Institutionalizing Restorative Justice

Ivo Aertsen, Tom Daems, Luc Robert

• Publisher: Taylor & Francis
• Year: 2013
• Print ISBN: 9781843921585
• eBook ISBN: 9781134016662
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This new book aims to explore the key issues and debates surrounding the question of the incorporation and institutionalisation of restorative justice within existing penal and criminal justice systems, an increasingly pressing issue given the rapid spread of restorative justice worldwide at both national and international levels. In doing so it aims to build bridges between those concerned with the practical institutionalisation of restorative justice on the one hand, and those engaged in more theoretical aspects of penal development and analysis on the other. It offers conceptual tools and a theoretical framework to help make sense of these developments, reflecting expertise drawn from analysis of developments in Europe, North America and Australasia.

Chapter 1

The prospects for institutionalization of restorative justice initiatives in western countries

Michael Tonry

Countries vary in their penal policies. This is obvious. One illustration is the contrast between the American imprisonment rate in excess of 700 per 100,000 population and the 60–70 per 100,000 that characterizes the four large Scandinavian countries. The death penalty, popular and used in the US and Japan but not authorized in other western democracies, is a second. The presence of ‘three-strikes-and-you’re-out laws’ in England and the US, and their absence elsewhere is a third. The spread and scope of restorative justice initiatives in Australia, Belgium and New Zealand compared with their near absence in Scandinavia¹ is a fourth.

These differences are not random. The aim of this chapter is to examine the comparative and cross-national literature on the determinants of penal policies and practices in hopes of finding generalizations concerning when and why restorative justice initiatives are likely to occur and to be successfully implemented and institutionalized.

There is no comparative literature on national differences in receptivity to restorative justice, so I look for hypotheses in inferences that can be drawn from the nascent comparative literature on penal policy generally and from the literature on the dispersion of various community penalties.

No easy generalizations can be offered but conducing and constraining conditions can be identified. These terms are meant to parallel the concepts of ‘risk’ and ‘protective’ factors that are used in developmental psychology and criminology to characterize factors that increase or decrease an individual’s likelihood of experiencing an undesirable outcome (e.g. criminality, drug abuse, school failure, teenage pregnancy).

It would be odd to refer to risk or protective factors for restorative justice, both because it is not necessarily an undesirable outcome of political processes in the same way that drug dependence or unplanned teenage pregnancy is an undesirable outcome of developmental processes, and because the terms ‘risk’ and ‘protective’ just do not seem right.

To speak, however, of political, cultural and structural conditions that conduce to initiation of criminal justice policies or programmes (restorative justice, drug courts, three-strikes laws) or constrain their initiation or elaboration does seem semantically right.

Among conditions that appear to conduce to initiation and elaboration of restorative justice initiatives are: aboriginal populations possessed of consensual dispute resolution traditions; relatively non-politicized criminal justice policy-making processes; non-partisan professional criminal justice practitioners; constitutional systems characterized by strong separation of powers traditions; and relatively parsimonious traditions of prison use. Constraining conditions include: politicized criminal justice policy-making climates; politically selected practitioners; high prison-use traditions; and highly moralized penal cultures.

Here is how this chapter is organized. The first section offers the prevailing theories in use to explain why countries adopt especially severe penal policies. One is simple – rising crime rates produce rising imprisonment rates (which I use as an indicator of severe penal policies). The other is complex – a congeries of social, economic, cultural and psychological developments of the past 30 years have produced harsh expressive policies meant primarily to reassure law-abiding citizens and to stigmatize troublesome ones and only incidentally to prevent crime.

The second section, telling the crime and punishment stories of five countries over 30 years, shows that both theories are wrong. The first is wrong because, while all western countries had rising crime rates between 1970 and 1990, imprisonment rates rose sharply only in a few. Crime does not cause punishment.

The complex story is wrong because the developments it depicts affect all western countries but imprisonment rates rose sharply in only a few.

The third section then looks at penal policy developments in three countries – the US, England and Canada – to identify particular characteristics of those countries that appear to have influenced penal policy developments.

The fourth section shifts the focus from prison-use trends to patterns of adoption of less-than-imprisonment punishments variously characterized as alternatives to imprisonment, intermediate punishments or community penalties. The permeability of particular countries to community penalties, substitutes for imprisonment, may be germane to their permeability to restorative justice as a substitute for traditional adversarial criminal justice processes.

The fifth section, finally, draws on the conducing and constraining conditions both to explain why some countries more than others have adopted restorative justice initiatives and to hypothesize where restorative justice seeds are likely to find fertile soils.

Explanations of penal policy trends

Writing on penal policy trends over the past 30 years has disproportionately focused on the United States, asking and attempting to answer the question of why penal policies and practices became much more severe (Garland 2001; Tonry 2004a). A number of explanations for recent penal policy trends have been offered but none is satisfactory.

The simplest explanation is that crime rates in the United States, and also in all other western countries, increased steadily from the late 1960s or early 1970s through the early to mid 1990s, and, directly or indirectly, penal policies became tougher, penal practices became harsher and the use of imprisonment increased.

There is a surface logic to this simple explanation. If there are more crimes, there will be more arrests, more prosecutions, more sentences and more imprisonment, and it might seem reasonable to expect a direct relationship between the size and trends of the crime problem and the size and trends of the prison population. One-to-one relationships are not likely, because criminal justice institutions have limited personnel and resources and in the face of large expansions in their caseloads inevitably must find ways to dispose of cases more quickly, more efficiently and more informally. At each stage of the process it is reasonable to expect that new ways will be found to divert cases or resolve them quickly. Citizens may report fewer cases to the police if they are less likely to be the subjects of police actions. Police are less likely to refer cases to prosecutors and prosecutors to courts if the result is to increase dismissal rates and make already overcrowded caseloads and dockets even more crowded. Prosecutors are more likely to dismiss cases, negotiate diversionary dispositions or accept guilty pleas to offences bearing less harsh sentences. Judges may be less likely to send people to prison or send them to prison for shorter times. Parole authorities may be more likely to let people out earlier.

While those things might moderate the increase in the rate of imprisonment, it remains not unreasonable to expect that rate to increase substantially, even if less steeply than the crime rate.

Or rising crime rates may cause rising imprisonment rates indirectly. If rising crime rates cause people to become more apprehensive and to feel less safe, they may, as voters and citizens, demand that the state address crime more effectively. Or citizens may become more angry and resentful toward offenders, and call for and support harsher policies and harsher practices, both of which should result in harsher penalties.

The problem with the simple explanation, as the next section demonstrates in some detail, is that crime rates cannot be said directly or indirectly to cause increases in imprisonment rates for the simple reason that in most countries they did not. Although in a few countries, notably the United States (Reitz 2001) and the Netherlands (Tak 2001), imprisonment rates increased continuously from the early 1970s through the time when crime rates stabilized and began to fall in the early 1990s, and continued to increase thereafter, that is not the typical pattern. The extreme counter-examples are Finland (Lappi-Seppälä 2001) and Japan (Hamai 2001), in both of which imprisonment rates fell continuously throughout the 1970s and 1980s. The more common pattern, however, exhibited by the Scandinavian countries, Canada, Germany and England during the 1970s and 1980s, is for imprisonment rates to have remained roughly stable in the face of rapidly increasing crime rates (Tonry and Frase 2001).

If rising crime rates cause rising imprisonment rates, it should have happened everywhere. It didn’t.

The intellectually sophisticated, complex and nuanced explanations of increased punitiveness take account of a large number of economic, social and other structural changes that create social and political environments in which harsh policies are more likely to be adopted. There have been a number of major writings in this tradition (Bottoms 1995; Caplow and Simon 1999; Garland 2001; Wacquant 2001). The best known and most influential is David Garland’s The Culture of Control (2001).

Garland argues that four main developments combined to produce a harsher penal climate. First, faced by seemingly inexorably rising crime rates during the 1970s and 1980s, governments recognized and accepted that they lacked tools substantially to affect crime rates and elected, instead, to adopt expressive policies that purported to be doing something about crime but, more importantly, denounced crime and criminals, and demonstrated to citizens that government shared their resentment and hostility toward offenders.

Second, as a result of the movement of women in very large numbers into the paid workforce (meaning that many more residences were unoccupied during the day), the increased availability of valuable but portable consumer goods and rising crime rates generally, victimization was democratized. By this Garland did not mean that the burden of criminal victimization fell more equally throughout society but that crime became a ‘salient social fact’ in the lives of middle-class and professional elites. Previously little burdened by crime, they could afford to adopt condescending attitudes towards other citizens who could be characterized as vindictive or mean-spirited in their unwillingness to recognize the social complexities that underlay criminal activity. In the 1950s and 1960s, the middle-class elite and particularly the professional classes could adopt relatively humane attitudes and policies towards crime and criminals in part because they themselves lacked the visceral reactions to crime that victimization can produce. As the experience of victimization became more common, resentment and hostility toward offenders became more widely dispersed.

Third, what Garland calls ‘conditions of late modernity’ combined to produce a heightened sense of anxiety and insecurity, an elaborated sense of the riskiness of life, in the populations of democratic western states. People also became more aware of crime and the disorder associated with it, and were concerned to minimize their own exposure. In some ways, crime came to serve as a metonym for disorder more generally, a specific set of behaviours, attributable to a particular set of actors, which could be taken to symbolize all that was wrong with a rapidly changing world.

Fourth, Garland suggested that offenders came to serve as scapegoats or lightning rods for public resentments, on whom disorder could be blamed. Because offenders typically come from economically and socially disadvantaged groups, particularly visible minority groups, someone other than the majority population could be blamed. This he refers to as ‘the criminology of the other’.

Taken together, these developments led to the adoption of policies not necessarily meant to be effective but meant to express hostility towards offenders which could be enforced against social groupings other than the majority middle-class.

Garland’s is a plausible description of social and cultural developments of the last 30 years. The forces of globalization have been unleashed, economic restructuring has reduced the economic stability and security of large fractions of the populations of western countries, the civil rights, gay rights and women’s rights movements have occurred and redistributed opportunities, populations have become more heterogeneous, and in many ways the world has become a less comfortable and predictable place. Social resentments against immigrants and members of minority groups exist in every western country. Most have fringe xenophobic right-wing political parties that attract 5–15 per cent of the vote.

As description, it is difficult to argue with Garland’s analysis. As explanation, however, it falls short, for the same reason that the simple explanation – rising crime causes rising imprisonment – falls short.

In an article in the British Journal of Criminology in 1996, Garland offered observations about penal policy trends in England, the US, ‘and elsewhere.’ Hans-Jörg Albrecht (2001), some years later, challenged Garland’s use of the phrase ‘and elsewhere,’ pointing out that penal policy trends in England and America had not been replicated elsewhere. Moreover, and this is my point not Albrecht’s, penal policy trends in the United States were not mirrored even in England, in which the imprisonment rate, though it fluctuated a bit, was broadly stable for 20 years from 1970 through 1994, and has risen rapidly amid the adoption of symbolic and expressive policies not unlike some of those in the US (e.g. mandatory minimums, three-strikes laws, boot camps, sexual offender registration laws). Garland’s elegant description captures some important things about secular changes in western countries in the period 1970–2000. However, they were associated with steadily rising imprisonment rates over the whole period only in the United States and the Netherlands, and in England and Wales only since 1994, in the face of widely divergent patterns elsewhere.

Why most explanations for penal policy trends are wrong

Participants in cocktail party conversations and readers of mystery novels might assume that increases in crime rates necessarily produce increases in imprisonment rates. They would be wrong, as comparison of punishment patterns in a number of western countries demonstrates. From 1970 to the present, crime patterns and trends have been broadly similar in western countries. The details have differed. For example, homicide rates typically are much higher in the US than in Western Europe, but within Western Europe the homicide rates in Finland are typically considerably higher than those elsewhere, and gun use in crime is much more pervasive in the US. Nonetheless, when changes in rates per 100,000 of violent crime and homicide are calculated for western countries, remarkably similar broad patterns hold everywhere for the period 1970 to the early 1990s (the peaks and subsequent declines vary by a year or two between countries). Homicide rates typically doubled or tripled and serious violent crime rates increased by a factor of three to five times.

As Figures 1.1 to 1.4 demonstrate, however, while crime rate trends may be very similar among western countries, imprisonment rates are very different.

Figure 1.1 shows imprisonment, violent crime and murder rates per 100,000 US population from 1960 to 1993. The murder rate has been multiplied by ten to make eyeball comparisons easier. The data end in the early 1990s because US crime rates began a steep fall in 1990–92 which continues to this date. My interest in Figure 1.1 is to compare imprisonment rate trends with crime rate trends to test the more-crime-causes-more-imprisonment hypothesis already described.

Violent crime in Figure 1.1 consists of homicide, rape, robbery and aggravated assault. The rate of violent crime, as recorded by the police, increased by nearly five times between 1960 and 1993. The homicide rate increased from about 4 per 100,000 to about 11 per 100,000, nearly three times. The imprisonment rate (here including only prisoners sentenced to state and federal institutions), though ...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgements
• Notes on contributors
• Introduction
• 1 The prospects for institutionalization of restorative justice initiatives in western countries
• 2 The vital context of restorative justice
• 3 Beyond evangelical criminology: the meaning and significance of restorative justice
• 4 The intermediate position of restorative justice: the case of Belgium
• 5 Institutionalizing restorative justice? Transforming criminal justice? A critical view on the Netherlands
• 6 Institutionalizing restorative youth justice in a cold, punitive climate
• 7 The French phantoms of restorative justice: the institutionalization of ‘penal mediation’
• 8 The institutionalization of restorative justice in Canada: effective reform or limited and limiting add-on?
• 9 The institutionalization of principles in restorative justice – a case study from the UK
• 10 Risk and restorative justice: governing through the democratic minimization of harms
• 11 Reintegrative shaming and restorative justice: reconciliation or divorce?
• 12 Balancing the ethical and the political: normative reflections on the institutionalization of restorative justice
• 13 Epilogue
• Index