The Restorative Justice Ritual

Lindsey Pointer

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367560799
• eBook ISBN: 9781000331875
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

Restorative justice is an innovative approach to responding to crime and conflict that shifts the focus away from laws and punishment to instead consider the harm caused and what is needed to repair that harm and make things right. Interest in restorative justice is rapidly expanding, with new applications continuously emerging around the world. The restorative philosophy and conference process have shown great promise in providing a justice response that heals individuals and strengthens the community. Still, a few key questions remain unanswered. First, how is the personal and relational transformation apparent in the restorative justice process achieved? What can be done to safeguard and enhance that effectiveness? Second, can restorative justice satisfy the wider public's need for a reaffirmation of communal norms following a crime, particularly in comparison to the criminal trial? And finally, given its primary focus on making amends at an interpersonal level, does restorative justice routinely fail to address larger, structural injustices?

This book engages with these three critical questions through an understanding of restorative justice as a ritual. It proffers three dominant ritual functions related to the performance of justice: the normative, the transformative, and the proleptic. Two justice rituals, namely, the criminal trial and the restorative justice conference, are examined through this framework in order to understand how each process fulfills, or fails to fulfill, the multifaceted human need for justice.

The book will be of interest to students, academics, and practitioners working in the areas of Restorative Justice, Criminal Law, and Criminology.

1Introduction

During the trial of the so-called “Urewera Four” in 2012, Māori activist Tame Iti stood in the dock with three other defendants, looking out at a packed courtroom. Iti and his co-defendants were facing charges for illegal possession of firearms and belonging to a criminal group. Over the course of a year, police had gathered evidence of what the prosecution claimed was a criminal group in the mountainous Te Urewera region, carrying out weapons training for the purpose of mounting an armed struggle against the state. Iti and the other Tūhoe¹ people involved claimed the camps were a place to learn tikanga² and to prepare people for employment in the security industry. They denied any criminal intent to their activities.

Throughout the trial, defense counsel Russell Fairbrother repeatedly spoke of “two worlds.” He stressed how different the Ruatoki region in the remote Ureweras is from the rest of New Zealand, explaining that the unlicensed guns, camouflage, and balaclavas seen in the surveillance videos are all very common there and necessary for hunting food in the forest, which is widely practiced due to both cultural tradition and poverty. Actions and words that appeared threatening from the Pākehā³ worldview are not threatening within the Tūhoe world.

The jury ultimately found Iti guilty of illegal possession of firearms and he was sentenced to two and a half years in prison. When Justice Rodney Hansen summed up the case for the jury, he harkened back to the argument of two worlds stating, “There may be two worlds, but there is only one law. That is the law which binds us all and according to which you must make your verdict.”⁴ This assertion of the normative and universal role of law in the state’s response to Iti’s activity in Te Urewera speaks directly to the function of the criminal trial. The criminal trial is a ritual system oriented around and aimed at producing a normative concept of legal justice.⁵ In the documentary The Price of Peace, Iti refers to the criminal trial as a sort of performance, stating, “We participate in the show, the theatre.”⁶ In this performance of justice laws are upheld, and the social values communicated by those laws are reaffirmed.

While the performance of the criminal trial of the Urewera Four enacted the normative dimension of justice by upholding the laws that had been violated, other justice concerns were not addressed. Foremost among these was the harm suffered by Tūhoe at the hands of the New Zealand Police. After a year of gathering evidence through covert surveillance, the police executed a major raid in 2007, leading to the arrest of 17 people on charges of illegal possession of firearms. The raid was carried out during the night and involved an excessive display of force and hostility, causing severe trauma for the family members of those arrested.⁷ These harms and the resulting justice needs were not addressed through the criminal trial. Furthermore, Tūhoe saw the raids, surveillance, and the trial as a continuation of the violence and discrimination they have suffered at the hands of the Crown for over 150 years.⁸ The justice performed through the trial and sentencing of Iti offered no movement toward better relations between the “two worlds.”

Iti was released from prison after nine months due to good behavior and he returned home to Te Urewera. In August 2014, another sort of justice ritual was performed. Representatives of the New Zealand Police traveled to Te Urewera to offer a formal apology for their actions during the 2007 raids. Iti and the children in his family greeted the Police Commissioner, Mike Bush, and other senior members of the police when they arrived in the community. Each child stepped forward and placed a rautapu (leaf) on the ground, a symbol used in the traditional pōwhiri⁹ ceremony to ascertain the intentions of the visiting party, whether or not they come in peace. By picking up the leaf, the police communicated their peaceful intention and placed themselves in the care and hospitality of Iti’s whānau.¹⁰ Following the welcome ceremony, police officials met individually with five of the families most affected by the raids.

While not acknowledged as such, this meeting between Tūhoe and the New Zealand Police contained many of the hallmarks witnessed in a restorative justice process. The entire process was couched in restorative dialogue as each person had a chance to speak of how he or she had been impacted by the police raids, to which the Police Commissioner, Mike Bush, responded with acknowledgment and apology. The meeting with Iti’s family ended with a handshake and the exchange of a hongi.¹¹ After meeting with the families, the police were invited to share a meal at the marae,¹² cementing the commitment to a new beginning in the relationship between the police and Tūhoe. Viewed from the perspective of ritual theory, this encounter was a carefully managed and symbolically rich process aimed at resolving animosity and strengthening a commitment to better future relationships.

The handling of Iti’s case through the criminal trial and the restorative justice encounter that took place in Te Urewera illustrate two distinct modalities for performing justice. The structural components of each modality make them uniquely suited to fulfilling particular justice needs. After the completion of the trial and the sentencing of the Urewera Four, justice had ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgments
• Chapter 1: Introduction
• Chapter 2: The nature and function of ritual
• Chapter 3: The criminal trial as ritual
• Chapter 4: The transformative function of the restorative justice ritual
• Chapter 5: The normative function of the restorative justice ritual
• Chapter 6: The proleptic function of the restorative justice ritual
• Chapter 7: Conclusion
• Index