Restorative justice and mediation

Paper to conference on “Probation methods in criminal policy: current state and perspectives”, Popowo, near Warsaw, 20-21 October 2000. Published in Polish as “Sprawiedliwość naprawcza i mediacja” in: Senat Rzeczypospolitej Polskiej (2001) Probacyjne środki polityki karnej – stan i perspektywy. Warsaw: DziałWydawniczy Kancelarii Senatu.  

BACKGROUND: The probation context

May I begin by saying something about probation in England and Wales, so that Polish readers can make comparisons with the way it has developed in Poland. It originated in 1876 as an unofficial, voluntary service; at first it had a religious motivation. In 1908 the Probation of Offenders Act made it part of the official system; its philosophy was that probation officers should ‘Advise, assist and befriend.’ Legally it was not a sentence but an alternative to a sentence – a way in which the court could give the offender ‘another chance’. (In England, conviction and sentence are separate.) Before a probation order could be made, the offender had to give his or her consent; The order consisted basically of supervision, but the court could add extra conditions.. If the offender did not comply, s/he could be brought back to court and sentenced.

As time went on, the Probation Service took on extra tasks within probation orders – day centres, literacy schemes, hostels; and it was given extra duties especially for courts – writing pre-sentence reports, providing hostels for offenders released on bail before trial, community service orders, money payment supervision orders, supervision of prisoners released early on licence (parole). You could say that the prison service provided custody, and the probation service provided almost everything else for the courts. In particular, probation makes it possible to avoid the use of prison in some cases, and it helps to limit the damage caused by imprisonment, by providing after-care for ex-prisoners, and also what is called ‘through-care’, in which probation officers keep in touch with prisoners during their sentences and help them to keep in touch with their families. There are now more than 7000 probation officers.

Gradually the structure of the probation service changed; originally there were over 50 services, all locally based with their own supervisory committees, but in the second half of the century it became more hierarchical, and in 2001 it will become a national service.

Under government pressure the philosophy has changed from helping to controlling. This is a managerial approach with performance indicators, and new aims such as protecting the public, preventing re-offending, and rehabilitating offenders; but many individual probation officers feel that this reduces the most important part of their work, which is working with offenders. Since 1991 probation is a sentence (previously it was an alternative to a sentence), and sometimes it is even described as punishment. From April 2001, offenders will receive one warning for failing to comply with an order; on the second occasion, they will be returned to court (Criminal Justice and Court Services Bill 2000). Probation officers and criminologists are predicting that: this will increase the prison population, but will have no effect on crime.

As an indication of official thinking, there will be some changes of name: a probation order will become a ‘community rehabilitation order’, and a community service order will become a ‘community punishment order’. The latter change is out of harmony with the ‘restorative’ concept that the offenders should be encouraged and enabled to make amends for the harm they have caused.

Although volunteers are not used by the probation service as much as they are in Poland, there is increasing use of ‘partnership’. This is a system in which the probation service employs voluntary (non-governmental) organizations to carry out some functions, and the NGOs often use volunteers..

The probation service and victims

Victim Support began in 1974, and spread nationwide over next 15 years. There are now over 350 local services, each with its own management committee. Probation officers (and police) were active in establishing local groups; the VS code of practice requires each local committee to include police and probation representatives. In the early days probation officers used to talk to offenders about their (the offenders’) problems; now they are beginning to talk to them about the effects of crime on victims.

In 1990, the Victim’s Charter gave probation officers the task of contacting victims of serious violent offences before the offender is released from prison (this is known as ‘victim enquiry work’). In 1996 Victim Support (the national organization) and the Association of Chief Officers of Probation (ACOP) issued a joint statement, Probation services and the victims of crime, acknowledging that probation officers should take account of victims’ needs, as well as of those of offenders..

The probation service and restorative justice

From the early 1980s, victim/offender mediation introduced in a few places, by local probation services or by voluntary organizations. (The first Victim/Offender Reconciliation Programme, in Canada, was started by a probation officer.) In 1998, ACOP and Mediation UK issued a joint statement on Victim/offender mediation, agreeing principles and standards.

WHAT IS RESTORATIVE JUSTICE?

Before trying to describe the idea of restorative justice, let me give a short case history. (I will change some details to protect confidentiality.)

At a bus station, late at night, a young man aged 16 stole a woman’s handbag. He was caught, admitted what he had done, and agreed to meet her, with trained volunteer mediators. He came with his mother, she came with her husband. She told him how frightened she had been, and asked him why he had done it; he explained that he wanted money for an expensive costume to go to a fancy-dress party where all his friends would be. His mother was very upset, and mentioned that she had also been robbed, a few weeks previously; so the victim asked him how he could do such a thing, when he knew the effect on his own mother.

The boy was ashamed of what he had done, and was afraid that his school would expel him, just before his examinations; so he did not want anyone at the school to know what had happened. It was explained that this was not possible, but it was agreed that only his class teacher would be informed. He also apologized, and offered to make amends to the victim. She said she wanted a written apology; otherwise she did not want anything for herself, but she wanted him to do some community service for people less fortunate than himself. It was agreed that the youth officer would find work for him in a project in which disabled children are helped to ride horses; the youth officer would check that he completed the agreed number of hours, and would keep the victim informed.

This shows the simple fundamental idea from which restorative justice has developed.

1. most crime affects a victim, and the way a society responds to the crime should begin by helping the victim.

This principle has developed, producing a triangular relationship: victim, offender, community:

2. when the offender is known, s/he should be required to make amends to the victim. If the victim does not want to receive it, reparation should be made to the community. (As I mentioned earlier, community service should be seen as reparation, rather than as punishment.)

3. in the past, the matter has been taken out of the hands of the victim and the offender by professionals (lawyers, probation officers …). The victim and offender should have the opportunity to meet (or communicate indirectly) and agree on appropriate reparation. Reparation is not the only aim, however; the communication between the victim and the offender is very important, and this is why so many victims and offenders who have taken part in mediation found it a helpful process.

4. reparation is not only payment of money, or working for the victim; it may include:

  • compensation (payment of money to the victim or the community)

  • work for the victim (especially for a ‘legal person’ such as a shop, school, etc.) or for the community

  • co-operation with measures to prevent re-offending (rehabilitation programmes, attending school, avoiding certain places or companions)

5. The community can (and ideally should) be involved. Individuals may be trained as mediators (just as they may be probation officers), and the local administration (komuna, wojewódstwo, etc.) should provide what is necessary to enable the offender to make reparation providing programmes for treatment of drug and alcohol addiction, skills training, etc.).

6. If the system is to be restorative, it has to provide support for victims whose offenders are not caught, or for any reason do not take part in mediation.

7. crime prevention: although the actual mediation process is confidential, the mediation service will see patterns in the occurrence of crime. These can be passed on to the authorities responsible for crime reduction policies. The administration can take action (for example, if crime is linked to drug addiction, and drug addiction is linked to unemployment or lack of recreational facilities, the solution is to tackle these problems, rather than to build more prisons).

Giving victims a voice

What many victims appreciate is the chance to meet the offender in more congenial surroundings (or communicate indirectly), and agree on appropriate reparation. Experience in many countries shows that victim/offender mediation or ‘conferencing’ (with family members also present) leaves victims more satisfied than the court; offenders also see the sense of it, and first indications are that fewer of them re-offend.

Where will this new philosophy lead?

In Poland, as in many other countries, restorative justice is already developing, under the leadership of the Committee for the Introduction of Mediation in Poland (Zespól do spraw Wprowadzenia Mediacji w Polsce). Like other new methods it raises problems. It should be remembered, however, that the conventional system has difficulties too: prisons are not only very expensive, but a high percentage of offenders are reconvicted after release, and the younger they are, the higher the reconviction rate. The court room provides no place for the victim to ask questions about why and how they became victims, nor for the offender to answer and to understand what he or she had done in human terms, not merely legal ones. These are some examples of ‘frequently asked questions’ about restorative justice:

Is there pressure on victims to take part? It is important that the process must be voluntary. Procedures must be designed in such a way that they do not put pressure on victims, and mediators should have specific training. Mediation is a particular skill, and needs a different training from a degree in psychology or law.

Is it too lenient? Offenders find meeting their victims is harder than spending time in prison, because it forces them to face up to what they have done; but they see the justice of it and there is a greater willingness to spare the victim the stress of a trial.

It is important to recognize that fear is not the only way of persuading people to behave in a certain way. I did not accept your invitation to come to this conference because I was afraid of the consequences if I didn’t! I came because I enjoy visiting Poland, and because your invitation made me feel that you felt that I could make a helpful contribution. (Whether you feel the same after I have finished is another matter!) This is no different from what any young person wants, from the poorest parts of London or Warsaw: to do what they enjoy doing, and to have the respect of people who are important in their lives.

Does mediation make justice slower? It will often be possible for the prosecutor to refer a case to mediation sooner than to court. However, it takes time to bring together the parties in a mediation, so if cases are referred to mediation by the prosecutor, under Article 320(1) of the Code of Criminal Procedure 1997, two to four weeks should be allowed for that process. But then the time of the court may be saved, because it will have a report of the result of the mediation.

Is mediation suitable in serious cases? Yes, though in the most serious cases it will take place after sentence. The Polish Penal Code makes a useful distinction between deprivation of liberty (pozbawienie wolności) and restriction of liberty (ograniczenie wolności); Even in prison, offenders can make reparation, but it is more difficult; so this is another reason for using restriction wherever possible, and using deprivation only when it is necessary for the protection of the public. Victims who have suffered severe loss or injury are more likely to be helped by mediation, but careful preparation of both the victim and the offender is vital in such cases. Mediation takes time to organize, and should not be used for very small cases, unless the victim especially requests it.

Should the mediation process be confidential? In our experience it is preferable for the victim and the offender to be able to speak freely to each other. Mediators should be neutral, and should not be asked to express an opinion about whether, for example, the victim or the offender was being unreasonable or not telling the truth.

To sum up, these are some essential features of restorative justice:

  • It is to help victims, as well as to deal with offenders

  • Mediating is a specialized skill, and mediators need training

  • Mediators are neutral: no one should mediate in a case in which s/he is involved in another role, e.g. police, probation

  • Mediation is not ‘tough’ or ‘lenient’; it is a different paradigm

Our criminal justice system is slow, expensive and ineffective. The answer is not ‘more of the same’ Criminal justice is based on deterrence (in Polish odstraszanie, odstraszać), which comes from the same root as the Latin word for ‘to frighten or terrify’ (strach, straszyć) but fear is not the only way to control behaviour, nor the best way. The greatest deterrent is the probability of being caught. Under the threat of punishment offenders are more likely to think of themselves, and to try to deny what they have done; restorative justice encourages them to think of their victim, to admit what they have done and to make amends for it. Restorative justice is not just an additional option for dealing with offenders in a retributive system; it is a whole new way of responding to crime. It is not based on fear, but on respect for the common humanity of everyone. It is not limited to the justice system; similar principles are being used in schools, to teach children to respect each other and show them how to resolve disputes without violence. I believe that in the long run it will be a better way of creating a safe and just society.

2441 words Popowo Probn & Restorative Justice 009.Rev October 2000

FURTHER READING

Akester, Kate (2000) Restoring youth justice: new directions in domestic and international law and practice. Justice, 59 Carter Lane, London EC4V 5AQ.

Czarnecka-Dzialuk, Beata, and Dobrochna Wójcik, eds. (1999) Juvenile offender-victim mediation / Mediacja nieletni przestępcy i ich ofiary. Warszawa: Oficyna Naukowa.

European Forum for Victim/Offender Mediation and Restorative Justice, ed. (2000) Victim/offender mediation in Europe: making restorative justice work. Leuven, Belgium: Leuven University Press.

Mediation UK (1998) Practice standards for mediators and the management of mediation services. Mediation UK, Alexander House, Telephone Avenue, Bristol BS1 4BS, England

Restorative Justice Consortium (1998) Standards for restorative justice. RJC, Room 9, Winchester House, 11 Cranmer Road, London SW9 6EJ, England.

Van Ness, Daniel, and Karen H Strong (1997) Restoring justice. Cincinnati, OH, Anderson Publishing Co.

Wright, Martin (1999) Restoring respect for justice. Winchester: Waterside Press.