Justice in Transition

Anna Eriksson

• Publisher: Willan
• Year: 2013
• Print ISBN: 9781843925187
• eBook ISBN: 9781134027309
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book provides a unique account of the high-profile community-based restorative justice projects in the Republican and Loyalist communities that have emerged with the ending of the conflict in Northern Ireland. Unprecedented new partnerships between Republican communities and the Police Service of Northern Ireland have developed, and former IRA and UVF combatants and political ex prisoners have been amongst those involved. Community restorative justice projects have been central to these groundbreaking changes, acting as both facilitator and transformer.

Based on an extensive range of interviews with key players in this process, many of them former combatants, and unique access to the different community projects this books tells a fascinating story. At the same time this book explores the wider implications for restorative justice internationally, highlighting the important lessons for partnerships between police and community in other jurisdictions, particularly in the high-crime alienated neighbourhoods which exist in most western societies, as well as transitional ones. It also offers a critical analysis of the roles of both community and state and the tensions around the ownership of justice, and a critical, unromanticized assessment of the role of restorative justice in the community.

Chapter 1

---

Restorative justice: an introduction

Restorative justice has been presented as a response to crime that promotes inclusive dialogue, acceptance of responsibility, reparation of harm, and rebuilding of relations among victims, offenders and communities (Christie 1977; Braithwaite 1989; Hayes et al. 1998; Walgrave 1998; Tutu 1999; Ahmed et al. 2001; Roche 2001; Strang and Braithwaite 2001). As one approach within the informal tradition of dispute resolution, restorative justice is most commonly used to describe non-adjudicative methods of solving conflict that give victims, offenders and the community a central role in decision making (Braithwaite 1989; Roach 2000). A fundamental tenet of the restorative justice paradigm is a shift in accountability – from offenders owing a debt to society for their criminal behaviour, to being directly accountable to their victim(s) (Corrado et al. 2003) – with a focus on problem solving and on repairing harm (Umbreit 1995).

Restorative justice has also been portrayed as an original and natural way of dealing with conflict (Zehr 1990; Van Ness 1993; Sullivan and Tifft 2001; Sullivan and Tifft 2006). As argued by Braithwaite (2002a), ‘restorative justice has been the dominant model of criminal justice throughout most of human history for perhaps all the world’s people’ (p. 5). He argues elsewhere that ‘restorative justice is grounded in moral intuitions of considerable resonance for most people because they have a long history, particularly in the spirituality of the world’s greatest religions’ (2003: 1). Daly (2002) has referred to such claims as ‘extraordinary’, and they have also been criticised for being somewhat romanticised and, as such, having a tendency to gloss over the negative aspects of restorative or informal justice in favour of highlighting the positives (Johnstone 2002; Roche 2003).

Restorative justice is frequently contrasted with retributive justice, where the former is portrayed as ‘good’ or ‘superior’ and the latter as ‘evil’ or inferior’. For example, Howard Zehr (1990) has described how retributive justice focuses on the violation of law, whereas restorative justice shifts the focus to the violation of people and relationships. While retributive justice seeks to vindicate law by determining blame and administering punishment, restorative justice seeks to vindicate victims by acknowledging their injury and by creating obligations for those responsible to make things right. Furthermore, retributive justice involves the state and the offender in a formal process of adjudication, whereas restorative justice is an informal, consensual, decision-making process involving victims, offenders and community members in a search for solutions – a distinction highlighted by several authors (see Daly 2000b; Van Ness et al. 2001; Roche 2003). Such dichotomies, however, do not necessarily engage with the question of what restorative justice is; rather they explain what restorative justice is not (Daly 2002). They have also been dubbed false and misleading (Barton 2000), as both frameworks have strengths and weaknesses. Importantly, if a retributive system is to be replaced with a restorative one, as some proponents argue (Walgrave 2000), one needs to be assured that the situation will not be made worse in the eagerness to do better. As asserted by Johnstone:

We need to ask whether a shift to restorative justice would result in a whole range of deleterious consequences such as a trivialisation of evil, a loss of security, a less fair system, an undesirable extension of police power, an erosion of important procedural safeguards, unwelcome net-widening, or weakening of already weak parties. (2002: 7)

Such comments generally refer to restorative justice programmes that are firmly embedded within the formal criminal justice system.¹ One argument could be that these dangers of restorative practices may very well be minimised when a programme or initiative is located outside criminal justice institutions, where the power of the state is dispersed. However, the concern then shifts to one about the ‘dangers of community’ (Pavlich 2004) – a question which will be returned to later.

In practice, restorative justice programmes typically aim to bring together the victim and the offender for the purpose of allowing both sides to understand the context of the offence and the impact of the offence on both parties, and, usually, to establish some kind of reparation outcome, which is agreed upon through a process of consensual decision making (Braithwaite 1989; Walgrave 1995; Bazemore and Umbreit 2003). Since restorative justice covers a wide range of practices – not all in relation to criminal behaviour – definitions, values and goals vary depending on the context. Some are more inclusive than others, and it has been argued that these differences stem largely from the fact that restorative justice theory has developed through practice (Ashworth 2002).

The contentiousness surrounding the definition of restorative justice is also reflected in its application. Several models are associated with restorative justice practice, with three in particular generally claimed to encompass the core values of the paradigm: victim-offender mediation, family group conferencing, and sentencing circles. All have been extensively covered in the literature (see Morris and Maxwell 1993; Braithwaite and Mugford 1994; Umbreit 2000; Van Ness et al. 2001; Johnstone 2002; Roche 2003), and will not be explored in any detail here; what is perhaps more interesting in the context of this book is the debate in relation to restorative justice as a process-or goal-oriented practice. As will be discussed later, community restorative practices in Northern Ireland take a process view, arguing that the process is central to the work they do, with certain important values guiding that process. What form the process takes – whether conferencing, or direct or indirect mediation – is of less importance; rather, the process is based on participants’ needs and as a consequence is inherently flexible in its application. Firstly, however, the following section will briefly discuss the values and goals of restorative justice, some of which differ among the various models and others which are generally seen as central for any process to be called restorative (Johnstone 2002; Roche 2003). The particular values discussed are also those which practitioners and volunteers of community restorative justice in Northern Ireland identified as central to their work during the research.

Values and goals of restorative justice

If restorative justice is to emerge as a justice paradigm, a shared vocabulary and parameters of the theory need to be established. … Theory, research, and practice cannot proceed without a shared understanding of fundamental terms and ways to operationalize those understandings. (McCold 2000: 359)

Many writers have attempted to define what they see as the key goals of restorative justice, the most commonly agreed upon being participation and consensual decision making, healing what is broken, accountability of offenders, reducing recidivism, and restoring relationships through the reintegration of both victim and offender into the community (Maxwell et al. 2006). Restorative justice further aims to restore emotionally and empower the key stakeholders of a crime, and can potentially increase empathy, understanding and respect for all participants (Christie 1977; Touval and Zartman 1985; Braithwaite and Mugford 1994; Van Ness and Strong 1997; Sullivan and Tifft 2001; Johnstone 2002; Weitekamp and Kerner 2002).

The core values of restorative justice, as far as they can commonly be agreed upon, tend to cluster around concepts of inclusion, reintegration, democracy, responsibility, reparation and healing (Braithwaite and Mugford 1994; Johnstone 2002; Sharpe 2004). Other fundamental principles include ensuring community protection/safety, promoting offender responsibility, and removing the stigma of crime (Umbreit 1995). Declan Roche (2003) summarised the different opinions regarding the values of restorative justice in Accountability in Restorative Justice, in which he identifies four core values: personalism, participation, reparation and reintegration. I have found these values both theoretically persuasive and closely resonant with the practice of community restorative justice in Northern Ireland. In addition, it will be argued that empowerment should be a fifth and crucial value of restorative justice interventions due to the centrality it assumes within the Northern Ireland context and in other transitional societies.

Personalism

This refers to the approach of restorative justice that crime is a violation of, or injury to, people and their relationships, not a mere violation of law. This violation or injury extends beyond the victim’s suffering, as it also includes the impact on offenders, the families of both victims and offenders, and the wider community. This can be contrasted to the impersonal nature of the formal criminal justice system, where the physical and emotional damage to everyone involved is suppressed. One reason why this occurs is because the sentence is not based on the needs of the stakeholders (victims, offenders and community) but on legal precedents.

Participation

Restorative justice encourages the participation of the people most directly affected by the crime – victims, offenders, and their communities – to take part jointly in the resolution of the conflict. This value is crucial to restorative justice, and is recognised in Tony Marshall’s much cited definition:

Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implication for the future. (1996: 37)

It is also important that participation involve a collective and consensual decision-making process. Such processes promote the values of reparation and reintegration through the empowerment of participants, and can also act as a crucial informal accountability mechanism (Roche 2003). The consensual decision-making process takes several forms within the restorative justice paradigm, including family group conferencing, victim-offender mediation, and circles of support. Meetings between victims and offenders provide victims with the opportunity to detail their victimisation (Strang 2002), and the process can contribute to offenders accepting responsibility for their actions and being held accountable (Roche 2003). It can also help to restore and empower community members by dispelling the anxiety that many people feel about crime (Van Ness and Strong 2002).

Reparation

What needs to be repaired by restorative justice processes depends on the circumstances surrounding a specific crime or conflict, and on the victim’s injury – whether it is physical, emotional, economic or psychological (Strang 2002). The losses experienced are not limited to tangible entities, but can extend to emotional and psychological ones such as the loss of dignity, happiness, confidence, security, self-worth and personal power (Zehr 1990; Braithwaite 2002a; Strang 2002). However, reparation should not be limited to victims. For restorative justice to have the impact that many advocate, it is crucial to acknowledge that often the offender, too, has suffered losses, which are part of the underlying causes of the offending behaviour. Thus, to heal people and truly reintegrate them into their communities, such issues need to be addressed (Sullivan and Tifft 2006).

It is important to note that ‘restoration’ is not included as a core value here, but has been replaced by ‘reparation’. This is because many losses suffered by the parties within a conflict (such as personal, communal or armed conflict) cannot be restored, if restoration is understood according to its dictionary definition: ‘to bring back to a (supposed) former state or to a normal state’. The losses are often simply too great. One should ideally work towards the goal of restoration, but if restoration does not occur, and ‘only’ reparation is achieved, this should not be seen as a failure, but as a reasonable and satisfactory outcome. Moreover, as was argued by several interviewees in Northern Ireland, ‘restoration’ in their line of work would mean restoring people to the context that resulted in the conflict in the first place. This, they argued, referred not only to the particular case at hand, but also to the broader structures which gave rise to an armed conflict lasting more than 30 years – structures which they aim to challenge and change.

Reintegration

Reintegration means the ‘victim’s or offender’s re-entry into community life as a whole, contributing, productive person’ (Van Ness and Strong 2002: 106). This can arguably be accomplished by strengthening a person’s ties with the community, and requires a process whereby offenders are shamed without stigmatisation and where they acknowledge the wrongdoing, thus demonstrating their willingness to be part of the (law-abiding) community and to recognise the norms of acceptable behaviour. Reintegration is crucial for minimising reoffending, by preventing a drift into deviant subcultures that can result from stigmatisation and subsequent exclusion (Braithwaite 1989).

An important responsibility of the community is to ensure that offenders are indeed accepted and included (Roche 2003). This is fundamental to the success of any restorative justice programme (Johnstone 2002), since without effective community participation, reintegration might be only partial or not occur at all. This process can be onerous for the community, and it is important that this be recognised so that appropriate support and facilities are made available. However, this can be a challenging task, especially after long periods of violent conflict characterised by widespread victimisation. Strengthening a person’s ties to the community is by no means a straightforward process, particularly considering the construction of community in many places, where exclusion and hierarchical power structures are often its central features. Thus, empowerment of participants and the wider community is essential if such negative community features are to be rejected.

Empowerment

Restorative justice processes which involve all stakeholders are arguably models of empowerment that must be clearly grounded in grass-roots commitment at the local level (Pranis 2004). Empowerment can be seen as a vital aspect of restorative justice but has largely been under-theorised, with the notable exception of Barton (2000, 2003), who provides a model of what he sees as ideal restorative justice practice. He argues that a ‘good’ restorative justice process that results in high levels of satisfaction among all participants is one characterised by empowerment. Conversely, low levels of empowerment in a process generally result in lower levels of satisfaction and an inability to address the causes and consequences of the issue at hand in ways that are meaningful or relevant for the participants.

Hence, it can be argued that empowerment both overrides and underpins the other values outlined above, and is the fundamental difference between justice delivery in the formal criminal justice system and restorative alternatives. Reparation, reintegration, and workable outcome agreements cannot be reached without the sufficient empowerment of all participants. Moreover, if the goals of reparation and reintegration are not reached at all or only partially, the restorative justice process can still be of great value by virtue of its empowering of participants.

I would argue that the five values discussed above should be central to both the processes and outcomes of restorative justice. Yet, in relation to the process/outcome debate (Bazemore and Walgrave 1999; Braithwaite and Strang 2001) alluded to earlier, it is arguably the process that is the most fundamental aspect of restorative justice, especially when employed in the context of transitional societies. By placing the primary emphasis on the outcome,² the transformative potential of an inclusive, participatory process can be lost. For example, the outcome of a juvenile justice conference may be a number of hours of community service to repair the harm and be accountable to the community. However, if this ‘restorative’ outcome has been reached by an exclusionary and retributive process, then participants are unlikely to feel satisfied with the outcome. The procedural justice argument advocated by Tyler (Tyler 1990; Sunshine and Tyler 2003) is central here, where the added consequences of a procedurally just process of increased satisfaction and trust in the organisation responsible for the process are important. This is normally the police and the criminal justice system, but can also be a community-based alternative such as in Northern Ireland. Practical examples of how the process has acted in a transformative manner in Northern Ireland will be provided throughout this book.

By seeing the process as a cornerstone in any restorative intervention, many of the dangers associa...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Tables and figures
• Abbreviations
• Acknowledgements
• Foreword
• Introduction
• 1 Restorative justice: an introduction
• 2 Restorative justice in transition and the case for criminology
• 3 Paramilitaries and vigilantes: punitive populism as social control
• 4 The beginning of CRJI and Alternatives: legitimising restorative justice in a punitive community
• 5 The practice of community restorative justice in Northern Ireland
• 6 Volunteers and practitioners: leadership in a culture of violence
• 7 State–community partnerships in transition: a question of trust
• 8 The road less travelled: policing and partnerships in transition
• Conclusion: Rethinking restorative justice
• Appendix A: Paramilitary groups in Northern Ireland
• Appendix B: Timeline for key events and government documents relating to community restorative justice in Northern Ireland
• References
• Index