Routledge International Handbook of Restorative Justice

Theo Gavrielides

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN: 9781032095028
• eBook ISBN: 9781317041795
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This up-to-date resource on restorative justice theory and practice is the literature's most comprehensive and authoritative review of original research in new and contested areas.

Bringing together contributors from across a range of jurisdictions, disciplines and legal traditions, this edited collection provides a concise, but critical review of existing theory and practice in restorative justice. Authors identify key developments, theoretical arguments and new empirical evidence, evaluating their merits and demerits, before turning the reader's attention to further concerns informing and improving the future of restorative justice. Divided into four parts, the Handbook includes papers written by leading scholars on new theory, empirical evidence of implementation, critiques and the future of restorative justice.

This companion is essential reading for scholars of restorative justice, criminology, social theory, psychology, law, human rights and criminal justice, as well as researchers, policymakers, practitioners and campaigners from around the world.

Part I

Restorative justice theory

The next steps

1
Looking at the past of restorative justice

Normative reflections on its future

Carolyn Boyes-Watson

Introduction

A few years ago, I attended a five-day gathering at the Zehr Institute along with 40 or so colleagues to reflect on the future of the restorative justice movement. As a group, we created a timeline of key events ranging from the first victim-offender reconciliation meeting in 1974 to the 1994 Truth and Reconciliation Commission, to the “beginning of time” when humans needed to reconcile themselves with one other in community in a good way. At the time I wondered: were we all talking about the same movement?

Restorative justice is a contested concept (Johnson and Van Ness, 2007) with a contested history precisely because it has served as an aspirational paradigm for a variety of different activist movements. For those seeking to create change, restorative justice is the alternative future to a particular aspect of the current reality. The restorative justice movement is far from a unitary movement: it is both a paradigmatic foundation and a banner that different sets of reformers have adopted to frame their agenda in creating social change within a particular context. This can lead to “a blind man and the elephant” problem: depending on which part of the movement you touch – the shape and feel can vary widely.

This chapter makes no attempt to write a history of the global restorative justice movement – that is a massive project chronicling complex developments within different cultural, legal and national contexts. Nor am I able to acknowledge the full roster of activists and scholars who have made substantial contribution to the movement. What I attempt to do for this Handbook is to lay out the basic contours of the restorative justice movement that has emerged within the Western advanced democracies in the late 20th century. The snapshot in this first chapter is developed from my vantage point – as a North American white female sociologist shaped by how, why and for what reasons I became involved in the restorative justice movement. My hope is that this conceptual map will provoke readers to assess the movement from their perspective.

Although some would date the restorative justice movement emerging in the 1970s with victim-offender mediation, I see the start of the modern movement in the 1990s when the term restorative justice came into more widespread use, fuelled by the publication of Howard Zehr’s Changing Lenses (1990). I identify four relatively independent arenas of activism that have contributed to the modern restorative justice movement. The largest and most influential is a set of justice reform movements targeting the criminal legal system; the second arena is focused on the management of youth behaviour targeting reforms in child welfare, social services, schools and juvenile justice systems; the third arena consists of movements to reinvent post-conflict processes and build conditions for democratic governance and peace; and the final arena contains movements to assert indigenous cultural and political autonomy from colonization and to regenerate these practices within the contemporary context. These arenas develop independently of one another. Although they arose with distinct agendas, they each contributed to the understanding and development of restorative justice theory and practice.

The questions I explore here are: What concerns are motivating activists within this arena? Who are the activists? What are the central ideas and practices promoted by the movement? What are people are trying to change? Where are they concentrating their efforts? Has there been notable achievement or success in creating the desired change? The question of “success” is related to the question of co-optation of the desired changes by the system or structure of power activists are trying to change. The problem of co-optation is a persistent theme within criminal justice reform. As an activist who is also a sociologist, I am mindful that the attempt to build one kind of future can lay the foundation for something else altogether (Boyes-Watson, 1999, 2004).

The final section of the chapter discusses how elements within each of these arenas are influencing current dynamics within the restorative justice movement. Each arena highlights different priorities with the need to engage with a different set of social actors with a distinct agenda. While there are hard truths to be faced about the achievements of the movement thus far, I find reason to be hopeful about the future direction of the movement. This has a great deal to do with the confluence of different agendas in the contemporary landscape – at least in North America – that are reshaping the goals, strategies and practices of the movement in important ways.

The four arenas

Reforming the state justice system

The dominant agenda contributing to the development of the modern restorative justice movement has been reform of the Western legal system. Within this broad stream are several intertwined reform movements that have contributed to the idea of restorative justice: the “informal justice” movement or Alternative Dispute Resolution (ADR); alternatives to incarceration movement – which includes diversion, community corrections and the restitution movement; and the victims’ rights movement (Van Ness and Strong, 1997). The activists here are professionals in the system – legal scholars and criminologists from the academy – and criminal justice professionals working with offenders; advocates from religious communities and victims. In this context, restorative justice is focused on reform of the legal system.

ADR developed in the US in the late 1970s as a means to address a range of concerns from the conservative fear of a “litigation crisis” arising from the threat of overcrowded dockets to the leftist radical critique of the state-centred court (Abel, 1982; Olson and Dzur, 2004). ADR became incorporated into mainstream legal practice and education (McManus and Silverstein, 2011) while the use of mediation in criminal matters remained comparatively underdeveloped until the emergence of the restorative justice movement in the 1990s (Go, 2010).

Critical left theorists rejected liberal procedural justice as substantively unjust and looked to legal anthropologists for alterative systems of dispute resolution outside the formalized Western context. In this context, a 1977 article by criminologist Nils Christie foreshadowed many of the fundamental aspirations of the later restorative justice movement (Christie, 1977). One shared priority between the later restorative justice movement and the leftist scholars of the informal justice movement is the desire to rebalance the relationship between the community and the state as agents of social control (Van Ness and Strong, 1997).

The early development of victim-offender mediation came from activists seeking alternatives to incarceration for offenders (Galaway and Hudson, 1972; Liebmann, 2007). Steven Schafer (1968) in the 1960s linked restitution with restoring victims to the central place within the justice process. Among these was Albert Eglash (1977), who first coined the English phrase “restorative justice,” urging the benefits of “creative restitution,” in which payment is directly linked to the harm, with positive outcomes for both offender and victim.

According to Mark Umbreit (1985), what distinguished the Victim-Offender Reconciliation programmes that emerged in the late 1970s from correctional restitution programmes was the emphasis on the emotional exchange between the victim and offender. By engaging in an emotional dialogue about the feelings and impact of the offence itself, VORPS sought to facilitate reconciliation in the relationship between the parties. These programmes were housed in community-based religious organizations influenced by values of unity and solidarity expressed within religious doctrine. The goals of reducing recidivism or lowering costs were secondary to the more profound goal of building the beloved community.

The victims’ rights movement emerges in the 1970s advocating for a range of reforms such as victim compensation, access to counselling/social support, safety, notification and sentencing reform, generally in support of enhanced sentencing (Elias, 1983). The feminist movement was crucial in shaping the victims’ movement: the first victim assistance programmes focused on the crimes of rape and domestic violence (Young and Stein, 2004). Feminist activists asserted key ideas vital to the restorative justice movement: the psychological trauma of crime, the critical importance of empowering victims, the extent to which victims are not treated with respect and dignity by the criminal justice system and the healing journey that involves partnerships between the system and community. Feminists were wary of efforts to apply restorative justice to the crimes of domestic violence and sexual assault (Stubbs, 2002; Ptacek, 2005). The goal of reconciliation in the restorative justice paradigm kept feminists at arm’s distance from the restorative justice movement.

Victim activists have been suspicious of the claim that the restorative justice movement is primarily motivated by the needs of victims. Victims who do not wish to engage with their offender, or whose offender has not been apprehended, find most restorative programmes offer few services to meet their needs. What the victims’ movement did was to elevate the “needs of victims” as a legitimate political goal (Richards, 2009). The victims’ rights movement sensitized the public and thereby politicians to the anger, discontent and unmet needs among crime victims. RJ advocates could then gain support from policy makers by arguing that restorative justice was designed to meet the needs of victims even though many of these needs were not included within the restorative justice agenda.

By the 1990s the label of restorative justice as a strategy for criminal justice reform emerged from this rich confluence of ideas and agendas. Martin Wright and Tony Marshall in the UK and Lode Wolgrave in Belgium promoted the use of victim-offender mediation as a form of restorative justice and alternative to the criminal justice process. The American Bar Association endorsed victim-offender mediation in 1994. In 1996 Dan Van Ness founded the Centre for Justice and Reconciliation as part of Prison International Fellowship. The International Network for Research on Restorative Justice for Juveniles was formed in Leuven, Belgium, in 1997. In the US, Gordon Bazemore and Mark Umbreit joined forces to create a national curriculum that offered comprehensive training to juvenile justice systems with demonstration projects in key states along funding by the National Institute of Corrections and Office of Community Oriented Policing. By 2000, the Canadian federal government began to invest in training and programme development and the European Forum for Victim-Offender Mediation and Restorative Justice (now the European Forum) was formed. In 2002 the UN issued the Basic Principles on the Use of Restorative Justice Programmes in Criminal Justice Matters. Developments in the criminal justice arena multiplied over the next ten years in justice reforms efforts around the world.

Management of youth and families

A second independent powerful arena emerges in the late 1980s from an effort in New Zealand to reshape Western juvenile justice and child welfare systems to engage marginalized families with practices more culturally responsive and empowering for indigenous youth within the system (Maxwell and Morris, 1993; McElrea, 1994). This arena focused on youth with the goal of developing more effective strategies for disciplining, morally educating and rehabilitating delinquent youth. The New Zealand family group conferencing (FGC) model, ostensibly modelled after Maori understandings of conflict resolution and decision-making, captured the imagination of youth-focused policing, juvenile justice criminologists and juvenile justice professionals in Australia and then North America. These ideas aligned with the tenets of positive youth development, empathy development and rehabilitation of youthful offenders.

The main activists here are professionals charged with managing the behaviour of youth and families. The primary context for this second set of reform agendas was first and foremost, the juvenile justice system and then police involvement with youth, child welfare system/social services and schools. The goal of activists within this stream was to make the work of professionals more effective by shifting the way they engage with youth and their families in their professional jobs.

In New Zealand, the 1989 Children, Young Persons and their Families Act established the FGC as a mandatory tool for all important decisions in the Youth Court in which the youth does “not deny” the charge. The process borrowed elements from Maori cultural practice in order to be more culturally sensitive with Maori youthful offenders who make up more than half of youth in the NZ juvenile justice system (Doolan, 1988; Love 1999). In its development, there was no use of the term “restorative justice” and no focus on “victims” as stakeholders in the process. Instead, the focus was on the youth, his or her moral and social development and accountability for their behaviour. Involving families was seen as adding an important dimension to this goal for the culturally communitarian Maori youth.

In 1991 police sergeant Terry O’Connell adapted the FGC as a community policing strategy for responding to minor youth crime (Moore and O’Connell, 1994). By using the Socratic method of asking questions, O’Connell developed the core questions that were later transformed into the “script” widely disseminated by the IIRP. A driving force in the growth and dissemination of family group conferencing is the work of Ted Wachtel. Wachtel heard Terry O’Connell speak about the FGC and recognized the approach as aligned with the practices at his juvenile residential centres. They both contributed to this Handbook by arguing for a different future for restorative justice. Along with Paul McCold, Wachtel later developed the Social Discipline Typology, articulating the balance between support and accountability that constituted a “restorative” approach to discipline using the “script” of the Wagga Wagga model of family group conferencing.

Several other key players contributed to the theoretical underpinning of practices that were increasingly coming under umbrella of “restorative justice.” Criminologist John Braithwaite developed the theoretical concepts and empirical research associated with the family group conferencing model beginning with his 1989 seminal book Crime, Shame and Reintegration. Braithwaite linked the FGC model with a critique of relational processes within Western societ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of figures
• List of tables
• Notes on contributors
• Preface and acknowledgements
• Foreword
• The future of restorative justice
• Part I Restorative justice theory: the next steps
• Part II Restorative justice practice: the evidence
• Part III Thinking critically about restorative justice
• Part IV The future of restorative justice
• Epilogue: Restorative justice with care and responsibility: new directions in restorative justice theory, practice and critical thinking
• Index