Paper to Second Conference of the European Forum for Victim/Offender Mediation and Restorative Justice: Restorative justice and its relation to the criminal justice system, Oostende, Belgium, 10-12 October 2002
On website www.euforumrj.org
Many people have commented on the difficulty of defining restorative justice. It is like a growing child: as soon as its parents have provided some clothes, it has grown and more are needed. The idea of community involvement in the process is just one example. Its grandparents, so to speak, come from different backgrounds; and many of them were practitioners rather than theorists. This paper will consider how restorative justice started with programmes that brought the community into the criminal justice system or diverting cases out of it, ending with the use of restorative justice outside the system.
As is well known, there are two accounts of the genesis of restorative justice, just as there are two accounts of the creation of the world in the first book of the bible. In the first, in 1972, the City Attorney (prosecutor) of Columbus, Ohio, with a law professor, diverted out of court many cases involving assaults, threats and other offences arising from disputes. The mediators in this project were graduate law students, who were not yet professionals, even though they were not exactly typical members of the community. The second, the Victim/Offender Reconciliation Program in Kitchener, Ontario, began in 1974, was independently managed; it used trained members of the community as mediators (Wright 1996: 75-6, 111-13).
Bringing the community into the system
There are three main ways in which the community can be brought into the system. The first is victim/offender mediation, in which the victim and the offender are enabled to meet (or to communicate indirectly). In Poland, for example, the prosecutor may refer a case to ‘a trustworthy institution or person’ for mediation (Czarnecka-Dzialuk and Wójcik 2000:335). Participants are often invited to bring parents or other supporters, so that this evolves imperceptibly into the second method, called conferencing, with various prefixes such as ‘family group’, community’, or ‘restorative’. The process provides participants with a model of ‘respectful interaction’ (Pranis 2001), unlike the tough cross-examination by an aggressive advocate, which can be an unpleasant experience (Temkin 2000).
Conferencing brings in people who contribute ideas and practical help: the extended family and other supporters of the offender and the victim, with back-up from professionals such as social workers to give information about available resources and lawyers to provide advice and safeguard human rights. Sentencing circles, used in some parts of Canada, take the idea a step further: members of the community who have been affected by the crime, or who may contribute towards future action (such as an alcohol treatment counsellor), are also brought in, and also the defence lawyer, prosecutor and judge. This means that the circle can lead up to the actual imposition of the sentence, not merely a recommendation, and it may also include coercive measures including imprisonment; since the judge is present, there is no limit to the seriousness of the case that can be handled.
Both conferencing and sentencing circles can be used in any type of case, but there is not yet enough experience to entrust the most serious ones entirely to them. In New Zealand the process may be used for any type of case involving juveniles, except homicide. Youth advocates are on hand to safeguard offenders, and the most serious cases are subject to the endorsement of a judge, who modifies the conference’s decision in only about 20 per cent of cases. In the sentencing circles, as mentioned above, defence and prosecution lawyers and a judge are present, which makes it possible for all types of case to be dealt with; the decision is made by the judge, but takes account of views expressed. Jurisdictions which do not use these procedures tend to limit the seriousness of the cases, for example to offences punishable with not more than five years’ imprisonment (in Austria). Most are used only for juvenile offenders, but there are moves to extend the process to adults, so that the victims of adults are not excluded.
The third way of involving the community is through the use of trained volunteers as mediators. Among the advantages is the fact that they can be drawn from a cross-section of the community, its ethnic, cultural and linguistic groupings; and they tend to be available in evenings and at week-ends, which are generally not favoured by full-time professionals. They are also able to deliver a low-cost service; but it is important to remember that it is not a no-cost one, since volunteers have to be recruited, trained, supported and supervised. The lower cost offers the possibility of providing victim/offender mediation or conferencing for a larger proportion of the cases for which it is suitable; it also reduces the temptation to reduce costs by failing to visit participants before the session or to follow up after it.
The use of volunteers is not without difficulties, however, and may not be practicable for those whose economic conditions require them to work long hours. It would be easier in a country which limits the working week to 35 hours, as France did until recently. In some places lay mediators are used; they are like volunteers in that they come from all parts of the community, but they are paid by the hour or by the session; this may make it possible for some people to become mediators who otherwise could not afford the time. Even in a country like Britain, with a strong tradition of volunteering, some voluntary organizations have difficulty in attracting enough volunteers and members of management committees. Victim Support, established nearly 30 years ago, has reported a 30 per cent drop in the number of its volunteers, to below 7000 (Independent, 2002 October 23). Until a broadly-based group of volunteers has been built up, it may be necessary for mediation to be provided by those who are already employed within the criminal justice system, such as social workers, probation officers and police officers, to organize the mediations and act as mediators. There is however a danger of a conflict of priorities: that both the workload, and the ethos, of their first profession will take precedence over mediation. It is vital that they receive full training in mediation and restorative justice so that they understand the differences; ideally the service should be managed by someone for whom it is the first priority. In the pioneering Australian programme in Wagga Wagga, New South Wales, it was all done by the police, and some police services in England and Wales have followed suit. There are advantages in this, including a broadening of the horizons of police officers; but this model has been criticized for giving too much control to the police (see e.g. Sandor 1994). Some programmes are run by the probation service in England or, in Germany, the Gerichtshilfe (court assistants who write pre-sentence reports). The involvement of a statutory agency gives mediation greater legitimacy in the eyes of professionals, in some cases reinforced by legislation, but it seldom includes community participation.
There is another problem with the use of criminal justice professionals as mediators: the danger that they will be ‘recidivists’: just as Nils Christie (1977) said that they ‘stole’ conflicts from their real owners, the disputants, victims and offenders, they may also steal them from the members of the community who could have become mediators. Of course it is valuable to have academically and professionally qualified mediators; but if mediating were closed to those without formal qualifications, there would be a serious loss of community involvement.
Another ‘theft’ may also be taking place: in England at least, many people from politicians to practitioners have heard of restorative justice but do not appear to have understood its values. One misconception is that restorative justice is seen as offender-centred, little more than a new way of dealing with offenders; its importance for victims is overlooked. Conversely, victims whose offenders are not caught – the great majority – may also be overlooked: many of them, too, need support or practical help. Several countries have victim support organizations which have shown that this is another role that can well be fulfilled by volunteers; some also have some form of monetary compensation for victims of crimes of violence.
A second misconception is that restorative justice consists only of reparative work, ignoring the importance of dialogue between victims and offenders. When decisions remain in the hands of the court, the participants are not enabled to decide how best the offender can make amends. More seriously still, some appear to think that it should consist of menial work, such as picking up litter or cleaning graffiti; they treat it as one of a range of sanctions to be imposed, a form of punishment, the latest appendage to the conventional system whose main purpose is to be unpleasant. This fails to recognize that it is not merely a new sanction but a radically different philosophy for repairing the harm that people cause to each other, for using persuasion rather than coercion wherever possible, and for conducting human relationships in a way that respects everyone’s humanity so that there is less harm in society generally. It is as if they removed a label from a new designer’s clothes and sewed it on to their conventional ready-made suit.
Referring cases to independent NGOs
Let us turn from bringing the community into the system to the second principal way of involving the community: diverting cases out to non-governmental organizations. This has similarities with the beginnings of the probation service. In some of the early restorative justice programmes, members of the community formed a voluntary organization (NGO) and invited courts to divert some (usually non-serious) cases to it. Sometimes they found it necessary to adopt what has been described as a ‘supplicatory posture’ (Davis 1992: 454): in one American programme which I visited, the co-ordinator would attend court in her business suit, so as to be accepted by lawyers, and ask them to allow her to look through their lists for suitable cases.
An advantage of diverting cases in this way is that it frees the time of professionals, to do their own job. It means that mediation is carried out by people primarily trained as mediators, so that they do not have to unlearn the principles and practice of, for example, the legal or social work profession. In order to fulfil the ideal of community involvement, however, the NGOs need to attract a wide range of mediators. Volunteering should not be the preserve of the middle-class ethnic majority. There is a need for constant monitoring and outreach to make sure that a variety of ethnic and linguistic groups in the community are represented among volunteers and committee members, and of course among participants. This also has implications for training: if the course is too academic, some potentially good mediators will be excluded. There should be no entry qualifications apart from the training itself, and this should be of a practical rather than an academic nature. The service should have an equal opportunities policy making it open to all. There should be no financial obstacles, so that costs of travel and any necessary child care should be reimbursed during training and when carrying out the work.
Volunteers also require supervision and support. This may be provided, in part, by the use of co-mediators, with a culture of evaluating each activity immediately afterwards: a freshly-trained volunteer can work with a more experienced one (or a member of staff), and remind them of parts of the training course which they had forgotten. (One study assessed the ‘restorative-ness’ of restorative conferences and found that inexperienced facilitators were nearly twice as likely as experienced ones to be in the ‘most restorative’ category, and the experienced ones were twice as likely to be ‘least restorative’: Hoyle et al. 2002: 16)
A wider role for the community
The role of the community in victim assistance has already been referred to. It may be needed where the offender is not known, but also to support the victim through the mediation process itself. Offenders also often need support. In the mediation process this is often provided by their families (although families are not always supportive); but restorative justice does not end with the mediation or conference. It may require members of the community, in the shape of employers or house-owners, to provide work or accommodation in order to enable the offender to make the reparation that he or she has undertaken. Many offenders require skills or treatment of various kinds. These should also be available in the community, provided either by NGOs or by the municipality (which represents the community which pays taxes and elects representatives).
A new role for the community, pioneered in Canada and now being introduced in England, is to provide circles of support (Church Council on Justice and Corrections 1996: 14-17).. These consist of volunteers who support sex offenders who have undergone treatment in prison after their release. In principle a similar method could also be used in other circumstances; for example ‘youth development circles’ in schools (see below).
Preventing harm and promoting social justice
All these forms of community involvement may be expected to have a beneficial effect by spreading awareness of the pressures towards crime in the locality and in society generally, and an understanding of the action needed to reduce them. Mediation, unlike the punitive, adversarial system, encourages openness: the offender is encouraged to think of ways of making things right rather than of saving his own skin. Mediators, in particular, see patterns in the cases that come before them: where crimes are committed, where offenders live, and hence where preventive measures and social reforms are needed. More issues can be brought up, producing ideas for prevention (Braithwaite 2002: 92-3). In this way restorative justice opens the way for feedback from mediation services to those responsible for crime reduction strategies. As Kay Pranis has written, ‘When community members become involved in resolving crimes they … typically draw connections to other problems in the community’; for example, in Minneapolis, in the course of working with twelve juveniles in a vandalism case, a community became aware of the need for young people to have a place to meet, and also developed some structured activities for them. They also piloted a peace camp for adolescents to respond to concerns about racism in local schools. In another case, a family group conference held for a young woman charged with possessing marijuana led to a community-wide dialogue about shared values (Pranis 2001: 294-5). Similarly in New Zealand, ‘some co-ordinators are becoming more proactive, and encouraging community and government bodies to examine trends and patterns, so that preventive measures to minimize offending may be taken’ (Akester 2000: 29).
It is trite to say that the police cannot do their job without the co-operation of the public; it should be no less self-evident that the public has a vital role in the reintegration of offenders and in the creation of social conditions and structures in which offending is less likely in the first place.
Pranis (2001) also judges restorative justice by its impact on structural inequalities, not merely on the satisfaction of victims and offenders. Social justice is defined by the well-being of all members of the community, affirming the worth of every individual, and enabling people to exercise power through direct participation in decisions affecting their lives (p. 288-9). Reaching a consensus is difficult but possible, as has been shown in the peacemaking circles in Yukon, Canada, and now introduced in six communities in Minnesota as a possible option for dealing with certain criminal offences (Pranis 2001: 292, 298; Stuart 2001
As with the individual participants, so with the community: the process is at least as important as the outcome. The community finds that it has the capacity to deal with problems, because restorative processes ‘encourage respectful and reflective dialog about community issues’ (p. 296). To the common question ‘What about enforcement of victim/offender agreements?’ it responds by using moral, rather than legal, authority. Pranis concedes, however, that ‘Coercive rights enforcement remains an important last-recourse strategy when appeals based on respectful, non-confrontational dialog have failed repeatedly’ (p. 300).
So far, this paper has discussed involving the community in the system, and diverting cases out of the system. The remaining option is the most community-based of all: to keep cases out of the system altogether. As has been suggested above, it seems sensible to build in a procedure in which cases are not dealt with in isolation, but which enables lessons to be learnt, through feedback to those responsible for crime reduction strategy, and ultimately to point to the need for social reform – although this should be done for its own sake, not merely to prevent the majority from suffering the inconvenience of crime. As Crawford and Clear (2001) have pointed out, restorative justice works at the level of individual cases, and usually operates after harm has occurred. Community justice is more preventive and has a more radical reform orientation; its success is measured by its effect on the community, not only on individuals.
Restorative justice outside the system
The foregoing describes efforts to open up the closed world of the CJS by bringing members of the public into it, or preferably by diverting cases out of the system to voluntary organizations and individuals. But would it be better if at least some cases (and if so which?) did not enter the system in the first place? This is clearly a possibility
(1) where both parties know each other, as is often the case. Here is a role for community-based mediation services. Firstly, they can have a preventive role. Some disputes between neighbours, for example, often begin with apparently trivial incidents, but can lead to crimes such as property damage or violence, sometimes of the most serious kind. In one case, for example, a man was so enraged by the prolonged excessive noise from his neighbours that he firebombed their flat, causing the death of a woman; he was jailed for life (Guardian, 28 September 1995).
If the dispute can be resolved at an early stage through mediation, the offence is prevented. Even where the individuals do come to blows, reporting the matter to the police is not necessarily their best option. If one of them is responsible for the other’s conviction and possibly imprisonment, their relationship will naturally be worse than before. If a child steals from a neighbour, and the neighbour finds out, they are often reluctant to report the matter to the police because they feel that the criminal justice system is likely to impose an excessive sanction (another unintended by-product of a policy of deterrence; for further discussion of unwanted side-effects of punishment see Wright 1999). If it is not possible to resolve the matter by speaking to the other person directly, mediation provides an informally structured setting in which the matter can be discussed.
Commercial companies as offenders: responsive regulation
(2) It should also be remembered that commercial companies, as well as individuals, can be offenders. They cause harm to their employees, their customers or the community; this may or may not be defined as criminal, depending on the strength of the trade union and consumer movements. If the injured party takes legal action, whether in the civil or the criminal court, the company is likely to engage a team of lawyers to resist it. Mediation provides a possibility of finding a way forward that is in the interests of both, without using the legal system.
Mediation in schools
(3) Perhaps the best hope lies with young people. In schools, many incidents occur which could be classified as crimes, but are handled within the school; for example insults, threats and assaults (in addition to what children do to each other). It has been shown that many such incidents between children can be capably handled by pupils who have been trained to act as mediators (see for example Tyrrell 2002; Mediation UK 1998; Cohen 1995; Highfield Junior School 1997). Cases involving parents and teachers can similarly be referred to adult mediators. When a whole school adopts this approach, both the children with disputes and the mediators (and often the same children have experience in both roles) learn non-confrontational ways of resolving problems; and the school as a whole can become a better place in which to learn.
Youth development circles
(4) Braithwaite (2002: 215-9) takes the idea of circles of support a stage further, not merely reacting after an untoward event but supporting young people before such events occur. He proposes ‘youth development circles’ for all young people, to meet twice a year to help them to set goals for themselves and to celebrate their achievements. They would not deal with children singly, but in groups with ‘institutionalized informality’, and they would recognize everyone’s need for love.
The use of a restorative approach throughout a school can not only transform relationships within the school, but can show the next generation the possibility of creating not better criminal justice but something better than criminal justice, and to show those who are prepared to listen how to change society so as to reduce the amount of harm in the world.
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