Handbook of Restorative Justice

Gerry Johnstone, Daniel Van Ness, Gerry Johnstone, Daniel Van Ness

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134015269
• Topic: Ciencias sociales
• Subtopic: Criminología

This book provides a comprehensive and authoritative account and analysis of restorative justice, one of the most rapidly growing phenomena in the field of criminology and justice studies.

This book aims to meet the need for a comprehensive, reliable and accessible overview of the subject. It draws together leading authorities on the subject from around the world in order to:

• elucidate and discuss the key concepts and principles of restorative justice
• explain how the campaign for restorative justice arose and developed into the influential social movement it is today
• describe the variety of restorative justice practices, explain how they have developed in various places and contexts, and critically examine their rationales and effects
• identify and examine key tensions and issues within the restorative justice movement
• brings a variety of disciplinary and interdisciplinary perspectives to bear upon the understanding and assessment of restorative justice.

The Handbook of Restorative Justice is essential reading for students and practitioners in the field.

Part 1
The Idea of Restorative Justice

Gerry Johnstone and Daniel W. Van Ness

Part 1 opens with six chapters explaining and discussing the basic ideas of restorative justice. In the first chapter, we set the scene by looking at what it is that people who promote restorative justice are actually trying to bring about. There is widespread agreement among proponents that the goal is to transform the way contemporary societies view and respond to crime and related forms of troublesome behaviour. However, there are a range of views as to the precise nature of the transformation sought. These are to some extent in tension with one another, suggesting that restorative justice is best understood as a deeply contested concept. We outline three different but overlapping conceptions of restorative justice: the encounter conception, the reparative conception and the transformative conception. We suggest that rather than pushing one of these forward as the true or primary meaning of restorative justice, or trying to gloss over disagreements among proponents, the most fruitful way forward for the restorative justice movement is to keep debating the meaning of the concept but to conduct this debate in a manner consistent with the principles of restorative justice.

The following chapters explore particular conceptions of restorative justice in more detail. In Chapter 2, Susan Sharpe explores what it means to redress wrongdoing by repairing the harm resulting from it. Whereas the notion of repairing harm is often presented as if it required little further elaboration, Sharpe presents a reflective account of the forms reparation can take, what it can accomplish and optimal conditions for achieving those results. From there, she goes on to discuss some of the key issues facing those who propose repair of harm as an alternative to seeking redress through vengeance and retribution: must reparation be onerous for those undertaking it? How important is the principle of proportionality when it comes to reparation? Should those who point to the need for wrongdoers to repair harm also push for perpetrators of systemic injustices to undertake reparation?

Jennifer Larson Sawin and Howard Zehr consider a rather different but equally important aspect of the idea of restorative justice: the idea that those most directly affected by crimes and other wrongful acts should be engaged and empowered in the process by which it is decided what should be done to put things right. In Chapter 3, after illustrating this idea by an account of the now classic ‘Kitchener experiment’, Larson Sawin and Zehr explore in depth why, for restorative justice advocates, engagement and empowerment are essential to the achievement of justice in the aftermath of crime, and what it means (and what it does not mean) to be engaged and empowered in a justice process. Importantly, they then go on to look at the challenges faced by those who seek to put these ideas into practice – i.e. how in practice does one determine precisely who needs to be engaged and empowered in any particular restorative justice process and how does one ensure that key stakeholders are in fact engaged and empowered?

Increasingly, restorative justice proponents are referring to values as a key means of distinguishing restorative justice from other approaches to crime and wrongdoing. In Chapter 4, Kay Pranis examines how the values of restorative justice are expressed in the literature. Crucially, counter to a recent tendency to draw a sharp distinction between a ‘process’ conception of restorative justice and a ‘values’ conception (a tendency described in Chapter 6), Pranis shows that the discussion of restorative values in the literature is primarily about ‘process values’. That is to say, those who think of restorative justice primarily as a process – whereby parties affected by criminal wrongdoing come together to resolve collectively what should be done about it – are trying to identify and define values which should guide and constrain such processes, thereby ensuring that what happens within them and as a result of them can properly be described as ‘restorative’. These attempts to guide and constrain ‘restorative processes’ raise an important question: are those who are promoting restorative justice now imposing upon people whom they claim to be empowering a set of values which are in fact ‘foreign’ to those people? Pranis, drawing upon her extensive practical work with those developing justice circles in a wide range of settings, suggests not. In her experience, while people do not always behave according to restorative values, they do tend to affirm those values as ones which they should follow.

In Chapter 5, Declan Roche looks at one of the key debates in current restorative justice literature: that concerning the relationship between retributive and restorative justice. He shows how an early and persisting assumption that retributive and restorative justice are polar opposites has been challenged by a number of writers for a variety of reasons. He reviews the work of contributors to this debate such as Kathleen Daly, who argues that the depiction of conventional justice as ‘retributive’ and restorative justice as lacking retributive elements is vastly mistaken and misleading, and the rather different arguments of philosopher Antony Duff, whose position is that our aim in responding to crime should indeed be restoration, but that this should be achieved through a form of retributive punishment (although not necessarily the harsh exclusionary sanctions which other proponents of restorative justice tend to associate with the idea of retribution). For Roche, the more sophisticated understanding of restorative justice that has emerged from this debate has important implications for thinking about the possible dangers of (well intentioned) restorative interventions and the need for checks and balances – issues which are taken up in a number of later chapters in the Handbook.

The final chapter of Part 1, by Margarita Zernova and Martin Wright, returns to the theme of diversity and conflict within the restorative justice movement over how restorative justice could be conceptualized and practised. This chapter examines closely specific debates between proponents over how restorative justice should be understood and implemented. Zernova and Wright show that, for some, restorative justice should be conceived as a process outside the criminal justice system to which appropriate cases can be diverted if the parties agree. Others would want to include, within the restorative justice tent, alternative sentencing practices within criminal justice, in which offenders are ordered to undertake reparative deeds rather than to undergo more traditional forms of punishment. Another debate which Zernova and Wright elucidate is that between those who think restorative justice should aim primarily at reforming our response to crime (whether by creating alternatives to conventional criminal justice or changing the criminal justice system) and those who think that the project of restorative justice is incoherent and impractical unless it also and perhaps primarily aims to bring about much deeper and wider social changes designed to ensure social justice. Similar to our own position in Chapter 1, Zernova and Wright conclude, not by calling for a more unified vision of restorative justice and the elimination of diversity and conflict, but for an acceptance that differences within a social movement – if discussed in an appropriate way – can be source of strength, keeping the movement open and fluid.

Chapter 1
The meaning of restorative justice

Gerry Johnstone and Daniel W. Van Ness

Introduction

The restorative justice movement is a global social movement with huge internal diversity. Its broad goal is to transform the way contemporary societies view and respond to crime and related forms of troublesome behaviour. More specifically, it seeks to replace our existing highly professionalized systems of punitive justice and control (and their analogues in other settings) with community-based reparative justice and moralizing social control. Through such practices, it is claimed, we can not only control crime more effectively, we can also accomplish a host of other desirable goals: a meaningful experience of justice for victims of crime and healing of trauma which they tend to suffer; genuine accountability for offenders and their reintegration into law-abiding society; recovery of the social capital that tends to be lost when we hand our problems over to professionals to solve; and significant fiscal savings, which can be diverted towards more constructive projects, including projects of crime prevention and community regeneration.

However, there is no agreement on the actual nature of the transformation sought by the restorative justice movement. For instance, some regard restorative justice as a new social technique or programme which can be used within our criminal justice systems. Others seek ultimately to abolish much of the entire edifice of state punishment and to replace it with community-based responses that teach, heal, repair and restore victims, perpetrators of crime and their communities. Still others apply the vision of healing and restoration to all kinds of conflict and harm. In fact, the ultimate goal and primary focus, they suggest, should be on changing the way we view ourselves and relate to others in everyday life (Sullivan and Tifft 2001). What all proponents of restorative justice seek is something better than that which exists, and also something better than the various other alternatives (such as penal treatment) which have been tried, with limited success, in the past.

It is in fact only recently that the restorative justice movement has achieved widespread prominence. Writing in 1998, the founders of the Contemporary Justice Review stated: ‘there still remain a considerable number of people involved in the administration of criminal justice and even many who teach about justice issues at the university level, for whom issues of restorative justice, even the term itself, remain quite foreign’ (Sullivan et al. 1998: 8). Today, by contrast, one seldom encounters people involved in the administration or study of criminal justice who are not familiar with the term.¹ Indeed, the concept of restorative justice is already cropping up in other discourses, including those of school discipline, workplace management, corporate regulation, political conflict resolution and transitional justice.

Yet, despite its growing familiarity in professional and academic circles, the meaning of the term ‘restorative justice’ is still only hazily understood by many people. The main goal of this chapter, therefore, is to explore what people who advocate ‘restorative justice’ are actually promoting. This is by no means a straightforward task. The term ‘restorative justice’ appears to have no single clear and established meaning, but instead is used in a range of different ways. Some who have attempted to clarify the meaning of restorative justice have tended to conclude, often with some hint of despair, that ‘restorative justice’ means ‘all things to all people’ (Roche 2001: 342). Moreover, it is not simply that people use the term in different ways in different contexts. Rather, some proponents of restorative justice assert or imply that their use of the concept is the only proper one, and that to use the concept in a different way is to create confusion or to adulterate the concept of restorative justice by applying it to practices or agendas which are not restorative. These assertions can be made with such passion that they take on ‘the tone of a weird inter-faith squabble in an obscure religious sect’ (Bazemore and Schiff 2004: 51; cf. McCold 2004a).

Why so much passion? As we hope to show, it is because restorative justice is not simply a persistently vague concept; it is in fact a deeply contested concept.

What sort of a concept is ‘restorative justice’?

In what follows, in order to explain why ‘restorative justice’ is so profoundly contested, we will undertake a brief examination of the type of concept which restorative justice is.²

An appraisive concept

Most of those who use the term restorative justice consider it to be a constructive and progressive alternative to more traditional ways of responding to crime and wrongdoing. Hence, for its proponents, the judgement about whether a particular practice or situation is properly characterized as ‘restorative justice’ is not simply a matter of taxonomy, it is a matter of evaluation. The question is whether a particular practice or agenda meets the standards of restorative justice. The appraisive nature of the quest for a definition is brought out explicitly by Declan Roche:

In the same way that counterfeit goods may tarnish the good reputation of a manufacturer’s brand label, programs that are called restorative when they are not can tarnish the concept … restorative justice should seek to prevent counterfeiters from benefiting from the good name of restorative justice. One way to do this is to continually clarify the meaning of restorative justice so that judgments can be made about how restorative a program or practice really is

(2001: 343).

An internally complex concept

Not every constructive and progressive alternative to traditional interventions into crime and wrongdoing can be described as restorative justice. For such an alternative to be credibly described as restorative justice, it will usually have one or more of the following ingredients, which are presented in no particular order of importance:

1. There will be some relatively informal process which aims to involve victims, offenders and others closely connected to them or to the crime in discussion of matters such as what happened, what harm has resulted and what should be done to repair that harm and, pe...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of abbreviations
• Notes on contributors
• Preface
• Part 1: The Idea of Restorative Justice: Introduction
• Part 2: Roots of Restorative Justics: Introduction
• Part 3: Restorative Processes, Outcomes, Stakeholders: Introduction
• Part 4: Restorative Justice in Social Context: Introduction
• Part 5: Evaluation and Restorative Justice: Introduction
• Part 6: The Global Appeal of Restorative Justice: Introduction
• Part 7: The Future of Restorative Justice: Introduction
• Glossary
• Author Index
• Subject Index