by Mariah Bauguess and Juan G. Villaseñor
Vol. 108 No. 3 (2025) | Problem-Solving Courts | Download PDF Version of Article
Restorative justice practices have become increasingly common in the United States over the past several decades. In principle, restorative justice “views crime not as a depersonalized breaking of the law but as a wrong against another person.”1 It focuses on victims of crimes, the harm they suffered, and the offenders who caused the harm.2 While the United States’ criminal system tends focus on punishment and rehabilitation of offenders, the goal of restorative justice differs markedly: Its purpose is to reestablish a balance between the parties to repair the harm caused and heal.3 In other words, rather than focusing on punishing the perpetrator of a crime, restorative justice focuses on the victim and their needs.
The modern restorative-justice movement in North America began in 1974 in Kitchener, Ontario, Canada. In what is known as the “Kitchener experiment,” a probation officer “arranged for two teenage offenders to meet with twenty-two people whose homes were vandalized by the juveniles. The juveniles heard of the impact their crimes had on the victims. Ultimately, the juveniles paid restitution to those victims.”4
Since that time, American jurisdictions have passed restorative justice laws at an exponential rate. To put that in perspective, between 1975 and 2001, 21 statutes in 12 states had laws referring to “restorative justice.”5 That increased to 79 statutes in 2009, 178 in 2015, and, as of 2020, 264 laws in 46 jurisdictions.6 7 Presently, five states do not have laws regarding restorative justice: North Dakota, Rhode Island, South Dakota, South Carolina, and Wyoming.8 Colorado, where I serve as a state district judge, leads the nation in restorative justice laws,9 with 51 statutes in its juvenile and adult criminal justice systems10 and a statewide Colorado Restorative Justice Coordinating Council, whose purpose is to “support the development of restorative justice programs, serve as a central repository for information, assist in the development and provision of related education and training, and provide technical assistance to entities engaged in or wishing to develop restorative justice programs.”11
Of the 46 jurisdictions that have implemented restorative justice in their criminal justice systems, the focus varies greatly. Some jurisdictions’ laws, for example, solely apply to juveniles, while others are limited to adults. The timing of the use of these practices differs, too: Some laws focus on using restorative justice as a part of pretrial diversion, before charges are filed, while others solely apply after sentencing and may be part of an offender’s sentence.
Despite its expanding uses and broader appeal, restorative justice remains somewhat misunderstood by the public and stakeholders in the criminal justice system — even by judicial officers. The purpose of this article is to provide a primer on the topic. Given the vast number of laws and jurisdictions that have codified restorative justice, the focus will be limited to the adult criminal system in a post-conviction context. The goal is to describe the various approaches to restorative justice and how participants may become involved in the process.
In general, restorative justice practices in the post-conviction context will occur because a court ordered them as part of a sentence. Typically, if the offender’s crime of conviction is not disqualifying, the sentencing judge may order restorative justice practices as a condition of probation or some other sentence. But even if the case is ineligible for judicially ordered restorative justice practices, a victim can request a conference with the offender.12 Nothing generally prevents an offender, a victim, or a restorative justice practitioner from undertaking such efforts.13
One common restorative justice practice is to conduct a victim-offender mediation or conference in which the victim, offender, loved ones, and affected community members meet to address the harm caused from the crime and decide how to repair it.14 While local communities and organizations appear to use this more extensively, few states have codified such a practice. Those that have include Alabama,15 Arizona,16 and Colorado.17
Through mediation, the victim may meet with the perpetrator and express how they feel. But more importantly, they may ask the offender questions and have a voice in the decision of how to repair the harm caused to them.18
Many states use victim-offender dialogue (VOD), a practice that involves a conference between the victim, the offender, and a neutral facilitator trained in restorative justice practices and methods. VOD, like mediation, allows victims to meet with their offenders to ask questions and to express how they have been harmed. While VOD is widely used around the country, the settings in which it is applied can differ. For instance, in Wyoming, VOD is offered by its board of parole.19 On the other hand, in Pennsylvania and Montana, it is offered to victims with offenders who are on probation and parole, as well as offenders in the department of corrections.20 21
More than 20 states’ departments of corrections provide VOD, including Arizona,22 California,23 Colorado,24 Georgia,25 Iowa,26 Kansas,27 Louisiana,28 Maine,29 Maryland,30 Massachusetts,31 Minnesota,32 Mississippi,33 Montana,34 Nebraska,35 New Hampshire,36 Ohio,37 Oklahoma,38 Oregon,39 Pennsylvania,40 Tennessee,41 Texas,42 Utah,43 Vermont,44 Virginia,45 Washington,46and Wisconsin.47 In these programs, the victim must initiate the process and both parties must agree to participate.48 Additionally, given the healing nature of the practice, the offender must be willing to take responsibility for their offense and the harm that it caused.49
The VOD process is laborious. Trained restorative justice practitioners meet with the victim and offender separately before the dialogue to prepare them and make sure that they are ready.50 These preparatory sessions can take many months. As an example, in Oklahoma, the facilitator will interview the offender and review questions that the victim wants to ask in order to help the offender work through how they will answer.51 This preparation is crucial to ensuring that the VOD is productive and that it won’t lead to further victimization. However, because of the voluntary nature of the practice, any participant may stop the dialogue at any time.52
Eligibility for VOD varies by state. In California, for example, offenders convicted of murder, kidnapping, and sexual assault, among other crimes, are eligible for a VOD upon the victim’s request.53 In contrast, in Colorado, restorative justice practices cannot be ordered by the court in cases dealing with sexual assault or intimate partner violence, but it is an option for victims of other serious crimes, such as homicide, assault, or robbery.54
Hybrid and creative alternatives exist if a VOD isn’t possible. In Colorado, for instance, a victim may elect to meet with a “surrogate offender” instead of with the actual offender if the victim simply doesn’t wish to see the offender.55 And an offender may meet with a “surrogate victim,” too, if the victim of the crime doesn’t wish to participate in a VOD.56 These alternatives allow victims and offenders the opportunity to express their feelings to someone who has caused or endured similar harm without having to confront the actual parties in their case.
Vermont has implemented the use of restorative justice panels through its community justice centers. As with mediation and VOD, these panels, which consist of three to five trained volunteers from the community, are tasked with identifying who was harmed by the offense and how that harm can be repaired.57 Unlike mediation and VOD, however, the victim need not attend the meeting with the panel and the offender.58 Instead, the victim may attend the meeting, give information in writing to be shared with the offender, give written information solely for the panel, or not participate at all.59 At the meeting, participants collaborate in finding ways that the offender can make amends, such as volunteering and writing letters of apology.60 To ensure that the offender follows through on making amends, the participants meet again at a later date to review the offender’s progress.61
Vermont is one of the few jurisdictions that tracks data on its restorative justice practices. A 2014 evaluation of restorative justice panels found that offenders who were referred to a panel post-conviction and who successfully completed the program had a lower recidivism rate (27.1 percent) than those who were not successful (41.4 percent).62 However, because there wasn’t a valid control sample, this evaluation could not conclude that the panel program resulted in reduced recidivism as compared to a population that did not engage in a panel.63
Several states also allow offenders to write accountability or apology letters. These include California,64 Indiana,65 Iowa,66 Kansas,67 Louisiana,68 Minnesota,69 Montana,70 New York,71 Ohio,72 Oklahoma,73 Pennsylvania,74 Texas,75 Vermont,76 Washington,77 Wisconsin,78 and Wyoming.79 In Louisiana, for example, the offender participates in a course focused on the victim’s perspective.80 After that course, the offender writes a letter to the victim.81 In this letter, the offender takes responsibility for the offense, expresses remorse, and recognizes the harm that they caused from their crime.82 In Minnesota, Kansas, and Washington state, departments of corrections state that the letters should not request forgiveness or provide excuses for their conduct.83 84 85
Importantly, states generally do not allow the offender to directly give the victim the letter. Instead, the state holds on to the letter. Equally important, it is for the victim to decide whether they wish to receive the letter, and the offender is not notified either way. The departments of corrections in California, Montana, New York, Ohio, Oklahoma, Pennsylvania, Texas, and Washington all explicitly state on their websites that the victim will be notified upon receipt of an apology letter. But in Iowa, victims must contact the state to inquire if the offender had written them an apology letter. The remaining states that allow offenders to write apology letters do not specify if the state notifies the victim about the letter upon receipt of it.
A similar and more interactive approach is for the victim and offender to communicate through letters. This practice allows victims who are not comfortable with meeting in person to still communicate with their offender if they wish. Colorado, Indiana, and Pennsylvania offer this practice.86 87 88
In Colorado and Pennsylvania, it is often used as an alternative to VOD. In Pennsylvania, there are separate preparation conferences with the offender and the victim whether a victim chooses a VOD or written letters, and the facilitator helps the victim and offender with drafting their letters. In Indiana, if an offender wishes to write to the victim, the letter will not be given to the victim unless they have requested to receive it. In contrast, if a victim decides to write their offender, the department of corrections allows the offender to receive the letter.
Some states’ departments of corrections or community correctional facilities also offer courses or programming to inmates that discuss the impact of crime on victims. These states include Maine,89 Missouri,90 Montana,91 New Jersey,92 Ohio,93 South Carolina,94 Tennessee,95 and Virginia.96 These programs, as the name implies, are geared toward helping the offender learn about and understand the effects of crime on people. But the program also allows a platform for victims to share their personal stories of how crime has impacted their lives and their loved ones. Different from other restorative justice practices, many states, like Maine and Montana, explicitly prohibit the offender from attending. In other states with such programs, there similarly appears to be little focus on victim-offender communication.
When it comes to victim participation in restorative justice processes, jurisdictions have crafted laws with two goals: to notify victims about restorative justice practices and to ensure that the victim has the opportunity — but not an obligation — to participate in such practices. Despite many states having restorative justice practices, only five have codified statutes that either provide victims with adult offenders the right to restorative justice or the right to be notified about restorative justice processes in their jurisdiction. These states are Colorado,97 Indiana,98 New Hampshire,99 Oklahoma,100 and Texas.101
While no jurisdiction requires a victim to participate in restorative justice, the same may not always be true for defendants. In Alaska, Delaware, Indiana, and Texas, defendants are not required to engage in restorative justice processes. But several other states — including Arizona, Louisiana, Tennessee, and Vermont — do not explicitly state in their statutes that a defendant’s engagement in restorative justice practices be voluntary. For instance, Arizona details that restorative justice programs may be an intermediate sanction for people on probation but doesn’t explain how the process will play out.102
Some states, including California, Colorado, and Minnesota, have a mix of voluntary and mandatory restorative justices practices for defendants depending on the circumstances. For instance, offenders convicted of driving under the influence must participate in a victim impact panel as part of their probationary sentence.
The criminal justice system is not necessarily structured to give victims a voice. Because of our constitutional framework, the focus is principally on protecting the defendant’s rights to ensure that only the guilty face consequences for their actions. In my experience presiding over criminal cases, it is not unusual for victims to report feeling unheard or unsatisfied with the process. They may not agree with a plea agreement that the defendant and the prosecution negotiated, and their ability to discuss the effects that the crime had on them is often limited to a few hearings.
Judges welcome the victims’ opportunity to be heard at critical stages of a criminal case. But they have to give equal opportunity to the offender, especially at sentencing during allocution. As the preceding discussion suggests, that may not be enough. Restorative justice offers offenders and victims another avenue for healing, especially for victims. Research suggests that after victim-offender mediation, victims experience reductions in negative emotions related to the offense, like anger, guilt, and fear.103 Even more, studies show that victims report feeling more involved in the justice process.104 Further, through restorative justice mediation, victims may gain a greater understanding of what happened to them, express their feelings about the offense, and feel heard.105
The opportunity for restorative justice never expires. For some victims, it can take decades to be ready to meet with their offender, if ever. Consider a case in Louisiana in which a victim of an armed robbery and attempted murder decided to meet with the offender two decades after the offense, once the offender was eligible for parole.106 While the victim was initially opposed to the offender’s release, through VOD he found that the offender was remorseful and had been reformed.107 He decided during the VOD to support the offender in his bid to be released on parole, which was granted.108 The two men remain close and speak regularly.109
Another example comes from a case over which I presided. It involved an offender who pleaded guilty to vehicular homicide after her ex-boyfriend was killed in a collision. I accepted the plea agreement and sentenced the offender to an eight-year prison sentence. During the sentencing hearing, I learned that the victim’s parents were willing to forgive the offender, which was extremely powerful. The offender was also very remorseful. That gave me an opportunity to tell the offender that she should also forgive herself to ensure that she would not offend again. More than a year after the sentencing hearing, I learned through my work in Colorado’s Restorative Justice Council that the victim’s parents and the offender were preparing to engage in a VOD. The VOD was ultimately a successful and healing experience for all parties.
As the two preceding examples demonstrate, restorative justice practices may benefit the victims and the offenders. When appropriate, restorative justice offers the opportunity for healing, accountability, and the hope of moving past traumatic and painful life events.
Juan G. Villaseñor was appointed as a judge in the 8th Judicial District of Colorado in October 2018. He previously was an assistant United States attorney for the District of Colorado.
Mariah Bauguess is a practicing family law attorney with the nonprofit law firm Bridge to Justice in Boulder, Colorado. She previously was a law clerk to Judge Villaseñor.
