Restorative and Responsive Human Services

Gale Burford, John Braithwaite, Valerie Braithwaite, Gale Burford, John Braithwaite, Valerie Braithwaite

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9780429676901
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

In Restorative and Responsive Human Services, Gale Burford, John Braithwaite, and Valerie Braithwaite bring together a distinguished collection providing rich lessons on how regulation in human services can proceed inempowering ways that heal and are respectful of human relationships and legal obligations. The human services are in trouble: combining restorative justice with responsive regulation might redeem them, renewing their well-intended principles. Families provide glue that connects complex systems. What are the challenges in scaling up relational practices that put families and primary groups at the core of health, education, and other social services?

This collection has a distinctive focus on the relational complexity of restorative practices. How do they enable more responsive ways of grappling with complexity than hierarchical and prescriptive human services? Lessons from responsive business regulation inform a re-imagining of the human services to advance wellbeing and reduce domination. Readers are challenged to re-examine the perverse incentives and contradictions buried in policies and practices. How do they undermine the capacities of families and communities to solve problems on their own terms?

This book will interest those who harbor concerns about the creep of domination into the lives of vulnerable citizens. It will help policymakers and researchers to re-focus human services to fundamental outcomes at the foundation of sustainable democracies.

This book is available for free in PDF format as Open Access from the individual product page at www.routledge.com. It has been made available under a Creative Commons Attribution- Non Commercial-No Derivatives 4.0 license.

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Introduction

Restorative and Responsive Human Services

Gale Burford, John Braithwaite and Valerie Braithwaite

The overall goal of this book is to advance the understanding and fit of restorative justice and responsive regulation, its achievements and limits, evidence and trajectories with particular focus on the ways their theories and applications serve as a bridge between disciplines and between formal and informal human services. We take up restorative justice as justice that heals the harms that derive from injustice and regulation as what we do when obligations are not being honored. Many of the chapters in this collection show that this makes restorative justice a relational form of justice. As will be discussed in greater detail, responsive regulation builds from a framework of empowerment and aims to engage actors in cooperating with the development of the details of how their obligations will be met even when their compliance could be required. Restorative justice coupled with responsive regulatory strategies help chart practical pathways for moving from healing to problem solving and contributes to the development of theory and research relevant to tackling complex social problems.

While there are many wonderful collections on restorative justice this one has quite a distinctive focus. First, it is about exploring the ways that the nuance of restorative and relational theory enables more responsive ways of grappling with complexity than do hierarchical and prescriptive intervention approaches to the human services. We will draw upon lessons from responsive business regulation to apply them to redesigning human services delivery to advance well-being, reduce domination and to respond more quickly in ways that are supportive and responsive to evolving circumstances.

Second, we examine the potential for restorative and responsive-relational theory, along with the empirical evidence and related strategies and competencies, to contribute to the broader project of developing and maintaining robust, resilient and responsive human services as a key pillar of a healthy civil society. This requires deepening our understanding of the complex interplay of markets and human or social capital that underwrite capitalism, democracy and justice that flourish together. In this view, the system of social welfare services is understood to play an important role in regulating what Drahos calls capitalism’s three large-scale processes of destructive change that currently confront regulatory networks and institutions everywhere: eco-processes collapse, techno-processes collapse and financial processes collapse (2017, p. 761). We reiterate the prediction that both the scale and intensity of relationships between and among regulators and those being regulated will increase (Parker & Braithwaite, 2003; Drahos, 2017; Levi-Faur, 2011) and this presents, even necessitates, opportunities to re-think the aims and design of the human services as sites for advancing justice. When organized for coherence and responsiveness around the principles of equity and integrity, with account taken of emergent needs and risks, welfare services are good for business over time; not for business driven by maximum profit with no regard for its impacts on people, but for businesses that thrive in republican expressions of democracy (Braithwaite, 2002, 2008, 2013, 2017a; Hodges & Steinholtz, 2017). This means taking words like regulation and welfare back from their pejorative meanings, revisiting their underlying principles and aligning them as crucial elements of social and economic justice (V. Braithwaite, 2017).

Restorative Justice, Responsive Regulation and Republican Democracy

In the face of increasing evidence that despotic, authoritarian or simply invisible powerful hands control matters in everyday life for most citizens, the marriage of restorative justice and responsive regulation aims to encourage both the sense of possibility and responsibility. Both are vital components of innovative, purposeful and meaningful responses to complex human services challenges. But the hard questions remain about when, how, with whom and in what contexts to punish and when to persuade, when to enforce and when to support and how best to offer these processes so they invigorate mutual aid and self-help and regulatory capacities in affected social networks like groups, families and communities in the long run.

We take injustice to include harms that derive from crime, but we extend its scope to include experiences of relational, historical and structural injustice that may or may not involve legal constructions of wrongdoing. Restorative justice and responsive regulation offer a path forward for the timely sorting out of injustice in all spheres of human relations. This includes injustices seeded in structural imbalances of power and privilege that are so well known to regenerate and manifest themselves in the laws, policies and practices in human services, often cloaked in the best of intentions of the helping hand, but also often seen as politically driven tactics of repression and punishment. Restorative and responsive regulation is offered as a relational approach to program and service delivery and to engaging with the programs and providers themselves in holding to principled courses of action. This means accounting for the competent and ethical delivery of services by engaging in thoughtful problem analysis and enlisting stakeholders in partnerships while simultaneously remaining alert to the “creep” of excessive intrusion into the lives of citizens.

Such approaches sit within republican theory (Pettit, 1997; Braithwaite & Pettit, 1993) in which liberty is conceived to be freedom as non-domination. It is understood that any public protection or provision of security, including with the human services, involves some coercion. Lovitt and Pettit (2009) elaborate three ideas central to this notion of freedom. First, a free person is conceptualized as one who does not live under the arbitrary will or domination of others. By extension, a free state is one that promotes the freedom of its citizens without itself coming to dominate them. The third involves the obligations of citizenship; good citizenship requires vigilant commitment to preserving the state in its distinctive role as an “undominating protector against domination” (Lovitt & Pettit, 2009, p. 11).

The chapters of this book recurrently affirm the insight that human services without domination cannot be delivered without regulation of human services dominations, for example without regulation of abuse and neglect in aged care, without indigenous rights enforcement against child protection services that fail to honor the legislative principle of ‘restoration’ (the presumption in favor of restoring indigenous children to indigenous extended families, even if it is to grandparents rather than parents) (Behrendt, 2017).

Restorative justice and responsive regulation both seek to be forward-thinking, that is, moving to problem solving and to planning for the future. Both hold in common the view that punishment, when it is seen as excessive, unfairly administered, or is seen as a bluff, typically fails in its goals and often provokes defiance and a rippling loss of trust in the system of regulation. Quite often even backlash. They also hold in common that when people have access to safe, timely, fair and trustworthy means of having their grievances, including their experiences of persecution, or even questions about the way they are being treated, heard and understood, that the likelihood of conflict escalation and the associated costs are reduced. Then hopes of harmonious relations and reduced threat of continued strife are increased. We expect this to hold true in most areas of the human services including heath, education, social services and justice settings and encounters.

Despite its rapid increase in popularity and infusion into many areas of human services and human relations, restorative justice continues to be mainly understood as having value in criminal justice matters where the restorative justice practitioner brings all parties to an offense (the offender, law- enforcement agents and victims) together to discuss how each has been impacted, what can be done to repair or heal the effect of the harm and what needs to be done to keep further harms from occurring. The usual criminal justice conceptualizations and applications of restorative justice tend to either be fixed around diversion from legal processes or get offered wholly separately as voluntary post-legal healing opportunities. Law tends to be positioned at the center of these programs. As we enter into other areas, where the role of law and of the state is decentered to form regulatory partnerships that are hybrid, state-private, pluralistic and involve a range of formal and informal actors and stakeholders, the need for interdisciplinary research cooperation and fresh thinking about complexity is inescapable.

In its criminal law applications, a small number of disciplines and state agencies organized around crime, its reduction and its vast system of detection, prosecution, sentencing, incarceration and re-entry contribute to narrowing the spread and full realization of restorative justice. For example, scholars like Hanan (2018) argue that some restorative justice applications fail to offer genuine alternatives to the criminal court system by imposing criminal justice assumptions such as the requirement that a wrongdoer must admit to their wrongful behavior beforehand. Untested, assumptions rooted in the logic of criminal justice like this one may prefigure the process and perhaps mask outcomes that stakeholders prefer while hijacking the possibility that people may want to define their situation as a conflict for which they share responsibility.

Thus, in widening the scope to injustice, we refer to sites where the experiences of coercion and exclusion at the interpersonal level may or may not rise or best be dealt with as criminal matters can still rapidly escalate in harms to individuals and relationships, flare up through social and other media mechanisms and leave people relationally and economically, if not also physically, disadvantaged or harmed. Several chapters in this volume focus on examples of what Lejano and Funderberg (2016) might refer to as relational or “regulatory hotspots”, or even “weak” spots that render vulnerable people and resources particularly exposed to exploitation and oppression. These include examples such as interpersonal violence, bullying, riotous behavior, organized labor, family and child safety, sexual behavior and assault in public institutions, community regulation and reintegration of sex offenders, and the impact of racialized decision processes associated with mass incarceration and the use of foster care with African-American families and gendered violence. But these could well be extended out into areas such as medical errors, unfair procedures in workplaces and schools and lopsided decision-making processes that range from environmental hazards and protections to personal choices about biological reproduction and health and the gendered use of power and control in relationships across a spectrum of relational and institutional settings (Gil & Bakker, 2006).

These examples all give testimony to the need to value pluralistic, multi-dimensional and interdisciplinary approaches to the study of social problems and recognition that it is in human encounters when people need help, including with self-regulation, that they are highly vulnerable to exploitation and manipulation by people and forces beyond their awareness and control. This necessitates careful and responsive examination of the multiplicity of influences including the excessive reach of market, state and professional powers that interact with complex rules and regulations that impact people’s lives, and so often conflict with each other, but also from the persons in their own families and communities. We describe the ethical basis of the regulatory state in terms of its formal, juridical, deontological underpinnings. In contrast to this stands the alternative ethical concept of care, which is inherently relational, contextual and preferentially attentive to the needs of the vulnerable.

Restorative Justice: Praxis, Process, Social Movement and Law

Many advocates, including the present authors, have argued that restorative justice as a social movement has only partially succeeded in dissuading the entrenched power of the legal profession from resisting restorative reform. This is a major constraint to full realization of restorative justice in the human services. It is one of the reasons why the Vermont Law School, a nationally recognized top environmental law school, has taken up offering graduate and certificate programs in restorative justice: to take upstream the study and practice of law in its role to safeguard holistic principles that protect freedoms of people wanting to play active roles in solving their own problems and increasing their engagement in civil society.

Restorative justice is not simply a way of reforming the criminal justice system; it is a way of transforming the entire legal system, our family lives, our conduct in the workplace and our practice of politics. Its vision is of a holistic change in the way we do justice in the world. Yet, justice reform efforts mostly draw on internal traditions of reform within western traditions (Braithwaite, 2017b; Braithwaite & Zhang, 2017; van Ness & Strong, 2015; Zehr, 1990) and this is seen as a continued source of threat to indigenous and other sources of cultural and relational problem solving and conflict resolution (Blagg, 2017; Warren, 2016). Closer examination of the host historical, legal, policy and cultural contexts of both regulation and restorative justice is, as we will see, in need of careful and nuanced study from interdisciplinary and multi-cultural perspectives.

Access to restorative processes remains largely on the margins. This despite restorative justice having a presence in many corners of human activity and having inched its way into most spheres of conflict resolution, mediation, healing, victim aid, human resources and personnel work, human rights commissions and inquiries into historical wrongdoing across the human services and human relations spectrum. It is offered at the discretion of providers, a discretion mostly not exercised, as part of pilot projects, an add-on or alternative to taking matters to court. Its development is seen in fits and starts. A leader or a group takes up the work, falters when champions leave, funding ends, program mandates change. This is true of restorative justice in schools, a major domain of implementation. Yet, its rise in popularity is fueled in large measure by a heightened passion of people who want to do the “right thing”, give people a “say” and find antidotes to the widespread perception that democracy has been hollowed out with poll-driven alarmist predictions of what inevitability is going to happen next. Organized around strengths and best hopes, one of the biggest challenges to the spread of restorative justice is the manipulation of public fear and anxiety that cyclically drives state and state-sponsored actors to justify assertions of control (Burford, 2018). “There is no other way” became a tag-line for neoliberal austerity and political trashing of “welfare” programs and further stigmatizing people in need of services as feckless and undeserving (Featherstone, White, & Morris, 2014; Morris & Burford, 2017).

Through a legal lens, restorative justice, like other forms of justice, can be understood as a mechanism for the maintenance or administration of conflicting claims and halting escalations of retaliation. Instead of relying strictly on legal protocols and rules, RJ works through cooperative behavior, dialog, negotiation and other processes such as mediation to arrive at agreements about the assignment of rewards and punishments. In a fully realized system of restorative and responsive human services, actors across systems from police, health, education, social services, child protection, management and administration would be armed, so to speak, with the regulatory enforcement and support tools of persuasion, negotiat...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• List of Figures
• List of Tables
• Contributing Authors
• Preface
• 1 Introduction: Restorative and Responsive Human Services
• 2 Broadening the Applications of Responsive Regulation
• 3 Families and Schools That Are Restorative and Responsive
• 4 Burning Cars, Burning Hearts and the Essence of Responsiveness
• 5 Familiness and Responsiveness of Human Services: The Approach of Relational Sociology
• 6 Families and Farmworkers: Social Justice in Responsive and Restorative Practices
• 7 Children’s Hopes and Converging Family and State Networks of Regulation
• 8 Black Mothers, Prison, and Foster Care: Rethinking Restorative Justice
• 9 Responding Restoratively to Student Misconduct and Professional Regulation: The Case of Dalhousie Dentistry
• 10 Restorative Justice and Responsive Regulation in Higher Education: The Complex Web of Campus Sexual Assault Policy in the United States and a Restorative Alternative
• 11 Responsive Alternatives to the Criminal Legal System in Cases of Intimate Partner Violence
• 12 Responsive and Inclusive Health Governance Through the Lens of Recovery Capital: A Case Study Based on Gambling Treatment
• 13 Why Do We Exclude the Community in “Community Safety”?
• 14 Learning from the Human Services: How to Build Better Restorative Justice and Responsive Regulation
• Index