The role of the community in applying restorative justice

When I was young, if your house needed a new coat of paint, unless you were very poor, you employed a painter. Now, as wages of manual workers have increased, you are more likely to ‘do it yourself’ (DIY): you buy your own paintbrush and paint from the DIY shop. Some people claim that they do a better job than professionals, because they can take as much time and trouble as they need; others have faith in the skill and experience of those who do it for a living. If you live in municipal housing you may (in Britain at least) take the attitude that the local authority is your ‘landlord’ and should do all the repairs, even those which you could easily do yourself. As for social services, when people in the community need to be taken care of, it may be left to individuals: if someone in your family is ill, you may look after them yourself, perhaps with help from neighbours; you may do it with professional help, from a doctor or a nurse, or you may have to let your relative be cared for in a nursing home or hospital.

 

What can be done about crime? In small communities where people know each other well, they can often rely largely on informal social control; in large, anonymous cities, there is a greater need for formal agencies such as park wardens, concierges and police. Sometimes the offender is a large company, and if many people combine to apply public pressure, the company can be forced to compensate its victims, as the Australian criminologist John Braithwaite (2002) has shown. Even a government can be influenced if enough people oppose it with great determination, as Ukrainians know. At the level of the local community, there is in Britain a demand for police to be visible in the streets (on foot or bicycle, not in police stations or cars). But police are expensive, so ‘community wardens’ or assistant police are being introduced: they have fewer powers, less training and less pay. This may increase community confidence; or people may feel that looking after their safety is someone else’s job, so that they need not make an effort by, for example, starting a youth club. In some places there is ‘Neighbourhood Watch’, in which members of the community are encouraged to report anything suspicious to the police; in the process they get to know each other, which strengthens informal social control. Is this empowering people, or is it asking members of the community to do things for which the government should be directly responsible?

As usual, the answer is probably not at the extreme but in the middle. If the state does too much, people lose their skills. In Britain we talk of the ‘nanny state’ which ‘wraps people in cotton wool’ – although nannies are also sometimes excessively strict disciplinarians, and our nanny state has that character as well! In addition, the state often does not do enough, because it wants to gain popularity by reducing taxes, or because it has not been efficient enough in collecting them, or too many people have avoided paying them. But if the state does too little, things which need doing will often not be done at all, especially in those areas that need them most. In this neo-capitalist period, one tendency is for the empty spaces to be filled through the action of market forces: shopping centres employ security guards, and wealthy individuals live in ‘gated communities’, which are the mirror-image of prisons: they have walls or fences to keep criminals out. But of course this protection is only available to those who can afford to pay for it. Perhaps the ideal answer is in between the two extremes: rather than assume responsibility for everything, the state could make it easier for people to establish and maintain non-governmental organizations (NGOs, in Britain usually called ‘voluntary organizations’).

What are communities? To change the metaphor, the way in which a seed develops depends not only on the seed, but on the soil in which it grows. The criminal justice system sometimes acts as if the way to encourage an individual to become a law-abiding citizen is to concentrate solely on him or her; but the environment is also important. To some extent communities just grow, but they can also be cultivated, and NGOs are part of the way in which we can decide whether to have a garden or a jungle. With this in mind, let us consider three aspects of providing a constructive response to crime: whether it should be done by state agencies or NGOs; whether the process in individual cases should be facilitated by professionals or volunteers; and how members of the community can be involved in the process itself. This can be regarded as a philosophical question: is it right that the state and professionals should provide services and consequently have power over our lives; or it can be a pragmatic one: which method works better?

State agencies or non-governmental organizations?

The state

Providing services through state agencies has obvious advantages. Their official status and closer contacts with the criminal justice system make it easier to interact with other officials, and for example to persuade prosecutors to refer cases to them. There are further advantages if their position is supported by legislation.

An example is the referral orders introduced in England and Wales1 by the Youth Justice and Criminal Evidence Act 1999. This creates ‘youth offender panels’ including two members of the community (trained but unpaid) and one youth justice worker, and it compels the courts to send all young offenders aged 10 to 17 to a panel if they are appearing in court for the first time and admit guilt, unless the offence is too serious or not serious enough. As a result, over 26 000 cases a year are referred to these panels. But in these youth offending panels the decision-making power remains with the panel rather than the participants, and in practice few victims take part. So we have a measure which is widely used, and includes some involvement of members of the community, but is not as restorative as it might be. In some countries there are measures which are more restorative in some ways, but do not involve the community, or they have difficulty in attracting enough cases. Is it possible to have the best of all worlds? Dignan (2005: 113-4) has argued that if mediation services try to maintain the pure ideals of restorative justice, they find it difficult to obtain enough referrals, even when they have cultivated good relations with the criminal justice agencies. Do they have to sacrifice their independence, and even some of their restorative principles, in order to attract enough cases to justify their existence? One possibility would be for legislation to require all cases (with defined exceptions such as victimless or very minor offences) to be referred to an independent mediation service for assessment of their suitability for a restorative process; the more serious cases, as in the New Zealand juvenile justice system, would return to a court for sentence after going through the restorative process.

 

Furthermore, it is not always easy to persuade parliaments to pass legislation that is genuinely restorative, and once it has become law, it is difficult to change it. For this reason it may be best to try to introduce legislation which enables (or even requires) restorative procedures to be used, but does not prescribe the details. These can be in official guidelines, which can be modified in the light of experience, or better still in guidelines compiled by a national NGO responsible for restorative justice.

The legislation should also require funding for restorative justice programmes: an advantage of putting restorative justice on a statutory basis is that stable funding is more likely. In to-day’s market-driven financial climate this is however by no means certain; in England, for example, short-term funding is common, and the government has even invited profit-making commercial companies to bid against established state agencies for the provision of services. There is also pressure on both state and commercial agencies to limit costs, and hence the number of staff, and consequently the number of cases that can be handled.

A restorative programme is not enough by itself; arrangements are needed for the support of victims, especially those whose offenders are not known or refuse to take part or where for any reason victim-offender mediation cannot take place. It is also necessary to ensure that offenders are able to make reparation, for example through community service or by co-operating with a rehabilitation programme to meet their needs.

Voluntary organizations

What can NGOs offer? They have more flexibility than statutory agencies; they can diversify, for example by undertaking work in schools, the workplace, the family. They have a management committee which may include some of the volunteers who do the work, other people with particular skills such as a lawyer and an accountant, representatives of other voluntary organizations, elected representatives of the local authority, or officers from statutory services such as social workers, probation or police officers.

Of course, since NGOs are voluntary organizations, the government cannot compel anyone to create them; that has to depend on the encouragement given to them by the state, and the enthusiasm of ordinary people who see how they can improve life for everyone.

An example of providing a service through an NGO, in co-operation with the state, is the British organization Victim Support. In 1974 one local service was established, and with the help of television publicity the idea spread to over thirty other places. A national association, or ‘umbrella body’, was established to provide support, set standards, and lobby on behalf of victims, with the help of a small government grant. More local services were established, until within about twenty years the whole country was covered. The funding of these local groups was however precarious, until in the late 1980s the Home Office was persuaded to provide funds for them, provided that they met standards which were agreed with the national association. This means that the Home Office can influence the policy of the association, but the association still obtains funds from other sources, so that it retains some independence; and the fact that it has a large number of volunteers throughout the country means that it can also influence the Home Office.

Local and national NGOs of this kind need to ensure accountability. This can be done by publishing annual reports showing, for example, the number of cases handled, the funds spent, and the extent to which both the people served and the volunteers are representative of the local population. Each country will have its own legal safeguards; in England, NGOs normally register as charities and often also as not-for-profit companies, which have to make regular reports about their activities and finances.

There also needs to be accountability as regards the process itself (Froestad and Shearing, in press). Power should not be given to individuals, hierarchies or small groups: decisions should come from the bottom up (Ross 1996: 55). Informal procedure has virtues, but it also opens the door to poor practice. The primary safeguard is good training of facilitators, so that they absorb restorative values. There should also be regular ‘refresher courses’, comparable to the English system of continuing professional education of lawyers. In the South African Zwelethemba programme (described below) an important component is the Code of Good Practice, setting out the principles in simple terms. In some mediation services two facilitators work together, and evaluate each other’s performance after every session. Roche (2003) suggests that the conferencing process itself provides a safeguard, because when there are many people taking part, there is more chance that at least one of them will be aware that unfairness has taken place and will have the confidence to say so. They should also be told what is good practice; otherwise if (for example) a facilitator dominated the proceedings in a judgmental way, participants might think that this was normal, because they were not aware that it is not good practice. When the process becomes too standardized, it becomes part of the problem (Ross 1996: 233); but there is a need for more formal safeguards, with a written grievance procedure, which should include an offer of mediation at an early stage. This is comparable to an appeal to a higher court, and participants should be informed of it. Although it is generally felt that lawyers should not take a direct part in the restorative process, because the participants should be encouraged and enabled to speak for themselves, they do have a role as ‘professional bystanders to a community-driven process, where their role is to make sure that none of the parties are being deprived of their procedural … rights’ (Ross 1996: 216). Similarly a New Zealand judge, Fred McElrea, has commented that the role of the judge is ‘to facilitate the strengths of others and bring them to the fore [which] is radically different to the controlling position of the traditional judge (McElrea 1994: 96).

 

NGOs often use volunteers, and although they cost money (for recruitment, training, support and supervision) it is possible to recruit more of them without significantly increasing the cost. They also have other advantages (to be described below).

 

Facilitators: volunteers or professionals?

Volunteers

Volunteer facilitators were used in the early American victim/offender reconciliation programs. They are used in Poland, and their use is being considered in Germany. In England they are used in community mediation. What are their advantages?

Volunteers are available out of office hours and at week ends, when most professional workers prefer not to be on duty. They may however not always be available, because of family or work obligations, and they need to understand that although their work is voluntary, they need to have a professional attitude to fulfilling the obligations that they have undertaken. It should not be assumed that they cost nothing; in most cases paid staff time is necessary for their recruitment and training. Their out-of-pocket expenses should be reimbursed, and in some countries, such as Norway and Poland, they receive a small honorarium. In the South African Zwelethemba project this is a matter of principle: poor people should be enabled to handle their own security and should be paid for doing so (Froestad, personal communication). But as the cost is much less than that of professional salaries, it is more economic for them to work in pairs – often a more experienced and a less experienced one together. In Poland, volunteers even undertake much of the administrative work, but this is only possible because they have a high level of commitment, and it means that if a mistake is made, it may not be discovered quickly. In theory, the number of cases can always be increased, because whenever more volunteers are needed, they can be recruited and trained at little extra cost. This may not be easy, however, for people whose salaries are low and working hours long; then it may be necessary to pay them at least a nominal fee. It has been found that volunteers can do a very professional job. However, they are human and need support and supervision – sometimes more than professional workers. The motivation of volunteers is a skill which professionals themselves have to learn.

A good mediation service will find out the main communities (ethnic, linguistic and so on) in its area and try to recruit volunteers from those groups. Already in the early days of mediation, it was found that ‘the best results were obtained when the characteristics of the mediators did not markedly differ from those of the disputants themselves’ (Grönfors 1992: 420). The paid staff of a mediation service will necessarily be relatively small, but since the number of volunteers can be larger, a wider range of the local social, ethnic and linguistic groups can be included.

Some volunteers only serve for a few years and then move on, so that more have to be recruited and trained; but this means that more and more people will have learnt about mediation and will take their knowledge with them into the community

Professionals

Professionals, on the other hand, are generally there when they are wanted (except when they are in staff meetings!). It has been found in England, however, that they often come from professions that are accustomed to work with offenders, and are trained as police, social workers and so on. They are not accustomed to work with victims, and have shown some reluctance to do so. Their primary training has not included mediation, and even if they are re-trained, they are likely to follow the ethos of their original profession first, and of restorative justice second. Roche (2003: 233) warns particularly against the use of police and judges as facilitators of conferences. One way of tackling this problem has been applied in Austria: to use specially trained probation officers as facilitators of the restorative process, but to require them to do only this work, so that they do not have to change backwards and forwards from one role (and professional ethos) to another. Professionals tend to come from a limited cross-section of the community, and therefore to have less knowledge of the background from which many offenders come. Ross (1996: 263, 267) suggests that leaving everything to professionals undermines families and communities: solutions should be found by the people actually involved, not by professionals who are strangers, and the experts should step down from their thrones.

Members of the community as participants in the process

The third way in which the community can be involved in the restorative process is as participants: the families and friends of victims and offenders are also members of the community. The best-known way of including them in the process is ‘conferencing’. There are different ways of doing this. In the juvenile justice system in New Zealand the offender and his or her extended family are invited to take part in a ‘family group conference’, and at one stage of the proceedings they are given ‘private time’, with no officials or social workers present, in which to propose an ‘action plan’. This is a sort of contract with the young person, which may include reparation to the victim; sometimes the relatives contribute to ensuring that the young person fulfils the contract. Victims and their supporters are also invited. Another method, called ‘community conferencing’, also includes other members of the community; thought is needed, however, as to the selection of these persons: do they really represent the community or are they self-selected?

The idea is taken a stage further in parts of Canada, especially in areas where Indigenous people live. Here, the ‘conference’ is called a ‘sentencing circle’. It also includes the judge, prosecutor and defence lawyer; hence, the circle can deal with any case which the judge has power to decide. Often the custom of using a ‘talking stick’ is followed: it is passed round the circle and only the person holding it is allowed to speak. Although ultimately the procedure is subject to law, it is strongly influenced by the Indigenous philosophy. It does not emphasise particular actions of individuals, but rather the relationships between people: ‘When people cause problems, for instance, this law of interconnectedness requires that a justice system investigate all the factors that might have contributed to the misbehaviour’ (Ross 1996: 62, 64). The emphasis is not on what has been done wrong, but on what needs to be done to put it right. Many Aboriginal people have no way of translating the word ‘guilty’; instead, people are asked if they take responsibility for what has occurred (Rudin 2005: 92) – which is also a central feature of restorative justice. The Navajo people do not speak of ‘right’ and ‘wrong’ but of natural consequences: for example, if you do not tell the truth your fellows will not trust you and you will shame your relatives (Ross 1996: 107; cf Wright 1982: 255-8, 262-3). They say that ‘adversarial trials have given way to co-operative problem-solving aimed at the restoration of harmony, and punitive prison sentences have been replaced by community healing programmes’; ‘deterrence cannot be permitted to get in the way of healing’ (Ross, 1996: 217. 216).

An interesting programme in South Africa starts the process in the community, and only passes it on to the criminal justice system if it cannot be resolved at the community level2. The prototype is in a township near Cape Town called Zwelethemba (meaning ‘place or country of hope’), and the model has been used in several other townships (and one in Argentina). There was dissatisfaction with existing institutions, and a new model was evolved over two years, with the endorsement of the minister of justice and the national commissioner of police.

While some countries have judges of the peace3, the South Africans introduced two new institutions, organized by Peace Committees. When a conflict comes to light, they arrange a ‘peace making’ Gathering of the persons regarded as most able to contribute to a resolution. They consider the people involved as ‘participants’ rather than ‘victims’ and ‘offenders’, recognising that to-day’s offender may have been yesterday’s victim, and vice versa. The goal is not to decide guilt and punishment, but to reduce the likelihood that this conflict will continue: to ‘make for a better to-morrow’ by establishing a plan of action for those involved. It may include preventive work, for example trying to resolve a conflict that is in danger of leading to serious violence before it does so.

The second institution is called ‘peace building’. For every case handled by the peace committee, a payment is made to it, part of which covers the administrative costs of the actual mediation process, and part is ploughed back into local development projects which may provide small loans to start businesses and thus reduce unemployment, to create playgrounds for children, environmental improvements, and so on. Each new case is ‘an opportunity to build local knowledge about causes and conditions that make violent conflicts emerge, and to develop ideas of how generic problems, collective disadvantages and issues of social inequalities can be approached’, in other words to address structural problems which some restorative justice programmes have been criticized for neglecting. The initial funding, however, came from foreign sources, and it remains to be seen whether the South African government will maintain it. Even without a formal programme, community conferences can make people aware of local needs, for example for structured activities for adolescents; this was done in Minneapolis (Pranis 2001: 295). However, in a healthy society such needs will be dealt with in order to improve the quality of people’s lives generally, and not merely linked to the hope of reducing crime (Crawford and Clear 2001).

The second institution is called ‘peace building’. For every case handled by the peace committee, a payment is made to it, part of which covers the administrative costs of the actual mediation process, and part is ploughed back into local development projects which may provide small loans to start businesses and thus reduce unemployment, to create playgrounds for children, environmental improvements, and so on. Each new case is ‘an opportunity to build local knowledge about causes and conditions that make violent conflicts emerge, and to develop ideas of how generic problems, collective disadvantages and issues of social inequalities can be approached’, in other words to address structural problems which some restorative justice programmes have been criticized for neglecting. The initial funding, however, came from foreign sources, and it remains to be seen whether the South African government will maintain it. Even without a formal programme, community conferences can make people aware of local needs, for example for structured activities for adolescents; this was done in Minneapolis (Pranis 2001: 295). However, in a healthy society such needs will be dealt with in order to improve the quality of people’s lives generally, and not merely linked to the hope of reducing crime (Crawford and Clear 2001).

In this way, these authors say, the Zwelethemba programme puts into practice some of the basic principles of restorative justice, including:

  • focusing attention on options for future peace more than on issues of restoration or re-integration
  • organising restorative forums so that responsibilities, resources and control are moved from state-sponsored restorative professionalism to local communities and laypeople, and
  • establishing systems of rules, procedures and review mechanisms that are required to keep local practice within limits and tuned toward core values.

 Conclusion

Involving the community sounds like a good, democratic thing to do. Someone once said that the word ‘community’ is like an aerosol which social policy-makers spray over problems. That already raises questions about how effective it is; and even more when we spray it over someone else’s problems! I am conscious that I have been speaking from a British point of view, and that social and economic conditions and the legal system are different in Ukraine in many ways. But there are similarities; and you will be able to judge how much of what I have said applies here – or could apply in the future.

We have considered three aspects of providing a constructive response to crime. Should it be done by state agencies or NGOs? On the one hand state structures may provide a more permanent programme, but even they are often subject to short-term funding. On the other, if an NGO loses its funding, its management committee and members, not being state employees, are able to speak out in protest, and/or to seek funding from other sources. NGOs have more flexibility, provided that they do not receive all their funding from one government department.

The actual provision of services can be by professionals or volunteers. Professionals usually have more formal qualifications; but volunteers have shown that they can work to professional standards, provided that they have adequate training, support and supervision, and they may have closer contacts with the communities they serve. There is a case for using a combination of professionals and volunteers. People with a low income may have good mediation skills, but may not be able to afford to give time to voluntary activities; in that case, paying them for their work for the community may make it possible for them to contribute in this way. By being involved, they can gain a better understanding of the pressures that lead to crime, and thus add their voice to those who are working for change.

A distinctive feature of restorative justice, and especially conferencing, is that members of the community, including relatives and friends of the victim and the offender, can be involved in the process itself. This can also have advantages which the conventional justice system does not offer. Safeguards are however needed. In some ways the conferencing process itself is an informal safeguard, because it encourages people to speak up for themselves if they feel that something is not fair. This in turn depends on the facilitators , who also need to be supervised. Formal safeguards should also be in place; in keeping with restorative principles they should include an offer of mediation at an early stage.

When people need a service , there are four main ways in which it can be provided. We can pay taxes to the state (nationally or locally), and ask it to provide a service. . In some cases we can pay professionals, such as doctors or lawyers, or profit-making commercial firms to do the work. We can pay a NGO to undertake it, and it, in turn, may use paid staff, volunteers or both. In Britain to-day, NGOs have elaborate ways of asking members of the public to give money to their work Lastly, we can do it ourselves, either by working as volunteers for an NGO, or on an individual basis, as individuals throughout the centuries have cared for their families and their neighbours. There are advantages and difficulties with all of these methods; a healthy community will be one which finds the right balance between them.

REFERENCES

Braithwaite, J (2002) Restorative justice and responsive regulation. Oxford: Oxford University Press.

Crawford, A, and T Clear (2001) ‘Community justice: transforming communities through restorative justice?’ In: G Bazemore and M Schiff, eds. Restorative community justice: repairing harm and transforming communities. Cincinnati, OH: Anderson Publishing.

Dignan, J (2005) Understanding victims and restorative justice. Maidenhead: Open University Press.

Froestad, J, and C Shearing (in press) ‘Conflict resolution in South Africa: a case study.’ In: G Johnstone and D W. Van Ness, eds. Handbook of Restorative Justice. Cullompton: Willan Publishing.

Grönfors, M (1992) .’Mediation: a romantic ideal or a workable alternative.’ In: Restorative justice on trial: pitfalls and potentials of victim/offender mediation – international research perspectives, ed. by H Messmer and H-U Otto. Dordrecht: Kluwer, 1992.

McElrea, F (1994) ‘Justice in the community: the New Zealand experience.’ In: J Burnside and N Baker, eds. Relational justice: repairing the breach.. Winchester: Waterside Press.

Pranis, K (2001) ‘Restorative justice, social justice, and the empowerment of marginalized populations.’ In: G Bazemore and M Schiff, eds. Restorative community justice: repairing harm and transforming communities. Cincinnati, OH: Anderson Publishing.

Roche, D (2003) Accountability in restorative justice . Oxford: Oxford University Press.

Ross, R (1996) Returning to the teachings: exploring Aboriginal justice. Toronto: Penguin.

Rudin, J (2005) ‘Aboriginal justice and restorative justice.’ In: Elizabeth Elliott and Robert M Gordon, eds. New directions in restorative justice: issues, practice, evaluation. Cullompton: Willan,

Wright, M (1982) Making good: prisons, punishment and beyond. London: Burnett books; on-line at www.restorativejustice.org

martinw@phonecoop.coop

April 2006

1 England and Wales have one legal system, Scotland a separate one. Together, the countries are referred to as Britain or Great Britain.

2 This section is drawn from Froestad and Shearing, in press)

3 In England, ‘justices of the peace’.