Restorative justice: necessary but not sufficient

What are we aiming for?

Before considering restorative justice, it is worth thinking about the big picture: what is the kind of society in which we should like to live? Probably most of us would agree to a description such as ‘a society where people respect themselves and each other’, or where people treat others as they would wish to be treated themselves.

 The difficulty, of course, starts when people do not act in this ideal way, in schools, in the community, or the workplace, or by committing crimes. The word ‘restorative’ (in English at least) has taken on overtones which include this ideal of mutual respect, so we may say that we are looking for a restorative response. Its distinguishing characteristics would be that:

  • Its first priority is the repair of harm

  • It aims to involve all those affected, in dialogue

  • It involves members of the community in the problem-solving process, for example as participants, or mediators, or as committee members of organizations which provide services

  • It provides a way to learn about the pressures that led to the harmful act, to suggest how to prevent more harm, and to feed back these findings to agencies responsible for social policy.

What is restorative justice?

 When these general restorative principles are applied to an act defined as criminal, they are described as restorative justice, which has these further characteristics:

  • It is a process, not only an outcome

  • There should be willing participation of everyone involved. For the accused person this is not fully voluntary, since the alternative is going to court; but he or she does have this choice.

  • The accused person must accept responsibility for involvement in causing the harm, though this may not necessarily mean accepting guilt in the legal sense.

  • The primary aim, as stated above, is repair of harm to the victim. This may include symbolic reparation, such as an apology, and/or action to repair deficiencies in the offender’s upbringing, to make repeat offending less likely. This may for example include taking part in training, treatment, education, etc. (It is interesting to speculate on what are the deficiencies in the upbringing of major economic criminals and those who abuse positions of power, or deficiencies in a society where they permit themselves and are permitted to behave in that way.)

  • It aims to persuade and enable the offender to make amends in this way. Victim-offender mediation may lead the offender to feel remorse and want to change his lifestyle, but that is often not sufficient: he or she may need support. Hence there is a need for community involvement, to provide the services needed, such as training, education, and opportunities for community service. The word ‘community’ can include individuals, employers, NGOs, or municipal agencies).

 Motivation

It is time to re-examine the reasons why most people behave in an acceptable way most of the time. Probably their (our) reasons include the desire to earn respect, and to make amends when we have caused harm to someone, rather than merely the avoidance of punishment. We could use psychological knowledge to study what makes people behave well: such factors as responding to relationships, and trusting other people. According to this hypothesis the reasons why people behave well include self-respect, and having something to lose. We also need to identify the reasons for ‘desistance’ (ceasing to commit crimes), and encourage them; and to avoid measures which discourage them.

 It seems to me that these principles of motivation through respect and trust are put into practice in the Polish town of Siedlce, which we visited during the recent Anglo-Polish Exchange Programme. The H C Kofoed Association for Social Help, Rehabilitation and Resocialization (Stowarzyszenia Pomocy Spolecznej, Rehabilitacji i Resocjalizacji im. H Ch Kofoeda) provides a daily hot meal, clothes, and washing facilities for those who need them. Whether ex-mental patients, ex-prisoners, homeless people, or people in need for other reasons, they are regarded as ‘students’ of the Kofoed Institute, who work in lieu of paying for the services they receive, such as training and English lessons. Psychological and legal advice is available. Prevention starts with ‘activizing’ them through work, encouraging them to do anything, not to be passive. The aim is not to make them work, but to enable them to do cleaning or other work, some of which is provided by local government. The underlying principle is not enforcement, but encouraging and enabling them to give something back, in return for the help given to them.1

 Respect

I have written about ‘restoring respect for justice’, and I am honoured that my book has been translated into Polish.2 I believe that people have respect for justice when they feel that the criminal justice system treats them with respect. Many principles are embodied in the law which attempt to respect the individual, even when he or she is accused of a crime; some are very old, as their Latin names show: ne bis in idem, nulla poena sine lege, the presumption of innocence, the right to a lawyer, the right to appeal.

 It is only more recently that the system has recognised the need to treat victims with respect as something more than witnesses, and organizations for victim support have been established. Restorative justice takes this respect a step further for both victims and offenders. For victims it offers them the chance, through victim-offender mediation, to take part in the process. When the offender has admitted guilt (or at least some involvement in the crime), it enables the victim to meet the offender, to make sure he or she understands the effects of the crime, and to consider together how to make reparation.

 For offenders, it raises questions about fundamental principles of the relationship of criminal law and psychology. Penal law is based on the assumption that people can and should be frightened into good behaviour. In several languages, including Polish, it is not called ‘criminal law’, prawo przestępstwa, but ‘penal law’, prawo karne, that is, punishment law, prawo kary.3 Why? In my book Restoring respect for justice I have looked at the psychological literature, and found that punishment is not actually a very effective way of changing behaviour, for animals in the laboratory or for humans in the real world. So we must look for a symbolic explanation. In two chapters, the book approaches this from a legal and a philosophical perspective. I could find no evidence that prison sentences are, or even can be, proportionate to the amount of punishment needed to deter the offender, or other potential offenders; nor to the length of time necessary for rehabilitation. The only justification for the length of any prison sentence is to indicate the seriousness of the offence in relation to other offences. It could be proportionate to the amount of reparation required to make amends for the harm caused by the crime, based on restorative law, prawo naprawcze (and you will note that in Polish the root of those two words, praw, is the same: the true purpose of law is not to inflict pain but to make things right. .

 This would show respect to the victim, because it would recognise the harm caused to him or her, and go some way towards putting it right. It would also show respect to the offender, by acknowledging that he or she is capable of regretting the harm caused to another person, and of wanting to make amends for it. not every offender will do so, of course, but they should have the opportunity. Restorative justice does not simply reject, eject, exclude the person who has caused harm; it shows willingness to include him or her. But this is a conditional offer. Redemption has to be earned – not through pain, but through the effort of making amends. And it places a moral obligation on ‘us’, the other members of the community. We (either through the state, or NGOs, or as individuals) have a responsibility to victims, and we should provide offenders with opportunities for community service, as one way of making amends, and we should make good (naprawiać again) the deficiencies in the upbringing of so many offenders to enable them to do this.

 Of course this will not always succeed, just as punishment certainly does not always succeed. But when it does, it succeeds very well. Here is an example from Thames Valley, an area of central southern England which has pioneered restorative justice.

 Two young men robbed a petrol station, armed with a knife. They threatened the three employees, saying they had a gun. One of the victims escaped through the back door and raised the alarm. The two offenders who were both heroin users were subsequently jailed, and volunteered to take part in RJ. They had both detoxed in prison [so custody can serve a useful purpose!] and were very remorseful for their actions. The victims had all been traumatized by the offence, particularly the female manager who was still on medication as a result. They all had unanswered questions; had the offenders been watching them?, were they personally targeted?, did they really have a gun?, are the offenders going to seek them out on release and punish them for helping the police?

 The three victims came to the restorative conference, but such was their fear and apprehension that they only managed it by mutual support and encouragement. The offenders had two family members as supporters.

 The conference was very emotional from the outset. The offenders gave an account of what they did and apologized. The victims told them how afraid they were, their jobs had suffered, the sleepless nights, the anxiety of walking down the street, the fear of revenge and how their personal relationships had suffered. The victim who had raised the alarm had experienced problems with his father who thought he had behaved in a cowardly way. The female victim then asked if they had had a gun and when they answered no the release of tension was palpable. The offenders had never imagined the worry this had caused her for two years.

 The offenders were shocked and shamed by this. They spoke about their upbringing and why they had turned to drugs, and also about their efforts in prison to detox and then help other prisoners to do the same. The victims listened with interest and compassion, which had a profound effect on the offenders, and everyone discussed constructively how the offenders could turn their lives around. Afterwards, they all chatted on the landing for 1½ hours. Later one of the victims, who brought the female manager to the meeting in his car, said “The person I drove home was completely different from the one I drove there”.

Thames Valley Statutory Adult Restoration Service, 2009

 How does restorative justice relate to the CJS?4

 Non-criminal disputes, and cases which in Polish law can be prosecuted privately, can be referred to mediation

 Pre-court diversion by prosecutor.

In England, the Code for Crown Prosecutors allows a prosecutor to consider discontinuing a case if the defendant has put right the harm; but little or no use is made of this, partly because there are few local mediation services to which such cases could be referred. Since the Criminal Justice Act 2003 (sec. 22-23), prosecutors can, on the advice of the police, issue a conditional caution, and the conditions may include making reparation for the offence, such as compensation; but until now this has seldom if ever included a restorative meeting, for the same reason. In a pilot in one area, the main reasons for low take-up and discontinuance were that it was seen as time and resource intensive, there were delays in the process, and other measures, such as fixed penalties, were less bureaucratic for police officers to deliver. The CPS has also issued more detailed guidance.5

 If the conditions are not met, criminal proceedings may be instituted (sec. 24).

 In adult courts

In England, the finding of guilt and the imposition of the sentence are different parts of the process. There are therefore different ways in which restorative justice can be introduced.

 Diversion by judge

After the accused has been found guilty, but before sentence. In England the sentence can be deferred for up to six months (the judge waits before imposing the sentence.6) I understand that courts are actively discouraged from using this disposal (which in many ways could give the best results) because of the delay involved, so that court targets for speedy trials would not be met.

 Included in sentence

The sentence may include requirements, such as ‘activities’, which may include those ‘whose purpose is that of reparation, such as activities involving contact between offenders and persons affected by their offences’ 7.

 ‘The making of reparation by offenders to persons affected by their offences’ has been introduced as a ‘Purpose of Sentencing’8 for the first time – in fact it is the first time that the purposes of sentencing have been set out in legislation in the UK. Magistrates have to set out which purposes of sentencing should be met when they adjourn for a Pre Sentence Report prepared by the Probation Service. However, magistrates have been asked to propose not more than two; it appears that they are likely to put punishment, rehabilitation and protection of the public at the top of their agenda.

 In Thames Valley the probation service offers a Restorative Justice Specified Activity Requirement to courts as part of Community Orders and Suspended Sentence Orders in cases of violence and household burglary. A sentence may be conditionally suspended9: the sentence is pronounced, but not imposed if specified requirements are complied with. This provision is used to deliver restorative justice in Thames Valley: it is combined with a Community Order with restorative justice as one of the Specified Requirements.

 So far (November 2009) there have been 35 such orders made in the last six months. The probation service does not approach the victim before sentence – because they do not know what the sentence will be. Of those 35 cases 8 have led to restorative justice conferences, and in the remaining cases other restorative activities (usually writing a letter of apology) have taken place.

 Other requirements, however, can be imposed by the court with no restorative process. To be fully restorative, the victim-offender meeting or conference should take place after the accused has admitted involvement but before sentence, as in the New Zealand juvenile system: the action plan agreed at the conference is then usually endorsed by the judge, although in some cases he or she may make changes.

 Post sentence

When an offender has been sentenced to one year or more of imprisonment for an offence of violence, the probation service is required to contact the victim before the offender’s release. In a few cases the victim has expressed a wish for mediation, but this depends on the individual probation officer, and as the probation service is under great pressure, it is seldom possible.

 The Victim Unit in Thames Valley has implemented the victim’s wishes to meet in a handful of cases, but experiences a lack of resources to develop this more widely.. The role of the Victim Liaison unit is to provide victims with the details of how sentences operate and to offer the victims the chance to make a Victim Personal Statement to the body considering release. Also the victim is offered the opportunity to make requests for conditions as part of the prisoners’ post release licence, for example to stay away from the victim or from a specified area. The procedure appears however not to encourage any form of restorative process, but keeps victim and offender apart. This seems likely to polarise the position and may even engender unnecessary fear in some victims. Even staff who are prepared to offer restorative justice in appropriate cases, do not usually have the resources to do this.

 In Sheffield, there is an independent mediation service named REMEDI which is willing to arrange mediations on the application of a prisoner10, and this is possible in a few other places.

 The Thames Valley Prison project, on which Professor Joanna Shapland has reported11, involved a large number of cases in prison which were very successful. Thames Valley Restorative Justice Service are still doing a limited number with a small amount of funding provided by the Prison Service (National Offender Management Service(NOMS)).

 Post release

Similar conditions apply after an offender has been released from prison.

 Enforcement

Before considering enforcement it is important to remember that the process itself is the primary concern: firstly because of its intrinsic value, and secondly because if there is agreement to make tangible reparation, the fact that the offender has agreed to it makes him more likely to complete it. They are usually keen to show that they really regret the harm they have caused to the victim.

 When the court makes a requirement to take part in Specified Activities, and the offender fails to do so, he can be returned to court for an alternative sentence. When the ‘activity’ is a victim-offender conference, however, the outcome agreement made at that conference is voluntary and is not enforceable. Interestingly, it appears that the outcome agreements in more serious violence cases are usually less onerous, in terms of time and effort required from the offender, because of the value and importance of the apology itself.

 If offenders do not comply with an order, the ideal is ‘restorative enforcement’: first ask if their circumstances have changed, and if necessary re-negotiate the agreement. If they still do not co-operate they can be returned to court and re-sentenced, or they may choose to do so.

What does restorative justice need to make it work well?

 For restorative justice to work at all, it is obviously necessary for mediation services to be available; but what more does it need, to ensure that it works well?

 (1) Community support

The first requirement is community support. if an offender is to make amends through community service, the local community has to provide opportunities to do so, and similarly if he is to pay compensation, there must be the possibility to earn money. Many offenders need help in order to do this, so rehabilitation, therapy, training, education and similar programmes are required. Combined with this, there is a need for a change of public attitude from punitive approaches to those of restoration.

 (2) Mediators

The key to restorative justice is obviously mediators. Several countries have found that volunteers, with basic training, can be good mediators, although professionals may be needed for complex and sensitive cases.

 Recruitment We believe that good mediators can come from all walks of life, and if there is a law it should recognise this. it is helpful if they are familiar with the background from which many offenders come, but they should also be able to empathize with victims. For professionals, recruitment depends largely on offering an adequate salary. If they are not paid (or receive only an honorarium), the incentive for becoming a mediator is the work itself, and the training, which most mediators find useful in their daily lives.

 Training is important, because mediation, like other work, needs to be done well. It has its own values and skills; being trained in another discipline, such as social work, psychology or law, may be an advantage but does not in itself make a good mediator. In England, training courses usually last for about 40 hours, in week-ends and evenings, plus in-service training (continuing professional development), as is required for other professions such as lawyers.

 Supervision and support. Mediators, whether volunteers or professionals, need supervision and support. There should be a system by which they report back to a supervisor on each case they have handled. Often they mediate in pairs, and evaluate each other’s handling of the case after it is finished; in complex cases a third mediator may also be present, to deal with unforeseen occurrences, write on a flip-chart, provide refreshments and, most importantly, help the mediators to evaluate at the end. This also provides an opportunity for a newly trained mediator to observe the process; sometimes, having been recently trained, they can remind the more experienced mediators of points which they had forgotten. Conversely, an experienced mediator may use this role to observe newly trained ones.

 (3) Principles, standards.

Training should be primarily practical, although some theory is also needed. It should include familiarity with one of the main statements of principle. It could be that of the United Nations12 the Council of Europe13, the Restorative Justice Consortium14. Perhaps the shortest comes from South Africa:

 Code of Good Practice

(Zwelethemba, South Africa)

We help to create a safe and secure environment in our community

We respect the South African Constitution

We work within the law

We do not use force or violence

We do not take sides in disputes

We work in the community as a co-operative team, not as individuals

We follow procedures which are open for the community to see

We do not gossip about our work or about other people

We are committed in what we do

Our aim is to heal, not to hurt

 Confidentiality is an important principle, if mediation is to work well. If people are to speak freely, they need to know that what they say will go no further (except when they reveal that a serious crime has been or is likely to be committed). The free discussion makes it more likely that the victim and offender will understand each other and reach an agreement, and that the offender will explain the pressures he experienced, which can be fed back to the agencies responsible for social policy. Mediators should not be put in the position of reporting on the behaviour of the parties during mediation; they are not trained to do this, and their opinions should not influence the fate of the offender, who has no opportunity to challenge them.

 Safeguards are also needed. Participants should be told what to expect in a mediation session, and what action they can take if they believe that good practice was not followed.

 (4) Mediation centres: local, national

An effective way of providing recruitment, training, supervision and support of mediators could be through local mediation centres. Just as each district has a court, it could also have a mediation centre, to provide mediation in civil and criminal cases and promote knowledge of mediation, for example in schools. Civil cases such as neighbourhood disputes could be referred by the local authority housing department, and criminal ones by the prosecutor or the court. Mediation could provide an alternative to private prosecution. The local mediation centres in turn could be supported by a national organization, which would accredit local services when they meet agreed standards.

 (5) Funding

Secure funding is obviously needed; this will be considered below.

 What needs to be changed?

 Much can be done within existing law, including recent changes, but further changes would help to make the system more restorative.

 Include in normal process

Where suitable cases have to be selected individually, few are likely to be chosen. The advocates of restorative justice need firstly to convince magistrates and judges of the advantages (and in some places they have done so); but in the English system they also need to encourage probation officers to recommend suitable cases in their pre-sentence reports. (In some apparently ‘victimless’ crimes, for example involving drugs, the offender’s own family may be seriously affected and could be invited to a conference.) In the juvenile system in Northern Ireland, since 2006, cases can be diverted to mediation pre-court, after an admission of guilt to a prosecutor; after conviction the court must refer them to a youth conference, with the exception of the most serious crimes. This is based on the New Zealand system. In the English juvenile system, similarly, cases which are not too minor or too serious must be referred to a ‘panel’, which deals with cases in a partly restorative way.

 Include restorative processes in measurement of performance

Performance criteria should include raising the percentage of relevant cases, such as violence and burglary, in which a recommendation is made for a restorative Specified Activity. If cases prosecuted in court are counted as ‘successes’, and those referred to mediation are not, there will be few referrals, except from prosecutors who believe very strongly in mediation.

 One improvement has been made in England and Wales: previously the police could only count cases where a sanction was imposed, but now they can use restorative justice as a method of informally dealing with a reported offence.

 Power to discontinue (conditionally)

It is important that prosecutors have the power (or, as in Northern Ireland, the duty) to refer cases to mediation. In some countries this may require a change in the law.

 Transfer of funding

If one agency is responsible for the cost of a measure, but can influence the decision to refer the case to another agency, even a much more expensive one, it will be under pressure to do so. Budgeting and accounting arrangements should be planned in such a way as to avoid this. If for example cases which might have been sent to prison are dealt with by non-custodial agencies such as probation and restorative justice, the savings resulting from the reduction in the prison population should be transferred to the agency which is doing the work.

 Understand motivation

There is a widespread assumption that the way to make people behave well is to threaten them with punishment, and offenders are stereotyped as ‘bad’ people. In fact deterrence only works under limited circumstances, and most offenders are normal people who have made wrong choices, often as a result of various pressures. They are also often people who have little or nothing to lose; deterrence is more likely to work with those who do have something to lose, such as a job, a position in society, self respect and the respect of others. There is a need for greater understanding of the pressures that influence people to behave well, such as self-respect, respect for others, respect from others. There have been some studies of the factors that lead people to desist from crime. For example, there is evidence that young men are likely to give up crime if they set up home with a partner, find a job, and start a family; it therefore makes little sense to send them to a distant institution which makes those things difficult or impossible. Those who are excluded from a community are less likely to respect its norms than those who are included.

 The exception is when they come from a dysfunctional family and can go to an institution which is not punitive but restorative, and enables them to live their lives on restorative principles. During the Anglo-Polish exchange programme we visited a remand hostel for girls at Falenica, in Warsaw, where the ‘Come back home’ programme (Powrót do domu) encourages restorative ways of re-integrating the young women into their families and their home communities. Young people are treated as adolescents who need educating rather than offenders who should be punished. Not all have committed offences; some have shown ‘behaviour causing concern’, and often their home backgrounds are so bad that they would rather stay in the institution than return, because they feel safer. Conferencing is used to bring together people who cold be helpful when the girl was released; so far they had not involved victims because of the time elapsed since the offence.15

 The research by the Justice Research Consortium, reported on by Joanna Shapland16, found that those offenders who agreed to take part in RJ, tended to be those who had developed an intention to desist from crime and that RJ increased this motivation by demonstrating to them the harm they had done through a face to face meeting. It is also suggested that the positive activity of designing an outcome agreement provided both a plan for the future and support in carrying it out.

 There are also indications that, for some offenders, remorse at the harm caused to a victim can be a more powerful emotion than fear of punishment; this also needs to be explored and publicized until it enters the public consciousness.

 Feedback

Restorative meetings provide an opportunity to discover the background of unacceptable behaviour, such as apartments built with poor sound insulation, which can aggravate noise problems, or districts offering little opportunity for work or recreation for young people. This can be passed to those responsible for social and economic policies.

 A broader vision

Restorative principles have been developed in the context of criminal justice, but they can be applied in other social contexts: schools, families, communities, workplaces and others, not only for resolving conflicts but as a method of involving people in making decisions.

Conclusion

 The ultimate aim is a society where people respect themselves and each other. It will be based on trust, not fear. Restorative practice will be the basis for discipline in schools, teaching children to respect each other, as well as adults. It will be applied in civil conflicts, as a means of reaching win/win solutions, and after harm or crime has taken place, based in the principle of repairing harm. Those who have studies or practised restorative practices believe that they are a realistic way to achieve a civilized, democratic, restorative community.

 I am grateful to Geoff Emerson, Restorative Justice and Victim Liaison Units Manager, Thames Valley Probation, for information and comments. Responsibility for the content and views expressed remains mine.

 M W 28.12.2009

Warsaw Nec not suff final 09C.doc

1 Wright, M (2009). ‘Angielsko-polskie perspektiwy w sferze sprawiedliwosći naprawczej. Refleksje o programie wymiany w latach 2004-2006’ Transl. by E Bieńkowska. In: L.Mazowiecka, ed. Mediacja. Warsaw: Wolters Kluwer. p. 230-1. .’

2 Wright, M (2005) Przywracając szacunek spawiedliwości. Tłum. Małgorzata Marconkowska. Warsaw: Polskie Centrum Mediacji et al.

3 Similarly in German we have Strafrecht, and in Russian it is worse: ugolovnoe pravo, literally capital law.

4 For reasons of space, this paper will refer to the adult justice system; the juvenile system in England and Wales is separate.

6Powers of Criminal Courts (Sentencing) Act 2000, sec. 1, as amended by Criminal Justice Act 2003, Schedule 23. .

7Criminal Justice Act 2003, sec. 201(2). A similar measure for young offenders has been introduced by the Criminal Justice and Immigration Act 2008.

8Criminal Justice Act 2003, sec. 142(1)(e)

9Criminal Justice Act 2003, sec. 189

10 REMEDI (Restorative Justice and Mediation Initiatives) (2009) Annual report 2008-2009. Sheffield: REMEDI.

11 Shapland, J. et al. (2008) Does restorative justice affect reconviction? The fourth report from the eva;uation of three schemes.. Ministry of Justice Research Series 10/08. Available on www.justice.gov.uk/publications/rsearch.htm

12 United Nations (2002) Basic principles on the use of restorative justice programmes in criminal matters. New York: UN Economic and Social council.

13 Council of Europe. Committee of Ministers. ~(1999) Recommendation no. R(99)19 on mediation in penal matters. Strasbourg: Council of Europe.

14 Restorative Justice Consortium (2004) Principles of restorative processes. London: RJC.

15 International Co-operation on the Implementation of Restorative Justice in Poland and Great Britain . Final Report. Note by the British management team (January 2008)

16 See above, note 3.