Restorative Justice in Practice

Evaluating What Works for Victims and Offenders

Joanna Shapland, Gwen Robinson, Angela Sorsby

• Publisher: Willan
• Year: 2011
• Print ISBN: 9781843928461
• eBook ISBN: 9781136652950
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Restorative justice has made significant progress in recent years and now plays an increasingly important role in and alongside the criminal justice systems of a number of countries in different parts of the world. In many cases, however, successes and failures, strengths and weaknesses have not been evaluated sufficiently systematically and comprehensively, and it has been difficult to gain an accurate picture of its implementation and the lessons to be drawn from this. Restorative Justice in Practice addresses this need, analyzing the results of the implementation of three restorative justice schemes in England and Wales in the largest and most complete trial of restorative justice with adult offenders worldwide. It aims to bring out the practicalities of setting up and running restorative justice schemes in connection with criminal justice, the costs of doing so and the key professional and ethical issues involved.At the same time the book situates these findings within the growing international academic and policy debates about restorative justice, addressing a number of key issues for criminal justice and penology, including:

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• how far victim expectations of justice are and can be met by restorative justice aligned with criminal justice
• whether 'community' is involved in restorative justice for adult offenders and how this relates to social capital
• how far restorative justice events relate to processes of desistance (giving up crime), promote reductions in reoffending and link to resettlement
• what stages of criminal justice may be most suitable for restorative justice and how this relates to victim and offender needs
• the usefulness of conferencing and mediation as forms of restorative justice with adults.

Restorative Justice in Practice will be essential reading for both students and practitioners, and a key contribution to the restorative justice debate.

Developing restorative justice with adults

1
Setting the scene

Introduction

Few would dispute the observation that the ideas, theories and practices which we have come to understand as ‘restorative justice’ have in the last 25 years or so grown considerably in their spread and influence. This remarkable development, which has been evident in many parts of the world and has spanned a variety of social and cultural contexts, is perhaps most evident in the burgeoning academic literature on the subject. Writing in 2004, Daly observed that in the previous decade some 60 books on restorative justice had been published in English alone, and it is fair to say that this crescendo of scholarly activity shows no sign of abating. This book, of course, simply contributes to and confirms that trend.

Much of the development of restorative justice as a response to offending, however, has been with young offenders, with practice often featuring diversion from formal criminal justice procedures to restorative justice processes. The research we have been undertaking from 2001 to 2008 in England, however, was primarily in relation to restorative justice schemes dealing with adult offenders – and often serious offences. Because the work of the schemes did relate to the serious end of the criminal justice spectrum, it was inappropriate for them to feature diversion for most offences. Restorative justice took place in conjunction with criminal justice – either pre-sentence, during sentence, at pre-release from prison or as diversion. Undertaking restorative justice in these circumstances raised a number of questions which have not always been prominent in previous practice with predominantly young offenders. How can (or should) restorative justice account to criminal justice as well as to participants for what has happened? Should justice be open to view? What is the effect on reoffending? Is restorative justice ever criminogenic? What would victims of serious offences feel about participation in restorative justice? Is restorative justice value for money? How can a new restorative justice service, so associated with criminal justice, be set up and receive sufficient cases? Does conferencing produce different effects to mediation? How can restorative justice outcomes occur when offenders are likely to be sent to prison?

The opportunity of evaluating several different restorative justice initiatives which were designed and funded primarily to work with adult offenders and in relation to serious offences allows us to start to address these questions. First, however, we need to set the scene in relation to the development of restorative justice internationally and how the schemes we evaluated in England relate to those developments.

The theoretical and practical development of restorative justice

The restorative justice agenda or ‘movement’, as it is often described, encompasses a very broad range of practices and approaches, such that a definitive definition has proven elusive. We take the view that restorative justice is best described as a ‘conceptual umbrella’ under which a number of different practices, adopted in a variety of contexts, have found common ground (Shapland et al. 2006b). At its broadest, restorative justice can be understood as a strategy or set of strategies oriented toward the resolution of conflicts or disputes between parties, with applications in a number of arenas: civil, corporate, criminal and political. Thus restorative justice has inspired solutions to issues ranging from school bullying to large-scale political conflicts (for examples of restorative justice in all of these ‘regulatory arenas’, see Roche 2006). It is, however, the criminal arena that specifically concerns us in this book.

As a response to offending, restorative justice has a history that is complicated by the parallel development of its theoretical and practical expressions or dimensions. As Daly and Immarigeon (1998: 21) have explained, restorative justice has ‘sprung from sites of activism, academia, and justice system workplaces’ so that the influences of social movements, academic theorising and real-world practices have tended to overlap and, to a large degree, influence each other. The history of restorative justice is also bound up with a ‘rediscovery’ of apparently ancient practices of dispute resolution among indigenous populations and in (western) pre-modern societies (e.g. Van Ness and Strong 1997; Braithwaite 2002a), although aspects of this ‘prehistory’ have been challenged (e.g. Daly 2001, 2002; Bottoms 2003).

Notwithstanding some resemblance between certain ‘traditional’ approaches to dispute resolution and more recent practices, the ‘birth’ of restorative justice in late-modern western societies is often located in Kitchener, Ontario, where in 1974 a probation officer introduced two young offenders to the victims whose property they had vandalised, with the consent of the judge in their case (Peachey 1989). Also in Canada, ‘circle sentencing’ emerged in the early 1990s as a means of responding to crime specifically within indigenous communities (Stuart 1996; Lilles 2001). However, restorative justice arguably has multiple birthplaces (Roche 2006). Others include New Zealand, which in the 1980s sought to establish new principles and procedures for responding to juvenile crime (and more broadly child welfare/protection issues), culminating in the 1989 Children, Young People and Their Families Act. This established the family group conference as the principal mechanism through which juvenile offending was to be dealt with (Maxwell and Morris 1993). At about the same time, the small Australian town of Wagga Wagga in New South Wales was the birthplace of another (police-led) model of conferencing which was initially used in the context of a police caution. From these multiple points of origin, the various models of restorative justice spread to other parts of the world where they were sometimes adapted or modified and where they became more or less ‘established’.

Although the term itself has been traced back to the 1970s (Eglash 1977),¹ it was not until the 1990s that these developments came to be grouped together and described as operational examples of ‘restorative justice’ by writers such as Zehr (1985, 1990), Wright (1991) and Van Ness and Strong (1997), among others. By the end of that decade, a working definition had emerged which sought to capture the ‘shared essence’ of the various manifestations of restorative justice as a response to offending around the world:

Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.

(Marshall 1999: 5)

Marshall’s definition has not, however, proven entirely unproblematic. As a number of commentators have observed, Marshall’s is a ‘process-focused’ definition, which emphasises the processes of ‘coming together’ and ‘collective resolution’ but has less to say about the desired ‘ends’ of that process or the values that might usefully or appropriately inform it. Others have preferred definitions which emphasise values or outcomes (e.g. see Braithwaite and Strang 2001; Zernova and Wright 2007; Walgrave 2007). Walgrave, for example, has adopted an ‘outcome-focused’ definition of restorative justice as every action that is primarily oriented toward repairing the harm that has been caused by crime. Still others have sought to generate multi-dimensional definitions, in which processes, values and outcomes are all important (e.g. Dignan 2005).

To a large extent, disagreement about how best to define restorative justice has reflected the multiple theoretical roots of and influences on restorative justice, which have in turn generated a variety of ‘visions’ of the restorative justice enterprise, each with their own emphases and ideas about what ‘counts’ as restorative justice. This variety is evident in and goes some way toward explaining the range of practices currently in operation under the guise of ‘restorative justice’ in the criminal arena. So, for example, the emergence of victim-offender mediation in North America is generally linked with the Christian Mennonite movement, which sought to promote the personal reconciliation of victims and ‘their’ offenders. Howard Zehr, perhaps the best known writer in this tradition, advocates ways of bringing victims and offenders together to discuss the offence and seek resolutions capable of repairing any harm caused, thus encouraging the healing and reconciliation of the main parties (Zehr 1985, 1990). The spread of mediation in Europe, however, owes more to the influence of Nils Christie’s writing (Dignan 2005). In his classic paper ‘Conflicts as Property’, Christie (1977) famously argued that in taking responsibility for prosecution, the modern state has ‘stolen’ the conflict from victims, denying them the right to full participation in their case and its resolution. Christie advocated the ‘de-professionalisation’ of responses to crime, so that responsibility for resolving conflicts associated with crime should be returned to those with a personal stake in such matters.

Other restorative justice approaches have been linked more with attempts to develop culturally appropriate responses to criminal behaviour which are capable of including a wider range of ‘stakeholders’. One of the most important factors which inspired the development of family group conferencing in New Zealand was a perceived ‘legitimacy deficit’ in respect of the existing criminal justice and child and family welfare systems in their dealings with minority groups: specifically the Maori population and Pacific Island Polynesians (Maxwell and Morris 1993; Daly 2001; Bottoms 2003). The same is true of circle sentencing in the Canadian context (e.g. Lilles 2001). Daly describes the development of family group conferencing in New Zealand as both a ‘bottom-up’ and a ‘top-down’ initiative, which ‘splices white, bureaucratic forms of justice with elements of informal justice that may include non-white (or non-Western) values or methods of judgment’ (2001: 65). In contrast, the development of police-led (‘Wagga Wagga model’) conferencing in Australia was very much led by professionals and administrators, who sought to bring some of the features of the New Zealand model to bear on the development of police cautioning practices in New South Wales. There then followed a process of drawing more explicitly upon Braithwaite’s (1989) theory of reintegrative shaming, which had been developed in parallel with conferencing initiatives but in relative isolation from them (Daly 2001). With its explicit focus on the reduction of reoffending and central thesis of the superiority of informal crime control methods involving the offender’s ‘significant others’ (whose role is to induce ‘shame’ in offenders as a precursor to acceptance and reintegration), Braithwaite’s theory seemed to offer a constructive solution to the problem of juvenile crime and it has continued to be the key theoretical influence behind police-led conferencing as this has developed in other parts of the world (e.g. Young 2001).

Although the above analysis does not of course capture every theoretical influence on restorative justice practices (see, for example, Daly and Immarigeon (1998) for a wide-ranging discussion of the multiple ‘streams of influence’ on restorative justice in North America), it nonetheless gives a flavour of some of the key ideas at work. To the extent that these can be said to have a common source or point of reference, one element lies in their focus upon bringing people together and empowering them to discuss the offence, its aftermath and, sometimes, the future. Another is in their dissatisfaction with some aspects of modern, predominantly western, criminal justice systems, processes or outcomes.

In relation to the comparison with criminal justice, although to a large degree their critiques have tended to overlap, different theoretical ‘streams’ have tended to emphasise different ‘justice deficits’. So, for example, Braithwaite’s (1989) theory of reintegrative shaming can be understood principally as a critique of criminal justice’s poor performance in respect of crime reduction outcomes, whereas for the Christian Mennonite movement it is the typically adversarial nature of criminal justice which has aroused critique. Dignan (2005) has described the Mennonite tradition as part of a collection of perspectives which share in common a desire to ‘civilise’ criminal justice, in two senses of the word: first, by reconceptualising crime as a ‘civil wrong’ (rather than an offence against the state), thereby creating a meaningful role for victims; and second, by pursuing more humane and constructive ‘justice outcomes’. Others have gone further, seeking to involve members of communities (variously understood) beyond the immediate victim and offender in responses to crime. Elements of this ‘communitarian’ perspective (Dignan 2005) are to be found in the work of both Christie and Braithwaite, among others. Perceptions of procedural justice deficits (Tyler 1990, 2006) in criminal justice processes also feature, implicitly or explicitly, across a number of theoretical ‘streams’.

To the extent that restorative justice which seeks to respond to offending can be understood as a critique of criminal justice, it is hardly surprising that the relationship(s) between these two ‘families’ of justice responses has ignited considerable debate and disagreement among advocates and commentators (for example, see von Hirsch et al. 2003). For some advocates, restorative justice has been conceived as an alternative, ‘third way’ between traditions of r...

Table of contents

• Contents
• List of tables and figure
• List of abbreviations
• Acknowledgments
• Developing restorative justice with adults
• Experiencing restorative justice
• Looking back at restorative justice: what do people think it achieved?
• Notes
• References
• Index