How far can and should restorative justice distance itself from criminal justice?’

3.7.2007

If you give a person a fish, you feed them for a day; if you teach them to fish, you feed them for life’. Similarly, if you resolve a dispute between people, there will be calm for a day, but if you teach them how to resolve disputes, they may go on living in peace.

Victim-offender mediation in the 1980s was a new way of responding to some offences, and involving the victim in the process. In the 1990s it evolved into restorative justice, which its advocates see as much more than that: a new philosophy of justice, based not only on the outcome, reparation, but on the process, dialogue. This has been taken much wider than criminal justice, including for example mediation in neighbourhoods and schools (where it is often called ‘restorative approaches’), but this workshop will focus on the criminal context. There is considerable overlap: serious crimes often arise from small disputes, so that mediation (though classed as ‘civil’) has an important preventive function.

To the extent that restorative justice has been implemented, it has shown very promising results: the great majority of victims are satisfied, offenders feel that the method is fair, and re-offending rates are as good or better in almost all cases. But in this country restorative justice is being put into effect in a very piecemeal fashion, lacking many of the features that the full-blown philosophy would require; for example, victims are often not involved, or if they are, they are not empowered. The workshop will consider to what extent this is because the delivery of restorative justice is mainly done in-house by youth offending teams, probation or police.

An alternative model will be considered in which the service would be provided by a network of voluntary organizations, with an ethos and standards governed by a national NGO. It has been suggested that such a model would inevitably remain marginalized – can that be overcome, or would it be a price worth paying for holding to the core restorative principles? Cases which could not be dealt with in this way would have to go to the conventional system; is it conceivable that it too could, in time, operate on restorative lines?

1. Introduction: what is restorative justice?

Essential distinguishing features:

  1. support for victim if offender not known
  2. opportunity for dialogue
  3. reparation to victim
  4. acceptance of responsibility by offender

A process, not just an outcome

2. Development of the concept

(1) Empowerment.

a) ‘Conflicts as property’ (Christie 1977); cf. Lyndon Johnson’s Office of Economic Opportunity (1960s): making the people who are experiencing a problem part of the solution to the problem.

b) cf schools: teachers teaching children to resolve own disputes

(empowering instead of exercising power.)

Give a fish or teach to fish?

(2) Community participation in the process:

  1. family and supporters of victim and offender; proxy victims; representatives of service providers
  2. volunteer mediators
  3. voluntary organizations (NGOs) providing services

(3) Community involvement in the outcome:

a) enables offender to make reparation (offender’s acceptance of rehabilitation regarded as a form of reparation)

b) repairs harm to offender if needed

(provides rehabilitation training, accommodation etc.)

(4) Preventive feedback: Community learns from process, tackles criminogenic features.

Restorative approaches in many settings: problem-solving, conflict resolution in schools, community, workplace, etc.

3. Stages for use of restorative justice

(1) Embedded in criminal justice system

In lieu of pre-sentence report (New Zealand)

Referral orders (only partly restorative)

Reparation/action plan orders (restorative dialogue within criminal justice procedure)

Partly restorative processes: victim awareness etc.

(2) Enters criminal justice system, then diverted

Final warnings ) can be restorative

Conditional cautions )

Continental process: referral by prosecutor

(3) Community-based

  1. Neighbourhood mediation (self-referrals or from housing officers etc.)

Advantages include decriminalizing, not giving criminal record.

  1. Northern Ireland: (Community Restorative Justice Initiatives and Northern Ireland Alternatives).

i) But is community accountable? (O’Mahony and Doak 2006: 16); need for NGOs to be regulated

ii) Government insists that all cases referred through police – this disempowers community. (Mika, 2006)

  1. Zwelethemba model (South Africa) community-based and works with police (see below)

4. Delivery of restorative justice

a) C J S provides mediation in-house

YOTs

Police

Referral orders

Northern Ireland: Youth Conferencing Service

(Justice (N.I.) Act 2002)

Diversion or mandatory court referral (except indictable-only, life, scheduled (terrorism)). Chaired by professional. Little interaction with community-led programmes; referral to these only by police (O’Mahoney and Doak 2006: 20)

New Zealand

Risk of R J principles being watered down by C J ethos.

b) C J S contracts-out to non-profit organizations:

(REMEDI, Sheffield – Liebmann 2007: 179.)

To get cases referred, needs either persistent requests, or way of saving work or cost, or legislation.

c) Community-based mediation services

Zwelethemba: Work with police, but can also accept direct referrals to ‘peace gatherings, which get a fee: 2/3 for Peace Committee members, 1/3 for peacebuilding activities. Not just R J, but a model of governance. Examples of projects developed and financially supported through the peacebuilding process are:

  1. Building and maintenance of a children’s playground;

  2. Refurbishment of an old-age home;

  3. Rubbish-clearing, in cooperation with youth football teams;

  4. Supporting and extending feeding schemes and a health education programme for children and TB and HIV/AIDS sufferers;

  5. Youth projects (sports, arts and culture). (Gerits 2005)

Models for delivery of restorative justice:

(1) Within the criminal justice system. Risk of being swallowed by conventional punitive values.

(2) Restorative Justice Board (proposed by Sherman and Strang (2007: 90))

Better than engulfed in Ministry of Justice. Similar to Youth Justice Board, with outside members as well. Independent: could oversee roll-out of R J. Could ensure enough attention given to victims, and liaise with different departments [cf. YOTs]. An ‘improvement agency’ rather than an operating agency. Pilot projects. Quality assurance.

(3) National NGO, with local network:

Independent. Continuity not guaranteed – but neither is it with statutory agency, and an NGO can protest against closure. Need for stability and good governance of voluntary organizations.

 

Which is best placed to uphold restorative values and other benefits: respect for justice system and police, boost democracy and inter-communal healing? (O’Mahoney and Doak 2006: 22)

Would NGO be sidelined? (Criminal Justice Review Group (N.I.) 2000)

How to prevent that (by legislation? cf. referral orders).

What about enforcement? Can that be done ‘restoratively’?

The more community involvement, the greater the potential of restorative approaches (in schools, neighbourhoods, criminal justice and elsewhere) for deepening democracy in society.

REFERENCES

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

Gerits, R (2005) Restorative Justice in South African Townships in Search of the Possibilities and Limits of the Zwelethemba Model . (Working Papers of the Law and Society Institute Faculty of Law, Catholic University of Leuven, Belgium.

Liebmann, M (2007) Restorative justice: how it works. London: Jessica Kingsley.

Mika, H. (2006) Community-based restorative justice in Northern Ireland. Institute of Criminology and Criminal justice, School of Law, Queen’s University Belfast. iccj@qub.ac.uk

O’Mahoney, D., and Doak, J. (2006) ‘The enigma of “community” and the exigency of engagement: restorative youth conferencing in Northern Ireland.’ British Journal of Community Justice, 4 (3) 9-24.

Sherman, L., and Strang, H., (2007) Restorative justice: the evidence. London, Smith Institute, 2007.

Martin Wright 3.7.2007

martinw@phonecoop.coop

 

Restorative justice: the way ahead

Instead of restorative justice within the criminal justice system, or restorative justice in parallel with a punitive criminal justice system, could we have restorative methods backed up by a restorative justice system?

Three-stage system:

  1. less serious cases referred (or self-referred) to community mediation service
  2. more serious cases reported to criminal justice system, but referred out to community mediation service in lieu of prosecution (caution, final warning, suspended prosecution)
  3. if unsuitable for mediation, or mediation unsuccessful, or agreement not kept, or too serious for (b), referred to criminal justice system for compulsory reparation (payment to charity, community service or co-operation with rehabilitative programme), imposed by court

Restriction or deprivation of liberty as separate measures, not as punishment but as enforcement of (c) or for protection of public. Ethos (and if possible buildings) to reflect this philosophy: prisons as a place to make reparation, not a place of punishment.

Implementation by stages: (i) no imprisonment by magistrates, (ii) no imprisonment for offences with current maximum of 5 years or less.

 Martin Wright

3.7.2007