Restorative Justice

Ideals and Realities

Declan Roche

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780815391517
• eBook ISBN:
  9781351150101
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The legitimacy and performance of the traditional criminal justice system is the subject of intense scrutiny as the world economic crisis continues to put pressure on governments to cut the costs of the criminal justice system. This volume brings together the leading work on restorative justice to achieve two objectives: to construct a comprehensive and up-to-date conceptual framework for restorative justice suitable even for newcomers; and to challenge the barriers of restorative justice in the hope of taking its theory and practice a step further. The selected articles start by answering some fundamental questions about restorative justice regarding its historical and philosophical origins, and challenge the concept by bringing into the debate the human rights and equality discourses. Also included is material based on empirical testing of restorative justice claims especially those impacting on reoffending rates, victim satisfaction and reintegration. The volume concludes with a critique of restorative justice as well as with analytical thinking that aims to push its barriers. It is hoped that the investigations offered by this volume not only offer hope for a better system for abolitionists and reformists, but also new and convincing evidence to persuade the sceptics in the debate over restorative justice.

Introduction

In 1995 the South African Parliament passed legislation creating the Truth and Reconciliation Commission.¹ Over the following three years, the Commission toured the country, collecting testimony from victims of human rights violations, hearing individual amnesty applications, and compiling recommendations for addressing the aftermath of apartheid. According to the Commission's Chairperson, Desmond Tutu (1999), the decision to deal with the past in this way was not just the result of a political compromise between the new and the old rulers: by rejecting mass prosecutions in favour of a truth commission South Africa had chosen a restorative form of justice. Since then, the influence of restorative justice has also been felt in the less turbulent surroundings of the English criminal justice system: juvenile offenders are diverted from court to restorative justice-inspired youth offender panels; the English Court of Appeal has given its encouragement to the concept in dealing with adult offenders,² and David Blunkett, the Home Secretary, has announced that restorative justice principles are to guide a new set of criminal justice reforms ('Blunkett', 2003). Meanwhile, on the other side of the world, restorative justice programmes, bringing together victims and offenders, exist in every Australian state and territory; and in New Zealand, the site of the first nationwide restorative justice programme for juvenile offenders, increasing numbers of adult offenders are referred to restorative justice conferences. Elsewhere, in the United States, restorative justice programmes have appeared across the country, from Texas in the south to Vermont in the north, and across the border in Canada, the same concept, already supported at all levels of government, is promoted further through the holding of an annual 'Restorative Justice Week'.

As a conception of justice, restorative justice is a relevant newcomer. But notwithstanding the fact that it was virtually unheard of only 15 years ago, discussion of restorative justice has become ubiquitous in criminal justice debates, and 'restorative justice' programmes and practices can now be found in countless countries around the world. This flurry of activity has been accompanied, and partly inspired, by a large and growing literature, with books, articles, edited collections and reports by governments and NGOs all devoted to the topic. This volume presents a collection of some of the most important essays relating to restorative justice. Some warrant inclusion for their influence on the development of restorative justice thinking and practice, others for the disquieting concerns they raise about this new phenomenon, and yet others for their imaginative ideas about how restorative justice might develop. The best ones do a little of each.

First, a few words about how this collection is organized. The essays that follow are organized around a number of themes. The first of the five Parts comprises a selection of the essays and authors that were important in first articulating the origins, nature and promise of restorative justice. The essays in the subsequent Parts elaborate, and in some instances respond to, concerns about the ideas articulated in Part I. These concerns relate to whether restorative justice achieves its own goals (Part II, 'Restorative Perspectives'), whether restorative justice meets the demands of conventional criminal justice, such as consistency and proportionality in sentencing (Part III, 'Juridical Perspectives'), the quality of justice provided to different groups (Part IV, 'Race and Gender Perspectives'), and the extent to which restorative justice addresses the forms of disadvantage and inequality underlying criminal offending (Part V, 'Social Justice Perspectives').

Restorative Justice: Origins, Nature and Promises

To their critics, modern criminal justice systems are characterized by their impersonal, professional and bureaucratic nature. Or, as restorative justice supporters put it, they have neglected the personal dimension of crime. The restorative justice movement has resurrected the idea that crime, in the words of Howard Zehr and Harry Mika, 'is fundamentally a violation of people and interpersonal relationships' (Chapter 4, this volume, p. 77). For restorative justice supporters, the chief way of recognizing the personal dimension of crime is to involve victims, offenders and their respective families and friends in the process of dealing with its aftermath. When asked to explain and justify the participation of ordinary citizens, supporters often refer to Nils Christie's celebrated essay, 'Conflicts as Property' (see Chapter 2), in which he argues that criminal justice professionals have stolen conflicts from local communities, their rightful owners. Among supporters, Christie's polemical claim has been elevated to the status of an article of faith, his closing words something of a creed: 'Let us re-establish the credibility of encounters between critical human beings: low-paid, highly regarded, but with no extra power — outside the weight of their good ideas. That is as it ought to be' (p. 50).

The precise extent of victims' and offenders' involvement in restorative justice processes varies considerably. In some processes — such as in the South African Truth and Reconciliation Commission — their involvement is limited to the opportunity to share their experiences, but more commonly it also encompasses the additional power to participate in decisions about an offender's fate. Indeed, an early popular definition defined restorative justice as a process that brings together all the parties affected by an incident of wrongdoing to decide how to deal with the aftermath of the incident.³ But regardless of the exact model, all restorative justice processes, supporters say, allow the personal dimension of crime to be acknowledged. They accomplish this by giving victims the opportunity to ask offenders questions and relate stories about the harm they have suffered. As Iris Young puts it, storytelling can be an important bridge 'between the mute experience of being wrong and political arguments about justice' (Young, 2000, p. 72). Offenders and their families are also given an opportunity to explain what happened, and the background to criminal acts. Restorative justice supporters hope that this communicative encounter will break down victims' and offenders' stereotypes of each other: offenders find it difficult to deny or justify to themselves the harm they have caused, and victims commonly discover that offenders are less fearsome than they had imagined.

But, of course, there is no guarantee that any informal process will be restorative. On the contrary, informal justice is frequently cruel, oppressive and sometimes violent. Aboriginal practices of payback spearing and banishment (Findlay, 2000), the forms of charivari, or rough music, once practised throughout Europe (Thompson, 1988), the American tradition of vigilantism (including the resilient practice of lynching) (Walker, 1980), South African township street committees and people's courts, and paramilitary punishment violence in Republican and Loyalist areas of Northern Ireland all illustrate the stigmatizing and brutal side of informal justice (McEvoy and Mika, 2002). Most of these processes lack two features that must be present for informal justice to be restorative: victims and offenders must both be given a say, and the focus of people's deliberations must be on repairing the harm suffered by victims and reintegrating offenders into their communities. (Though restorative justice supporters agree that reparation and reintegration are key elements of restorative justice, there is debate about what these things imply in practice. For some advocates, reparation and reintegration cannot occur unless the meetings include a sequence of apology, forgiveness and, finally, reconciliation. Others argue that acts of apology and forgiveness are pointless if coerced.)

Much of the experimentation within restorative justice has occurred in the field of juvenile justice, where programmes that allow offenders to escape formal conviction are consistent with the tradition of treating offenders leniently on account of their youthfulness and immaturity. However, restorative justice activity is not confined to juvenile justice. It is seen as having relevance across the spectrum of criminal offences, from relatively minor crimes through to the sorts of state crimes and crimes against humanity addressed by the South African TRC. In many of these programmes, participation is an alternative to formal prosecution, but in others it is part of formal sentencing or an adjunct to it. Restorative justice is also seen as having relevance to the resolution of conduct which is harmful but not necessarily criminal. In several countries restorative justice ideas have influenced policies and practices dealing with child welfare and school discipline, as well as those dealing with neighbourhood disputes.

At first, many of these developments occurred more or less in isolation from each other. Victims and offenders sat in family group conferences in New Zealand and in sentencing circles in Canada, while in the United States they sat in mediation sessions in some places and appeared before community sentencing panels in others. One of the main accomplishments of restorative justice scholars has been to carry ideas and learning from one place to another. This collection includes contributions from some of the most influential writers, including John Braithwaite, Kathy Daly, Howard Zehr, Dan Van Ness, Allison Morris and Gabrielle Maxwell.⁴ Likewise, practitioners, including some reform-minded police officers and judges, have played a key role in the growth of restorative justice, touring the world speaking about their experiences and training individuals in how to establish programmes and convene meetings.⁵ The restorative justice movement has also benefited from the concurrent growth in information technology; countless websites are devoted to the promotion and discussion of restorative justice.⁶ Restorative justice, like the alternative dispute resolution movement in civil law (see Freeman, 1995), further benefits from a wide political audience, with liberals attracted to its compassionate and humanistic philosophy and conservatives attracted to the emphases on offender accountability, delivering justice to victims and devolving responsibility for dealing with crime to local communities. It also has the support of many non-government organizations and institutions, foremost among which are faith-based groups with a tradition in social activism, such as the Quakers, Mennonites and Prisoners Fellowship.

For all the sharing and propagation that has taken place, some areas of restorative justice activity have remained separate from others. In particular, the restorative justice movement has mainly been concerned with processes for dealing with street crime, such as mediation and conferencing, and has tended to overlook restorative justice processes used to deal with state crime, notably the South African Truth and Reconciliation Commission. This, however, is starting to change as a growing number of authors draw connections between these developments (see, for example, Llewellyn and Howse, 1999; Minow, 1998).

Restorative Perspectives

Many lofty claims are made for meetings between victims and offenders: that victims will feel better for confronting their offenders and having them make amends, that offenders will begin to understand the harmful consequences of their actions and will be reintegrated into law-abiding communities, and even that communities will be brought closer together through the process of exercising responsibility for dealing with crime. Furthermore, many supporters hold the firm conviction that meetings cannot fail to achieve these goals. However, the history of penal reform reminds us that good intentions do not guarantee progressive reforms, providing many examples of reformers' benign ideals resulting in repressive controls (see Ashworth, Chapter 9, this volume, p. 191). Even the modern prison — the contemporary embodiment of repressive criminal justice — was the creation of humane reformers in the latter part of the eighteenth and the early nineteenth centuries. In Chapter 6 Sharon Levrant and her co-authors offer other examples, reminding us that theories of determinate sentencing, n...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• Name Index