Restorative Justice

Ideals and Realities

Margarita Zernova

• Publisher: Routledge
• Year: 2016
• Topic: Social Sciences
• eBook ISBN:
  9781351965354
• Subtopic: Law Theory & Practice
• Index: Social Sciences

The legitimacy and performance of the traditional criminal justice system is the subject of intense scrutiny as the world economic crisis continues to put pressure on governments to cut the costs of the criminal justice system. This volume brings together the leading work on restorative justice to achieve two objectives: to construct a comprehensive and up-to-date conceptual framework for restorative justice suitable even for newcomers; and to challenge the barriers of restorative justice in the hope of taking its theory and practice a step further. The selected articles start by answering some fundamental questions about restorative justice regarding its historical and philosophical origins, and challenge the concept by bringing into the debate the human rights and equality discourses. Also included is material based on empirical testing of restorative justice claims especially those impacting on reoffending rates, victim satisfaction and reintegration. The volume concludes with a critique of restorative justice as well as with analytical thinking that aims to push its barriers. It is hoped that the investigations offered by this volume not only offer hope for a better system for abolitionists and reformists, but also new and convincing evidence to persuade the sceptics in the debate over restorative justice.

Chapter One

Restorative Justice in Action

This chapter will trace the emergence, evolution and expansion of restorative practices around the globe in the last 30 years or so. Three major models of restorative justice and some other restorative practices will be described. Then the chapter will proceed to discuss some present restorative policies and distinctive features of most current empirical research into restorative justice.

Ancient practice and its revival

According to its proponents, restorative justice is not a new invention. Rather, it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history (Braithwaite 2002a, chapter 1). It is argued that in the era pre-dating modern states, crime was conceptualized in personal terms and was responded to in a fashion more in line with restorative justice, with the emphasis placed on restitution and reconciliation¹. The state-administered retributive response to crime that dominates today’s justice systems and governs our understanding of crime and justice is a phenomenon just a few centuries old². The punitive system of crime control evolved and achieved its full development in the second half of the eighteenth century, and, as other parts of the world were colonized by Europeans, the Western model of justice was imposed on colonized peoples. Once Western legal systems were established, the informal, community-based forms of conflict resolution survived to some degree – openly or secretly – in many countries, but in public discourse they were generally considered as practices inferior to law. However, since the 1960s, there has been a sea change. Attempts have been made to begin reversing the historical process and revive ancient conflict resolution traditions. A variety of social and political movements have contributed to this reversal, such as the informal justice movement³, the restitution movement (Barnett 1977, 1980), the victims’ movement (Dignan 2005; Williams 2005; Green 2007), penal abolition⁴, peacemaking criminology (Pepinsky and Quinney 1991), the women’s movement (Harris 1989, 1991; Daly and Stubbs 2007), the growth of interest in native justice traditions of indigenous people⁵. These diverse influences directly or indirectly contributed to the emergence of the restorative justice idea and practice.

The main broad categories of ‘modern’ restorative justice practices include victim-offender reconciliation and mediation programmes, family group conferencing and sentencing circles. These models of restorative justice will be discussed below. Also, some other examples of restorative practices will be provided, in particular, Navajo peacemaking, community reparative boards in Vermont, the Zwelethemba experiment in South Africa and community-based restorative justice projects in Northern Ireland.

Victim-offender reconciliation/mediation programmes

In 1974, in the Canadian town of Elmira, two young men vandalized twenty-two properties. At the request of their probation officer the judge ordered that they meet their victims and bring back a report of the damage they have suffered. The offenders visited their victims and reached restitution agreements with them (Peachey 1989). This spontaneous experiment was the first documented instance of what today is called victim-offender reconciliation and led to the establishment of a victim-offender reconciliation programme under the auspices of the Mennonite Central Committee in Kitchener, Ontario. Soon the idea and the practice spread through the Mennonite community into other parts of Canada and the USA (Zehr 1990, chapter 9).

Victim-offender reconciliation⁶ is based on the idea that following a criminal offence, the victim and the offender have a shared interest in righting the wrong. The emphasis is placed on reconciliation, assisting victims in the aftermath of an offence, helping offenders to change their lives and, more generally, humanizing the criminal justice system (Zehr 1990). Victim-offender reconciliation programmes typically involve a face-to-face encounter between the victim and the offender⁷. With the help of a neutral third party – a trained mediator – they are provided with an opportunity to talk about what has happened and express their feelings. Victims can tell offenders how crime has affected them and ask questions. Then the parties may decide together what needs to be done about what happened and reach a mutually satisfying agreement. An agreement may involve the offender making financial restitution, working for the victim (or the community), undertaking to behave in a particular way or attending some rehabilitation programme, such as anger management. The mediator facilitates the mediation process, but does not impose outcomes upon the parties. The idea is to promote a dialogue and empower victims and offenders to solve the conflict the way they like (within certain limits)⁸.

Such face-to-face encounters between victims and offenders provide victims with a unique opportunity to receive answers to questions, some of which can only be answered by offenders. Victims may express how the offence affected them and how they feel about it and express it to people who committed the offence against them (Umbreit 1994). Face-to-face encounters with offenders may also help challenge stereotypes which victims may have about offenders and possibly reduce victims’ fears. Victims may receive compensation for their losses, and, importantly, have a say over their desired compensation or reparation. All these opportunities may provide victims with a sense of empowerment and assist in the healing process (Zehr 1990).

Offenders are given an opportunity to see whom they have wronged and how the person was affected by their actions. They may have their stereotypes of victims and rationalizations of their actions challenged. They are invited to take responsibility for their actions and put things right. They may also express remorse and ask forgiveness (Zehr 1990).

Victim-offender reconciliation/mediation takes place within the context of the criminal justice system as an exercise of police, prosecutor or judicial discretion. The programmes can be located in the police or prosecuting departments or in non-profit community-based or church-based organizations.

As mentioned above, one of the major historical roots of victim-offender reconciliation/mediation were programmes initiated and developed by the Mennonite community. There were some other important roots. One of them was the early neighbourhood dispute resolution programmes, which emerged in the 1960s and 1970s in the USA (Wright 1996, chapter 4). Another important source of influence was the victims’ rights movement (Umbreit, Coates and Vos 2001). Some proponents of the victims’ rights movement worked closely with victim-offender reconciliation/mediation advocates in order to ensure that the process was conducted in a victim-sensitive fashion. However, it needs to be pointed out that many proponents of victims’ rights were sceptical about – and some even opposed – the idea of bringing victims and offenders together. It was feared that such encounters may compound victims’ injuries. It was also believed that victim-offender reconciliation/mediation programmes may lead to a reduced punishment for the offender. Some within the victims’ rights movement still hold that view (Umbreit, Coates and Vos 2001).

In 1980s victim-offender reconciliation/mediation programmes were transplanted to Europe (Wright and Galaway 1989; Marshall and Merry 1990; also see relevant chapters in Messmer and Otto 1992). Today the victim-offender mediation movement is international in scope. Numerous programmes operate in North America and Europe⁹ (Umbreit 1996; Wynne 1996; Claes 1998; The European Forum for Victim-Offender Mediation and Restorative Justice 2000). There are also some programmes in Australia, New Zealand, and South Africa (Umbreit 1999; Umbreit, Coates, Vos 2001).

Numerous studies of victim-offender mediation programmes have been carried out. The research findings have been largely positive. In particular, a high level of satisfaction and perception of fairness with the mediation process for both victims and offenders has been consistently reported (Coates and Gehm 1989; Marshall and Merry 1990; Umbreit and Coates 1993; Umbreit 1994, 1996). For instance, following a two-and-a-half-year study of VOM programmes in California, Minnesota, New Mexico and Texas, Umbreit and Coates reported that 79 per cent of victims and 87 per cent of offenders were satisfied; 83 per cent of victims and 89 per cent of offenders thought that the process was fair. It was found that victim-offender mediation had a significant impact on the likelihood of offenders successfully completing their restitution obligations (81 per cent), compared with similar offenders who completed court-imposed restitution obligations and did not participate in mediation (58 per cent) (Umbreit and Coates 1993; Umbreit 1994). It has been also reported that victim-offender mediation led to the reduction of fear and anxiety among victims (Umbreit 1994).

Family group conferencing: New Zealand experience

Up to the 1990s, restorative justice functioned by way of isolated experiments. Dramatic changes occurred after the Children, Young Persons and their Families Act was passed in New Zealand in 1989. This piece of legislation created a new forum called ‘family group conferences’ to address juvenile offending and made family group conferences an official response to juvenile crime.

According to its proponents, family group conferencing has ancient roots¹⁰. It was adapted from the ‘whanau conference’ practised by the Maori people. The Maoris did not have anything similar to the Western criminal justice system. Rather, their way of dealing with conflicts and wrongdoings was embedded in everyday life. The Maoris saw conflicts and wrongdoings as affecting extended families and clans of victims and offenders. So, in the aftermath of crime extended families of the victim and the offender came together and negotiated a conflict resolution (Maxwell and Morris 1996; Pratt 1996; Consedine 1999).

British colonization brought with it the Western criminal justice system, and the traditional Maori way of responding to wrongdoings almost disappeared. In the 1980s a number of developments (such as growing crime rates and imprisonment among Maoris, disenchantment with the formal legal process and a resurgence of interest in the rights and cultures of indigenous peoples) lead to publication in 1988 of a report by Moana Jackson, commissioned by the New Zealand Department of Justice. This report suggested that racial bias was endemic in the criminal justice system (Pratt 1996). The report also advised that Maoris should be allowed to deal with conflicts and crimes that affected them in a way which was culturally appropriate, which meant returning to the pre-colonial methods of dispute-resolution.

The resulting legislation was the Children, Young Persons and their Families Act 1989. It brought forth a number of important developments, among which was the introduction of family group conferencing as a new forum to address juvenile offending. After the implementation of this legislation, only really serious offences by juveniles go to court. Other cases are diverted from the criminal justice system and referred to youth justice coordinators. Youth justice coordinators convene family group conferences, and normally the matter will be handled as decided by the conference without going to the court. There are two routes to family group conferences: (1) ‘direct referral’ to a youth justice coordinator, or (2) where there has been an arrest and charges have been laid, a case can be referred from the Youth Court.

A family group conference is attended by the offender, his or her relatives, friends, the victim (or a victim representative), a youth advocate, a police officer and possibly a social worker. The youth justice coordinator (who works for the Department of Social Welfare) organizes and usually facilitates the conference. At the beginning of the process, the police describe the offence, and the offender is invited to admit or deny involvement. If involvement is admitted, the conference proceeds with victims describing the impact of the offence on them. Victims have an opportunity to tell how the crime affected them, describe their experiences, express their emotions and ask questions directed at offenders. If the victim is represented by someone else, that person reports on behalf of the victim. People who come to conferences to support the victim can tell how they were affected by the offence and ask questions. The offender’s familiy and friends are also allowed to speak. Participants will discuss how the injuries caused by crime could be repaired. Then the offender’s family deliberates in private to develop a plan concerning what needs to be done to put things right and prevent further offending. The plan should take into account the views of victims, the need to hold the offender accountable and include measures necessary to prevent re-offending. The most common outcomes involve an apology to the victim(s) and work for the community. Then the meeting reconvenes and the plan is presented to victims and professionals for discussion. If the plan has been agreed by all those attending a family group conference and, for court referred cases, is accepted by the Youth Court judge, it is binding on those involved (Morris and Maxwell 2000, 207). If a conference is court-ordered, the Youth Court usually accepts recommendations made by conferences, but in serious cases it can impose additional sanctions (Maxwell and Morris 1994; McElrea 1996). The Youth Court may also decide cases if the family group conference recommends it or where the family group conference could not reach an agreement.

After the introduction of the 1989 Act evaluations of family group conferences were carried out (Maxwell and Morris 1993, 1994, 1996, 2000). A rather high level of satisfaction was reported among participants, except victims. Maxwell and Morris (1993, 115) found that 84 per cent of offenders and 85 per cent of their parents attending family group conferences were satisfied with the outcomes of conferences. Only half of victims were satisfied, and about a quarter of victims felt worse after the conference. However, it has been suggested that low levels of victim satisfaction could be partly due to lack of experience in working with victims and the fact that the processes were not established with victims in mind, rather than anything inherently wrong with the system itself (Maxwell and Morris 1993). It was argued that to a large degree victims’ views were influenced by dissatisfaction with the process external to family group conferencing (for example, failure by professionals to inform victims about what happened after the conference and to make necessary arrangements for reparation). It was also suggested that there was no comparable information on victims’ satisfaction levels with court outcomes, so the relatively low satisfaction figure could signify a relative success (Maxwell and Morris 1996).

It was found that restorative justice conferences could reduce re-offending, especially if offenders apologized to their victims and felt truly sorry for what they have done and provided the reintegrative aspects of restorative justice were achieved (Maxwell and Morris 2000, Morris and Young 2000, Morris and Maxwell 2003). For instance, it was found that in a sample of young offenders who took part in family group conferences in 1990-91, about three quarters were not reconvicted within a year, and more than two fifths had not been reconvicted at all or had been reconvicted only once within six years (Morris and Young 2000).

Before leaving New Zealand and looking at restorative justice in other jurisdictions, it is important to point out that unlike in cases of juveniles, the provision of restorative justice in cases of adult offenders has been very piecemeal. There are several pretrial diversion and pre-sentencing programmes, however, it appears that judiciary do not always view outcomes of restorative justice encounters favourably. For example, R v Clotworthy [1998] 15 CRNZ 651 was a case which involved wounding with intent to cause grievous bodily harm, robbery being a motive. After this case was brought to a conference, the victim and the offender agreed that the offender would pay the victim $25,000 to cover the costs of cosmetic surgery. The sentencing judge, however, ordered the offender to pay the victim $15,000, and imposed 200 hours of community service and a two-year prison sentence suspended for two years. The prosecution appealed on grounds that the sentence was an insufficient response to a serious crime. The Court of Appeal reduced the reparation to $5,000 and imposed a term of three years’ imprisonment. Critics suggested that this sentence obviously did not meet the victim’s wishes (Bowen and Thompson 1999; Mason 2000; Morris and Young 2000).

Family group conferencing outside New Zealand

In 1991 an experiment started in Wagga Wagga – a town in New South Wales, Australia – which involved the police in the exercise of their common law powers of cautioning organizing and conducting family group conferences (Moore and O’Connell 1994; O’Connell 1998). Developments in New Zealand provided one source of influence for the Wagga Wagga conferences. However, one obvious difference between the New Zealand model of conferencing and the Wagga Wagga model was that the Wagga Wagga model was entirely police-based, without any other agencies involved in its functioning. The police were the only gate-keepers and undertook the organization and facilitation of conferences. Another source of influence was John Braithwaite’s theory of reintegrative shaming (Braithwaite 1989). Family group conferences were conceived as instances of reintegrative shaming in practice (Moore 1993; Moore and O’Connell 1994; Braithwaite and Mugford 1994). In accordance with Braithwaite’s theory, the distinction between ‘reintegrative’ shaming and ‘stigmatising’ shaming was made by practitioners, and the aim was to ensure that the conferencing process complied with principles of ‘reintegrative shaming’: shaming is conducted within a continuum of love and respect; the disapproval is aimed at the wrongdoing, rather than the wrongdoer; and shaming is finite and followed by gestures of forgiveness and reacceptance.

Wagga Wagga conferences were evaluated, and findings were po...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• Chapter One Restorative Justice in Action
• Chapter Two Restorative Ideals
• Chapter Three Ideals and Practical Realities: The Gap
• Chapter Four Problematic Ideals and a Problematic Relationship
• Chapter Five Restorative Ideals Re-examined
• References
• Index