The crime, the victim, and the response: an Anglo-Saxon approach to restorative justice

The crime, the victim, and the response:an Anglo-Saxon approach to restorative justice

 A picture is worth a thousand words; this is only a word-picture, but I hope it will illustrate some of the ideas of restorative justice better than purely theoretical statements. It is a true story, although details have been changed to preserve anonymity. Also, it does not illustrate a perfect version of restorative justice (if such a thing exists); but it shows an approach to it within an existing criminal justice system.

A teenager was caught grabbing a woman’s handbag outside a bus station late at night. He and his victim were willing to meet, with a youth worker; his mother and the victim’s husband also came. He admitted the offence, and explained that he wanted money for clothes to take part in a big celebration; he apologized both to the victim and to his mother for the distress he had caused them. He was doing well at school, and was afraid that this incident would harm his prospects. The victim said she was not concerned about the money, but she wanted him to do some community service for people less fortunate than himself, to make him realize how lucky he was.

It was arranged that he would work for a project which helped disabled children to learn to ride on horseback; he would avoid certain young people with whom he had been associating; and that his school would allow him to stay and complete his examinations.

This case, from one of the Youth Offending Panels recently introduced in England in 1999, shows several things on a personal level. Victims are not always primarily concerned about money, or even about punishment. Community service can be relevant to an offender, and to the victim’s wishes, even if it is not related to the offence; and it probably has more value if the offender can meet face-to-face with the people who benefit. Control over young people’s behaviour can be exercised by agreement, not necessarily by the order of a court.

It also shows how restorative justice can fit into the system. In England and Wales, any juvenile appearing in court for the first time, and admitting guilt, must be given a referral order and appear before a panel (unless the offence is too serious, or not serious enough). The system therefore has not, like some programmes, had problems in attracting enough cases; 26,133 orders were made in 2004/5. Each panel consists of two trained volunteers, one of whom chairs it, so there is some involvement of members of the community; the third member is a youth justice worker. The community has a responsibility to make the reparation possible: the riding project did so by allowing the young man to work with them, and the youth worker by arranging the placement.

Some features of the referral order are less than ideal, however. It is all organized from within the criminal justice system, so it is not independent. The panel members receive little training about restorative justice. Most youth workers are accustomed to working with young offenders, and not with victims, so the sessions have not always been arranged to suit the convenience of victims; in 2004/5, only 65 per cent of victims were invited to participate, and of those only 20 per cent attended1.

Thus there is wide use of the programme by the system; but the system is not as restorative as it could be. Not for the first time, innovators have had to modify their ideas in order to see them accepted.

In this paper I will outline the origins of restorative justice in its modern form, and ways in which it is developing. I will suggest some ways in which it may be changing the way in which we think about crime and its consequences; and also some points to consider when introducing it. Finally I will look at a possible future.

Origins

There are two versions of the beginning of restorative justice (just as there are two versions of the creation of the world in the book Genesis). In one of them a public prosecutor and a professor of law in Columbus, Ohio, observed that many minor cases were coming to court, at times of day that were inconvenient to litigants, taking a long time to be dealt with, and resulting in criminal convictions. Professor John Palmer had visited a maximum security clinic in the Netherlands where highly disturbed patients resolved disputes by confronting each other in a controlled setting. He reasoned that if they could handle disputes in that way, ordinary rational people should be able to do the same; so with city attorney James Hughes he established a mediation service. Staffed by volunteer graduate law students, it worked at more convenient times, avoided giving disputants a criminal record, and improved the chances that they could be on speaking terms afterwards

The story of the first Victim-Offender Reconciliation Program (VORP) has been told many times; meanwhile civil mediation was developed by the Institute for Mediation and Conflict Resolution (IMCR) in New York, beginning in 1975, and started to take some criminal cases. All of these made extensive use of volunteer mediators (Wright, 1996).

The idea spread to European countries, and in December 2000 the European Forum for Victim-Offender Mediation and Restorative Justice was established. It now has members in 35 countries.

Meanwhile from 1989 onwards another approach was developed in New Zealand and Australia, in which instead of one-to-one mediation, ‘conferences’ were held, to which extended families, friends and sometimes other members of the local community were invited; they not only help to propose a package of measures by which the offender can make reparation and often increase his own skills, but sometimes help to see that they are put into effect. This is another aspect of community involvement. In Canada it was taken a step further: the court became the conference, including the judge, prosecutor and defending lawyer. Because the judge presides over the ‘sentencing circle’, very serious cases can be dealt with. It could be done in any court room, provided the seats are movable!

Developments

The distinguishing features of the restorative approach were:

1. repair of harm

2. participants talk to each other

3. the parties are given the power to reach their own resolution of the incident.

Each of these requires further explanation, however. In addition, it has been suggested that

4. a fully restorative system should include community participation,

and there is another which is only beginning to be developed: that

5. in this process the community should learn about social problems that add to the pressures towards crime, and take steps to remedy them.

The repair of harm is often symbolic, either because it is irreparable or because it is beyond the offender’s abilities to repair it fully. In some cases all the victim wants is the actual dialogue with the offender. In others, like the example given above, they want nothing for themselves but want the offender to take his life in hand and do something better. There are many cases where the victim and offender are already known to each other, and the offence (such as an assault) has arisen from a dispute; in that case the best way forward is to resolve the dispute rather than argue about who started it; that could leave one with a criminal record and both of them not on speaking terms. This is also an example of the way in which the dividing line between civil and criminal cases becomes unclear: if the aggrieved party goes to the police station, it is a crime, but if he goes to the mediation centre, it is a dispute.

The dialogue, as we have seen, can take different forms, in a group or one-to-one; it does not even have to be face-to-face if the victim and offender do not want to meet. The mediators can carry messages back and forth. In some programmes the facilitators set ground rules; in other places the participants themselves are asked to propose them. One objection is that the victim-offender dialogue does not take place in public; but in reality many courts also are not visited by any members of the public, and in the case of ‘conferences’ several of those members of the public who mean most in the lives of the victim and the offender are indeed present.

It is important to remember that only a minority of offenders are caught; so a restorative approach which focuses on victims has to take care of the victims of these crimes. Hence Victim Support in England, and Apoia á Vitima (APAV) in Portugal, are an essential part of a fully restorative response. In the same way, it should not be limited to juvenile offenders, or first-time offenders – otherwise victims of adult offenders, or repeat offenders, will be excluded.

As regards power, one of the earliest proponents of the new approach, the Norwegian criminologist Nils Christie (1977), argued that professionals had taken power from the ‘owners’ of the conflict, and it should be given back. It is suggested ,however, that they should not have power to punish – even judges have trouble doing that consistently (Wright 1999: chapters 5, 6). For the victim to have a say in reparation, on the other hand, seems appropriate. However, if he or she demands too much, should the facilitator intervene, or the judge? And what if the victim asks for too little – does the public interest require that the judge should impose a penalty in addition? There was one famous case of violence in which the victim did not want the offender to go to prison, but wanted him to pay for plastic surgery to repair the damage to his face. The offender agreed, and so did the trial judge; but the New Zealand Court of Appeal ruled that a crime of that seriousness required a prison sentence – so the offender was unable to earn the money to pay for the surgery (Mason 2000).

The important question is of course what happens to the ‘clients’ of the criminal justice system ; but those who work in the system will naturally wonder if their role will be diminished if the participants are empowered in this way. Firstly, restorative justice only operates when the offender admits involvement in the offence; so where he denies it, a trial will still be necessary. (It has however been suggested that defendants are less likely to deny it if they know that the result of an admission will be a chance to make amends for what they have done and wipe the slate clean.) Although conferencing is not a legal process and lawyers do not normally take part, both the accused and the victim are entitled to legal advice before and after it. The whole process requires an appeals procedure and judicial oversight In the New Zealand juvenile system, the most serious cases come before a court; before sentence, the judge then refers the case to a family group conference, and in most cases uses its recommendations in the sentence.

In one important way it seems to me that restorative justice is still missing an opportunity. Whereas the court process is narrowly focused on determining guilt and punishment, restorative justice is based on dialogue. The victim can ask any questions he or she likes. The situation encourages the offender to answer openly. There should be a process for collecting this information to learn about the social conditions that put pressure on people to commit crimes, so that they can be taken into account in crime prevention policy and social policy generally. There is no guarantee that this will happen, if the message is one that the policy-makers do not want to hear – for example, that there are too few legitimate opportunities for those at the bottom of society. But at least it gives an opportunity for the message to be heard. There is one restorative justice programme that is working on these lines, which I will describe later.

One more major development must be mentioned: teaching restorative justice in schools. Several promising experiments have shown how children can learn to be mediators, and to resolve problems non-violently. Instead of going to their teachers with a problem, the children can tell the teacher that there was a problem and it has been resolved. Bullying can be dealt with by thses methods. Last but not least, an essential pert of the philosophy of mediation is to treat everyone with equal respect and to respect difference: whether appearance, ethnic background, disability, class, or gender.

Changing approaches to crime and its consequences

The philosophy of restorative justice is focused not on the letter of the law, but on the harm that one person causes to another or to the community. This has potentially far-reaching implications, which may encourage us to re-think some of the conventional ideas of criminal justice. .

What is ‘crime’?

In criminal law it is essential to define crime, because defining it as crime unleashes the power of the state. This can however inhibit action if the harmful act escapes being defined as a crime. In the United Kingdom recently (March 2006) a political party used a legalistic device to conceal large sums of money provided by wealthy donors; party spokespersons defended the shady practice on the grounds that it was legal. In a more serious case, in Sudan, thousands of people were being killed, but it was necessary to spend time debating whether the killings amounted to genocide, because only if actions were defined as war crimes could the United Nations intervene.

To be a crime, (1) this category of action must be on the list of criminal offences, (2) this individual act must be reported as a crime (usually by the victim), (3) the police must record it as a crime, (4) a prosecutor must bring a charge, (5) a court must decide that a crime was committed. A harmful act can be referred to mediation at any of these stages: without being on statute book as a crime, without being reported to police. Even if it is on the statute book, it is not treated as a crime if the victim chooses to go to mediation instead. Similarly the prosecutor can refer the case to mediation instead of prosecuting, (although in some countries a modification of the ‘legality principle’ (mandatory prosecution) may be necessary). In February 2006, Dick Cheney, vice-president of the United States, shot his friend Harry Whittington by mistake when shooting quail; but he was not prosecuted, so officially no crime was committed (Independent, 17 Feb 2006). When an incident has been to court and classified as a crime, mediation is still a possible outcome; it can be used before sentence (as in the example of New Zealand, referred to above), or after sentence

But some harmful acts escape being defined as crimes. The leak of poisonous gas at Bhopal, India, in 1984, killed many people and ruined the health of many more, and there is a constant flow of examples of corporate manslaughter. Perhaps what matters most to the victims is not whether the perpetrators are punished, but whether adequate compensation is paid and adequate steps taken to ensure that nothing similar will happen again.

Who are the victim and the offender?

The stereotype is that the offender is a robber or burglar, or sex offender, and the victim is an innocent, honest citizen (Christie 1986) The reality, however, is that But some victims have been offenders in the past, and some offenders have been victims of crime; and many have been victims in the wider sense of not having a fair chance in life. A friend of mine has a neighbour who constantly tells her adolescent sons that they are useless and she can’t wait for them to grow up and leave home. If they become violent, or addicted to drugs or alcohol, they are responsible for their actions; but surely their mother is also. If children live on the streets to escape the poverty or abuse of their families, and commit crimes in order to survive, should they be treated as offenders or as young people in need of care? If they steal, should they be required to make reparation to their victims, or even to apologize? The case of Brazilian street children has attracted attention, but they are by no means the only ones.

If a bullied individual (not necessarily a. child) lashes out at bully (who may also feel insecure); or an abused wife stabs her abusive partner – who is the offender? Who is the victim? Nor do the poor always steal from rich: the poor steal from poor, and the rich steal from poor (big company frauds, or exploitation not defined as criminal) Many victims of fraud wanted something for nothing; if you believe that you can win a lottery prize without buying a ticket, or make a fortune by laundering money from a Nigerian bank account, you should not be surprised to find that you have been cheated.

What should be the response?

Perhaps the biggest upheaval in thinking stimulated by restorative justice is the question: what should be the response to crime, or to harm? We have been conditioned through the ages to accept the axiom that the person who commits a crime should be punished? But why? Antiquity is no guarantee of validity. Something should be done – but why punishment? In restorative justice, ‘The scales of justice are no longer seen as balancing the harm done by the offender with further harm inflicted on the offender; that only adds to the total amount of harm in the world.’ (Wright, 1992). If the offender is caught, punishment can also cause ‘collateral damage’ to his or her family – through the stigma if the family is a law-abiding one, through depriving the family of a breadwinner if he or she is sent to prison, through depriving children, if any, of a father or mother.

There are many problems with punishment. There is no way of determining the exact seriousness of the offence, and if there were, no right amount of punishment – the same amount has different effects on different people. To be justified, the deliberate infliction of harm would presumably have to be proved to be more effective than measures which simply inflict harm (Wright 1999).

In short, restorative justice offers a different axiom:: the person who commits a crime should make amends for it. If there is nothing to choose between the two axioms in moral terms, they can be judged by their practical effects. For the state to inflict pain or harm on a citizen deliberately would seem to be justifiable only if it can be shown to be more effective that any less oppressive methods. A process which allows the victim and offender to discuss how reparation can be made, gives the offender an opportunity to do so voluntarily, or failing that compels him to do it, seems prima facie to be morally superior. As regards deterrence, it is generally acknowledged that the greatest deterrence comes from being caught, so both methods are equal on that score. Punishment, especially when it takes the form of imprisonment, can make a person unwilling or even unable to conform.

Involvement of the community (families, volunteer mediators, NGO mediation service); is another potential advantage of the restorative process. Knowledge of mediation can also help professionals (professional mediators, trained social workers/probation officers/police) in their work.

Introducing restorative justice

Guidance on introducing restorative justice has been produced by Mediation UK (n.d.), the Council of Europe (Aertsen et al. 2004), and the United Nations (in press), as well as by the American author Mark Umbreit (2001). The first step is to examine the country’s legislation to discover whether restorative justice is possible, and if so at which stage of the process. Sometimes the door may be opened by non-statutory guidelines such as the Code for Crown Prosecutors in England and Wales. A steering committee can be formed, like the Committee for the Introduction of Mediation, in Poland, which has now become the Polish Centre for Mediation. The handbooks list the decisions that have to be made. For example, will the service be operated within the criminal justice system or by a NGO? Will it use volunteers facilitators or professionals, or both? Will it use victim-offender mediation, or ‘conferencing’, or both? Who will train the facilitators? How will it be funded: if it saves money by diverting cases out of the system before they reach the court, is there an administrative procedure for transferring the savings to the mediation programme?

There are many more questions to be answered; how they are answered depends on the philosophy that is being applied. My own approach would be to answer them in a way that involved members of the community in the operation as much as possible; but that is not easy in England, and may be still more difficult elsewhere. One obvious question is what to do about offenders who present a serious risk of serious re-offending. Clearly the public must be protected. The liberty of such offenders must be restricted, for example by banning them from driving a car or running a company. A recent case shows how this could work; although it did not involve a crime, it did involve harmful behaviour. In 1961 a promising young politician named John Profumo had an affair with a high-class prostitute. That might not have been a problem, but he was Minister for Defence at the time, and she was also seeing a Russian intelligence officer. This was considered a danger to the security of the country. Rumours began to spread, and he made a statement to the House of Commons, denying them. He later had to admit that this was a lie. He resigned his position, and spent the rest of his life working for a charity in the East End of London. He died in March 2006 at the age of 91. Would it not be appropriate for those who had ruined another person’s life to give up the rest of their own life in a similar way? If there was a serious danger of serious re-offending they would have to be deprived of liberty altogether, but there is no reason why they should not spend their time in reparative activities.

A possible future

Whether we are concerned about the reduction of crime, in the conventional sense, or harm, in the wider sense used by restorative justice, the key lies ultimately in social policy. But of course individual incidents have to be dealt with; how can they contribute to showing that harmful acts are not tolerated, repairing the damage that they cause, and making them less likely to happen in future?

One example comes from Germany. The pioneering victim/offender mediation project ‘Die Brücke’ (The Bridge), in Munich, noticed that an increasing number of criminal offences, including bodily harm and sexual harassment, were committed in or near schools. Some victims said that their complaints were not taken seriously by the teachers; in other cases, however, the offenders were excluded and felt stigmatized. Die Brücke therefore created a plan to teach children to be peer mediators, to explain the idea to teachers and parents, and other activities (Nothhafft 2003). This can not only enable pupils themselves to deal with conflict among their peers, but encourages them to respect each other through active listening and prejudice reduction, which form an essential part of mediation training.

Another example comes from a very different community; but we may be able to learn from it. Zwelethemba is a township in Western Cape, South Africa. There and in similar townships local people have formed ‘peacemaking committees’ which meet to ‘heal, not hurt’: to deal with both civil conflicts and criminal cases by reaching a consensus about repairing the harm that has been caused. Restorative justice focuses on harm, whether or not it is against the criminal law. If agreement is reached, and kept, voluntarily, everything is done within the community. This is appropriate because the police are not greatly trusted, and there are not many of them in the townships. But if no voluntary solution is reached, and the act was a criminal one, coercion has to be used, and the case is referred to police

The peacemaking committees are linked to peace-building committees, which use information from the mediation meetings to identify local needs, for example by building a children’s playground and providing loans to enable people to start small businesses (Shearing 2001, Roche 2003: 264-6).

Restorative justice, then, offers a way of responding to crime that fulfils most of the primary aims of the criminal justice system, and some others which the present system cannot do. It repairs the damage, as far as this can be done, and involves the victim, the offender and the community in the process. It gives us the opportunity to learn about the pressures that lead people to crime, so that we can, if we have the will, build a society with less harm and more fairness

REFERENCES

Aertsen, I, R Mackay, C Pelikan, J Willemsens and M Wright (2004) Rebuilding community connections: mediation and restorative justice in Europe. Strasbourg: Council of Europe (published in English and French.)

Christie, N (1977) ’Conflicts as property.’ British Journal of Criminology, 17, 1-15.

Christie, N (1986) ‘The ideal victim.’ In Fattah, E, ed. From crime policy to victim policy.London: Macmillan.

Mason, Sir Anthony (2000) ‘Restorative justice: courts and civil society.’ In: H Strang and J Braithwaite, eds. Restorative justice: philosophy to practice… Aldershot: Ashgate.

Mediation UK (n.d.) Victim-offender mediation: guidelines for starting a service. Bristol: Mediation UK.

Nothhafft, Susanne (2003) ‘Conflict resolution and peer mediation: a pilot programme in Munich secondary schools.’ In: Elmar G M Weitekamp and Hans-Jürgen Kerner, eds. Restorative justice in context: international practice and directions.. Cullompton, Devon: Willan Publishing.

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

Shearing, Clifford (2001) ‘Transforming security: a South African experiment.’ In: Heather Strang and John Braithwaite, eds. Restorative justice and civil society. Cambridge: Cambridge University Press.

Umbreit, M S (2001) The handbook of victim offender mediation: an essential guide to practice and research.. San Francisco: Jossey-Bass.

United Nations . Office on Drugs and Crime (in press, 2006)Handbook on Restorative Justice Programmes. Vienna United Nations Office on Drugs and Crime, Criminal Justice Response Unit, Rule of Law Section.

Wright, M (1992) “Victim/offender mediation as a step towards a restorative system of justice.” 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.

Wright, M (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press.

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

Zehr, H (1990) Changing lenses: a new focus for crime and justice. Scottdale, PA: Herald Press.

m-w@dircon.co.uk

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1 I am grateful to the Youth Justice Board for supplying information.