Juvenile Justice Reform and Restorative Justice

Gordon Bazemore, Mara Schiff

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134017782
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book, based on a large-scale research project funded by the National Institute of Justice and the Robert Wood Johnson Foundation, provides an overview of the restorative justice conferencing programs currently in operation in the United States, paying particular attention to the qualitative dimensions of this, based on interviews, focus groups and ethnographic observation. It provides an unrivalled view of restorative justice conferencing in practice, and what the people involved felt and thought about it.

The book looks at four structural variations in the face-to-face form of restorative decision making: family group conferences, victim-offender mediation/dialogue, neighborhood accountability boards, peacemaking circles. The authors address two issues that have received limited research emphasis in restorative justice: the lack of clear and consistent standards, and the absence of testable theories of intervention that reflect what has become a rather diverse practice. In response the authors conclude with a proposed structure for principle-based evaluation designed to test emerging theories of restorative decision making.

Chapter 1

Restorative justice, restorative group conferencing, and juvenile justice

Introduction

Restorative justice is not new (Weitekamp, 1999). Though the term gained popularity in most of the western world only in the past decade (Shaw and Jane, 1998; Van Ness and Strong, 2001; Bazemore and Schiff, 2001), restorative decision-making in the form of victim–offender mediation programs has a 30-year history in the United States. This history began in 1972 with an experimental program in the Minnesota Department of Corrections using victim–offender meetings as a component of a restitution program designed for adult inmates eligible for early release (Hudson and Galaway, 1990; Hudson, personal communication, 2001). By the early 1980s, a number of community-based victim–offender mediation programs had taken hold primarily in juvenile courts and non-profit agencies. By the late 1990s, some 300 such programs had been identified (Umbreit et al., 2003).

Face-to-face restorative decision-making processes are a core feature of this broader justice paradigm that includes a potentially wide variety of practice and policy. What we will refer to in this volume as ‘restorative group conferencing’ is therefore viewed as one core process in a wide range of responses that share common goals and objectives.

Defining restorative justice and restorative group conferencing

There are a number of definitions of restorative justice, and even more ways of defining the dimensions by which one might determine the strength and integrity of a given restorative justice intervention. In common discussion among some restorative practitioners and advocates, ‘restorative’ is a term often best understood in contrast to what is viewed as its opposite – being punitive, authoritarian, or even simply mean-spirited. While the notion of ‘restorative’ as defining a different way of being and relating to others in a variety of contexts can be a helpful one true to the spirit of restorative justice (e.g. Boyes-Watson, 2004), so far there have been no definitions that provide any objective standard for evaluating the quality and strength of a restorative intervention.

Defining restorative justice essentially as what occurs in a restorative program or as the outcome of a restorative non-adversarial, face-to-face encounter between victim, offender, and other stakeholders in a crime (Marshall, 1996), while providing marginally greater specificity and clarity, still does not provide standards for gauging the relative strength and quality of such interventions. For example, while the assertion that ‘restorative justice is any outcome reached by participants in a restorative process’ (McCold and Wachtel, 2003) gives appropriate emphasis to the value of the restorative encounter as a core center of action in restorative justice, it does not specify any outcome that would distinguish a restorative process from one that seeks goals such as punishment, offender treatment, incapacitation, deterrence, or other objectives. It provides no metric for gauging the relative intensity or success of such a process and is, moreover, tautological. It defines a restorative outcome as the result of a restorative process without illuminating what might constitute a restorative process.

Other researchers and practitioners, assuming the need to actively engage victim, offender, and community as a given, have sought to draw sharper distinctions by focusing on the intensity of key stakeholder involvement. Umbreit (2001) and his colleagues, for example, have developed indices for gauging the relative intensity of victim involvement by ranking indirect or very limited victim–offender dialogue as lowest intensity, and face-to-face, direct, stakeholder needs-driven dialogue as most intensive. He and others have also suggested standards for gauging the relative success of interventions by the extent to which they attempt to address multiple victim needs (see Seymour and Bazemore, 1999; Lehman et al., 2002). As ways of gauging ‘restorativeness,’ such standards are, however, also one-dimensional in their implication that the strength of restorative justice interventions is limited to the extent to which only one stakeholder’s needs are met (no matter how important and justifiable the emphasis on crime victims may be).

An improvement is McCold and Wachtel’s three-dimensional emphasis (see Figure 1.1) that defines interventions as more or less restorative based on their presumed capacity and intent to engage all three stakeholders in restorative justice – victim, offender, and community (McCold and Wachtel, 2003). While this approach provides multiple dimensions, its application is limited by the use of these dimensions primarily to rate a variety of program models. Specifically, one intent of this work has been to develop a hierarchy of programs ranked as (1) ‘fully restorative’ (potential to engage all three stakeholders); (2) ‘mostly restorative’; (3) ‘partly restorative,’ and by default, not restorative.

Source: In Pursuit of Paradigm: A Theory of Restorative Justice, by Paul McCold and Ted Wachtel. Paper presented at the XIII World Congress of Criminology, 10-15 August 2003, Rio de Janeiro.

Figure 1.1 McCold and Wachtel’s restorative practices typology

Unfortunately, this application of the three-dimensional focus only to existing program models does not allow for the possibility that any number of informal encounters outside the context of formal programs may fully engage all three stakeholders without following any practice model (or, for that matter, by mixing multiple models). Moreover, though this program-focused approach on the surface emphasizes key differences between models, it does not allow for comparison of the presence and strength of restorative intervention within a given program or a specific implementation of a restorative process (see Hayes and Daly, 2003). Similar to the focus on the presence of a face-to-face encounter alone as the measure of restorativeness (Marshall, 1994; McCold, 2003b), the program-focused, stakeholder involvement approach also appears to be concerned with stakeholder involvement only, rather than with the extent to which the ‘restorative process’ pursues or achieves a restorative outcome (but see also McCold and Wachtel, 2002, wherein models are compared on relative ability to accomplish certain outcomes).

The goal-focused approach is exemplified in Bazemore and Walgrave’s (1999) provisional definition of restorative justice as ‘every action that is primarily oriented toward doing justice by repairing the harm that has been caused by a crime’ (p. 48). We view this as an appropriate general definition for the wide variety of restorative practices that may be possible in response to any crime no matter where the crime and the harm it causes is addressed in justice systems or communities, or whether or not key stakeholders (e.g. victims) are willing or able to participate directly in face-to-face dialogue. Restorative justice decision-making and restorative group conferencing is, from this perspective, part of this larger category of practices that seek to repair the harm crime causes (Bazemore and Walgrave, 1999; Van Ness and Strong, 1997). As a holistic model for responding to crime and other harms, the restorative justice framework cannot therefore be limited to one form of intervention, to certain types of offenders and victims, or to certain points in the criminal or juvenile justice process. Indeed, in the relatively short modern history of restorative justice, a wide array of restorative practices have emerged within criminal and juvenile justice systems that attempt to address harm in multiple circumstances.

As illustrated in Table 1.1, these practices address multiple objectives and range in community and justice system contexts from the point of neighborhood police or citizen encounters with troublesome behaviors or minor violations, through residential placement or incarceration, to reintegration or reentry to the community following incarceration. In addition, preventative peace-making and informal conflict resolution efforts based on restorative principles that have emerged in schools and other neighborhood settings (e.g. Karp and Breslin, 2001) that have no formal connection to juvenile or criminal justice systems may also be included in this broad definition of restorative practice.

Toward principles as standards for restorativeness

The spirit of restorative justice, and the quality and potential of the restorative justice movement, depends on its consistency with broader values. These values suggest standards that seem difficult to achieve without maximizing the direct input of the three stakeholders through a meaningful encounter that allows for respectful dialogue between them. Moreover, many have argued that the extent to which repair can be accomplished requires individual stakeholders’ involvement in a process that empowers relevant communities and places system/government professionals in facilitative, rather than directive, roles (Van Ness and Strong, 1997; Bazemore and Walgrave, 1999). For this purpose, Dignan and Marsh’s (2001) definition is perhaps most helpful and comprehensive in its emphasis on both a goal and process that are distinct from those of adversarial approaches and independent of any link to specific programs or process models. For these authors:

Table 1.1 Restorative justice objectives, practice, and typical location

Objective/focus	Practice	Typical location/use
Prevention, peace-making, youth development, community building, family and school discipline	School and neighborhood conferencing, youth development circles, victim awareness education, restorative discipline, family support and discussion groups	Schools, neighborhoods, churches, civic groups
Provide decision-making alternative to formal court or other adversarial process for determining obligations for repairing harm	Victim–offender dialogue, family group conferencing, circles, neighborhood accountability boards, other restorative conferencing approaches	Police and community diversion, court diversion, dispositional/sentencing alternatives, post-dispositional planning, residential alternative discipline, conflict resolution, post-residential reentry
Victim and community input to court or formal decision-making	Written or oral impact statement to court or other entity	Court, probation, residential facilities
Provide reparative sanctions or obligation in response to crime or harmful behavior	Restitution, restorative community service, service to victims, service for surrogate victims, payment to victim service funds	Diversion, court sanction, probation condition, residential program, reentry
Offender treatment/rehabilitation/education	Victim impact panels, victim awareness education, drunk driving panels, community service learning projects	Probation, residential facilities, diversion program, jails
Victim services and support groups	Volunteer support groups, faith community groups, counseling	Multiple settings
Reentry	Reentry conferences, support circles, restorative community service	Neighborhood and community

restorative justice is not restricted to a particular approach or program, but is applicable to any that have the following characteristics:

•an emphasis on the offender’s personal accountability by key participants; and

•an inclusive decision-making process that encourages participation by key participants; and

•the goal of putting right the harm that is caused by an offense.

(2001: 85–9; emphasis ours)

This definition includes the emphasis on a general ‘inclusive decision-making process,’ which – given the authors’ broader statement – we take to mean victim, offender, and relevant community, without emphasizing specific programs (or the necessity of any program), and includes the goal of repairing harm caused by an offense. As such, it is consistent with our view that evaluation of restorative practice and the multi-dimensional assessment of the extent to which any intervention is restorative should be based on general principles that, while not specifying a given practice or process, provide standards for assessing the strength and integrity of such intervention in a given case.

For us, Van Ness and Strong’s (1997) articulation of three broad principles – which we designate below as the principles of repair, stakeholder participation, and community/government role transformation –captures the essence of Dignan and Marsh’s definition while adding (see Principle 3 below) the emphasis on the restructuring of the community/government role in the response to crime. Specifically, Van Ness and Strong designate:

1.The principle of repair – justice requires that we work to heal victims, offenders, and communities that have been injured by crime.

2.The principle of stakeholder participation – victims, offenders, and communities should have the opportunity for active involvement in the justice process as early and as fully as possible.

3.The principle of transformation in community and government roles and relationships – we must rethink the relative roles and responsibilities of government and community. In promoting justice, government is responsible for preserving a just order, and community for establishing a just peace.

These three broad principles form the basis of what we call principle-based research and evaluation and are the essence of the model we propose in this work. We use these to both ground our research and to ...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgments
• Foreword by Joe Hudson and Dennis Maloney
• Introduction
• 1. Restorative justice, restorative group conferencing, and juvenile justice
• 2. Principles to practice: intermediate outcomes, intervention theories, and conferencing tasks
• 3. Prevalence and scope of restorative decision-making: findings from a national inventory and survey on restorative conferencing for youth
• 4. Methodology for the qualitative study and description of conference stages and phases
• 5. Repairing harm in the conferencing environment
• 6. Stakeholder involvement in the conferencing environment
• 7. Community/government relationship and role transformation
• 8. Looking back and moving forward: conclusions, implications, and an agenda for future research
• Appendix
• References
• Index