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This Article addresses the increasing formal legal nature of restorative justice in the United States. Over the last three decades, a substantial body of research has demonstrated the ways in which restorative justice offers an alternative societal response to crime and harm. It has also examined how restorative justice empowers individuals and groups to address violence, respond to social, political and economic injustice, and engage in resistance to existing structural inequities. Yet a prominent gap in the field exists: a comprehensive theoretical and empirical examination of the codification of restorative justice in state law. Studies of this nature are essential given restorative justice’s proliferation in formal law, as well as operationalization within multiple public systems. Drawing on data from an original 50-state analysis, this Article argues that the current degree of legal internalization of restorative justice indicates the emergence of a new legal norm. These findings call for a critical reexamination of current perceptions of restorative justice normatively and empirically. Beyond provoking new directions in research, these findings should be of significant interest to reformists seeking to advance laws, policies, and systems that promote fairness, equity, and justice and to practitioners who increasingly interact with formal restorative processes. The internalization and diffusion of restorative justice in state law has heightened the need for judges, attorneys, and advocates to not only understand restorative justice theoretically, but pragmatically as they must now make decisions regarding the use of restorative justice at different stages of legal processes.

The Legalization of Restorative Justice: A Fifty-State Empirical Analysis