Discourse and Diversionary Justice

An Analysis of Youth Justice Conferencing

Michele Zappavigna, JR Martin, Martin JR

• Publisher: Palgrave Macmillan
• Year: 2017
• Print ISBN:
  9783319637624
• eBook ISBN:
  9783319637631
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

This book analyses the Youth Justice Conferencing Program in New South Wales, Australia. Exploring this form of diversionary justice from the perspectives of functional linguistics and performance studies, the authors combine close textual analysis with ethnographic research methodologies. They examine how participants use the discourse semantic resources available to them to achieve such outcomes as reparation for the victim, reintegration of the offender into the community, and reconciliation between the various parties. This uniquely-researched work is sure to be of interest to students and scholars of applied linguistics, sociolinguistics and discourse analysis.

© The Author(s) 2018

Michele Zappavigna and JR MartinDiscourse and Diversionary Justicehttps://doi.org/10.1007/978-3-319-63763-1_1

Begin Abstract

1. Approaching Restorative Justice

Michele Zappavigna¹ and JR Martin²

(1)

School of the Arts & Media, UNSW Australia, Sydney, NSW, Australia

(2)

Department of Linguistics, University of Sydney, Sydney, NSW, Australia

An early draft of this chapter was revised by Paul Dwyer , and subsequently reworked for inclusion in this monograph.

End Abstract

1 Youth Justice Conferencing and the Purpose of This Study

Imagine a late Friday night in a fairly large regional city. People are pouring out of the pubs and clubs, looking for a way to get home. A fight breaks out between two young women, one of whom is soon on the ground trying to shield herself from frequent kicks to the belly. Her assailant (who doesn’t know the other girl is pregnant) is later charged with assault and resisting arrest. Imagine two groups of boys meeting near a suburban train station ‘to sort things out’. One boy chases another down the street, and then realizes his adversary has pulled out a knife. The pursuer, now pursued, grabs some rubble from a derelict building and soon a volley of bricks and obscenities are flying across the street, over the tops of cars, alarming drivers and onlookers alike. Both boys will be charged with causing an affray. Imagine other scenes of young people, fuelled with too much booze and bravado, getting themselves arrested for swearing, spitting and lashing out at police or else being caught in acts of shoplifting, trespass and vandalism. Wherever you live, it’s probably not too hard to imagine similar, or indeed worse, scenarios. Harder, of course, is to imagine ways of addressing the consequences of such crimes.

In the state of New South Wales (NSW) , Australia, where these incidents occurred and where the research for this book was undertaken, the response to juvenile crime seems typical of the way Western liberal democracies are responding to crime in general. It is a response in which, as Bourdieu (1998: 2) once put it, ‘the right hand [of the state] no longer knows, or, worse, no longer really wants to know, what the left hand does’. As our major political parties have sought to outdo each other in trumpeting their tough law and order credentials (policies of ‘zero tolerance’, restricted access to bail, mandatory sentencing and the like), the number of young people incarcerated in juvenile detention centres in NSW has been climbing.¹ At the same time, among many legal reform advocates, policy advisers, welfare agencies, police and some politicians, it is also understood that a custodial sentence for a juvenile offender mostly represents systemic failure—failure to support a family and kids in crisis through early intervention, failure in parenting, failure in schools, failure to learn from previous, lesser offences and failure when it comes to imagining alternative pathways to rehabilitation.² Gradually, the push for new ways of doing justice has gained momentum. Governments in many jurisdictions worldwide have begun to experiment with a range of alternative legal processes and diversionary sentencing programmes as a way to address systemic failures.

Throughout this book, we offer detailed descriptions and analyses of one such process, known as ‘youth justice conferencing’, which was established as a key part of the NSW juvenile justice system through passage of the 1997 Young Offenders Act . A typical youth justice conference brings the Young Person (YP) face to face with the Victim of his or her crime (or someone chosen to represent the victim’s perspective), in the presence of each party’s family members, friends, a Police Youth Liaison Officer (YLO) or Ethnic Community Liaison Officer (ECLO)³ and perhaps one or two workers from local community organizations (schools, sporting clubs, youth centres and so on). The conference is convened by a private citizen who, while trained and accredited by the state to do this work, is not acting in a direct judicial or law enforcement capacity. Rather, the Convenor’s role is to facilitate a ‘structured conversation’ (Moore and McDonald 2000: 14) in which participants are encouraged to discuss not only how the crime occurred but also how they have been personally affected by any material damages, emotional/psychological distress or harm to relationships. Expressions of remorse and forgiveness may be exchanged and, together, participants negotiate the design of an ‘outcome plan ’ in which the YP commits to carrying out certain tasks (for instance, some unpaid community work for a welfare organization) as a way of making amends for their offending behaviour.

Given the pervasive ‘get tough on crime’ rhetoric of so many politicians, the introduction of youth justice conferencing represents a remarkable investment of hope in what we might almost think of as a talking cure for the consequences of crime. Certainly, there is an understanding here that speech (and not only speech) is performative—a way of getting things done. The difficult negotiations of a conference unfold through the interplay of words, facial expression, gesture , movement, dress and seating arrangements. Through these multiple modes of communication, a YP is called upon to demonstrate acceptance of his or her responsibility for a crime while a victim, it is hoped, experiences relief from fear and anxiety. The expectation of legal reform advocates seems to be that a better quality of justice is possible in a setting that is less alienating or intimidating than a courtroom and without the mediating influence of litigating lawyers.⁴ To have participants sit together in a circle, looking one another in the eye (or perhaps momentarily shunning eye contact out of a certain sense of shame) and to have them talk about their feelings is taken to be a major step towards shifting attitudes and future behaviour.

Such assumptions warrant further investigation. Despite the relative informality, there is no guarantee that conference participants are meeting on a ‘level playing field’ in terms of access to meaning-making resources. Indeed, the interactions in a conference are likely to be every bit as complex as some of the elements of courtroom discourse (the cross-examination tactics of lawyers; judges’ instructions to juries and so on) that have been so usefully analysed in the field of forensic linguistics (see Gibbons 2003 for excellent overviews of this research; see also Conley and O’Barr 2005; Eades 2008, 2010 ). To date, however, diversionary forms of justice such as conferencing have received almost no attention from forensic linguists; nor has there been much in the way of discourse analysis in the large body of criminological research into these forms.

The purpose of this book is to offer a fully grounded, empirical account of how the participants in a youth justice conference use the resources available to them—literally, the way they make meanings and interact with one another through spoken discourse and other embodied modes of communication—in the process of negotiating new ‘identity scripts ’ and promoting reintegration of the offender into family and community networks. In pursuing this agenda, we aim at the following:

• To raise consciousness of the language structures and embodied modes of communication that practitioners of restorative justice processes such as YJCs are responsible for managing
• To show how close-up discourse analysis illuminates, but also calls into question, some key notions in current restorative justice theory and research
• To encourage a wider focus of research within the field of forensic linguistics , including greater attention to diversionary processes such as conferencing
• To expand the range of tools available to linguists engaged in similar sorts of ‘multimodal’ discourse analysis, particularly in relation to projects concerned with how identities are jointly constructed and performed within the constraints and possibilities afforded by different genres

As noted in the Preface to this book, we come to this project as outsiders to the disciplines of criminology, transitional justice and social psychology within which the bulk of research on restorative justice has been carried out. There are bridges to be built between this body of research and the discipline of linguistics. In addition, there are pathways that we will need to signpost for linguists with complementary theoretical orientations who we hope will follow us in this interdisciplinary endeavour. To begin, we will contextualize the practice of conferencing with respect to key ideas, processes and research traditions within the broader restorative justice movement of which YJCs are a part. We will then outline the key theoretical and methodological perspectives that have informed our particular approach to discourse analysis.

2 The Contested Field of Restorative Justice

The range of practices to which the label ‘restorative justice’ has been attached in recent decades has become so eye-blurringly wide that no single definition or simple genealogy can adequately account for all usages. It is a contested term but it is nevertheless useful as a ‘sensitizing theory’ (Zehr 1990: 227)—a clustering of concepts that, at the very least, encourage persistently useful questions about what we might want a justice system to deliver for victims, offenders and other parties.

In practice, most attempts to define restorative justice involve a ‘process conception’ or a ‘values conception’ or a combination of both (Braithwaite and Strang 2001: 11–12). For example, the initial description of youth justice conferencing we offered earlier has process features that would be immediately recognizable to restorative justice practitioners working in many different jurisdictions worldwide. Precursors to conferencing can be readily found in the programmes of Victim–Offender Mediation (VOM) or Victim–Offender Reconciliation Programmes (VORPs) that started in North America and Europe during the 1970s and 1980s (see Maxwell and Morris 2001; Aertsen and Willemsens 2001). Parallel developments include the growing use of Circle Sentencing among indigenous communities of Canada and Australia (see Dickson-Gilmore and La Prairie 2005). A key process issue around which these programmes differ has to do with defining interests: who needs to be brought into the circle of stakeholders? On this scale, we might see conferencing as more expansive than VOMs but often less inclusive o...

Table of contents

• Cover
• Frontmatter
• 1. Approaching Restorative Justice
• 2. Conference Design: Genre and Macro-GenreMACRO-GENRE
• 3. Conference Interaction: Exchange Structure
• 4. Expressing Feeling: Appraisal Systems
• 5. Negotiating Feeling: The Role of Body Language
• 6. Performing IdentityIdentity: A Topological Perspective
• 7. Ceremonial Redress: How Conferencing in Fact Achieves Its Goals
• Backmatter