By: Katie Smart, J.D. ’26 and Shrinithi Venkatesan, J.D. ’25
On Friday, March 1, 2024, William & Mary Law School’s Journal of Race, Gender, and Social Justice hosted its 2024 Symposium on Restorative Justice. Aparna Polavarapu, a speaker at the event, discussed international human rights law as it relates to restorative justice in her presentation, “Human Rights, Human Duties: Making a Rights-Based Case for Community-Based Restorative Justice.”
Polavarapu is an author, an Associate Professor at the University of South Carolina School of Law, and the Executive Director and founder of the South Carolina Restorative Justice Initiative.[1] While many practitioners transition to a career in restorative justice from a background in criminal law, Polavarapu’s perspective differs due to her foundation in human rights.
In her presentation, Polavarapu defined community-based restorative justice. First, she explained that restorative justice is a process. When a harm occurs, restorative justice brings together all responsible parties, harmed parties, and community stakeholders to bring about accountability. Polavarapu listed seven underlying principles essential to restorative justice: (1) reframing harm; (2) bringing together all parties, or at least all parties interests if the parties themselves cannot be present; (3) engaging in free discussion and exploration of harm; (4) participating collaborative determination of accountability; (5) supporting the responsible party in arriving at accountability; (6) encouraging principles such as an ethic of care, dignity, and humanity; and (7) having many ties to indigenous practices. Further, Polavarapu explained that community-based restorative justice specifically describes a process that is based in the community rather than the state. Nevertheless, Polavarapu stressed that cooperation between the community and the state is necessary to bolster the proper use of restorative justice.
Polavarapu intentionally used the word “harm” rather than “crime” when explaining the restorative justice process. By focusing on harm rather than crime, Polavarapu explained that restorative justice need not be limited to the criminal system, can be more responsive to that complexity of harm, can support people who seek to avoid law enforcement, and may reduce the risk of being co-opted by the state.
Because community-based restorative justice is separate from the criminal legal system, it requires an independent legal basis. Polavarapu argued human rights provides the proper legal basis to analyze restorative justice. International human rights law imposes duties on non-state actors, including the duty to promote dignity. According to Polavarapu, community-based restorative justice allows communities and individuals to fulfill this duty, at least to an extent.
Under traditional international human rights law, states have a duty to honor an individual’s rights. However, Polavarapu pointed to language within numerous human rights texts to argue that non-state actors also have similar duties. Many of the texts Polavarapu referred to reference the promotion of dignity, which she uses as a starting point for her own work.
Polavarapu referenced the work of Oscar Schachter to further elaborate on dignity. Schachter conceptualized dignity as intrinsic worth and wrote that “. . . nothing is so clearly violative of the dignity of persons as treatment that demeans or humiliates them.”[2] Citing Schachter’s work, Polavarapu listed respecting autonomy, respecting social group connections and the complexity of identity, and meeting minimum socioeconomic needs as necessary elements for respecting individuals’ dignity.
Applying these concepts to the context of interpersonal harm, Polavarapu acknowledged that autonomy cannot be absolute, and that some intervention can be permitted in response to harm. However, respecting autonomy means allowing people to take part in resolution, facilitating responsibility, maintaining community and social supports, and meeting socioeconomic needs. Regarding which parties owe duties, Polavarapu expressed that responsible parties have a duty to take responsibility, and the community should facilitate that responsibility. Thus, community-based restorative justice is just one way that non-state actors can fulfill these duties.
Next, Polavarapu turned to the United States’ criminal legal system and how it contrasts with community-based restorative justice. The criminal legal system creates distance from its parties by framing everything relative to the state. By contrast, community-based restorative justice treats all parties as agents and focuses on the needs of the responsible party, helping the harmed party, and allowing the community to recover. Polavarapu declared, “all of these things are possible with time, deliberation, care, and inclusiveness.”
Regarding the relationship between the state and the community, Polavarapu theorized that the state should be one of the duty-bearers in community-based restorative justice because some duties are impossible for communities to fulfill alone. Polavarapu noted a few ways in which the state can involve itself in restorative justice. First, the state can establish stable housing. Second, the state can promote dignity by making space for community-based processes to occur in the first place.
In the final section of her presentation, Polavarapu addressed critiques. First, some argue restorative justice may fail to follow all the principles outlined above when actually put into practice. Polavarapu responded to these critics by arguing that an ideal system could still be possible, and that the goals she described should be used to evaluate restorative justice practices. Second, the presence of inherent coercion in some restorative practices creates problems for the proper administration of restorative justice. Polavarapu agreed that coercion can be an issue but added that true voluntarism is difficult to achieve because of social pressure. For example, in situations where a party must either go through restorative justice or the criminal legal system, the coercion is coming from the state, not restorative justice practices. A third critique involved the issue of a lack of equality. Polavarapu responded that restorative justice practices must ensure that that outcomes are not discriminatory. The final critique was the lack of attention to criminal process rights. However, Polavarapu argued that this is not an issue because they are two separate processes with different issues at stake.
At the end of her presentation, Polavarapu took some time to answer questions. When asked about whether the criminal legal system could be fully based on restorative justice, Polavarapu expressed doubt that this could be accomplished within the United States’ current system. Regarding whether state intervention will always be necessary, Polavarapu explained that state cooperation based on the current system is necessary for successive restorative justice programs. Another question asked for successful examples of community-based restorative justice practices. While Polavarapu was hesitant to rank any practices above others, she explained that many practices are not formally documented. However, Polavarapu provided examples of successful approaches, including restorative justice practices developed in New York to respond to gender-based violence and domestic violence and the community-based work of Mimi Kim’s Creative Interventions.[3] When asked about the ethical obligations of the state and their relationship to restorative justice, Polavarapu stated that the state has many ethical obligations, including the obligation to promote life with dignity and allow harm to be repaired. She also reemphasized the need to evaluate the ethical obligations and inclusiveness of restorative justice practices.
Finally, Polavarapu provided insight on how advocates in the criminal legal system can push for community-based responses. Polavarapu explained that much of the answer depends on where advocates are located because some states are more willing to cede space to restorative justice practices than others. As for her own work in South Carolina, Polavarapu continues to advocate for restorative justice by focusing on connecting directly with communities of people who have shared goals, interests, or identities, and using this foundation to build appropriate practices.
About the Authors
Katie Smart is a 2L at William & Mary Law School. In addition to editing for The Comparative Jurist, she is also a staff member of William and Mary’s Journal of Race, Gender, and Social Justice and Symposium Co-Chair of the Comparative Legal Student Scholars. She spent her 1L summer interning in Pristina, Kosovo, at the Center for Legal Aid and Regional Development, a legal aid and advocacy organization focused on promoting access to justice for marginalized groups in Kosovo. Prior to law school, Katie graduated cum laude from American University with a major in International Studies focused on human rights and peace-building, as well as a minor in Music Performance. She also completed a fellowship at the Christian social justice organization, Sojourners, worked for the humanitarian INGO, Humanity & Inclusion, and volunteered and interned with refugees and asylum seekers abroad. She is very interested in human rights, immigration, and international law.
Shrinithi Venkatesan is a 3L at William & Mary Law School from Chicago, Illinois. Shri graduated from Indiana University with majors in Finance, Law Ethics and Decision Making, and a minor in Criminal Justice. In addition to being the editor-in-chief of The Comparative Jurist, she is also treasurer of the Human Security Law Center. Shri is interested in pursuing a career in international, political, or governmental law.
[1] Aparna Polavarapu, University of South Carolina Joseph F. Rice School of Law, https://sc.edu/study/colleges_schools/law/faculty_and_staff/directory/polavarapu_aparna.php (last visited Sept. 7, 2024).
[2] Oscar Schachter, Human Dignity as a Normative Concept, 77 Am. J. Int’l L. 848, 850 (1983).
[3] Creative Interventions, https://www.creative-interventions.org (last visited Sept. 7, 2024).
