The Palace of Justice in Brussels is a massive stone edifice, in an eclectic style, with hundreds of rooms and thousands of metres of winding corridors. To build it, many homes in the poor district known as Gibbet Hill were destroyed. The architect, Joseph Poelaert, had little previous experience but would discuss the project with no one but the Ministry of Justice. He refused to show his drawings to anyone, and the construction rambled on for many years, with no clear plan. He became mentally deranged and bedridden, and died while the work was still in progress. Is it unfair to suggest that this is an apt metaphor for the criminal justice system?
What’s gone wrong?
There is no need to repeat to readers of Safer Society what is wrong. Too many people in prison, and the younger they are, the more they re-offend. The probation service focused on control and risk assessment rather than ‘advising, assisting and befriending’, All this springs from a policy of pseudo-crime-control: reacting to problems by criminalizing them and increasing sentences, so that the government is seen to be ‘doing something’. As I have argued elsewherei, it is based on a crude behaviourism that tries to control people through fear of punishment, and a symbolic attempt at the impossible task of balancing the amount of harm offenders have caused with the amount of further harm inflicted on them. This only adds to the total amount of harm in the world, and is not the kind of society most of us want to live in. Fortunately Victim Support has refused to fall into the trap of assuming that making things worse for offenders is better for victims, and vice versa.
A seldom asked question is ‘How could one person do such a thing to another? What can we learn from their background which would help us to prevent other people from wanting to behave like that?’ Despite lateral thinking by Nacro and others about prevention and community safety, governments still talk and act as if heavier penalties were the key to crime reduction. Nacro’s origins were in the Discharged Prisoners Aid Societies, created to mitigate the harm inflicted by the system; unfortunately that work is still needed, just as Victim Support has to help victims through the stresses of the adversarial court process.
This process encourages offenders to deny or minimize the harm they have caused, so as to avoid or reduce punishment. Because we feel guilty at the possibility of wrongful punishment, we employ defence lawyers – but this means that the accused doesn’t even speak for him or herself. Courts are simply not designed for what many victims want, as the researcher Heather Strang has shown ii: a less formal process so that they can be treated respectfully and fairly, participate in their case, have more information about its processing and outcome, receive an acknowledgement from the offender of the harm done, an apology, explanations – and often reparation, though that is not so high on the list.
A new philosophy of justice
This is just what a genuinely restorative system would offer. It would start with prevention, for sure, which is a subject in itself; but it would have to face the question, What to do when prevention hasn’t worked? (For simplicity we can look mainly at crimes with individual offenders and victims; but besides corporate victims (shops, schools and so on) we should remember the corporate offenders (such as companies which commit fraud or damage people, animals or the environment.)
It would begin by focusing not on the breaking of a law but on the harm caused, and what could be done to put it right. It would not ask who did it and what do they deserve, but who has what needs, and who should meet them?iii When the offender is known, he or she clearly has an obligation; but the community also has a responsibility when offenders themselves turn out to have needs.
In a restorative system, the process itself is part of putting things right. Many victims want to meet ‘their’ offender, to see what he is like, tell him what they have been through, ask questions, especially ‘Why me?’ In this benign circle, often the offender then feels sorry, if he didn’t already, and says so; this makes the victim less angry, the offender is more willing to apologize, and many victims are then able to reach closure by forgiving – but if so this is a bonus, not an expectation. The informal, semi-structured process allows offenders to explain and apologize in a way that doesn’t make them seem to be making excusesiv. It can also reveal local pressures towards crime, such as poor schools, unemployment, and discrimination, which planners of crime reduction strategy should be told about.
There are different models for restorative justice. In victim/offender mediation, the victim and offender are first visited by mediators, then invited to meet and decide what reparation, if any, the victim would like. Sometimes one or other is not willing to meet, but the mediators ‘shuttle’ between them; victims are entitled to choose this, but should be made aware that it often doesn’t work so well.
Developed independently in New Zealand is the ‘conference’: usually called a family group conference (FGC) for juveniles, or a community conference for adults. In the New Zealand model it typically includes the offender and his or her extended family, and the victim also with supporters. The offender has to admit responsibility, but not necessarily guilt – otherwise the case is tried in court. For part of the proceedings the offender and family are left alone, to work out an action plan for him; this may include reparation to the victim or the community, but also any treatment or training he may need. In another version, used by Thames Valley police, the facilitator follows a script, everyone stays in the room, and refreshments are offered at the end to symbolize agreement.
On the other side of the world, the sentencing circle is being pioneered in the Yukon Territory of Canada. In addition to the families, the circle includes members of the community affected by the crime or with a possible contribution (for example someone from a chamber of commerce if a business was robbed, or an alcohol treatment centre if drink was a factor), and, significantly, a judge, prosecutor and defence lawyer. This means that cases of any degree of severity can be heard – the circle takes place in a court room – and the defendant’s rights to a defence, a public hearing and so on are preserved. Discussions include underlying causes of such crimes, what can be done in the community to prevent this type of behaviour, and who will support the offender in carrying out the agreed action plan. The judge’s sentence is based on the contributions of all present, but may include custody if necessary to protect the public or to denounce the offence, so there are, inevitably, limits to the restorative approachv.
This brings in another part of the restorative ideal: involving the community, which happens in several ways. Mediators may be trained volunteers. The process can be entrusted to a voluntary organization. The community should support those victims (the majority) whose offenders are not known. Above all, when offenders are willing to make reparation, the community has an obligation to make it possible, through opportunities for work (to earn money for compensation), for community service (often with voluntary organizations), for accommodation, and for any training or treatment they need: re-acceptance into school, drug treatment without a six-month wait, social and vocational skills, and so on.
How could the new idea go wrong?
A system based on restorative principles has been adopted nationwide in Norway, and for juveniles in Austria and New Zealand. Other countries in Europe use it more or less widely. In England and Wales referral orders, reparation orders victim/offender mediation and FGCs have been introduced. Can the advocates of restorative justice sit back and congratulate themselves?
Not yet, for four reasons: the law, the structure, understanding and resources.
Law. referral order panels are something like community conferences, but limit the people who can be brought in to contribute. Oddly, one of the measures they can suggest is another conference. They do not give a central place to the victim, and victims have attended very few of them. Reparation orders similarly can include victim/offender mediation – but not as part of the decision-making process, so victims are not empowered. This should be amended.
Structure. Mediators and mediation services should have their own organization, training, accreditation and support. As long as mediation is done by Yots, police – or even Nacro – mediators’ work is likely to be affected by the ethos of other professions.
Understanding. Mistaken ideas about restorative justice are still around: for example some politicians do not understand that it is essentially a different philosophy. They think of it as just another way of punishing offenders with demeaning tasks like picking up litter, and want to measure its ‘success’ through reconviction rates, rather than benefits to victims and reintegration of offenders. Members of youth offender panels receive only a brief explanation of it. Research was commissioned with unclear parameters, and results demanded before some projects had time to complete enough cases.
Resources. With the introduction of restorative measures in 1998 and 1999, not only was the process rushed by impossible deadlines, but there was no adequate investment in the vital explanation (to courts, Yot managers and workers, probation officers and others) and training (of mediators and panel members). There are strange discrepancies: some Yots are well-funded and can pass mediation work to an independent mediation service, others cannot afford to and attempt it in-house.
A restorative vision
Working on restorative principles would not abolish conflict, but it would help us to handle it better. The process would begin in schools. Circle time is a way of teaching children how to express their feelings openly but respectfully – respect is a key word which should be at the centre of our lives in a diverse community – and for example to help bullies (who are themselves often unhappy children) to be accepted by behaving acceptably. Later, children are trained as mediators, which empowers them to resolve conflicts without violence and without the intervention of authority.
Each community would have a mediation centre, to which all kinds of disputes could be taken: in families (not just for separation and divorce but for example involving grandparents, parents and children), the workplace, environmental concerns, or any other type of conflict. Often this would prevent such conflicts from erupting into a crime; but even when they did, the parties would have the option of mediation rather than the trauma of the criminal justice process. Police, prosecutors or courts could also refer such cases to mediation.
Crimes by strangers also could be referred, when the accused did not deny involvement. In New Zealand, in place of the common ‘you prove it’ attitude to pleading, the new procedure has encouraged a new willingness to accept responsibility and make things right. If a case was serious enough (determined by the effect on the victim or the community rather than the legal category), it would be referred to mediation by police, prosecutor or court; the most serious would go to a sentencing circle. This would show that behaviour is unacceptable, in a way which helps the victim to recover and the offender to earn reacceptance into the community. Restriction or deprivation of liberty would be used only for public protection; for vulnerable offenders after release, communities would be encouraged to form circles of support and supervision. Courts would still adjudicate when guilt was denied, and would have the new function of overseeing the process to ensure that it was restorative – for example, that the victim had been consulted about the time and place of the session and that agreed reparation was not excessive.
This is still a new idea, and questions such as proportionality, voluntariness and the role of lawyers and police are still being discussed. To study these issues, and the origins and resolution of conflicts, there should be an Institute for Conflict Resolution to act as a focal point for the work already underway in departments of peace studies and similar centres around the country, and to advise governments on avoiding conflicts or handling them when they inevitably arise. In this way we could work towards the aim, unachievable though it may be, of a society in which people treat each other well not through fear, but because they are treated fairly and respect each other’s humanity
i Martin Wright, Restoring respect for justice. Winchester: Waterside Press, 1999.
ii Heather Strang, Repair or revenge: victims and restorative justice . Oxford: Clarendon, 2002.
iv Examples of how it can work are given in: Mediation UK, 40 cases: restorative justice and victim/offender mediation, Ed. by Paul Crosland and Marian Liebmann. Bristol: Mediation UK, www.mediationuk.org.uk
v Heino Lilles, ‚Circle sentencing: part of the restorative justice continuum.’ In: Allison Morris and Gabrielle Maxwell, eds. Restorative justice for juveniles: conferencing, mediation and circles. Oxford: Hart, 2001.
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