Law, justice and fitness for purpose:towards a restorative response to crime

Introduction

A woman complained to the police in a city in the north of England: some boys had been meeting in front of her house, shouting racist comments. She told the police officer that she did not want them to be prosecuted: she had sons of her own and knew that to have a criminal record is serious for a young person. She just wanted them to stop. Like most police officers in that city he had been trained in restorative principles. So he brought the boys together, and invited the woman to speak to them. She said that she had been brought up in South Africa, and told them what it was like for a black person to live under the apartheid regime. She had brought her family to England to get away from that, because she believed that black people were decently treated there. This made an impression on the boys, who knew nothing about South Africa. They apologised and promised to stop their behaviour, and they told their friends to stop it too.

This story shows several things about restorative justice. Firstly, the victim is able to influence the way in which the case will be dealt with, and takes an active part in the process. Secondly, the conflict can be resolved outside the criminal justice system. Thirdly, police officers who have been well trained in restorative principles can deal with the less serious cases in this way. The offenders learnt that the reason why they should not behave in that way was not that they would be punished, but that another person was being hurt. And there is an advantage for law enforcement: this case took about three hours of the police officer’s time, but reporting to the prosecutor, filling in forms and giving evidence in court would have taken much longer.

You may have heard it said that if you ask two economists about a problem, they will provide three solutions. There is a similar situation if you ask advocates of restorative justice for a definition. But before attempting a definition, I should like to start by thinking about what the present system is trying to do, what are its supposed aims, and its faults. We will then consider what restorative justice has to offer: the advantages, what it needs in order to work well, what could make it work even better, what are the problems of introducing it into a conventional system, and in conclusion, how restorative justice could be part of a social transformation

What the present system is trying to do

Can we take it as an acceptable assumption that what we want is a reasonably fair society, in which people treat each other with respect and have a decent opportunity to live a rewarding life? Building such a society is of course not a matter for the criminal justice system, but for social policy: people should be able to receive an adequate education, to work for a fair wage, to have somewhere decent to live, and so on. A by-product of working towards a just society, in which most people do not want to cause harm to each other, should be crime reduction. This is reinforced by ‘situational’ crime prevention, with locks, cameras, concierges, police patrols, and other ways of making it physically more difficult to commit crime without being detected. The problems start when people do not treat each other with respect, and cause harm to each other. How does the criminal justice system react then, and is this the best way to react?

What’s wrong with the existing system?

Criminal justice, which in many countries is called penal justice, is based on several assumptions, which are at best half-truths and which contradict each other. The first is that the way to motivate people to behave well towards each other is to threaten harsh consequences if they don’t. There are several fallacies here. For one thing, what makes most of us behave well most of the time is not fear but self-esteem. We do not want to demean ourselves. We have something to lose – namely our opinion of ourselves or other people’s opinion of us. You don’t get people to behave well by treating them badly. Deterrence doesn’t work unless a person stops to think about the probability of being caught, and calculates that the risk is high, and knows what the punishment could be, and is afraid of it.

If any of these conditions is absent, and the person has committed the crime, there are two problems. Firstly, the same threat which was intended to deter him from committing the crime will now make him want to escape the punishment. He (or she) may deny or minimize the crime, when what the victim wants is a full acknowledgement of its seriousness. He may run away. He may interfere with witnesses, and in some cases, where the victim is the only witness, may even kill the victim (for examples, see Wright 2008: 41-2). Secondly, if the threat of punishment is carried out, especially if it consists of imprisonment, it makes him more, not less, likely to commit more offences, because prison breaks up relationships, makes it harder to find jobs, and often leaves people homeless. The more people are in prison, the harder it to counter these unwanted side-effects. So for example when the English Minister of Justice announced on 10 November 2009 that the minimum prison sentence for anyone using a knife to kill is to rise from 15 years to 25, it was little more than an empty gesture. Behind all this lies a big and questionable assumption: that punishment is the appropriate response, and that it works to the benefit of society. These are the reasons why, in many ways, the existing criminal justice system is not fit for purpose. Is there a better way?

What restorative justice has to offer

Advantages

It is important to remember that restorative justice starts from the point where a person admits that he or she has been involved in a harmful action. It is argued that in a restorative system the accused is more likely to admit this, because acceptance of responsibility offers the opportunity to put right the harm and make a fresh start, whereas in a punitive system it results in punishment. This is hard to prove; of course some people will not be very interested in making reparation; but many want to express their regret, and others will at least think it preferable to punishment.

Once responsibility is accepted, restorative justice asks a different set of questions: no longer ‘Who is to blame, and how should they be punished?’ but ‘Who was affected, and how can it be put right?’ Immediately this brings the victim into the process: not merely as a witness to help the prosecutor to prove that the accused is guilty, but as a person who has suffered harm. There are four main ways in which restorative justice is different from criminal justice.

Firstly, there are many cases, especially those involving violence, where the two people know each other, and it is not always clear which is the ‘offender’ and which is the ‘victim’. The criminal justice system usually labels one as the ‘offender’, gives him a criminal record, and probably puts an end to their relationship. A restorative process gives them both the opportunity to think about the conflict underlying the criminal incident; it may be resolved by mediation, and the case does not necessarily enter the criminal justice system at all.

Secondly, the victim takes part in the process, can ask questions and receive answers which add to their understanding of this event and of the conditions in which other people live in the community. He or she can also discuss ways in which the offender can make suitable reparation.

Thirdly, restorative justice recognises that the direct victim of the crime is not necessarily the only person affected; for example, the offender’s family may be anxious or ashamed. They may be brought into the process: instead of one-to-one mediation, ‘restorative conferencing’ can be used. It was introduced in New Zealand in 1989, and the European Forum for Restorative Justice is currently studying its use in Europe.

Fourthly, the offender can give answers, and explain what led him or her to behave in that way. Many offenders, when they hear of the hurt they caused, want to apologize and to do something towards making things right; their participation in the mediation can contribute to that.

What it needs in order to work well

For restorative justice to work well, it is important that its aims are clearly understood. In one sense the process is the aim. But this is only the case when the victim and offender are willing to take part; they should not be put under pressure in order to boost the number of mediations. Outcomes such as apologies, compensation, and community service are additional advantages, but are not the only criteria for ‘success’.

However, where an agreement has been made, the community should provide the means to enable the offender to carry it out. If he needs work in order to earn money to pay compensation, there should be the possibility of finding a job – and gaining the skills to do it. If he agrees to do community service as a form of reparation, there have to be opportunities for it, perhaps provided by NGOs or the municipality. Here again, understanding of the aims is important. Community service should not be regarded as a punishment, as a deliberately unpleasant experience; it should be an opportunity for the offender to show that he or she is able and willing to make a constructive contribution. The focus is not on the wrong that they have done in the past, but the good of which they are capable in the future.

Who will carry out the mediation? The essential requirement is that mediators should be trained, and should understand the principles of mediation. There are different versions of these drawn up by the Council of Europe (1999, 2007), the United Nations (2002), and individual countries, including the United Kingdom (Restorative Justice Consortium 2004). Mediators may be personnel of the criminal justice system – but in this case it may be difficult for them to step away from their previous attitudes and training. They may be independent mediators, but they lack support and supervision. It can be argued that there should be mediation services everywhere, just as there are courts everywhere. They could be local NGOs, and these in turn would be members of a national organization which would be responsible for maintaining standards. They would recruit, train, support and supervise mediators. The mediators could be trained volunteers, from the local community; it has been found that people with no degrees or diplomas can be good mediators, although for complex or time-consuming cases it may be better to use professional mediators. Funding of the national and local mediation services should be arranged in such a way that they are independent of political control.

The relationship of restorative justice to the criminal justice system needs to be carefully managed. There should be a presumption that restorative justice will be considered in all cases, and will be used unless there are strong reasons to the contrary. There should be adequate facilities for the victim-offender meeting, preferably in a building separate from the court.

Performance criteria should be compatible with the requirements of the restorative process. A restorative outcome should count to the credit of police, prosecutors, probation officers and judges, as much as a conviction. It takes time to contact the victim, to let them make up their mind if they wish to take part, and to find a time for the meeting that is convenient for the victim; this should not be constrained by demands for ‘speedy justice’.

The process needs to be flexible: it may involve working only with the victim or the offender. It should not exclude a particular approach: guidelines should make clear that different models of mediation and conferencing can be used, provided they follow recognised restorative standards. But this should not be so loosely described that all sorts of practices could claim the ‘restorative’ label.

A system that is concerned for the wellbeing of victims will support those whose offenders are not caught, or refuse mediation, or are not suitable – and those victims whom mediation failed to help as much as it should. If the offender does not take part for any reason, the case would go to a court, which would impose a sanction; this would if possible be a reparative one. If restriction of the offender’s liberty was necessary for the protection of the public, the custodial regime would also be restorative: that is, it would be based on reparation and rehabilitation, not punishment.

What could make it work even better?

Restorative practices will be more effective in a community which is familiar with them, and an obvious place to begin is to introduce the principles in schools (Hopkins 2004, Claassen and Claassen 2008). The English city of Hull, for example, is using restorative methods in schools and other settings, and police are using them to handle neighbourhood problems. Schools report greatly improved behaviour. These practices have spread throughout children’s homes in the city, greatly reducing children’s criminal records and police involvement, and Hull aspires to become a ‘restorative city’ (Mirsky 2009). .

Training usually emphasises the development of group norms (which are the bedrock of a restorative community like a class or a staff team) and this occurs when we identify what everyone needs in order to work at their best. Only then can people identify actions that can meet these needs. For example one thing people (old and young) repeatedly say is ‘I need respect’; then with some circle work, pair work and group work they can agree various behaviours which show respect. When we are problem–solving, identifying needs is also the pre-requisite to finding solutions and ways forward, and so it is a natural part of the framework of the restorative meeting as well. Ideally the school will provide children with the whole package, so that they can reach agreement about their standards and the processes that will be followed if they don’t live up to them, and putting these processes into practice when necessary. Even quite young children can draw up very reasonable rules, such as ‘Keep your hands and feet to yourself’, and ‘Follow teachers’ instructions’; they can be encouraged to express them in a positive way rather than as prohibitions, for example ‘Keep our voices down’, ‘Speak kindly and respectfully to each other’ ‘Keep our language clean’. (Belinda Hopkins, personal communication).

Restorative justice tends to deal with individual cases; however, one programme, with other groups modelled on it, goes a stage further. In Zwelethemba, a township in Western Cape, South Africa, peace committees handle a wide range of criminal cases and civil conflicts; for each case the mediators receive a small stipend, but also the committee receives a small sum of money. This is used for peace-building activities to improve the local community and reduce unemployment, such as building a children’s playground and making loans to small businesses (Roche 2003: 264-5).

Restorative measures have the potential to reduce the prison population. In Ireland, the National Commission on Restorative Justice (2009: 18) estimates that diversion from custodial sentences up to 3 years could lead to a reduction of between 42 and 85 prison spaces per annum (about 1 to 2 per cent of the prison population of over 3000). It estimates that this level of reduction would generate potential savings in prison costs of 4.1 millions to 8.3 millions. What is needed is a system by which the savings from the prison budget are reliably transferred to maintain and improve the restorative and related programmes. This could be done by linking the funding of restorative programmes directly to the number of prison places closed.

What are the problems of introducing it into a conventional system?

There will be tensions between the values of a restorative and a retributive system. Different victims may ask for different amounts of reparation. Some people may feel that there should be reparation to the community, even if the individual victim asks for little or nothing. A transition period will be necessary– but this should not be an opportunity for restorative values to be absorbed into conventional ones. As we have seen, community service should be chosen because of its value to the community and the offender, not because it is unpleasant.

There may be a need for specific legislation, as the National Commission in Ireland has argued (2009). Restorative measures should be the norm, except in cases where there are reasons to the contrary. Laws should be drafted by people with an understanding of restorative principles. In the New Zealand juvenile system for example, the family conference takes place before the judge decides the sentence; usually the conference recommendations are used as the sentence, but as a safeguard the judge may alter them. This must be done with care, however; otherwise the responsibility given to the victim and offender is taken back by the court. In recent English legislation the court may make an ‘activity requirement’, including ‘an activity whose purpose is that of reparation, such as an activity involving contact between offenders and persons affected by their offences’ (Criminal Justice Act 2003, section 201(2)); but this order is made at the same time as a number of other requirements, so that these are not the result of the meeting of the victim and offender.

In a restorative system the purpose of imprisonment will have to change, from punishment to the protection of the public, and possibly the enforcement of reparative measures. The transition may begin with the use of restorative principles within prisons as the primary means of resolving conflicts and maintaining discipline (Cornwell 2007; Edgar and Newell 2006).

Conclusion: restorative practice as part of a social transformation

After exploring some practical applications of restorative principles, perhaps it is time to attempt to define them. Basically the word ‘restorative’ just means ‘tending towards repair’, but we have been trying to load on to it various other ideals such as participation and decision-making by the parties, ensuring voluntariness, preserving confidentiality, being non-judgemental. Principles would be based on the best way of respecting each other’s needs; that is, to behave in ways which would be acceptable if everyone else behaved similarly – not because they are prescribed by any one code of laws or the teachings of any one religion, although these will often coincide. They include treating each other with respect, decision-making by mutual agreement, and so on, although ultimately some degree of authority and coercion may have to be used. Ron and Roxanne Claassen (2008), for example, propose an 8-stage process of restorative interventions before resorting to the school authority structure. A decision may also have to be imposed for lack of time or lack of consensus, or because an individual is refusing to co-operate. Firefighters aren’t going to sit in a circle discussing how to tackle the blaze, although they may well do so afterwards with an arsonist or a person who has called them out on a false alarm. Ideally, organizations applying restorative principles should themselves be run on restorative lines (see Boyes-Watson 2008).

The overall concept has been called ‘Restorative Approaches’ or ‘Restorative Practices’ (this expression is now given some legitimacy in the wider world by Hull City’s appointment of a Head of Restorative Practices Strategy). It appears that the word ‘restorative’ has gained sufficient currency, although not everyone is aware of all these overtones, and that we should therefore keep it and try to make it better understood. So a definition might be:

Restorative practices are a way of enabling all those concerned to agree together how to act in the future, respecting everyone’s needs.

The application of these overarching restorative ideals to criminal justice is ‘Restorative Justice’; in parallel with it are Restorative Schools, Restorative Workplaces, Restorative Communities (or Cities, like Hull), Restorative Families and so on. They are likely to use methods such as decision-making circles and non-violent communication (Rosenberg 1999), but a range of methods is available.

Restorative justice, I think it is widely agreed, is the term used when harm has been caused, which in some cases breaks the criminal law. However, it should not be limited to criminal acts, because we would like to deal with as much as possible outside the framework of criminal law, e.g. neighbour disputes or fights between acquaintances. A definition would then be:

Restorative justice is the application of restorative practices to try to put right the harm caused by people to each other, especially (but not exclusively) when the harmful action is a criminal offence.

Originally, the application of restorative justice was limited: it was a reaction to criminal wrongdoing. Now it has broadened into the wider concept of restorative practices, which also operate in a preventive way. Where these are widely practised, we may hope to see the development of restorative communities, where people will routinely have the opportunity to agree together. The essence of it is a different way of relating to each other, especially in a situation where traditionally one party exercises power over the other: schools, families, workplaces and so on. Everyone should have access to restorative practices and restorative justice. Restorative practices have the potential to build social capital, strengthen relationships and communities, especially when they are put into practice by NGOs and volunteer mediators: In Norway, for example, the law requires that mediators be volunteers. These principles are underpinned by a need for respect, consideration, co-operation, support and belonging which Marshall Rosenberg (1999), who has developed the principles of non-violent communication, would identify as the key to universal human values. As we have seen, it has been suggested that it should include community-building, and an unusual but necessary feature of social policy: namely, feed-back to social policy-makers.

In the last two or three decades we have learnt the importance of living in harmony with the planet; now it is vital to learn to live in harmony with each other, and restorative principles can show us the way.

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REFERENCES

Boyes-Watson, C. (2008) Peacemaking circles & urban youth: bringing justice home. St Paul, MN: Living Justice Press..

Claassen, R. and Claassen, R. (2008) Discipline that restores: strategies to create respect, cooperation and responsibility in the classroom, South Carolina: Booksurge Publishing.

Cornwell, D. (2007) Doing justice better: the politics of restorative justice. Winchester: Waterside Press.

Council of Europe (1999) Recommendation R(99)19 of the Committee of Ministers Mediation in penal matters . Strasbourg: Coucil of Europe.

Council of Europe (2007) European Commission for the Efficiency of Justice, (CEPEJ) Draft guidelines for a better implementation of the existing recommendation concerning mediation in penal matters. Strasbourg: Council of Europe.

Edgar, K., and Newell, T. (2006) Restorative justice in prisons: a guide to making it happen. Winchester: Waterside Press.

Hopkins, B. (2004) Just schools: a whole school approach to restorative justice. London: Jessica Kingsley Publishers.

Mirsky, L. (2009) ‘Hull, UK: toward a restorative city.’ Available online at

http://www.safersanerschools.org/library/hull09.html (accessed 28.1.2010)

National Commission on Restorative Justice [Republic of Ireland](2009) Final Report. Available online at

http://www.justice.ie/en/JELR/NCRJ%20Final%20Report.pdf/Files/NCRJ%20Final%20Report.pdf

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

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

Rosenberg, M. (1999) Nonviolent communication: a language of compassion. Del Mar, CA: Keep Coming Back Company.

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

Wright, M (2008) Restoring respect for justice. 2nd ed. Winchester: Waterside Press.

1 Paper presented at International Conference on Restorative justice and victim-offender mediation: theoretical aspects and practical implications, Faculty of Law, Burgos, Spain, 4-5 March 2010.