Restorative justice
In 'Restorative Justice' guilt is admitted, apologies offered and - in some cases - the damage is repaired
'The Home Office is marketing it as home-made justice. So it may be, though the planned panels have no real power to punish and the aim is to resolve specific quarrels rather than to deter wrongdoing in general, a break with the traditions of English law. But it also forms part of a long-running cost-cutting exercise, under which huge numbers of offences are dealt with through cautions and fixed penalties, more than 100 magistrates' courts have already been closed, and fewer and fewer offenders ever experience traditional trials.' As always, the cynical view is that economic imperatives are the underlying drivers What does damage being 'repaired' mean?
Satisfaction
According to the Ministry of Justice, surveys on restorative justice have found that victims report an 85% satisfaction rate. A drop of around 14% in reoffending rates was recorded among perpetrators. Things that are perceived to work are very attractive...but efficacy should always be scrutinised
Mediation- Avoiding Stigmatisation
Criminal convictions have a stigmatizing effect which makes it harder for offenders to 'go straight'; cases should therefore be diverted where criminal prosecution is not essential. In New Zealand and several European countries a substantial number of minor offences are diverted in this way. Restorative justice is an effective way of doing so, because it is not a 'let-off': it makes more demands on offenders than punishments do, in facing up to the effects of their actions on victims.
Mediation - The method
Programmes on victim-offender mediation or reconciliation are mostly set up for a restricted target group. The large majority of programmes is oriented to young or first offenders who have committed minor property crimes. However, victim-offender mediation programmes that will promote the 'reacceptance' or reintegration of the offender have proliferated in many western industrialized countries during the last twenty years. Fairly narrow application of this approach; mostly young offenders and minor crimes
Bruce, J. (2013). Understanding Back Stage and Front Stage Work in Restorative Justice Conferences: The Benefits of Using Ethnographic Techniques. Current Issues Crim. Just., 25, 517
RJ is orchestrated, social life as a theatre Chairing: Prompts, cues and signals Facilitators can help young offenders give a detailed account of what happened to assist them to demonstrate that they understand what they did was wrong and accept responsibility for their offending behaviour. Convenors can play an important role in prompting young offenders for more information to demonstrate to the other participants that they understand what they did was wrong. Prompting For example, in a conference for fare evasion the convenor departed from the scripted questions when the young offender said she 'did not know' what the effect of the crime was. The convenor prompted her to consider, 'What would happen if hundreds of people didn't pay for tickets?' The young offender demonstrated she understood: 'It was ripping off the system.' Script After hearing the impact of the offence on the victim, the script moves to invite other participants to speak and then finally, after hearing from everyone, the convenor prompts the young person with the following question: 'Before we move on, is there anything you want to say to (the victim), or anyone else here?' This is the moment in the conference when, if the offender has not already apologised upfront in the early stages of the conference, an apology is offered (or not). Orchestrating Some Apologies Although some young offenders spontaneously apologise, facilitators play a part in orchestrating some apologies. For example, in a conference for a shoplifting matter, the young offender had written an apology letter and brought it to the conference, but the convenor also signalled to the offender to apologise in person, to 'do a verbal apology'. After the young girl apologised to the store (victim) representative, the convenor asked the victim representative whether he accepted the apology, which he did. But without the facilitator signalling for this exchange to take place, an in-person apology would not have been communicated. Anticipating Agreements Convenors in the program I studied were expected to encourage the young person and the victim to consider proposals for the agreement to be discussed and negotiated at the conference, anticipating agreements before a conference. Accounts of restorative justice often focus on the decision-making that takes place at conferences, whereas this achievement is based on a series of pre-conference negotiations. Contingency Plans Convenors had different strategies they used in the back stage region of conferencing. Some convenors developed a range of contingency plans so that if the young person was thinking he or she would like to offer to do some voluntary work as part of the outcome plan, the convenor contacted potential organisations to make sure it was feasible. Sincere or fake? Discussing in-depth options for the agreement before the conference was one way that convenors could reduce the likelihood for disagreements and increase the chances of a consensus being achieved. Even though convenors regularly talk about the outcome as something to be decided at the conference, prior to the meeting contingency planning and negotiations take place to minimise unwanted conflict and expedite the conference process.
Conflict as Property
Christie (Norway) 1977, conflicts as property (BJC) Centralised state power stole the conflict A form of alienation, no empowerment Lawyers and judges The victim of crime is the loser The loss of opportunities for norm clarification Non public process in which all stakeholders are involved Conflict is 'something of value, a commodity not to be wasted Victim 'has a need for understanding, but is instead a non-person in a Kafka play' Offender: awareness, responsibility and blame Participation is more important than solution
Key concepts
Conflict as Property Reintegrative shaming and Restoration Mediation Reparation Something of a medical model in many respects - the malady and its consequences can be healed
What is Restorative Justice?
A system of criminal justice that focuses on rehabilitation. In recent years, restorative justice has become a viable response to crime in many countries around the world. This response to crime, or other wrongdoing, typically involves having victims, offenders, and community members come together to find a way to restore the relationships harmed by an offense. It is a 'joined-up' approach or response to criminality; it reflects the recognition of crime in the broader terms of 'harm' - crime as 'harm' goes beyond the simplistic transgression of black letter law and in turn takes the response to harmful behaviours beyond the notion of punishment as simply retribution or incapacitation. Sometimes restorative justice takes the form of victim-offender mediation, whereby the victim and the offender meet and agree to a means of repairing the harms done. Ideally, however, restorative justice offers opportunities for the involvement of the wider community. Restorative justice programs are becoming widespread, with many focused on youth offending. Would you as victim/offender want to participate in it? Break in Street robbery Murder of close friend/family member Example: The Meeting - Surviving Rape by RJ Council, Jo's Story https://www.restorativejustice.org.uk/resources/jos-story The most influential development in crime control in the last decades Variety of forms In many different countries The overall purpose of restorative justice is not to inflict punishment in proportion to the seriousness of the offence, or to incapacitate offenders so that they pose no further risk to the public, but 'the restoration into safe communities of victims and offenders who have resolved their conflicts'. Third of the 3 'R's Retribution; Rehabilitation - restoration. Trying to put things back to how they were before the transgression - for the victim; the offender and wider society: intrinsic link to notion of rehabilitation Third party facilitator Sentencing: reasonable/appropriate Main stakeholders represent themselves Informal setting Process is informal Absence of jargon Direct (emotional) communication Encounter: storytelling, reciprocal understanding, awareness Participation: full and direct involvement Reparation: perpetrator makes amends for harm Reintegration: full members/active community Preventing offending: decline of re-offending rates Satisfying victims: healing Benefiting criminal justice agencies: harms repaired/people have a greater stake Monetary saving: cheaper/more efficient
Daly, K., 2017. Restorative justice: The real story. In Restorative Justice (pp. 85-109). Routledge.
Advocates' claims about restorative justice contain four myths: restorative justice is the opposite of retributive justice; restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice; restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice' (or masculine) response; and restorative justice can be expected to produce major changes in people. Drawing on the South Australia Juvenile Justice (SAJJ) project dataset, this article analyses youth peer violence ('punch-ups') with a focus on girl-on-girl assaults. Offenders may 'admit' to offending, but deny that their actions are wrong. For girls' punch-ups, the status of 'victim' and 'offender' is contested, with both protagonists seeing themselves as 'victims' (or as 'non-offenders'). Although some offending girls say their violence is justified, their female victims are hurt and traumatised, some with significant long-term effects. Despite what advocates say, there are connections between retribution and restoration (or reparation), restorative justice should not be considered a pre-modern and feminine justice, strong stories of repair and goodwill are uncommon, and the raw material for restorativeness between victims and offenders may be in short supply.
Discussion
Focuses on the harms and consequent needs of the victims, as well as those of the communities and the offenders. Addresses the obligations that result from those harms (the obligations of offenders as well as of communities and society). Uses inclusive, collaborative processes to the extent possible. Involves those with a legitimate stake in the situation, including victims, offenders, community members, and society. Seeks to put right the wrongs Restorative justice is much advocated as a fruitful response to offending. There is need for further debate about the proper division of functions between state, victims, offenders and 'communities', and for greater emphasis upon procedural safeguards and substantive limits in the pursuit of the apparently beneficent goals of restorative justice. (Andrew Ashworth) Can/should justice be bespoke? Or should it be, in line with historic conceptions of justice - universal? A level playing field? A criticism of the very bespoke restorative justice conferences are that they can undermine that universality. So, is it better that justice remain formulaic? The model is a consensual one but questions have been raised regarding the authenticity of consent (pressure from within the system to choose the RJ route). Whilst RJ is supposed to be putting the victim at the centre there is much bias in the literature towards the welfare of the offender ... but is that a bad thing if the aspiration and rationale for RJ is the reduction of re-offending? How realistic is this model - is it more idealistic? To what extent should efficacy be the driving rationality and justification? What are the implicit assumptions about human nature? How broad can its application be given the enduring imperative for public protection? Is there a distinction between shame and stigma? Who's criminal justice system is it? Consider critically the aspirations and outcomes for all concerned (including crime control) in reality Would you as victim/offender want to participate in it? Break in Street robbery Murder of close friend/family member
Kelvin's story
Going to prison, that's just running away and getting away from it all. But to actually go into a room and sit down knowing that they're going to walk through that door in a few minutes time and want to know why you stole from them - that's scary for me. Every time, it kind of broke me, but it made me as well. I was looking in their eyes and thinking I don't know these people, they don't know me, they've never done anything wrong in life, as far as I can tell, and I've taken their things. A lot of people would have said, "No, I'm not doing that", but I tried to give them the best explanation I could, and apologise for what I'd done. Personalizes the criminal behaviour - makes it less abstract. Much criminality is carried out within a context that the criminal is free to contextualize themselves - rationalised in their own head in such a way as to justify it to themselves. Bringing the victim into the scenario with them reveals to the offender the real context. Thoughts on restorative justice I created victims by coming to jail. My family is a victim. I left a financial load on my parents with lawyer's fees. That's a victim itself. My parents worry about me. My family worries about me being in prison. [Crime] disturbs people. It puts them in fear. There's a sense of trust that is broken. Now I can see that it's an obvious trauma effect [for the victims]. I can see that's something I could have caused. That became more clear in the restorative justice circles.
Thames Valley Police
In 1994, Thames Valley Police (in the UK) began experimenting with restorative justice cautioning, in the Milton Keynes area. The initiative was enthusiastically promoted by the then Chief Constable of Thames Valley Police, Sir Charles Pollard. One of his central claims was that re-offending rates had declined from 30% to 4% in Aylesbury as a result of restorative cautioning. This remarkable claim was instrumental in persuading key individuals, both within and outside Thames Valley Police, that greater use should be made of restorative methods within criminal justice. Things that are perceived to work are very attractive... Crime statistics are notoriously open to interpretation and manipulation. For many reasons there have been and are ways in which the imperative to 'demonstrate' reductions in crime can prove to be not what they seem.
'Restorative Justice: Healing the Foundations of Our Everyday Lives' (Sullivan 2001)
Navajo "peacemaking," which is a formal communal response to help address harms done to community members through crime; family group conferencing, which enlists the family as a positive force in helping settle disputes and in responding to social situations when someone is harmed; community sentencing circles, in which victims and other stakeholders in the harm done determine what should be done to bring healing to victims, the offender, and the community; and victim-offender reconciliation programs. Very interesting account in the reading that alludes to the way in which native American Indians deal with offenders and also how the Maori community of New Zealand employ a family/community orientated model of reintergrative shaming
Research
Over the past four decades, the victim movement worldwide has agitated for an enhanced role for victims in the criminal justice system. Strang presents empirical evidence to show that the restorative alternative of conferencing more often than court-based solutions has the capacity to satisfy victims' expectations of achieving a meaningful role in the way their cases are dealt with as well as delivering restoration, especially emotional restoration, from the harm they have Suffered. Strang (2004) 'Repair or revenge victims and restorative justice'
Reintegrative shaming and Restoration
Reintegrative shaming' means inducing a sense of shame with a perspective of reintegration ('shame on you'). It is not the same as 'reintegrative shame' ('I am ashamed'). In reintegrative shaming the active part is not played by the offender, but by the person inducing shame, who may be the representative of society, the mediator, the judge or, possibly, the victim. The offender is the object of this action. The purpose of inducing shame is to promote reintegration, which can best be achieved if the shaming is followed by 'gestures of reacceptance into the community of law-abiding citizens' (Braithwaite, 1989, p. 55) Classic parenting strategy - mum and dad try and make 5/10 year old Johnny feel bad but they still love him - they're not going to kick him out! Need someone involved who is capable of having that effect on the offender
Responsibilisation
Structural injustices and problems play a role in many crimes, conflicts, and traumas and restorative justice is in danger of overlooking or even perpetuating such injustices by individualizing conflicts and harms. Restorative Justice practices are susceptible to unconscious biases—of gender or culture, for example. Sure, personalising can lead to the obviation of the myriad of environmental and developmental causes of crime: poverty, social control theory... And sure, this bespoke model arguably can undermine the level playing field of the universal model and allow back in or exacerbate biases It is believed that without such expression (or a "sign" of such expression), complete reparation is not possible. An ethical question arises in the practice of restorative justice: should symbolic reparation be coerced or would this be considered contrary to the tenets of a restorative justice process? There are arguments of course that participation is often coerced
Sycamore Tree Project
The Sycamore Tree Project brings together unrelated victims and offenders (that is, they are not each others' victims and offenders). Using a curriculum guide a facilitator leads the participants to consider concepts of responsibility, confession, repentance, forgiveness, amends and reconciliation in the context of crime and justice.
History of Restorative Justice in the UK
The first experiments with mediation in criminal justice occurred in Britain during the 1980s. The 1980s witnessed the first victim-offender mediation projects, the first community mediation programmes for neighbour disputes, the first conflict-resolution training classes for school children, the beginning of a major expansion in the use of mediation in civil justice cases, and the formation of an umbrella voluntary organisation representing these new initiatives and promoting the use of mediation for all types of conflict Victim-offender mediation began in isolated cases when individual probation officers or social workers saw suitable opportunities in the normal course of their casework. They were motivated, generally because of their religious beliefs, to promote reconciliation and seek alternatives to what they saw as a destructively punitive approach inherent in criminal justice. The notion of mediation as a practical response to criminality started to evolve in the 1980s. Very much out of the desire of some in the CJS who were looking for an alternative to what they saw as a pretty negative way of dealing with social transgression. The assumption here being that the existing ways of responding to transgression didn't really solve anything.
Restorative justice pilot scheme to begin at 10 courts (2013)
The first victim-led, restorative justice programmes started in crown courts across England and Wales in 2012 in an attempt to cut reoffending rates. Requests for face-to-face meetings following a crime are normally initiated by the offender under restorative justice schemes. But a new pilot project in 10 crown courts will reverse the process, enabling victims to approach offenders before a sentence has been imposed.
Strang (2004) 'Repair or revenge victims and restorative justice'
The notion of personalising justice by putting the victim at the centre of the CJS rather than the state is a growing aspiration and the argument is that the Restorative Justice approach can do this better than the courts Using a quasi-experimental design, the research gathered quantitative and qualitative information by means of 1,153 interviews with crime victims and juvenile offenders, reviews of program and court records, interviews with court officials and program staff, and observation of 28 mediation sessions. Results revealed high levels of client satisfaction and perceptions of fairness. Victim-offender mediation helps reduce fear and anxiety among crime victims. Court officials strongly support victim-offender mediation. The program also increases the likelihood that an offender will successfully complete the restitution obligation. Umbreit, Coates, KalanjDate (1994) 'Victim meets offender: the impact of restorative justice and mediation'
Reparation
The punishment Reparation material and psychological reparation following offender/ victim mediation and also symbolic and (partly) material reparation through community service, contributes towards the recognition and restoration of the other individual's dominion and towards confirmation of the society as an ordered community, secure in its rights. Braithwaite and Pettit expressly give preference to 'punishments' that include a restorative option. 'The reprobation and reintegration presumptions lead us to favour restitution as a form of punishment; it symbolizes the harm, connoting through its content the wrong that was done' (Braithwaite and Pettit, 1990, p. 127). Both direct restitution to victims and community service are indicated as the most preferable sanctions. The aim is both an individual and direct psychological repair for both the victim and the offender; a practical reparation to the wider community through for example community service - and indirectly through this to the victim (there is a visible although more passive punishment by way of community service; and there is a symbolic repair directed to the wider community who's normative values have been transgressed.
