases that, if charged, would have resulted in the young person being incarcerated or placed on probation. Net-widening occurs when the number of youth being arrested, charged, or otherwise impacted by the system increases as a result of a new program or policy. This is an important unintended consequence to be mindful of, as it defeats the purpose of the program, especially when it comes to ending racial and ethnic disparities.
Legal system actors may advocate for diverting low-level cases that would have been dismissed or referred to other diversion options in the absence of the RJD program. In that scenario, young people arrested for low-level offenses are now having more contact with the system simply because a program exists to send them to. As tempting as it may be for RJD program staff to take these cases—especially when it feels like that young person and their family needs something to help them—it is essential to avoid widening the net that funnels youth into unnecessary accountability processes or, potentially, into the juvenile legal system. As mentioned in our pre-charge element, this is also why it is important to ensure that participation in RJD programs is not combined with other mandated conditions or programming.
It’s easier to stay clear on this point when we remember that restorative justice is most effective with serious crimes that have a clear, identifiable person harmed. RJD processes cannot support meaningful connections or accountability, won’t satisfy survivors’ needs, or reduce reoffense rates for crimes, when there is no clear, identifiable person harmed (as with, for example, graffiti on a highway overpass). Early on in program implementation or with facilitators who are just getting started, it may be appropriate to start with high-level misdemeanors and work up to felony level or more complicated harms over time.
RCC is an intensive process designed to address serious harms, and the process isn’t appropriate for crimes that are low-level. When the intensity of an intervention is disproportionate to the harm, it can actually lead to an increase in recidivism. Asking a young person or a person harmed to invest months of their time and emotional energy into this process is not something to be taken lightly.
A tool that is helpful in preventing net-widening is our RJD Case & Program Eligibility Recommendation memo (downloadable below). This memo outlines the types of cases that are appropriate for restorative justice diversion and provides general information about the scope of RJD in regards to the juvenile legal system.
Overall, this model is intensive and designed to contribute to a reduction in mass incarceration. You will need to be firm in maintaining model fidelity around this element by advocating for the diversion of high-level misdemeanors and felonies with a clear, identifiable person harmed for all referrals. Otherwise, your program is at risk of taking cases that are not suitable for an RJD program because:
We’ve included stories below about what we’ve experienced when this element isn’t upheld.
In order for RJD to be effective, confidentiality must exist on multiple levels within the process. The most concrete and critical measure of confidentiality is through a signed memorandum of understanding (MOU) between the CBO and the DA or local charging authority that clearly states that nothing said during the RCC process or learned as a result of the RCC process can be used in criminal or juvenile court. With an MOU in place, folks can tell the truth at any stage of the process, and none of their statements will be used as evidence in court. Also, the fact that a young person did or didn’t opt to participate in the RCC process cannot be used in court. No CBO should accept cases from the juvenile legal system without a signed MOU.
An apology for a crime that a person has been charged with by the criminal legal system is considered an admission of guilt and a reason to enact punitive measures. It is unfair and potentially harmful to ask youth to tell the truth in a restorative process without confidentiality protections in place.
Another reason CBOs must not accept cases without an MOU is that facilitators could be subpoenaed to testify about what they’ve learned in any stage of the RCC process. In fact, should any participant talk about what happened in the RCC process to someone from the juvenile legal system, without an MOU, that information could be used as evidence against the responsible youth or others involved in court. An MOU allows everyone impacted by the harm to speak freely and openly about what happened, without fear that the DA or local charging authority will use what they say against them or others in court.
Although the RCC process primarily involves meeting with people to discuss a harm, the harm isn’t the first and only thing that should be talked about. Leading a conversation with any participant in the program by focusing on the harm serves to open a conversation from a deficit point. Whatever harm occurred was likely a negative experience for anyone impacted, namely the person harmed and likely the responsible youth as well. We advocate for approaching interactions with any participant (or any person, for that matter) from a strengths-based perspective by finding out what skills they have or qualities they’re proud of. The response to the harm should uplift those strengths.
The current criminal legal system and US society as a whole treats people as bad people if they’ve done something harmful. As restorative justice advocates and practitioners, we don’t believe that anyone is bad nor can they become bad by any actions. We believe it is possible and necessary to hold someone fully accountable without losing sight of their strengths and assets. All of this is part of shifting the narrative from what is wrong with people to what is right with people. Part of working with any participant or partner in this program is getting to know them and their gifts. Remember the words of Bryan Stevenson, who says, “each of us is more than the worst thing we’ve ever done.” We also know that each of us is more than the worst thing that has ever happened to us.
We can’t say enough that building, reestablishing, mending, healing, and maintaining relationships is at the heart of restorative justice. Facilitators model this by how they interact with participants in the program. When you meet with the young person, get to know them—their hopes and dreams, what they value, and what they feel good about. Through trainings, you will learn how to do the same with the person harmed. Find out what is important to them. Make getting to know them and their gifts a constant part of connecting with them.
Creating strong relationships with the participants is the bedrock of the facilitator’s work. Take time to build trust before discussing potentially uncomfortable or painful experiences with the participants. Eventually you will discuss the harm, but find a way to do so after getting to know them as people. If you don’t take time to create a trusting foundation beforehand, you risk reducing people’s identities to their relationship to the harm—to that of just a “victim” or “perpetrator.”
By establishing strong relationships with the participants, facilitators earn a deeper insight into them as human beings, and into the harm and its impacts. All of this—the relationships built, trust established, and insight gained—allows the facilitator to guide the RCC more effectively. This foundation equips you to reestablish, mend, heal, and/or help to maintain the relationships between participants.
Relationship building (and how you go about it) creates trust and security. The four stages of meeting & getting acquainted, building understanding & trust, addressing vision/issues, and finally developing plans & sense of unity will exist at the conference itself, but will also begin in prep. Especially in prep, getting to know each other and building understanding and trust should be prioritized. We want to know what folks value, what they like about themselves, what they’re interested in, what they want out of this process, what would make them feel whole, what will help them feel their dignity is intact or increased during this process. This is the foundation from which we can talk about the harm, the root causes of it, and its impact on everyone. The first three stages—getting acquainted, building understanding and trust, and addressing the issues—are repeated when the whole group comes together. Only after everyone has shared and gained a deeper understanding of each other and each other’s experiences can the group work together to develop a plan to make things right.
The first African American female astronaut, Dr. Mae Jemison said, “Never be limited by other people’s limited imaginations.” Youth criminalization and its disproportionate impact on youth of color cannot be solved through the limitations of the current juvenile legal system. We must innovate new solutions, including the evolution of RJD programs, that live outside of the juvenile legal system. And through the leadership of the people directly impacted and disserved by our current systems, we can move those solutions from imagination to reality.
Below is a downloadable version of the RJD Program Overview & Elements that summarizes the elements shared above.
Now that you have an understanding of what our approach to RJD is, in the next step you will learn how we know that RJD works. Step 2E: Common Ground will guide you in more detail about what and how to share what you have learned about RJD with your legal system partners. You will notice that several of the documents downloaded in this step will also be needed for Step 2E as well.
Resource: Case & Program Eligibility Recommendations
Resource: Animated Restorative Justice Diversion Video
Resource: RJD Program Overview & Elements
LEARN about restorative justice diversion through reading this section and browsing other resources
WATCH the Introduction to Restorative Justice webinar by the Restorative Justice Project
REVIEW Case & Program Eligibility Recommendations resource
REVIEW RCC Stages resource
