Restorative Justice: Theoretical foundations

Elmar G. M. Weitekamp, Hans-Jürgen Kerner

• Publisher: Willan
• Year: 2012
• eBook ISBN: 9781135999582
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book brings together a selection of papers originally presented and discussed at the fourth international restorative justice conference, held at the University of Tübingen. The contributors include many of the leading authorities in the field of restorative justice, and they provide a comprehensive review of the theoretical foundations underlying this rapidly expanding movement. Restorative Justice: Theoretical foundations addresses a wide range of fundamental questions about restorative justice, considering amongst other things ways in which conceptual pitfalls can be avoided, and how traditional models of peacemaking and healing developed in traditional societies can be integrated into the justice systems of late modern societies. Overall it provides an authoritative overview of contemporary thinking about restorative justice and will be essential reading for anybody concerned with the future direction of criminal justice and criminal justice systems. leading world authorities address the theoretical foundations of restorative justicea rapidly expanding area within criminal justiceincludes chapters on restorative justice as applied to corporate crime, family violence and cases of extreme violence

Chapter 1

The shape of things to come: a framework for thinking about a restorative justice system

Daniel W. Van Ness¹

In the spring of 2002, during the meeting of the United Nations Commission on Crime Prevention and Criminal Justice, 40 countries joined the government of Canada in sponsoring a resolution on restorative justice. The Commission adopted the resolution, as did the Economic and Social Council a few months later. The resolution directs the Secretary General to circulate its annexe – draft elements of a set of basic principles on the use of restorative justice – and convene an expert committee to review responses concerning whether principles such as these should be adopted by the UN.

The sheer number of countries sponsoring this resolution was remarkable, suggesting substantial interest on the part of governments in the potential of restorative justice. This interest is also reflected in new domestic legislation and practices in both juvenile and adult justice systems. Sentencing reform legislation adopted in Canada five years ago has been interpreted by that nation’s Supreme Court as having the purposes of ‘reducing the use of prison and expanding the use of restorative justice principles in sentencing.’²

The Youth Justice Act, recently proposed in South Africa, incorporates restorative justice principles and practices in that country’s response to juvenile crime. Provisions of Austria’s Juvenile Justice Act of 1988 have been used to divert young offenders into mediation programmes in that country. Its Criminal Procedural Law Amendment of 1999, which goes into effect this year, does the same for adult offenders.³ Young offenders appearing in English or Welsh youth courts for the first time will now receive a mandatory referral order under the Youth Justice and Criminal Evidence Act enacted in 1999. The legislation specifically mentions mediation as one possible outcome under the referral order, and the Labour government has described this an introduction of restorative justice into youth justice.⁴

What is happening here? Clearly there is significant governmental interest in restorative justice, and some are adopting reforms to implement restorative features. But what will those changes amount to? Can we look to Canada, South Africa, Austria or England and Wales and declare that they now have restorative systems? I suspect that restorative justice advocates in those countries would be hesitant to do that. On the other hand, those nations have taken significant and important moves in the direction of restorative justice.

For more than ten years writers have speculated on how a restorative justice system might be configured. But with the growing activity by governments towards incorporating restorative principles, this work has a new immediacy. What are the components of a restorative justice system? How might we assess the restorative character of a system that incorporates restorative as well as other values? These are questions I would like to begin exploring in this chapter.

To do that I will draw on three principles and four values of restorative justice that Karen Strong and I proposed several years ago.⁵ The three principles are:

(1)	justice requires that we work to restore victims, offenders and communities who have been injured by crime;
(2)	victims, offenders and communities should have opportunities for active involvement in the restorative justice process as early and as fully as possible;
(3)	in promoting justice, the government is responsible for preserving order and the community for establishing peace.

The four values are encounter, amends, reintegration and inclusion.

The values are logically related to the first two principles, since those address the purpose and the participants in restorative justice processes. I will focus on those values in the discussion in the initial part of this chapter on the components of a restorative justice system. The third principle has to do with the construction of that system and will be considered later in this chapter, where I suggest models for a restorative system.

What are the components of a restorative justice system?

In considering the components of a possible restorative system, it would be helpful to begin by examining the four values in more detail.

Encounter

Restorative justice theory developed out of the early experience of Howard Zehr and others with what they called victim–offender reconciliation programmes. These programmes – now usually called victim– offender mediation or dialogue programmes – have been joined by conferencing and circles as ways of bringing together the offender, the victim and community members who have also been touched by the crime, the victim or the offender. While not all restorative programmes involve encounters, the importance of this feature of restorative justice is substantial, and clearly influences restorative programmes.

The key elements of these encounters are:

•	meeting: the parties often meet in person, although in some circumstances the meeting is conducted with a third party, a surrogate;
•	narrative: the people who come talk about what happened, how it affected them, and how to address the harm done;
•	emotion: this interaction is different from that of a court, with its emphasis on rationality; in encounters, emotion is viewed as contributing to understanding, rather than impeding it;
•	understanding: the parties come to better understand each other, the crime, the harm caused by the crime, and how to make things right;
•	agreement: when the parties have been able to explore the personal, material and moral/spiritual repercussions of the crime, they design an agreement that is specific to their situation and is practical.

These five elements are not all of the same kind. We might cluster the middle three into a category called communication and then prioritize the elements with this result: the three components of encounter are the meeting, the communication that takes place at the meeting, and the resulting agreement.

Amends

Encounter has to do with the most distinctive restorative process. Amends has to do with its most distinctive outcome: the wrongdoer takes steps to make amends for his or her crime in tangible ways. Restitution is certainly one way that this can be done, but there are others as well. In fact, when we reflect on the agreements reached during encounters, we notice four key elements when offenders make amends to their victims.

•	Apology: a genuine apology, when offered by someone who has not been forced to do it, is a significant way of making amends. It is an acknowledgement of wrongdoing and places the offender in the powerless position of waiting to find out whether the victim will accept that apology.
•	Changed behaviour: another way to make amends is to agree not to do it again, or to take steps that make it less likely that the offender will do it again. The changed behaviour that emerges from encounters often involves things like returning to school, getting a job, receiving counselling for substance-abuse problems, and so on.
•	Restitution: this is probably the most obvious way to make amends. It involves paying the victim, although it can also be done by returning property or by providing in-kind services.
•	Generosity: this element might seem surprising at first, but it is not all that rare. It involves the offender agreeing to go beyond a strictly proportionate response of restitution to something more. This might be expressed by offering to do free work for an agency selected by the victim, or in some other way.

I should note that these outcomes have been features of rehabilitative and retributive programmes as well. However, these become components of amends in a restorative programme or system when they are the result of the parties’ agreement about what the offender will do to make things right. In other words, the obligation is voluntarily undertaken by the offender rather than being imposed by a court.⁶

These elements might be consolidated by conflating ‘changed behaviour’ and ‘generosity’ into a general component we could call ‘change’. This would permit a ranking of the components as follows: apology is followed by restitution and then by the change that reinforces and demonstrates that the apology was sincere.

Reintegration

A fundamental value of restorative justice is that both victim and offender be reintegrated into their communities as whole, contributing members of those communities. Both victims and offenders can suffer stigmatization, and reintegration is therefore necessary. The reintegration process has three key elements.

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Respect: when a person rejoins the community it should not be as a member of a lesser class of individuals, but as a member in full standing. The work of John Braithwaite on reintegrative shaming reminds us that the alternative to reintegration is stigmatization, when the shame is never lifted. Reintegration means that beyond – and more profound than – any shame the offender feels is a fundamental respect by others for the offender. This same respect needs to be shown to the victim.

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Material assistance: crime produces real injuries, and sometimes the criminal justice process causes even more. Both victim and offender will experience these injuries, and they may need material assistance in overcoming them. For example, burglary victims may nee...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of figures and tables
• Notes on contributors
• Preface
• 1 The shape of things to come: a framework for thinking about a restorative justice system
• 2 Journey to belonging
• 3 Restorative justice and the politics of decolonization
• 4 Justified criticism, misunderstanding, or important steps on the road to acceptance?
• 5 From community to dominion: in search of social values for restorative justice
• 6 Deconstructing restoration: the promise of restorative justice
• 7 Restorative justice theory validation
• 8 Restorative justice and the future of diversion and informal social control
• 9 Restorative conferencing for juveniles in the United States: prevalence, process and practice
• 10 Restorative justice for children: in need of procedural safeguards and standards
• 11 From the ‘sword’ to dialogue: towards a ‘dialectic’ basis for penal mediation
• 12 Punishment, guilt and spirit in restorative justice: an essay in legal and religious anthropology
• 13 The role of shame, guilt and remorse in restorative justice processes for young people
• 14 Peacemaking and community harmony: lessons (and admonitions) from the Navajo peacemaking courts
• 15 From philosophical abstraction to restorative action, from senseless retribution to meaningful restitution: just deserts and restorative justice revisited
• 16 Restorative justice: present prospects and future directions
• Index