New Directions in Restorative Justice

Elizabeth Elliott, Robert Gordon, Elizabeth Elliott, Robert Gordon

• Publisher: Willan
• Year: 2013
• Print ISBN: 9781843921325
• eBook ISBN: 9781134018345
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book addresses a number of key themes and developments in restorative justice, and is based on papers originally presented at the 6th International Conference on Restorative Justice in Vancouver. It is concerned with several new areas of practice within restorative justice, with sections on restorative justice and youth, aboriginal justice and restorative justice, victimization and restorative justice, and evaluating restorative justice. Contributors to the book are drawn from leading experts in the field from the UK, US, Europe, Canada, Australia and New Zealand.

Part I

Youth and Restorative Justice

Chapter 1

Towards restoration as the mainstream in youth justice

Lode Walgrave

Abstract

Youth justice systems all over the world have been under pressure because of an ongoing debate about balancing treatment and punishment in the response to youth crime. The discussion seemed to be repetitive and dead-locked until the emergence of restorative justice opened new possibilities. Restorative justice increasingly appears to be a source of renovating practices and empirical evaluation, a central issue in theoretical and policy debates, and a ubiquitous theme in juvenile justice and criminal justice reforms worldwide. Restorative practices are being inserted into most crime response systems, especially those aimed at youth crime. In this chapter, both the potential and the limits of restorative justice for renovating juvenile justice are explored. In the first section, the essentials of restorative justice are presented. The second section asks which criticisms make a fundamental reform of juvenile justice systems necessary. The third section combines both issues and examines whether the restorative approach can respond satisfactorily to the criticisms. The final section reflects upon the conditions on which the further incorporation of restorative ideas into juvenile justice systems will depend.

Restorative justice

Restorative justice is rooted in multiple origins, such as victims’ movements, communitarianism and critical criminology (Van Ness and Strong, 2002). It now appears as a complex domain covering a wide realm of practices, a challenging subject for legal and normative reflection and debate, and a fruitful field for theorising and empirical research. Restorative justice also is a social movement and a field of social science experimentation. Adding to the confusion are apparently similar visions that appear under banners such as ‘transformative justice’, ‘relational justice’, ‘community justice’ and ‘peacemaking justice’. In this chapter, restorative justice is characterised as an option for doing justice that is primarily focused on repairing the harm that has been caused by a crime.

Outcome-based definition

This definition is clearly outcome-based. Probably most ‘restorativists’ prefer a process-based definition (Zehr, 1990; McCold, 2004). Well-conducted restorative processes indeed offer a powerful sequence of social and moral emotions like shame, guilt, remorse, empathy, compassion, support, apology and forgiveness in the offender, the victim and other participants (Braithwaite and Mugford, 1994; Maxwell and Morris, 1999; Harris, Walgrave and Braithwaite, 2004). Restorative justice may favour a common understanding of the harm and suffering caused, and an agreement on how to make amends; it may enhance the willingness of the offender to fulfil these agreements. It may produce satisfaction on the part of the victim, reintegration of the offender and restored assurances of rights and freedoms in society. Such a sequence is the ideal, which is often far from being fully achieved.

However important such processes may be, associating restorative justice with them is perhaps going one step too far. Why are such processes more restorative: because the expressions of remorse, compassion, apology, and forgiveness promote respect, peace and satisfaction? These feelings are outcomes. Voluntary processes are valued, not because of the process as such, but because of their possible restorative impact on the participants and the reparative outcomes they help to achieve. One cannot evaluate restorative processes without taking account of the restorative outcomes they explicitly or implicitly promote. Process-based definitions confuse the means with the goal and limit the possible means to achieve (partial) restoration.

Arguably, restorative justice must give maximal priority to such voluntary, deliberative processes, but restorative justice does not end when they are not possible. When voluntary processes cannot be achieved or are judged to be insufficient, pressure or force must be considered. These coercive interventions also should serve restoration (Wright, 1996; Walgrave, 2002a; Dignan, 2002). Possible judicial procedures should be oriented to enforce obligations or sanctions in view of (partial) reparation through, for example, material restitution or compensation to the victim, paying a fine to a victims’ fund, or community service. Such sanctions can have an explicit reparative meaning, though their restorative impact will be reduced. Restorations are not a black-and-white option. Between fully restorative processes and not-at-all-restorative reactions, degrees of restorativeness exist (Van Ness, 2002; McCold, 2000).

Harm

A focus on repairing harm and not on what should be done to the offender is the key to understand restorative justice and to distinguishing it from both the punitive and the rehabilitative justice responses; that is why it is another paradigm (Zehr, 1990; Bazemore and Walgrave, 1999; McCold, 2000). It offers a distinctive ‘lens’, to use Zehr's term, to define the crime problem and how to solve it. Crime is defined by the harm it causes and not by its transgression of a legal order. Responses to crime should not, primarily, punish or rehabilitate the offender but set the conditions for repairing as much as possible the harm caused.

The harm considered for reparation includes all prejudices caused by the crime: the material damage; psychological and relational suffering by the victim; social unrest and community indignation; uncertainty about the legal order and about the authorities’ capacities to assure public safety; and the social damage the offender causes to himself. The only limitation is that the harm considered by the restorative process must be caused by the particular offence. Social exclusion, for example, or psychological problems in the offender may cause the offending but are not caused by the offence. They should, therefore, not be included as primary objectives in the restorative justice process. However, not everyone accepts this limitation. Some believe that restorative processes must also address the underlying causes of offending as primary objectives. This would, how-ever, risk a shift from a harm-focused to an offender-focused programme, degrading the victim into being a tool in the service of the offender's rehabilitation and not respecting the victim as a party on his own. The problems and needs of the offender need to be addressed, but they are not the primary objective of the restoration.

Restorative justice deals with crimes, which are also public events traditionally dealt with by criminal law. This is one of the difficult issues to be resolved in restorative justice theorising. What makes an offence a collective or a public event? After a burglary, for example, restitution or compensation for the individual victim's losses could be private, to be arranged through the civil law, but there is also a public side. We all are concerned that the authorities intervene and try to make things right. If the authorities did nothing, it would hurt all citizens’ trust in their rights to privacy and to property. It has been proposed elsewhere (Walgrave, 2003) that the concept of ‘dominion’, first introduced by Braithwaite and Pettit (1990), be used to try to grasp the public aspect of crime in restorative terms.

Restoration

Different processes may lead to restorative outcomes, but not all are equally appropriate. As mentioned above, the most suitable processes are those that consist of voluntary deliberation between the main stakeholders. Many deliberative processes are currently available (McCold, 2001; Morris and Maxwell, 2001): mediations between the individual victim and offender, most of which are face-to-face, but some of which are intermediated by a go-between; various forms of conferencing in which the victim and the offender are supported by their communities of care (some also include participation by police or community representatives); and sentencing circles, in which the local, indigenous community as a whole is a part of a meeting on the occasion of a crime in its midst.

Besides a healing impact on the participants, the formal agreement after such processes may include a wide range of actions such as restitution, compensation, reparation, reconciliation and apologies. They may be direct or indirect, concrete or symbolic, and the degree of the offender's willingness to undertake such actions is crucial. It expresses his or her understanding of the wrong committed and his or her willingness to make up for it. For the victim, it means the restoration of his or her citizenship as a bearer of rights, and possibly also a partial material redress. For the larger community, it contributes to assurances that the offender takes rights and freedoms seriously and will respect them in the future.

Deliberative processes hold the highest potential for achieving restoration, but if voluntary agreements cannot be accomplished, coercive obligations in pursuit of (partial) reparation must be included in the restorative justice model. Restorative sanctions, enforced by judicial procedures as a result of assessed accountability for the consequences of offending, seem to leave few or no differences between such sanctions and traditional punishments (Daly, 2000; McCold, 2000). There are, however, some essential differences (Walgrave, 2003).

First, punishment is a means in the eyes of law enforcement and it is morally neutral. It does not include any message about the moral value of the enforced law itself. Some political regimes use punishment to enforce criticisable or even immoral laws. Restoration, on the other hand, is a goal and different means can be chosen to achieve it. The goal of restoration itself expresses an orientation toward the quality of peaceful social life, which is an intrinsic moral orientation.

Second, ‘punishing someone consists of visiting a deprivation (hard treatment) on him, because he supposedly has committed a wrong’ (Von Hirsch, 1993: 9). The pain is intentionally inflicted. An obligation to repair may be painful but is not inflicted with the intention to cause suffering; it may be a secondary effect only (Wright, 1996). Painfulness in punishment is the primary yardstick, while painfulness in restorative obligations is a secondary consideration only.

Third, the intentional infliction of pain ‘involves actions that are generally considered to be morally wrong or evil were they not described and justified as punishments’ (de Keijser, 2000: 7). The justifications in penal theories (Von Hirsch, 1998) do not convincingly demonstrate the need for systemic punishment. The a priori position that crime must be punished is itself dubious from an ethical standpoint. Thorough ex-ploration is thus needed on alternative ways to express blame, to favour repentance and to promote social peace and order.

Restorative justice proponents advance their approach as being more promising. Deliberative processes, if possible, or obligations with a view to reparation, if necessary, are socially more constructive: they do not respond to crime-caused harm by inflicting further harm on the offender, but by aiming at the repair of the harm. When ‘restorativists’ consider imposing restoration this is ethically more acceptable than deliberately inflicting pain.

Doing justice

Restorative justice is also about justice. Justice has two meanings here. On the one hand, justice refers to a feeling of equity, of being dealt with fairly, according to a moral balance of rights and wrongs, benefits and burdens. In retributive justice, this balance is achieved by imposing suffering on the offender that is commensurate with the social harm he or she caused by his or her crime. In restorative justice, the balance is restored by taking away, or compensating, the suffering and harm. Victims feel that their victimisation has been taken seriously and that the compensation and support are reasonably in balance with their sufferings and losses. Offenders feel that their dignity has not unnecessarily been hurt and are given the opportunity to make amends constructively. All participants, including the community, feel reassured that rights and freedoms are taken seriously by their fellow citizens and by the authorities.

The best way to guarantee that the losses are well understood and that the reparation is adequate is to leave the decision to those with a direct stake: victims, offenders and others who are directly affected. ‘Justice’ is what those concerned experience as such. However, the state cannot withdraw completely; if it did, it would leave the parties alone to find a solution. In a voluntary restorative deliberation, the state must be present at least in the background to ensure that the deliberation takes place and results in an acceptable outcome, to guarantee a power balance in the deliberation, and to provide an opportunity to the parties to leave the deliberative process and turn to the traditional judicial response if one of them feels that their interests are not adequately acknowledged. Authorities then demonstrate that they take the victim's and the offender's rights and freedoms seriously, and safeguard the collectively assured set of rights and freedoms.

Legal justice

Justice also encompasses legality. Restorative justice means that the processes and their outcomes respect legal safeguards (Van Ness, 1996; Walgrave, 2002a; Dignan, 2002). Legal safeguards protect citizens against illegitimate intrusions by fellow citizens and by the state. This is obvious in coerced interventions, but it applies also in voluntary settlements. Participation may not be imposed. Agreements must be accepted by the parties and be reasonable in relation to the seriousness of the harm and to the parties’ accountability and capacities. How to make sure rights are observed is a matter of debate among restorative justice proponents. Some rely fully on the potentials of communities. They fear the state's power to invade the process and undo its informal, humane and healing potentials. Others try to find a balanced social and institutional context, which allows maximum space for genuine deliberative processes but also offers full opportunities for all parties to appeal to judicial agencies if they do not feel respected in the process.

In a coercive procedure, all legal guarantees must be observed. A traditional criminal justice procedure offers safeguards such as legality, due process and proportionality, but it is not evident that these legal safe-guards also apply unchanged in a system premised on restoration. The main function is different, the actors are partly different, and the social and judicial context is different. Contrary to the top-down approach of the traditional process, a restorative system should allow ample space for a bottom-up approach. Thinking about a legal context that combines maximum space for deliberative conflict resolution with complete legal safeguards is only a beginning (Braithwaite, 2002; Walgrave, 2002b; Von Hirsch et al., 2003). It is a crucial challenge for restorative justice development in the future.

The rehabilitative juvenile justice model under pressure

By the beginning of the twentiety century, most states and countries had developed jurisdictions and laws for children who committed offences (Mehlbye and Walgrave, 1998; Winterdyk, 2002). They focused more upon treatment or re-education of the young offender than on determining appropriate punishments for offences. Juvenile justice systems were seldom challenged until the end of the 1960s. By then, several forms of criticism were being advanced, which can be clustered under the following four headings.

Doubtful effectiveness

In juvenile justice it was believed that treatment-oriented courts could help endangered youths become conforming and useful citizens. Clinical and sociological research was undertaken in order to ‘unravel’ juvenile delinquency. Social work, educational programmes and clinical treatments sought to correct the deviant development of youthful offenders (Rothman, 1980). In the critical 1960s and 1970s, the courts and treatment programmes appeared to be biased by social and ideological prejudices to the disadvantage of the poor and ethnic minorities (Platt, 1969). Evaluations of treatments did not produce encouraging results (Sechrest, White and Brown, 1979). Indeed, some studies pointed to negative results, which were explained mostly through labelling theory. Diversion, how-ever, led to net-widening and left court interventions untouched (Albrecht and Ludwig-Mayerhofer, 1995; McCord, Spatz Widom and Crowell, 2001).

Pessimism about treatment programmes has become more nuanced in the past two decades. A series of meta-evaluations suggest that under some conditions (notably proper staff training and expertise, and proper implementation and assessment), some programmes work (McGuire and Priestley, 1995; Lipsey and Wilson, 1998). It remains difficult, however, to generalise these conclusions. Firstly, the studies measure only quantifiable aspects of the interventions and seldom include context-oriented interventions, such as community building and its influences on social environment. Secondly, the evaluations mostly explore experiments in exceptionally optimal conditions. The step toward routine practices, in general, seriously reduces the gains of the evaluated programmes. Finally, the ‘what works’ analyses do not address ethical questions about the acceptability of lengthy and intensive restrictions of liberty, which often seem disproportionate to the modest seriousness of the offences committed, and which are of doubtful effectiveness.

Questions thus remain about the generalisability of treatments, about how far the judicial setting helps or hinders these programmes, and about how programmes can be combined with adequate legal safeguards. That specific treatment programmes work for specific groups does not mean that the rehabilitation-oriented juvenile justice system as a whole is effective.

Ineffective legal safeguards

Under the dominant ideology of child-saving and child-raising, it was believed that legal safeguards could be replaced by clinical diagnoses and the juvenile court judge's adherence to common sense. Critical criminology and anti-psychiatry, however, exposed cultural and socio-economic biases in both clinical evidence and common sense. Children's rights movements launched the ‘4 Ds’: decriminalisation, diversion, due process and de-institutionalisation (Empey, 1976). International organisations promoted conventions and advocated basic principles for dealing with children both in general and in court, as in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985).

In reality, however, a basic tension was inevitable primarily because juvenile justice jurisdictions tried to combine what cannot be combined satisfactorily. Basing sentencing upon the needs of the offender rather than on the characteristics of the offence inev...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Notes on contributors
• Acknowledgements
• Introduction: restorative justice and best practices
• Part 1: Youth and restorative justice
• Part 2: Aboriginal justice and restorative justice
• Part 3: Victimisation and restorative justice
• Part 4: Evaluating restorative justice
• Index