RESTORATIVE JUSTICE (Outline in note form, 2005, with reading list)

 1. Problems with traditional justice

• Victims ignored or even re-victimized by system; measures to combat this (such as CPS’s revised practice, Crown Court Witness Service) do not deal with the root of the problem – the adversarial system itself

• Multiple, incompatible aims, achieved to limited extent if at all: sentences to “denounce” crime do not rehabilitate offenders, rehabilitation does not denounce the seriousness of the offence

• Emphasis on outcome, disregards harmful effects of process (cross-examination of victim etc.)

• Based on punishment, i.e. infliction of further harm, stigma, rejection, and with unwanted side-effects; makes offender think of self, not others

• Coercion used as first resort, not last

• Confuses response to individual offence with crime prevention: assumes that court-imposed deterrence is primary method of crime prevention.

2. What is “restorative justice”?

A new paradigm, based on repairing harm caused by crime as far as possible

Claimed advantages:

• Primary aim to restore victim or make up for harm

• Enables victims to ask questions, express feelings if they wish

• Involves victim in process and in reparation, but not punishment

• Holds offenders accountable

• Enables offenders to earn reintegration and re-acceptance; based on consent where possible: coercion as last resort

• Primary aim compatible with subsidiary ones

• Involvement of community

• Feedback to crime prevention agencies

3. What does it consist of?

• Reparation by offender to victim (if he or she wants it) and/or:

• Reparation to community

• Aid and support by community to victim if required

• Enabling offender to earn reacceptance by making amends

• Victim/offender mediation or group conferences for those who want to communicate or meet

• Victim/offender groups for victims whose “own” offender has not been caught, and offenders whose victim does not wish to take part

4. Does it “work”?

New primary criterion for success: satisfaction of participants with process

Research indicates high success rate: see Facts and Figures, below.

Reconviction rate as limiting factor, not primary aim

5. Does it achieve aims of traditional justice?

Denunciation: yes, reparation can be proportional to harm done

Containment: yes, reparation can be done under close supervision or in custody if necessary for public protection

Deterrence: the main deterrent, the prospect of being caught, remains; the combination of being required to make reparation and face consequences of actions should provide strong discouragement. Studies so far show reconviction rates little changed, but no worse than for traditional measures (see e.g. Dignan 1991).

Rehabilitation: not the primary aim, but restorative more compatible with rehabilitation than punishment is. One way of making reparation is to co-operate with a rehabilitative programme. But this is a two-way requirement: the community has to provide education, training, therapy, and above all employment.

Is it too lenient? (a) it can be stressful for offenders; (b) If less stressful than punishment, in return for process that benefits victims, why not? (Just as guilty plea earns reduced sentence because it spares victim the ordeal of giving evidence.) (c) The more severe the threatened punishment, the more likely it will difficult to uncover the truth. In some cases, for some victims, it may be preferable to obtain more truth and less punishment.

Crime prevention: should be specific field of state policy, with feedback from criminal justice process on possibilities for social and situational prevention.

6. Does it have advantages over traditional justice?

In principle, these have been indicated above: helping victims and including them in process, holding offenders accountable and making them face effects of crime on others. In practice,

• it normally takes place with much less delay

• a higher proportion of offenders pay compensation when agreed by them rather than ordered by court

• procedure is fully explained to victim and offender

• it gives both an opportunity to describe what happened in own words, and to express feelings and ask questions

• when the crime arose from a dispute (e.g. between neighbours), mediation can help parties to resolve it.

• Mediations, and especially conferences, can however be time-

consuming to organize, and should be used only where the offence, and

the harm to the victim, are serious enough to justify it.

7. How can it be introduced?

By adapting traditional Western justice (Canada, USA, UK, Germany) or indigenous justice (NZ, Australia, parts of Canada). Legislation not essential, but may help to establish restorative justice. Victim/offender mediation should be provided in each area by an independent organization, overseen by national body to ensure good standards.

8. Is it compatible with traditional Western justice?

It is working alongside the conventional CJS in various places; some (e.g. Austria, New Zealand) have incorporated it into juvenile law. But there are tensions.

• It is based on harm done rather than intent of offender

• It is based on agreements between victim and offender, which could vary widely. But an extra element could be imposed by court to represent public interest. In a hybrid system this could be punishment, in a purely restorative system this would also be a restorative measure).

• Some of the same problems as traditional justice in setting amounts:

(a) Property crimes – relatively easy to set price, but offender may not be able to pay full amount. Amount can be agreed with individual victims, but this will lead to inconsistencies between offenders. Offender may have to pay more than cost of goods stolen, e.g. extra costs caused by dealing with offender, otherwise no deterrent.

(b) Crimes of violence – cash value is more arbitrary, although some accepted guidelines exist. Same problem if offender cannot pay full amount.

(c) In both cases, if reparation made through service rather than money, no clear-cut equivalence with harm caused by offence.

• Willing participation may be a problem when combined with punishment-based criminal justice system. Offender may agree in hope of a lesser sentence (or discontinuance of prosecution, or earlier parole), victim may agree out of sympathy for, or fear of, offender. Safeguards include:

(a) Not proposing mediation until criminal justice decision has been made (e.g. to caution offender); or

(b) Stressing that the decision to proceed with mediation is made by the service, not by the victim or the offender; they are of course consulted and the consent of both parties is needed; or

(c) In victim/offender conferencing, the victim need not be present, or can be represented by family or friend; or

(d) Pressure on the offender to make reparation, through the prospect of a reduced sentence or discontinued prosecution, is legitimate; it should be distinguished from mediation, a personal transaction between victim and offender, which should be voluntary on both sides; and

(e) Offenders should be offered opportunity to make reparation when victim does not wish to receive it; for example, through community service or by taking part in a victim/offender group. In this way the offender is not disadvantaged by the victim’s refusal to take part, and the victim is not under pressure to do so.

9. Advantages of restorative justice

• Better procedure. Possible development of community participation through family group conferencing.

• For victim: can help recovery

• For offender: integrates, not rejects

• For community: holds offender accountable constructively; can use members of community as mediators, which increases understanding

• Separates crime prevention strategies from response to crime.

10. How is it implemented in England and Wales?

• Restorative cautions: may be used in context of Criminal Justice Act

2003, sec 22, conditional cautions for adults, which may include a

condition of making reparation.

• Final warnings (Crime and Disorder Act 1998)

• Referral orders (Youth Justice and Criminal Evidence Act 1999)

for offenders in court for first time. Case referred to ‘Youth Offending

Panel’, where aim is to devise action plan, often with reparation. Victim may be present but seldom is.

• Reparation orders (Crime and Disorder Act 1998)

Government has produced statements, e.g. Restorative justice: the government’s strategy (2003); Best practice guidance for restorative practitioners (2004).

FACTS AND FIGURES

Taking satisfaction of participants as criterion, research indicates high success rate, e.g. Marshall and Merry, 1990:

82% of victims who took part in mediation felt meeting offender was valuable, including 22% whom it helped to relieve their worries about the offence, and others who hoped it might help to reform the offender. Nearly all were glad to have taken part, although some were apprehensive beforehand.

Similar results from Coates and Gehm, in Wright and Galaway 1989: 89% of victims “satisfied” or “somewhat satisfied”.

Northamptonshire: operating at cautioning stage. In 1991,

compensation totalling £47,500 ordered; £37,800 paid, £1,400 (3%) written off.

Corporate victims: 71% satisfied with handling of case

Individual victims: 62% satisfied (of sample of 45), but 3 opposed in principle, 2 dissatisfied with their offender’s response, 2 felt offender not punished enough, 2 unhappy about enforcement of agreement. Another survey found 90% of victims, 96% of offenders felt fairly treated by the Reparation Bureau.

Reconvictions (survey when 90% had been at risk for at least one year): Kettering 81.5% not reconvicted, matched sample from Wellingborough 79.5% (not statistically significant). Results slightly better for face-to-face mediation than with go-between, but also not significant.

(J Dignan, Repairing the damage: an evaluation of an experimental adult reparation scheme in Kettering, Northamptonshire. University of Sheffield, Centre for Criminological and Legal Research, 1990. Northamptonshire Adult Reparation Bureau, Annual report 1992.)

Coventry and Leeds:

46% of cases referred went to mediation in 1993.

79% of victims who took part were satisfied with the outcome of mediation (the proportion was slightly higher among those who took part in direct (face-to-face) mediation).

90% of offenders were satisfied (of those who took part in direct mediation, 100% – of small sample).

82% of victims and 87% of offenders felt they had participated voluntarily.

Of victims who took part in mediation, 80% said it was important to them to receive answers from their offenders about what happened, 90% said it was important to tell the offender the impact the crime had on them, and 73% felt it was important to receive an apology. 65% said it was important to negotiate restitution.

93% of offenders said it was important to them to be able to tell the victim what happened, 62% said it was important to negotiate restitution, and 90% to apologize to the victim.

80% of the offenders who took part did apologize.

Victims who took part in mediation were only half as likely to fear re-victimization (16% as against 33%).

(M S Umbreit and A W Roberts, Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 1386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA.

Albuquerque, NM, Austin, TX, Minneapolis, MN, and Oakland, CA:

comparative study.

36% of cases referred went to mediation in 1990-91. Successfully negotiated agreements 95%. Agreements 58% financial, 13% personal service, 29% community service. Average financial restitution $219. Average personal service 18 hours, average community service 25 hours.

Pre-mediation: victims upset about crime 67%, post-mediation: 49%

Pre-mediation: afraid of being revictimized by offender 23%, post-mediation: 10%

(both statistically significant)

Satisfied with mediation outcome: 90% of victims, 91% of offenders.

Perceptions of fairness of juvenile justice system: 83% of victims in mediation group,62% of those not referred to mediation. Juvenile offenders: 89% in mediation, 78% of those not referred, said they experienced fairness.

Restitution completed: after mediation 81%, no mediation 58%.

Recidivism: new criminal offence within one year. After mediation 18%, no mediation 27%.

Of those who re-offended, 41% of those in mediation group committed less serious crimes than before, 12 % in matched comparison group.

(M S Umbreit, Victim meets offender: the impact of restorative justice and mediation. Monsey, NY: Criminal Justice Press, 1994.)

 

 RISE: Re-Integrative Shaming experiment, Canberra

Results from 111 young offenders convicted of property offences from shoplifting to car theft, offenders up to 29 involved in violent crimes excluding sexual assault and domestic violence, and 437 drink-drivers. In each case, figures for those taken to court, followed by those taking part in conference. Selection from long questionnaire.

Young offenders: increased respect for police 18%/47%

Felt ashamed of what they had done 53%/77%

Said their case allowed them to repay victim 40%77%

Said their case allowed them to clear their conscience 58%/70%

Drink-drivers: increased respect for police 25%/60%

Felt ashamed of what they had done 53%/77%

Said their case allowed them to repay society 41%/82%

Said their case allowed them to clear their conscience 24%/50%.

FGCs in New Zealand

Reconvictions of 161 young offenders aged 14+ when referred. Average time from original sample to interview: 6 ½ years

Just over a quarter persistently reconvicted 14% once, more than a third not at all. Others ‘persistent for a time, then stopped’ or ‘occasionally’.

Persistently reconvicted more likely to have been regularly smacked or hit by parents, hit or ganged up on by other children, suspended or expelled from schools, left before fifth form, had parents who did not almost always know where they were.

Non-reconviction more likely after FGC in which:

victim present, offender apologized, felt involved in decision making, agreed with FGC outcome, felt s/he had repaired damage, was not made to feel a bad person.

Gabrielle Maxwell and Allison Morris (1999) Understanding reoffending. Institute of Criminology, Victoria University of Wellington, NZ.

1996, rev Jan 2005

C:RJRJPoints

RESTORATIVE JUSTICE: READING LIST

Ashworth, A (1993) “Some doubts about restorative justice,” Criminal Law Forum, 4 (2), 277-299. See also: Daniel W Van Ness (1993) “New wine and old wineskins: four challenges of restorative justice”, ibid. pp. 251-276; “A reply to Andrew Ashworth”, ibid. pp. 301-306

Bazemore, Gordon, and Curt T Griffiths (1997) `Conferences, circles, boards, and mediations: the “New Wave” of community justice decisionmaking.’ Federal Probation, 61(2), 25-37.

Bazemore, Gordon, and Mark Umbreit (1995) “Rethinking the sanctioning function in juvenile court: retributive or restorative responses to youth crime.” Crime and Delinquency, 41(3), 296-316

Bazemore, Gordon, and Mara Schiff (2001) Restorative community justice: repairing harm and transforming communities. Cincinnati, OH: Anderson.

Blom-Cooper, L (1988) The penalty of imprisonment. London: Prison Reform Trust. Ch. 3.

* Braithwaite, J (1989) Crime, shame and reintegration. Cambridge University Press.

Theory which has been linked to family group conferences. Care needed about definition of “shame”.

* Braithwaite, John (2003) Restorative justice and responsive regulation. New York: Oxford University Press.

Applies restorative principles to many forms of conflict, including industrial and international.

Braithwaite, J and P Pettit (1990) Not just deserts: a republican theory of justice. Oxford: Clarendon. Esp. ch. 8-10.

Philosophical basis for Braithwaite (1989).

Burnside J and N Baker, ed. (1994) Relational justice: repairing the breach. Winchester: Waterside Press.

Chapters on mediation and on family group conferencing in New Zealand.

Cavadino, M and J Dignan (1992) The penal system. London: Sage. Esp. pp. 42-4, 185-6. See also 2nd ed. 1996.

* Christie, N (1977) “Conflicts as property.” British Jnl of Criminology, 17(1), 1-15.

Seminal, much-quoted article on giving justice back to the people.

* Christie, N (2004) A suitable amount of crime. London: Routledge.

Questions the concept of crime, and current responses to it.

Crosland, Paul and Marian Liebmann, eds. (2003) 40 cases: restorative justice and victim/offender mediation . Bristol: Mediation UK.

* Davis, G (1992) Making amends: mediation and reparation in criminal justice. London: Routledge.

Pitfalls of mediation when too closely linked to offenders and to conventional justice.

Dignan, J (1990) Repairing the damage. University of Sheffield, Centre for Criminological and Legal Research.

Research of adult reparation project in Kettering, later extended to Northamptonshire.

Dignan, J (1992) “Repairing the damage: can reparation be made to work in the service of diversion?” British Journal of Criminology, 32(4), 453-472.

Galaway, B and J Hudson, ed. (1990) Criminal justice, restitution and reconciliation. Monsey: Willow Tree Press.

* Galaway, B, and J Hudson (1996) Restorative justice: international perspectives. Amsterdam: Kugler Publications.

Useful collection of articles on many aspects including shame, public opinion, etc.

* Graef, Roger (2000) Why restorative justice? repairing the harm caused by crime. London: Calouste Gulbenkian Foundation.

Hadley, Michale L (2001) The spiritual roots of restorative justice. Albany: State University of New York Press.

R J from Buddhist, Chinese, Christian, Hindu, Islamic, Jewish, Sikh and aboriginal perspectives.

* Hudson, J, A Morris, G Maxwell and B Galaway, eds. (1996) Family group conferences: perspectives on policy and practice. Monsey, NY: Willow Tree Press.

With article on origin and development: includes welfare and youth justice FGCs.

Johnstone, Gerry (2002) Restorative justice: ideas, values, debates. Cullompton: Willan Publishing.

Launay, G (1985) “Bringing victims and offenders together: a comparison of two models.” Howard Journal,24 (3), pp. 200-212.

Victim/offender groups compared with victim/offender mediation.

Maguire, M and C Corbett (1987) The effects of crime and the work of Victims Support Schemes. Aldershot: Gower. Pp. 227-231.

British Crime Survey showing attitudes to victim/offender mediation.

* Marshall, T and S Merry (1990) Crime and accountability: victim/offender mediation in practice. London: HMSO.

Home Office research on pilot projects.

Martin, C, ed. (1994) Resolving crime in the community: mediation in criminal justice. London: ISTD and Bristol: Mediation UK.

Report of conference, with papers by J Braithwaite and T O’Connell.

Masters, Guy (2001) The rough guide to restorative justice and the Crime and Disorder Act Bristol: Mediation UK.

The R J concept, and outline of different models of practice.

Mediation UK (1994) Victim/offender mediation: guidelines for starting a service. Bristol: Mediation UK.

Mediation UK (1998) Practice standards for mediators and the management of mediation services. Bristol: Mediation UK.

* Messmer, H and H-U Otto, eds. (1992) Restorative justice on trial: pitfalls and potentials of victim/offender mediation – international research perspectives. Dordrecht: Kluwer.

Conference papers by Tony Marshall, Burt Galaway, John Haley, Mark Umbreit, Gwynn Davis, Martin Wright, and others.

Mika, H, and K McEvoy, eds. (2001) International perspectives on restorative justice: conference report. Institute of Criminology and Criminal Justice, Queen’s University Belfast.

Papers by R Shonholtz, J Braithwaite, A Morris, A Skelton, M Wright.

* Morris, A et al. (1993) “Giving victims a voice: a New Zealand experiment.” Howard Journal,32 (4), p. 304-321.

Research on beginnings of New Zealand family group conferences, showing some shortcomings (some of which have since been corrected).

* New Zealand Ministry of Justice (1995) Restorative justice.

PO Box 180, Wellington, NZ. Discussion paper.

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

Stresses the need for built-in safeguards for restorative justice.

Stevens, Joanna (2000) Access to jusice in sub-Saharan Africa: the role of traditional and informal justice systems. London: Penal Reform International.

Strang, Heather, and John Braithwaite (2000) Restorative justice: philosophy to practice. Aldershot: Ashgate.

Umbreit, M, and A W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Part of comparative research project; gives attitudes of victims and offenders, etc.

Van Ness, Daniel, and Karen H Strong (1997) Restoring justice. Cincinnati, OH: Anderson.

* Wright, M (1995) “Victims, mediation and criminal justice.” Crim. Law Review, March, 187-199.

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

Development of the restorative idea; new chapter on recent developments in

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

Various professional perspectives on criminal and restorative justice, especially the problems of punishment and sentencing.

* Wright, M and B Galaway, ed. (1989) Mediation and criminal justice: victims, offenders and community. London: Sage.

Articles on development of victim/offender mediation in several countries; includes review of public opinion surveys (Ch. 18).

* Zedner, L (1994) “Reparation and retribution: are they reconcilable?” Modern Law Review, 57 (2), pp. 228-250.

Thorough but not unsympathetic review of the principles.

Zehr, H (1985) Retributive justice, restorative justice. Elkhart, IN: MCC US Office of Criminal Justice.

18-page outline of Zehr’s concept.

* Zehr, H (1990) Changing lenses: a new focus for crime and justice. Scottdale, PA: Herald Press; London: Metanoia. Esp. ch. 9-11.

Sets out the case for a paradigm shift to restorative justice.

Zehr, H (2002) The little book of restorative justice. Intercourse, PA: Good Books.

British Journal of Criminology 42 (3) Summer 2002. Special issue: practice, performance and prospects for restorative justice. Articles by Ann Skelton, declan oche, John Braithwaite, Allison Morris, Martin Wright and others.

Mediation Quarterly, 12 (3), Spring 1995. Special issue on victim and offender mediation, with articles by Tony Marshall, Howard Zehr, John Haley, Burt Galaway, Mark Umbreit.

International Journal of Comparative and Applied Criminal Justice, 20 (1/2), Spring/Fall 1996. The Fall issue is on “World criminal justice”, including articles on First Nation traditional systems.

NOTE: although far from complete, this is a lengthy list, but it is not necessary to read everything! It is given so that there is a good chance of finding at least some of the alternatives available. Recommended items marked *. Read selectively, using contents lists and indexes.

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