Informal Justice in Sociolegal Scholarship

During the 1970s, local programs attempting to make access to justice speedier and cheaper began to spread rapidly, and in some cases received substantial federal funding from the Law Enforcement Assistance Administration of the U.S. Department of Justice. This governmentally sponsored informal justice became a major focus of law and society scholarship in the 1980s, and the assessment was overwhelmingly critical. Works by Reference Abel and AbelAbel (1982), Reference Tomasic, Tomasic and FeeleyTomasic (1982), Reference Merry, Tomasic and FeeleyMerry (1982, Reference Merry, Wright and Galaway1989), Reference Hofrichter, Tomasic and FeeleyHofrichter (1982a, Reference Hofrichter and Abel1982b), Reference HarringtonHarrington (1985), Reference DelgadoDelgado (1985), and others concluded that informal justice extended rather than reduced the net of state social control, failed to live up to its vision of noncoercive resolution, allowed more powerful parties to take advantage of less powerful parties, allowed more room for personal prejudice than formal processes do, and failed to make the courts more efficient for those cases remaining in it. Even nongovernmental, community-based programs revealed possible shortcomings, such as benefiting the mediators more than the disputants (Reference Merry and MilnerMerry & Milner 1993). While some of the governmentally sponsored programs did falter, other programs persisted and grew despite the scholarly critiques.

While U.S. scholarship on informal justice dropped off dramatically after the critiques of the early 1980s, by the late 1980s, “new informalist” analyses (Reference PavlichPavlich 1996:708) were already beginning to appear, primarily by British and Australian scholars (Reference Matthews and MatthewsMatthews 1988). These scholars developed new critiques, but in some cases also tried to salvage informal justice (Reference Matthews and MatthewsMatthews 1988; Reference Fitzpatrick and MatthewsFitzpatrick 1988; Reference Marshall and MatthewsMarshall 1988; Reference Cain and MatthewsCain 1988; Reference PavlichPavlich 1996; Reference CobbCobb 1997). A major contribution of the new critics is to bring in an analysis of social control drawn from the work of Michel Foucault. Reference PavlichPavlich (1996:712) argues that the “old” critics of informalism inappropriately reduced the central question about informal justice to whether it expanded or reduced state control. This implies a naïve dichotomy between state control and voluntary action by unfettered individuals. Instead, according to Reference Fitzpatrick and MatthewsFitzpatrick (1988:190–2), these two domains are mutually constitutive social fields in which the identity of law relies on the presence of an informal domain and vice versa.

Social control, then, is not as centralized and top-down as the old critics assumed. In modern liberal societies, individuals are shaped by regulatory practices in an intermediate realm Foucault called “governmentality” in areas such as health, welfare, and education. In this realm of governmentality professionals play a crucial role. In their work professionals are under varying degrees of direct state control, but are permitted their privileges of autonomy because their work sustains conditions approved by the state. Power in this realm is diffuse and lacking in accountability. Specifically with respect to informal justice, Reference Matthews and MatthewsMatthews (1988:19) describes this intermediate realm between centralized state power and individual freedom as “a site of struggle over competencies, knowledges, and privileges.”

We find this characterizes well the situation of criminal justice professionals vis-à-vis restorative justice. Restorative justice theory leaves virtually no role for professionals, yet in practice they are deeply involved in restorative justice programs. In many cases, such as the ones we discuss here, professionals have spearheaded restorative justice programs. These professionals are philosophically committed to direct involvement of victims and the broader community in criminal justice, and yet are also bound by norms of fairness for criminal defendants. Juggling these commitments leads to a reconstitution of their roles in ways that differ from the norms found in both restorative justice theory and the current criminal justice system.

Restorative Justice in Practice and Theory

Restorative justice attempts to reconstitute the way people think about crime. Restorative justice advocates argue that crime is more importantly a harm committed against individual victims and secondarily against a community than it is a breach of state laws. Repairing this harm is deemed more important than punishing the offender. By minimizing the governmental role in criminal justice and making the victim the central party, restorative justice recasts criminal justice more like civil law. In blurring the distinction between civil and criminal law, restorative justice is like other versions of informal justice, but its activist roots in North America lie in religiously based critiques of penal practices and its theoretical roots in a critique of dominant theories of criminology.Footnote ¹

The origins of the restorative justice movement were contemporaneous in time but distant in geography and philosophy from the neighborhood justice centers piloted by the U.S. Department of Justice during the 1970s (Reference Tomasic, Feeley, Tomasic and FeeleyTomasic & Feeley 1982; Reference HarringtonHarrington 1985). Although neighborhood justice centers had their roots in prosecutors' perceptions of the need for better handling of minor criminal offenses (Reference McGillis, Tomasic and FeeleyMcGillis 1982:64), most came to handle minor civil disputes as well as criminal cases. Indeed, some critiques of such programs emphasized their displacement of civil more than criminal procedures. For example, the informal justice movement's multiple ideological projects, identified by Reference Harrington and MerryHarrington and Merry (1988), addressed concerns more commonly arising in civil litigation, such as backlog and delay and excessively adversarial proceedings between parties who need to sustain ongoing relationships. Other critics of informal justice saw it as motivated by the growing degree of success by have-not plaintiffs against powerful defendants.

By comparison, while the emphasis on the victim in restorative justice certainly makes it more like civil justice than conventional criminal justice is, restorative justice is firmly grounded in both practice and theory in critiques of criminal justice. Restorative justice practitioners in North America generally trace its roots to programs organized by members of the Mennonite Central Committee working with probation officers, first near Kitchener, Ontario in 1974, and then in Elkhart, Indiana in 1978 (Reference UmbreitUmbreit 2001:xlii–xliii; Reference Van Ness and Heetderks StrongVan Ness & Strong 1997:21; Reference ZehrZehr 1990:158–9). Some also credit the prison reform efforts of the American Friends Service Committee in the 1960s and 1970s as influencing the development of restorative justice (Reference Van Ness and Heetderks StrongVan Ness & Strong 1997:22–3).

Several strands of criticism of the contemporary criminal justice system have contributed to restorative justice (Van Ness & Strong 1997:chap. 2). The first is the lack of concern for victims. Victims are typically left out of the criminal justice process entirely, unless the prosecutor wishes to call them as witnesses. Victim advocates have called on the justice system to provide victims with restitution, needed services, and an active role in the process, such as the right to make a statement at the time of sentencing about the impact of the crime (Reference William F.McDonald 1976).

A second strand of criticism that has contributed to restorative justice notes the failure of the conventional process to significantly reduce crime generally and recidivism in particular. Proponents of restorative justice, however, do not look to harsher and/or more certain punishments to deter or incapacitate repeat offenders. They are likely to believe that putting offenders in jails and prisons reinforces more than deters criminality and fails to provide off-enders with the skills they need to successfully reintegrate into communities (Reference ZehrZehr 1990). On the other hand, they also criticize the adversary system for removing from offenders the need to take responsibility for their actions, and look instead to John Braithwaite's criminological theory of “reintegrative shaming” (Reference BraithwaiteBraithwaite 1989), which holds that communities should condemn harmful actions but then reintegrate offenders back into the community.

Victim-offender mediation (VOM) or reconciliation emerged as a reform movement responding to these two perceived shortcomings. VOM brings victims and offenders into face-to-face contact. For victims, direct participation is valued because it acknowledges the importance of what happened to them, gives them considerable control over the outcome, and may well be therapeutic in restoring them to their condition before the crime. Offenders are expected to take personal responsibility for their actions, for it is through this that they come to understand the consequences of their actions and have a chance to restore the ruptured relationships. Because the emphasis on taking responsibility for one's actions excludes people who deny they committed the acts in the first place, restorative justice theorists often acknowledge that the theory does not apply to the blame-fixing stage of the criminal justice process (Reference Karp and ClearKarp & Clear 2000), which further differentiates VOM from civil alternative dispute resolution.

Restorative justice programs vary considerably in their specifics, but they generally try to maintain the goals of VOM while adding some type of community involvement (Reference Bazemore and KarpBazemore 1998; Reference Bazemore and UmbreitBazemore & Umbreit 2001). Community members are considered indirect parties because they may fear becoming victims themselves in the future, may wish to reaffirm the norms violated by the criminal conduct, and undoubtedly absorb the financial costs of insuring against crime and responding to it when it occurs. Moreover, they are often seen as bringing an ability to “connect with” the victim and offender and support them as they try to repair the harm from the crime (Reference Dzur and OlsonDzur & Olson 2004).

Anti-Professionalism in Restorative Justice

An underlying theme in calls for community involvement and victim-offender mediation is the desirability of reducing professional control of criminal justice. In an influential early article, Norwegian criminologist Nils Reference ChristieChristie (1977) accuses the state via its lawyers and “treatment personnel” of “stealing” conflicts from the direct parties and taking away not only the victims' direct compensation, but also the victims' and their communities' opportunity for participation, fuller understanding, and norm clarification.

Restorative justice theory often follows Christie's lead in recounting the historical evolution of criminal justice from individual or family control to state monopoly. Reference ZehrZehr (1990:101) describes people in medieval Europe as turning to the “judicial option” only when private justice failed. Such public justice was then still entirely at the initiative and in the control of the victim or victim's family. Gradually, a public investigator became the public accuser, and as governmental power centralized, the state became defined as the victim of the crime and the recipient of fines levied on the offender.

Restorative justice theorists are skeptical of the usual justification of state monopoly, namely that putting the pursuit of justice in public hands avoids private vengeance and the risk of escalation of social violence (Reference ZehrZehr 1990:98; Reference ChristieChristie 1977, Reference Christie1981). Reference ZehrZehr (1990:100) describes the pre-state-controlled system as not “private justice” but “community justice,” because “[c]hurch and community leaders often played central roles in negotiating or arbitrating settlements, registering agreements once they were made.”Footnote ²

While not often explicitly articulated, the implied distinction between “community” and “state” pervades restorative justice theory, just as it did in the early-1980s' critiques of informal justice. Reference ZehrZehr (1990:119) views the post-Enlightenment development of more democratic governments as not blurring this distinction but merely “legitimating” the state: “if the state represented the will and interests of the public, it was easier to justify defining the state as victim and giving up to the state a monopoly on intervention.”

If the state and community are dichotomized, criminal justice professionals are clearly representatives of the state. Judges, prosecutors, and probation officers are direct employees of the government. Even when not public employees, defense attorneys are considered “officers of the court.” By viewing the victim, offender, and community rather than the state as the central parties in criminal acts, restorative justice theory seems to imply little need for criminal justice professionals at all. Indeed, there is minimal discussion in the restorative justice literature about the nature of the roles that professionals might play in a criminal justice system reoriented according to restorative justice principles (but see Reference Bazemore and KarpBazemore 1998:348–53), except for publications aimed specifically at such professionals (Reference Harris and CorbettHarris & Corbett 1998; Reference Umbreit and CareyUmbreit & Carey 1995; Reference Gay and QuinnGay & Quinn 1996).

Notwithstanding this implication in the theoretical literature, in practice a great deal of the initiative for restorative justice programs has come and continues to come from professionals within the criminal justice system. Indeed, one can even present restorative justice as a program for professional renewal. One article promoting restorative justice to corrections professionals touts its ability to reenergize their original motivations for entering the field: “to promote offender change, to assist crime victims toward wholeness, and to make individual communities safer” (Reference Umbreit and CareyUmbreit & Carey 1995:2). The least charitable interpretation of professional involvement in restorative justice is that professionals only use the rhetoric of restorative justice to obfuscate the extension of their own control, as the harshest critics of the informal justice movement of the 1970s suggested. Our observations show, however, that the professionals in the restorative justice programs we have studied appear sincerely motivated to hand over at least some power to victims and community members. Nonetheless, such a shift of power does not occur seamlessly or without ambivalence, and doing so certainly creates the need to reconceptualize professional roles as some traditional ones are changed or eliminated.

In the conventional criminal justice system, professional expertise focuses on issues of substantive law, procedural law, and sentencing. Substantive law is important because crime is conceptualized as breaking the laws of the state. Because punishing offenders for breaking these laws is the central goal of the criminal justice system, procedural expertise is essential so that the punishment is imposed fairly. Except in the rare instances when delegated to juries, sentencing decisions are in the hands of judges, attorneys if plea-bargained, and/or “treatment personnel,” such as probation and parole officers.

Professional responsibilities in these areas become specialized and routinized. The focus on punishment makes very important the norm of due process for the offender, and this is achieved through specialized roles and standardized procedures. The professionals each employ their particular expertise to fulfill their designated role. Defense attorneys represent their clients, either in trial or plea negotiations; judges stay neutral, “umpire,” and adjudicate; probation officers assess attitudes, dangerousness, and prospects for rehabilitation.

Reliance on roles corresponding to specialized expertise has corollary effects on professionals' scope of responsibility and standards of accountability. Professional roles are compartmentalized. The professionals' responsibility is to do their specific duty in the process, according to professional standards of conduct. For example, the attorneys at trial are accountable to do a good job of voir dire and cross-examination and summation. They are not necessarily accountable for the outcome of the individual case, much less whether the offenders re-offend or the victims put their lives back together. While elected prosecutors and judges may at times be held responsible for a community's general level of crime, the usual standard of accountability is a narrow measure of conviction rate or sentencing severity.

Restorative justice theory, by contrast, eschews professional expertise in substantive law, procedure, or sentencing and envisions different human interactions among the parties. Direct participation by victim, offender, and community is needed because the restoration of violated or ruptured human relationships, not punishing offenders, is the central goal of criminal justice (Reference ZehrZehr 1990). Experts in substantive criminal law are not needed because crime is a matter of violating community norms, which are widely known by definition. With respect to procedure and sanctions, restorative justice theory emphasizes the unique circumstance of each crime and does not assume that the same treatment is appropriate for all. Indeed, formal equality may reinforce actual inequality (Reference ZehrZehr 1990:79). Participants relate to each other holistically and fluidly as unique individuals.

With these values and goals, then, is there indeed no role for professionals in restorative justice? Even as harsh a critic as Christie perceives a possible role for professionals as “resource-persons, answering when asked, but not domineering, not in the center” (Reference ChristieChristie 1977:12). Christie's vision, however, assumes a different public from the one we currently see. If the professionals are not now accountable for the overall outcomes in the criminal justice system, neither is the public. By having turned the criminal justice system over to professionals, most ordinary citizens feel there is little they can or should be expected to do about it, even if they are dissatisfied with the level of crime in their community. Thus, even if it is true historically that professionals have “stolen” the community's conflicts, as Christie argues, there is little current evidence that the community is making vigorous efforts to get them back.

The concept of “democratic professionalism” says that professional expertise can be directed toward facilitating public participation and control (Reference DzurDzur 2002a, Reference Dzur2002b). Under this idea professionals do not inevitably reduce the sphere of lay or citizen involvement, but share decision-making domains rather than monopolizing them as Christie feared (1977:7). Democratic professionalism suggests a concept of professionalism with different roles and different expertise.

A Theory of Democratic Professionalism

Democratic professionalism steers a middle course between the apolitical view of professions common in mainstream studies of professionalism and the view of radical critics like Christie. Common to mainstream studies is a view of professions as “trustees” of public interests. Though rarely held in a pure form in sociological descriptions or ethical theories of professional action, the social trustee ideal has played a major role in how sociologists, philosophers, and professionals themselves have understood professions as being different from other economic actors and as having special responsibilities to the larger society.

The social trustee ideal holds that professionals have social responsibilities in addition to their fiduciary and function-specific obligations to their base of clients. To count as a profession, in Talcott Parsons's foundational account, an occupation must have a sense of such broader responsibility: “a full-fledged profession must have some institutional means of making sure that such competence will be put to socially responsible uses” (Reference ParsonsParsons 1968:536). In addition to the healing of particular clients, the medical profession contributes to larger social goals such as the cure of disease and other large-scale improvements in health and well-being (Reference ParsonsParsons 1968:536). In addition to defending the rights and advancing the interests of particular clients, the legal profession embodies and upholds the social conception of justice, what Parsons calls “the moral consensus (incomplete as it is) of American society” (Reference ParsonsParsons 1968:544).Footnote ³

Social trustee professionalism emerges in the 1860s and is a prominent ideal in the century that follows for both established professions like law and medicine and for newer professions striving for status, like engineering and social work (Reference BrintBrint 1994:5). If social trustee professionals represented public interests, however, this representation was at a fairly high level of abstraction. Serving the “community” was not seen as something the community had much of a say in determining.Footnote ⁴ An economy of trust emerged: professionals earned social trust by performing such general social functions with a high degree of competence, and they spent it by insisting that they knew best how to govern themselves and establish their own standards of action.

The apolitical image of professional responsibilities to the public presented by the social trustee ideal is strongly challenged by the view of radical critics of the 1970s, such as Foucault and Habermas, who lamented the detrimental effects of “technocratic” professional action in democracies that, to paraphrase Habermas, takes the most critical aspects of public decisions out of the hands of both the voters and the politicians (Reference Habermas and ShapiroHabermas 1971:63). Far from representatives of the public interest, under this critique professionals are seen as impediments to the democratic expression of public interests. Expertise grounded in the methods and language of positivist social science pushes the local knowledge of lay participants out of serious policy arenas.

Nils Christie echoes these themes when he draws attention to professional task monopolization that shrinks the space of democratic authority and immobilizes citizens who might occupy that space (Reference ChristieChristie 1977). Professionals shrink the space of democratic authority when they claim expertise and authority over tasks involved in achieving public purposes like criminal justice that could conceivably be done by lay people, tasks such as crime prevention, trials, and sentencing. Sometimes professionals quite literally shrink the space of participation when they decide public issues off in professional buildings and administrative complexes, far from potential sites of participation.

In addition to taking over public-oriented tasks, professionals may immobilize because their sophistication in policing, adjudicating, and sentencing makes people less comfortable with relying on their own devices for social order and justice. Further, as critics like Foucault pointed out, individual citizens, social movements, communities, and the “general public” become reflected back to themselves by professionals (Reference Foucault and GordonFoucault 1980). Professionals, along with providing services, mediate relations with our selves, other individuals, and groups. Through the mediation of psychologists, lawyers, and public administrators, among others, people can lose faith in how capable they are as persons, how capable their neighbors are, and how capable nonprofessionals are in collective decision making.

The radical critics' response to technocratic professionalism was to undermine the positivist underpinnings of the alleged expertise of criminologists, policy scientists, and others, and to suggest, where possible, the use of lay-dominated forums of public choice. During a period of comparatively high (in comparison to contemporary rates) civic participation as the 1960s and the early 1970s (Reference PutnamPutnam 2000), such hope for lay participation did not seem misplaced, but even so it is important to notice the irony that some of the loudest calls for more lay participation and a different kind of relation between citizens and professionals were heard from people, like Christie, Foucault, and Habermas, trained for and occupying sites of considerable professional authority.

The ideal of democratic professionalism flips the radical critique around, jujitsu-style, and argues that if professionals can be a buffer between elites and citizens, they can also remove themselves as a buffer; if they can take tasks away from the public and immobilize civic action, they can give these tasks back and activate civic action; if critics of the professions can be self-aware enough to recognize the faults and limits of technocracy, then so can other professionals trained in similar institutions and affected by the same currents of thought.

Democratic professionalism has a thin but important line of scholarly support in democratic theory that helps explain why task sharing rather than task monopoly might come to be desirable to professionals. Canonical democratic theorists Alexis de Tocqueville and John Dewey both stressed the vulnerability of professional domains to legitimacy threats from distant publics. For Tocqueville, lay participation in juries socialized citizens into respect for legal procedures and for the judges who had professional mastery of them. Without this socialization, citizens can see judges as alien figures of questionable authority. The jury “spreads to all classes respect for the thing judged and the idea of right. Remove these two things, and love of independence will be no more than a destructive passion” (Reference Tocqueville, Mansfield and WinthropTocqueville 2000:262).

Dewey suggested a different threat to legitimacy. Without the local knowledge of the communities affected by social problems such as crime or joblessness, technocratic experts simply could not adequately solve those problems. Experts in social policy do not remain experts long if their inquiry is not substantially reflexive, if their inquiry is engaged in the problems of specialists rather than the felt problems of the public. “A class of experts is inevitably so removed from common interests as to become a class with private interests and private knowledge, which in social matters is not knowledge at all” (Reference DeweyDewey 1927:364).Footnote ⁵

In the Public and Its Problems and elsewhere, Dewey indicated that certain professions could serve as democratic catalysts—intermediaries between a fragmented and under-informed public and a distant and increasingly complex political system. Dewey had in mind journalists, social scientists, and educators—these were his democratic professionals. They were to provide analyses and information but also encourage reflection about large-scale economic and political events, and most importantly to encourage a form of self-recognition on the part of nascent publics formed around key social problems. The press, for example, was to be a “continuous, systematic and effective revelation of social movements” (Reference Dewey and BoydstonDewey 1925:219), something it performed by becoming both more social scientific in its analyses and more aesthetic in its narrative delivery.

Dewey conceived of democratic professionals as task sharers, not political leaders or public organizers or philanthropists who seek to produce social goods for the public. Instead, Dewey's democratic professionals respond to social problems in a way that facilitates the organization of the public. For example, Dewey saw educators as democratic professionals who can structure learning environments for students to work and deliberate together. In Dewey's model schools, children are initiated into the participatory and deliberative mode of life, characteristic of a task-sharing democracy. Students are encouraged in group practice to place their beliefs in question, rely on evidence and argument for authority, be willing to answer challenges, and be receptive to new perspectives. In other words, Dewey's democratic educators help structure their schools so that students have a taste for collective self-determination (Reference DeweyDewey 1937:181).

Democratic professionals seek to open up their domains of authority to lay participants, to share tasks, and to share in the construction of the norms that constrain and direct professional action. Along with the restorative justice movement in the criminal justice domain, other contemporary democratic professional movements include the public journalism reform movement and the bioethics movement within medicine (Reference DzurDzur 2002a, Reference Dzur2002b). In seeking to change key governing norms of practice within criminal justice, journalism, and medicine, they see their own domains as having positive democratic potential. What these reformers see that radical critics of technocratic professionalism missed is the possibility that professionals might have a hand in reversing trends in democratic contraction and civic immobility. Further, like Tocqueville and Dewey, contemporary reformers see how a merely commercial or merely technocratic professionalism makes their own practices vulnerable to public skepticism.

Democratic professionals are not necessarily idealistic or altruistic. Contemporary social and political theorists building on Dewey's work have pointed to three reasons behind democratic professionalism. One motivation, integrity, is what individual members have to gain from their professions when they are oriented toward public good rather than mere commercial gain. Professions are ways of life that further public purposes, and because of this they are able to grant meaning to the work-lives of individual professionals (Reference SullivanSullivan 1995:6).

Another reason, security, or professional legitimacy, is what professions, as organizations, have to gain from the right sort of relationship with the public. Professional work is particularly vulnerable to public recognition because it is often dependent upon “public, legal acceptance of the value of services offered by the professional” (Reference SullivanSullivan 1995:30). For example, surgeons are exempt from the criminal justice constraints preventing ordinary citizens from approaching strangers with sharp instruments with invasive intent, but society can also retract such exemptions. As Sullivan writes, the “security and negotiability of the professional's human capital exists…only as part of the public order of civil society. Even more than most other kinds of property, professional capital depends upon civil society's structure of legal procedures and reasonings” (Reference SullivanSullivan 1995:145). The authority and autonomy professions have to solve key social problems are based on reciprocal trust, something they earn by performing their tasks with social good, not just profit, in mind. Professionals unreflective about their impact on the public good not only risk loss of integrity, but also loss of the legal legitimacy they need to operate.

A third reason is the value of democracy itself: professionals can help preserve democratic control of collective decisions against the pressures of technocratic control. Proponents of democratic professionalism see few signs of the engaged, rational polity that Dewey imagined and worry about the roles contemporary professionals play in the “hierarchical and asymmetrical decision structures of the corporate-bureaucratic state.” Instead, they see a political environment marked by citizen apathy and inefficacy in the face of expert systems of social coordination and control (Reference FischerFischer 1993:167, Reference Fischer2000:30). Technocratic professionals and experts play the role of buffers between citizens and elites by accommodating “the client's needs and problems to the structures of a larger system of domination and control” (Reference FischerFischer 1993:169). As the supposed technocratic benefits of efficiency and competence are subjected to increasing scrutiny, however, the virtues of a more democratic professionalism are coming to be recognized by professionals and citizens alike as a barrier against technocratic authority that constrains democratically coordinated social action.

So what explains the democratic professional, the judge, the administrator, the journalist, social scientist, or educator who opposes technocratic authority and who promotes the formation of engaged publics? Professionals do this to help promote democratic citizenship, that is, to uphold the value of democracy. But they facilitate lay participation, too, because it serves the professional's interest in gaining the security and integrity that help the profession itself function and get its job done better.

None of this is to say that democratic professionalism is easy. The ideal is quite complex (Reference DzurDzur 2002a, Reference Dzur2002b). For example, Dewey expects social scientists to be both competent researchers under the rules of their disciplines and good facilitators of community participation. In the demand that professionals both exercise authority and share it, democratic professionals face serious value trade-offs, as in the case of Tocqueville's judge who knows his solo decision would be more just, yet defers to the jury as a rule because of the political socialization benefits of lay participation. The ideal is also, no doubt, overly ambitious as shown by the hope that the judge, the social scientist, the educator, and others can remedy serious structural deficits in the civic environment. At least democratic professionals within the criminal justice system are only trying to increase citizen involvement in their specific policy domain, rather than in public decision making generally, as educators or journalists might, but they certainly face complexities and trade-offs nonetheless.

As democratic professionals, they need to retain a certain degree of separate authority and autonomy grounded in both the competence and skill values of the social trustee model, and in the participatory democratic values stressed by radical critics. As democratic professionals, they are concerned about the effects of their expertise on the lay public's ability to make self-confident choices both inside and outside their professional domain. Though they retain the authority and at least somewhat privileged voice of people with experience and specialized training, they recognize that they may know only part of what is important in reaching a decision about a treatment plan, a service, or a public policy that relates to their area of expertise. Above all, they seek to open up their domains to other voices and other experiences by mobilizing, actively recruiting, and including lay participants in both decision-making and agenda-setting capacities.

We propose that the concept of democratic professionalism complements the theory of restorative justice by helping to explain why professionals have been so involved in a movement that claims not to need them, by identifying what professionals contribute to the practice of restorative justice, and by suggesting standards to consider in assessing the role such professionals play. The concept of democratic professionalism brings out a significant and meaningful dimension of restorative justice practice lost in most current discussions of restorative justice. Ideally, democratic professionals may also help shape restorative justice in ways that address some of the problems perceived with many earlier efforts at informal justice. On a more practical level, we believe that democratic professionalism characterizes what many restorative justice professionals are doing: re-professionalizing toward a more democratic practice.

Our principal case study examines professionals attempting to share authority with citizens in a restorative justice program in Salt Lake City, Utah entitled “Passages.” Sparked, in part, by the interest in restorative justice of Salt Lake City's progressive mayor, Passages was planned and developed in the spring of 2000, with the first cases heard in the fall of 2000. The program is described here as it functioned from September 2000 through December 2001, with more recent developments noted as appropriate. We draw upon direct observations of biweekly meetings and other program-related events, interviews with the participating community members and professionals, and written program descriptions, newspaper accounts, and so on. This evidence enables us to begin to identify the meaning that some professionals attribute to community involvement and the professional tasks entailed in facilitating greater community involvement in criminal justice. We do not here discuss the program's impact on the offenders, but focus exclusively on the roles that professionals play vis-à-vis community members.

We realize that other restorative justice programs structure professional and community involvement in different ways and each program depends heavily on unique circumstances, so that this one program should not stand for all of restorative justice. Furthermore, the program was in its infancy, and the roles of professionals and community members have evolved since its early months. To provide comparison with another program that structures professional and citizen roles differently, we offer a much briefer account of a restorative justice program in Vermont.

Restorative Justice in Practice: The Salt Lake City “Passages” Program

Passages has four professional stakeholders (Reference RollyRolly 2000): the city prosecutor's office, legal defender's office, court, and probation services. The chief city prosecutor appointed by the new mayor was a galvanizing force in the formation of Passages (Reference WalshWalsh 2002). For its first year this chief prosecutor personally sat on the community board described below. Subsequently an assistant city prosecutor participated in the biweekly meetings. The head of the misdemeanor section of the Legal Defender's Association, the second stakeholder, was active at the planning stage and also sat on the board. Invited by the prosecutor, a judge of the state general jurisdiction trial court agreed to participate in the program.Footnote ⁶ Salt Lake County Division of Criminal Justice Services, the fourth stakeholder, provided a meeting place for the community review panel, therapeutic courses for offenders participating in Passages, and the critically important time of a part-time case manager who interviewed offenders and wrote up assessments to be considered by the board and was the contact person for both offenders and board members. The program's budgetary needs were minimal, consisting of a part-time salary for the case manager and seats in therapeutic courses; the public defender and city prosecutor volunteered their services at the after-hours meetings.

The participating judge referred cases to Passages at the time of arraignment or pre-trial hearing at the request of the City Prosecutor's Office.Footnote ⁷ Defendants were offered a plea in abeyance, which means that a defendant pleads guilty but that the prosecution would ask the court not to enter judgment but dismiss the case once the conditions of the Passages program were completed. Candidates for Passages were given three days after entering the plea in abeyance to contact Salt Lake County Criminal Justice Services to schedule a pre-program evaluation.

Strict guidelines governed the selection of offenders deemed appropriate for Passages. Offenders who had committed felonies were not admitted, nor were those who had a history of violence or a history of failure to appear for court hearings.Footnote ⁸ Anxious to have the new program succeed, the prosecutor was initially very cautious about the cases referred, even beyond the formal criteria. All but 11 of the 35 cases referred during the observation period were shoplifts or employee thefts, which presumably affected the demographics of the program.

From September 2000 through December 2001 there were 35 participants: 17 men and 18 women; one black, 6 Hispanics, and 28 non-Hispanic whites. The mean age was 24, and the median was just over 20. Other offenses committed by program participants included unlawful possession of alcohol, drunk and disorderly, hazing, stealing money from an acquaintance's purse, and stealing luggage from an airport carousel.

The offenders met as a group with the community review panel (CRP or “board”) in a room on a corridor in the Salt Lake County Criminal Justice Services building where therapeutic classes were going on at the same time for others under the supervision of the division. During the observation period, the CRP was evenly divided in number between the city prosecutor, public defender, and case manager, and three community members.Footnote ⁹ Though in theory members of the public could attend the meeting, no one other than the board and the offenders (and occasionally one of their friends or family members) attended during the 16 months of our observations.Footnote ¹⁰

A half hour before every meeting the CRP met without the offenders present. In this half hour the case manager introduced new participants by handing out copies of “Passages Needs Assessments,” stating the name and date of birth of the offender, the circumstances of the criminal charges, a very brief summary of the individual's personal circumstances (previous criminal offenses, family and marital status, mental and physical health, and evidence of substance abuse), and recommended sanctions. The case manager also handed out an agenda for the board meeting with a progress report and update on the other program participants the board would talk with that evening.

When the formal meeting began, the offenders entered the room and were invited, one at a time, to sit at a seat at the CRP table facing the members of the board, while the other offenders remained as an audience. During these board-offender encounters, which usually lasted only a few minutes, board members affirmed the remaining requirements to be met by the offender—such as the number, type, and date of therapeutic classes to be taken—and usually praised the tasks already completed. Most of the participants seemed contrite and cooperative from the outset. Roughly one third of the total established quite friendly relations with the panel members, exchanging banter or reporting progress with pride. On the other hand, nearly one quarter were more resistant to the program, giving the impression they considered it excessive for the offense they had committed.

Passages was divided into three phases or periods in which the demands on offenders changed in character. Phase one included an introductory meeting with the CRP in which the offenders discussed written answers they had prepared to a list of questions about the offense, such as how it may have harmed the victim and community. During this phase, which lasted about a month, the offender had to meet every other week with the board at its regularly scheduled time. To complete phase one the offender must have started a set of “skill-building” classes and other board recommendations, such as the completion of a personal budget or a plan to take a GED exam. In addition, the Passages program fee of $50 had to be paid, though payment of restitution could carry over into the next stage.

Also during phase one the panel met with offenders in private to assess community restitution, a simple application of a formula involving the alleged cost of police time and the number of hours used in dealing with the offense. According to the program guidelines, this restitution did not exceed $180 (SLC 2000). Restitution to the victim was dealt with case by case.Footnote ¹¹ One purpose of the community restitution was to bring home the impact that even minor offenses have on the broader community, but a second goal was to bring in financial resources for Passages.Footnote ¹²

Phase two lasted a minimum of three months and required offenders to meet with the board once a month. During this time the offender attended either victim-offender mediation or, much more commonly, a victim impact panel, in which victims of crimes not committed by Passages participants recounted their experiences as victims. Phase three took a minimum of two months and required once-a-month meetings to ensure that all program requirements were completed and offenders got in no further trouble. The overwhelming majority of participants successfully completed the program.Footnote ¹³ The program concluded with a formal graduation ceremony where successful participants were praised for their work by board members and other figures of authority, such as members of the mayor's office and the judge supervising the program, who then officially dismissed their cases. A month later the party in most cases could also have the record of arrest and charges expunged.Footnote ¹⁴

Alternative Models for Democratic Professionals in Restorative Justice

The structure of Passages, in which professionals sat side by side with community members as part of the CRP, makes taking over very easy or, indeed, makes not taking over quite difficult. This structure, however, is not the only way for professionals to organize restorative justice and facilitate community involvement in criminal justice. For purposes of comparison, we present a brief description of “community reparative boards” (CRBs) in the state of Vermont, which differ somewhat from Salt Lake's approach, and an even briefer note of restorative justice programs with a different concept of community. These alternative models perhaps come closer to the ideals of democratic professionalism.

Begun in 1994 and continuing to grow statewide, Vermont's CRBs are very similar to Passages in concept. A board of five or six citizens meets with offenders and imposes on them sanctions such as community service, victim reparations, and formal or informal apologies.Footnote ¹⁶ The reasoning behind the Vermont program has been expressly articulated and closely tracks the mix of pragmatism and idealism of democratic professionalism. First is the sense that the conventional correctional sanctions are not the most effective response to nonviolent crimes (Reference Perry and GorczykPerry & Gorczyk 1997:32). Second, in efficiency terms, involvement of citizens in dealing with nonviolent crime can “free up scarce court and correctional resources to meet the more urgent priorities of determining justice and providing sanctions and services in cases involving more serious crimes” (Reference DooleyDooley 1995:33). Third, this division of labor is also characterized in democratic terms, as giving power and responsibility back to citizens. In the words of John Perry, director of planning for the Vermont Department of Corrections, “there's a hunger for local control over justice. We've done a pretty good job of taking justice away from the local communities. This process allows it to go back to the level that it probably ought to be at” (Reference StoneStone 2001).

There are several important differences in the role professionals play in Vermont, compared to Salt Lake. Because the Vermont boards operate post-conviction, rather than through a plea in abeyance, they are administered by the state Department of Corrections. Prosecutors and defense attorneys have little involvement with the boards, though obviously the charges prosecutors bring largely determine whether offenders will be eligible for reparative rather than conventional probation. Most importantly, no professionals from the Department of Corrections sit on the community boards. Nevertheless, professionals still largely perform the same roles as the Passages case manager and several of the functions that we have identified as part of the task of facilitating community or citizen participation, but some they do more indirectly.

First, they take responsibility for staffing the boards and attending to their representativeness. Except for the much larger scale of the Vermont program, there is little difference in this task. As CRBs have spread across the state, the Department of Corrections has become more interested in the diversity of boards.Footnote ¹⁷ In a Department of Corrections directive, representativeness is defined as follows: a board “should be as diverse a group as is the community in the areas of economic status, gender, age, ethnic background, religious preference” (Vermont Department of Corrections 1997:11). Additionally, ex-offenders, people who have been crime victims, those with a history of community service or who represent key community institutions, and people with a commitment to restorative justice principles are seen as adding to the diversity of the board.

The Vermont professionals also juggle their commitment to democratic and other substantive values, but they do so through training and written guidelines rather than through direct participation.Footnote ¹⁸“Retributive,”“punitive,” and “offender-based” perspectives are seen as in tension with the value of restoration, and the professionals attempt to correct or modify these perspectives either in pre-board or follow-up training of board members. As Reference Walther and PerryWalther and Perry (1997:12) wrote in a third-year review of the Vermont program, “some Board members have exhibited punitive activity (at worst), and offender-based goals (at best), rather than restorative, inclusive values. We believe this behavior will change with the pressure of peer reviews and inservice training.”

The department also tries to guide the boards in the particularly legal value of fairness to the offenders, just as the defense attorney in Passages did. Because the Vermont program is post-conviction, its fairness issues mainly relate to the nature of the sanction. A “program directive” has established standards of fairness, equity, and relevance for the tasks mandated for the offender by the board.Footnote ¹⁹

Ironically, when a program has become as institutionalized as Vermont's has, democratic professionalism may also require attention to professionalizing tendencies among board members themselves. Professionalization has been of increasing concern in Vermont, where board members have now organized email networks and annual conferences. Some boards have asked to be paid, not just for the money but also for the status a paid position conveys to those offenders who might challenge the authority of unpaid volunteers. In reaction to these developments, both the commissioner of corrections and the department's director of planning expressed in interviews an interest in discouraging “little judges” and in maintaining the informality of boards by “building inefficiency into the system,” perhaps by making service on reparative boards paid but also mandatory and time limited.

Although both the Vermont and Salt Lake professionals recruit and guide community volunteers, the more “behind the scenes” approach in Vermont seems to have some advantages from the perspective of democratic professionalism over the more “hands-on” approach in Salt Lake City. Restorative justice has substantive values and goals, apart from the democratic goal of more citizen involvement, including support for victims, fair treatment of offenders, and more understanding and cooperative relationships among all parties. The Vermont approach allows professionals to pursue these other values through guidelines and training at less risk to their commitment to democratic participation, although possibly with some loss of the sense of meaning arising from richer personal interactions.Footnote ²⁰

The tasks for democratic professionals of recruiting participants and monitoring diversity and quality of participation are functions of the general approach to restorative justice shared by both Salt Lake and Vermont. This is a “panel” model that attempts to incorporate community involvement through members of the general public who have no direct connection to the particular offenders or offenses at hand. An alternative approach is a stakeholder model, such as “family group conferences” (Reference Bazemore and KarpBazemore 1998), in which “the community” consists of intimate acquaintances of the victim and offender. Restorative justice professionals may find themselves with different tasks and challenges in such programs.

Some restorative justice advocates have criticized the “panel” approach for substituting members of the general public for more direct stakeholders (Reference Bazemore and KarpBazemore 1998; Reference Bazemore and UmbreitBazemore & Umbreit 2001:4). Even the direct victims of the offenses may be absent, as is largely the case in both the Salt Lake and Vermont programs. The original design of Passages anticipated victim-offender mediations as an important part of the program, to be conducted by the case manager, a trained mediator. In fact, however, only three such mediations took place in Passages' early months, and victims were much less involved than the program's formal goals anticipated. The main reason is that very few of the offenses had individual victims, and only one commercial victim in a shoplifting or employee theft case agreed to participate in mediation.Footnote ²¹ The individuals on the victim impact panel, which offenders attended unless they had a mediation with their direct victims, spoke poignantly of their experiences and seemed to touch at least some of the Passages participants, despite the differences between the crimes they committed and those the victims experienced, but the potential for a transformative effect on the offender is surely less than in victim-offender mediation.

The Vermont reparative probation program clearly seeks to have victims attend the board meetings. Guidelines provide suggestions for attending to them, such as “greet victim/affected parties respectfully and inclusively,”“assure that the victim is not interrupted while telling her/his story,”“validate victim's feelings and questions,” and “assure that offender answers all questions that victim asks of him/her” (Vermont Department of Corrections 1999). Nevertheless, relatively few victims have participated. Two sources report victims attending board meetings in 11% and 18% of the cases with identified victims.Footnote ²² The lack of victim participation was a point of self-criticism in both Vermont and Salt Lake.Footnote ²³

In programs where victims and other direct stakeholders are present, professionals often find themselves playing another new role, that of mediator. The growth of mediation between victim and offender, sometimes also including concerned community members on both sides, has spawned protracted debate over issues arising from this new role, including appropriate credentials and training, tensions between maintaining neutrality and promoting substantive justice, and appropriate cases for mediation (Reference McGillisMcGillis 1997:67–72; Reference Shook, Milner, Merry and MilnerShook & Milner 1993). Democratic professionals in such programs may not have to worry about recruiting volunteers or whether those volunteers are somehow representative of a larger community, but they still face the challenge of enabling and directing lay participation without dominating it.

Learning About Restorative Justice Theory Through Democratic Professionalism

Despite its frequent assumptions to the contrary, we conclude that restorative justice needs the involvement of criminal justice professionals for several different reasons. First, for the foreseeable future, restorative justice is unlikely to happen without them. Restorative justice theory tends to assume that restorative justice programs give back something the community wants, namely direct, hands-on control of criminal justice decision making. What we see in practice, however, is a different story. Despite reasonable initial recruitment efforts, Passages found only three steady volunteers and thus went through its first 16 months with the same three citizens representing the entire community. Even in Vermont, where the community boards have now spread statewide and involve some hundreds of volunteers, citizen involvement was “seeded” in a top-down fashion by professionals of the Department of Corrections. In no way did reparative probation as a program idea emerge from the bottom up, through social movement or normal politics, even in a state with a long history of local self-government and participatory politics.

A restorative justice “true believer” may agree that such involvement is needed at the outset of restorative justice programs, but once that stage has passed, the community will take back what is deservedly theirs. We see it differently. Generating sufficient citizen involvement in most communities is something that may involve considerable long-term social change to accomplish, even with the concerted efforts of democratic professionals. At a time when it is hard for even the most devoted local party activist to get 50% of a neighborhood to turn out to vote in a presidential election year—even given a stable party system, with established political networks at the national, state, and local levels—we wonder whether “giving back” the criminal justice system is as easy as it sounds.

Another questionable assumption is that all the tasks to be done can be done by volunteers. Even beyond a possible transition stage to restorative justice, we see evidence that restorative justice programs usher in new tasks and new burdens for some particular group to master. Because tasks such as mediation and facilitation of community involvement are different but no less complex and burdensome than traditional criminal justice tasks, it seems sociologically sound to suppose that some professional involvement will likely be a long-term and not temporary phenomenon.

The role of facilitator also includes finding political support for community involvement in hitherto professionally dominated institutions. Just as Reference Feeley and RubinFeeley and Rubin (1998) found with respect to prisons, reformers could not conceivably transform the criminal justice system toward restorative justice without the support and cooperation of some of the professionals now in charge to provide legitimacy with political decision makers.

Not only are there new tasks to perform that may require training and time commitments, there are also traditional tasks and values associated with criminal justice, with which professionals are particularly associated, that rival the tasks and values of restorative justice. Restorative justice theory notwithstanding, it is not clear that traditional tasks such as appraising offenders and ensuring procedural fairness should disappear or be done any less professionally than currently (Reference LunaLuna 2001; Reference Clear, Karp and KarpClear & Karp 1998; Reference Cain and MatthewsCain 1988:83). Because the value of holistic restorative justice practices does not “trump” all the values of specialized conventional justice, it is very likely that some criminal justice tasks will always be guided by traditional norms whether or not these tasks are performed directly by professionals, as in Salt Lake, or guided through policies and training, as in Vermont.

Both professionals and community volunteers can encounter something of a “two-hats” problem. Because they want to uphold traditional as well as restorative values, they sometimes have to perform contradictory tasks. In Salt Lake, for example, the professionals involved tried to represent themselves in offender-board dialogue as both community members and professionals. As a community member they “relate,” but as professionals they introduce the program to new offenders in expert terms such as “class B” offenses. In Vermont, we observed as a board member evoked her status as a member of the community by saying she “lived on Elm Avenue and ran a nearby market,” but who also clearly followed precedents of board practice and the procedural guidelines set out for board-offender dialogue. Both hats are needed, but they add to the complexity of restorative justice roles: community members do not just act the way they would in their family room, but follow rules; professionals do not just act the way they would in court, but follow the new rules of restorative justice processes.

Democratic professionals explicitly seek to balance these competing values of rule following versus holistic engagement and of fairness to individuals versus responsiveness to community. The exact role they play, such as how much time a democratic professional needs to spend in the foreground, will vary with the context. A possible reason for Vermont's adoption of a program structure more closely adhering to democratic professionalism is the different political culture of the states. The structure of the Vermont community reparative boards may reflect the state's history of town meeting participation, a history that gave the Department of Corrections professionals confidence in the possibilities of community involvement in criminal justice. Moreover, that the Salt Lake offenders are under a plea in abeyance increased the need for the Salt Lake professionals to be available to resume their unique role of enforcing law or protecting rights. In short, we see democratic professionalism as conducive to the development of restorative justice. Its exact form may differ with the social and political context, but some organizational configurations advantage certain values over others.

Restorative Justice, Democratic Professionalism, and Informal Justice

Can incorporating democratic professionalism into the theory and practice of restorative justice programs avoid the problems raised by critics of informal justice? A full assessment of restorative justice as an improvement on the informal justice programs of the 1970s and 1980s is beyond the scope of this article. An overall assessment requires attention to offenders and victims, of course, not just to the role of professionals.Footnote ²⁴ In addition, attention needs to be paid to the differences among the wide range of restorative justice programs in this country and elsewhere. Especially programs like those in Salt Lake and Vermont, where direct victims are usually absent, raise questions about what exactly is being “restored” and how much they differ from other rehabilitative programs that attempt to make offenders less self-centered. Nevertheless, we feel our study speaks to some aspects of the concerns about informal justice.

To the extent that Passages, with its three “phases” and mandatory classes and board meetings, is quite an elaborate program for sometimes very minor offenses, skepticism is warranted that its version of restorative justice is, once again, an extension of state control. For this not to be true, the validity of community involvement and the respect for individual rights are both crucial. The role of democratic professionals is important on both fronts. As democratic professionals, those involved in restorative justice are responsible for ensuring that the core legal value of fairness to offenders is not sacrificed. As democratic professionals, they are responsible for nurturing citizen participation in the process.

The theory of democratic professionalism and our empirical observations suggest that nonaltruistic reasons help support this second goal. The professionals felt that working with the citizens made their work more meaningful and more legitimate. The progress the community members made in shouldering a fair share of the conversation with offenders and even in questioning the professionals' dominance in that process suggests that conscious attention to these issues produces more valid community involvement.

If criminal justice professionals interested in restorative justice are to become democratic professionals, new forms of training and standards of accountability are needed. Training in the facilitation of community participation (see Reference LopezLopez 1992) needs to become as common as mediation training is now. New standards of accountability clearly need to be worked out for assessing how well democratic professionals accomplish the array of new tasks, how well they are able to manage tensions between competing values, and how agile they are at stepping in and out of the foreground of public action.

Under democratic professionalism, accountability has to focus not on current professional standards of performance of defined tasks, but on citizen satisfaction with crime reduction and other improvements in their community (Reference Karp and ClearKarp & Clear 2000). At worst this raises the specter of public relations activity, on the one hand, and technocratic professionalism, on the other. Democratic professionals' imperative of avoiding technocratic tendencies, however, makes them quite sensitive to the problems raised by such critics. Moreover, our analysis has been that they need to be held accountable both to a standard of facilitating active citizenship in the public sphere as well as to the standard of protecting rights and procedural fairness, presumably through the courts. If they are so accountable, then we believe restorative justice programs can avoid a number of the problems raised by critics of informal justice.

Of course, when examining accountability to citizens, it is not always easy to determine where the state ends and the public sphere begins. While we have presented a more optimistic vision of the professional-dominated realm of governmentality than Foucaultians such as Reference PavlichPavlich (1996) and Reference Fitzpatrick and MatthewsFitzpatrick (1988), we join them in holding that state and community control are not clearly delineated. In the restorative justice program we have observed, the relative “competencies, knowledges, and privileges” of professionals and community members are being gradually negotiated and defined through practice.

To further examine these questions theoretically and empirically, we urge the community of law and society scholars to return to the study of informal justice, including the burgeoning restorative justice programs. The practical choices democratic professionals are currently making in contexts like those examined here will also contribute to the further development of the theory of democratic professionalism.