Why Restorative Justice can be seen as more civilised than Criminal Justice

 

12.10.2014

 

 

 

 

 

S’il y avait un peuple de dieux, il se gouvernerait
 
démocratiquement. Un gouvernement si parfait
 
ne convient pas à des hommes.

 

Rousseau, Du contrat social, 1762.

 

 

An essential feature of a civilised society is that people treat each other decently1. The means by which they encourage each other to do so should be decent, and also the response when they do not. But as well as being decent, it needs to be effective. This paper will argue that a society is more civilised when it is based on consent, ideally on internalised ethical standards or failing that on peer pressure and persuasion, and repair of harm; less so when it relies on compulsion, stigma and punishment. It will consider some principles which should be met in a civilised society, and how far the traditional criminal justice and the restorative approaches meet them. It will critically review the place of sentencing. Finally it will propose a model for a restorative, or civilised, society.

 

 

How is social control exercised in a democracy? The ideal is self-control: people are brought up to behave decently, and normally do not lower themselves by hurting someone else, or going against accepted norms which are set for the common good although they may not have individual victims. This is reinforced by peer pressure: people whose respect we value would think badly of us if we fell below the standard. This control is mostly exercised by persuasion, although sometimes peer pressure involves punishment, verbal or even physical. But some forms of behaviour are so damaging that they have been labelled as crimes, and the state takes responsibility for the control. The next question is, how does it enforce the control? We have become accustomed to thinking that it should automatically use punishment, and this is where it becomes less civilised.

 

 

The gradual civilisation of criminal justice

 

To say that restorative justice is more civilised than criminal justice is not to say that the latter is uncivilised. Over the years it has become considerably less brutal, and safeguards have been introduced. The stocks and the pillory, transportation, branding, flogging, public executions, and in most Western democracies the death penalty, have been abolished as being not only inhumane but ineffective. For example, the accused can have a lawyer to defend him or her, and the prosecution is required to reveal relevant evidence to the defence. In England and Wales, however, some safeguards have been eroded recently, such as the right to challenge the selection of jurors, the principles of the right to silence and double jeopardy (ne bis in idem), as well as safeguards for accused people, and legal aid has been severely cut (Kennedy, 2005: 4). Until the late 20th century, the criminal justice process paid little attention to the needs and feelings of victims. An attempt has been made to remedy this by allowing them to make ‘victim personal statements’ (BBC, 2014), but it is not clear whether these are intended to affect the sentence, which could be problematic, or merely to be an exercise in catharsis and ‘being heard’ (Sanders et al., 2001). A judge was recently criticised for pointing out, after a parole hearing, that the statements ‘make no difference at all’ (Dodds, 2014).

 

 

The relic: punishment

 But in one important way criminal justice is not civilised – yet! It is still based on, and even defined by, the use of punishment. This is not of course to say that wrongdoing should incur no consequences, but they should be purposeful ones. According to the jurist William Geldart (1984: 146):

 

The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.

It has often been pointed out that in several languages criminal law is actually called ‘punishment law’ (e.g. Wright, 2013a: 59-60; 2013b).

 

Principles for a civilised system

 There are certain principles that should be followed in order to maintain a civilised society, and these principles, I suggest, are not met as long as punishment is used as the basis for criminal justice. It is suggested that these include:

 1) The state should not inflict pain on its citizens unless there is no alternative

The infliction of pain could only be justified if it could be shown to be more effective than other methods. There are many alternatives, mostly based on rehabilitation and/or reparation, comprehensively reviewed for example by Bottoms et al. (2004). There is much evidence that punishment does not work, or works only temporarily, or can even be counterproductive (Wright, 2008: chapter 2). As regards prison in particular, figures from the English Ministry of Justice show that court-ordered community sentences are more effective (by over eight percentage points) at reducing one-year proven re-offending rates than custodial sentences of less than 12 months for similar offenders (Prison Reform Trust, 2013: 11). A major study of restorative justice, using random controlled trials, found a significant decrease in the frequency of reconvictions over a two-year period: a difference of 14 per cent (Shapland et al., 2011: 170-1).

 There are two ways of looking at this from a restorative point of view. Firstly, RJ does not work on the behaviouristic punishment-reward basis, but provides an opportunity for people to feel empathy for each other, and to change their feelings and behaviour accordingly. Of course this will not always happen, but deterrence doesn’t always work either. Secondly, the restorative process is not a ‘let-off’: it makes a person spend time in a way he or she would not choose, and it may indeed cause pain, but what may be called ‘the right sort of pain’, which results from realising that one has caused harm to another person.

 2) The state should not use coercion if persuasion is adequate

 As the English Home Office put it in 1990:

 It is better that people should exercise self-control than have controls imposed upon them … If they can develop the skills necessary for life and work, this should encourage greater self-reliance and respect for others; there should be less incentive to offend again. (Cited by Faulkner and Burnett, 2012: 47.)

 Restorative justice is a voluntary process: not entirely, because the alternative is to appear in court, but the accused can refuse to take part, and some are so scared of meeting their victim that they prefer to face a judge. It aims to make people want to behave decently to each other. This can’t be compelled, of course, any more than a plant can be compelled to grow, but we can provide the right conditions for it to grow, which is what the restorative process does.

 3) Social control should be promoted through enabling aspiration, not through threats and fear

Provided that people’s basic needs are met (food, security, employment etc.) the way to persuade them to act more responsibly is not through control and the threat of punishment, but rather through encouraging and enabling them to focus on higher-order needs such as friendship and family, self-esteem, respect for others, and self-fulfilment (McGregor, 1960; Maslow, 1970). It is important to meet offenders’ basic needs: ‘the integration of ex-offenders into the community is more likely to succeed with a service that is problem-solving and empowering as opposed to one that is essentially surveilling and controlling’ (Faulkner and Burnett, 2012: 140). This means that there is a responsibility on ‘us’, the rest of society, to meet those needs, as well as on the offender to respond.

 

 4) The system should follow its own principles

 An organisation that promotes self-determination should itself be run on participatory lines, with a ‘flat’ management structure; otherwise it will fall into the trap of saying in effect ‘Don’t do as I do, do as I tell you.’

Restorative justice can be delivered by independent organisations, which often provide other services such as mediation in the community or the workplace; they have an opportunity to set an example by managing themselves in a restorative way. Not all live up to this principle, however; some have a hierarchical structure, and so do RJ providers who are working within criminal justice agencies.

 5) Crime reduction should focus on reduction on pressures towards crime, rather than on deterrence

Reviewing the research literature on rehabilitation, Faulkner and Burnett (2012: 64-5) saw a prospect of ‘increasing investment in ineffective law enforcement, further pressure on the penal system, and an indefinite need for further prison building, with little impact on people’s experience of crime or on their safety and wellbeing generally’. Instead, they recommended the ‘justice re-investment’ approaches, based on meeting local needs, ‘which channel resources on a geographically-targeted basis to reduce the crimes which bring people into the criminal justice system and into prison in particular’ (House of Commons Justice Committee, 2009: 5).

 

A standard argument for punishment is that it is necessary to deter people from committing crime, but it is widely accepted that the primary deterrent is the likelihood of being caught. Until the 18th and early 19th centuries there were barbaric punishments, including death or transportation to the colonies for small thefts – but crime continued. Criminals could be flogged – they would boast of their scars, pride themselves on not crying out, and would feel like revenge (Clay, 2001: 26-27, 36-37). Even the risk of death does not deter some young people from experimenting with ‘legal highs’ (untested new drugs) (Boseley, 2014). In contrast, a recent example shows how crime can be cut by targeted preventive measures with no mention of increased punishment:

 In 2011 there were nearly 1,000 incidents of cable and other [railway] equipment being stolen, but in 2014 there were just 43 incidents up until August. Though factors such as improved security and a fall in the once sky-high prices for scrap metal have contributed, much of the decline is being attributed to legislation last year which required all metal dealers to be licensed, and granted police and councils enhanced powers to inspect their yards. The Scrap Metal Dealers Act 2013 also required sellers to prove their identity when [selling] scrap (Milmo, 2014).

The restorative process is based on explanations, not excuses, and provides an opportunity to learn about pressures towards crime. The information could be passed to the authorities responsible for social policy, but this feedback has not yet been built into restorative services.

 The problem with sentencing

The trouble with sentencing is that it is trying to do several incompatible things at the same time: to punish offenders, reform and rehabilitate them, and require them to make reparation (Crime and Justice Act 2003, sec. 142); and to deter the rest of us and thus to reduce crime and protect the public. To complicate this there is the concept of denunciation of crime combined with proportionality: sentence lengths are largely based on an arbitrary attempt to make them correspond to the seriousness of the offence, measured in the number of months or years for which a person should be imprisoned and not on what is most likely to persuade and enable them to turn their lives around. This is unfair to them and unhelpful for society. We need to look again at the whole question of punishment, which has been called harming people who harm people to teach people that harming people is wrong (Northey, 2014).

Ultimately the state must use compulsion to maintain social control, but it has a duty to do this in a coherent manner; to do it in such a muddled2 way is not civilised.

 Unintended consequences

Current sentencing in England and Wales, as we have seen, is based on the idea of punishment, and we should not ignore its unintended consequences such as defiance, resentment, and collateral damage to prisoners’ families, especially children. Moreover, it is unjust to impose a heavier sentence on a person than he or she deserves in the uncertain hope of deterring others. It is supposed to deter the individual from offending again, but often makes it more difficult for him or her to desist. As far as deterring others is concerned, it only works if they believe there is a big chance of being caught, know the possible penalty, have stopped to think about it, and so on. The root of the word ‘deterrence’ is ‘terrere‘, to terrify, and many of us do not consider a society governed by fear to be civilised.

Intended consequences

In criminal justice, offenders are told, ‘If you commit a crime you will be punished’. In RJ, they are told ‘If you harm someone, you will face the consequences’, which sounds ‘tough’ but also includes reparation, apology, community service, and/or co-operation with rehabilitative programmes. Using the word ‘harm’ makes it possible to avoid the stigma of a criminal conviction.

 Unresolved issues

There is however an unresolved issue about proportionality. If the victim wants little or no reparation, or does not take part, or there is no individual victim, the consequences can take the form of community service – but how much of it? If the victim asks for excessive reparation for a minor offence, should the facilitator or a judge decide, and how should they decide? Advocates of restorative justice appear to have given little attention to these questions. One suggestion is to retain the idea of relating the length of the sentence to the seriousness of the offence (perhaps to the pain suffered by the victim), but to suspend imprisonment as long as the offender was complying with an agreed reparative and/or rehabilitative programme, and was not a danger to the public (Wright, 2013c).

 A framework for a restorative society

We tend to regard a civilised society as meaning much the same thing as a democratic one. That means much more than electing a parliament every few years, and includes all the non-governmental organisations and local groups which make things happen in civil society. Bearing this in mind, what might a restorative society look like? It would be inappropriate to propose a one-size-fits-all plan for countries with very different cultures and traditions, but as a starting-point for discussion we might consider a model with roots in civil society, which would be promoted both from the top down and from the bottom up. Each area could be encouraged, or even required, to establish a mediation service to carry out restorative practice, and promote understanding of restorative principles. This would create a network of local mediation services, overseen by a national non-governmental organisation to provide support, standards, a code of practice, and accreditation, and to speak for the mediation and restorative practice movement. They would each have a small staff for administration and to mediate complex and sensitive cases, but most of their work would be done by trained lay mediators. They would spread knowledge of mediation and restorative justice locally, and train prospective mediators. An example on these lines is Eigen Kracht (‘Our own power’) (n.d.) in the Netherlands. This NGO uses the New Zealand model of family group conferencing as a decision making process for citizens, especially when dealing with organizations and government bodies, resulting in a plan made by people from their own social network. Alternatively the services could be provided on a statutory basis, as in Norway (Andersen, 2013) and Finland (Lappi-Seppälä, 2013: 516-7)

 Restorative practice in schools

Local mediation services would begin by spreading a restorative approach as the basis for relationships and discipline in schools and other services and institutions working with children, so that young people from their early years would be accustomed to handle relationships restoratively (Hopkins, 2004; Claassen and Claassen 2008). Schools would play an especially important part in showing the new generation a civilised way of expressing feelings and resolving conflict. Restorative principles would be part of the training of teachers, the staff of children’s homes and youth clubs, foster parents and adoptive parents as well as youth justice workers.

In the country as a whole there could be a four-level process.

 First level.Restorative management and decision-making

 Most of us have been to meetings where everyone sits in rows, staring at the backs of other people’s heads. A few speakers may be on the platform, but when they have finished there is limited time for questioning, and it is hard to pursue a complex point for fear of hogging the discussion. Instead, when local RJ/mediation services have spread knowledge and understanding of restorative practices, restorative decision-making through structured discussion can be used. Typically, the participants sit in a circle, or several circles, each with a facilitator and representatives of different interests; everyone gets a chance to speak, and views and proposals are consolidated at the end.

An example of restorative management (or ‘flat’ management, as mentioned above) is given by the Australian sociologist John Braithwaite. Standards were too low in nursing homes, and did not improve when inspectors prosecuted for breach of regulations, and the nursing home was fined. He brought together owners, management, staff, patients and/or relatives. The massive rule book was thrown out; instead they agreed just 31 principles which were the key to a well-run home. Then they met again at intervals to see how things were going and whether they could be further improved. Inspectors concentrated on good points for which they could praise, and found that standards went up (Braithwaite, 2002: 17-18).

In a review of regulatory sanctions in England and Wales, Professor Richard Macrory found support for restorative justice from the Trade Union Congress and British Chambers of Commerce, and recommended using it in cases of regulatory non-compliance. He pointed out that offenders, including white-collar offenders, will often be very nervous about facing those they have harmed, and the agreed remedy could amount to a significant burden on the offender (Macrory, 2006: 72).

Where possible, decisions are reached by consensus; otherwise a preferential voting systemcan be used. A well known system is the Borda Count, which is promoted in Northern Ireland by the De Borda Institute3.

 Second level. Conflict resolution

In this way some conflicts could be avoided from the outset. But when they do inevitably arise, the first resort would be mediation, which could be provided by local mediation services. It can be used at an earlier stage, and have a preventive function.The conflicts would be handled in a problem-solving fashion, using restorative practices for conflict resolution, agreeing on the repair of harm, and on the method of communication to be used in the event of further problems. They could also offer mediation in the family, in the workplace, between neighbours and so on.

 Third level. Reparation

When the conflict resulted in actual harm, this could also go to mediation. Some incidents could be classified as criminal, but it is not always in the public interest, or anyone else’s, to do so. They might work on the principle ‘when in doubt, keep it civil’.

 Fourth level. Restorative justice

 Only when the harm is so great that the state must step in would cases need to be processed through the criminal justice system. In cases where the restorative process could not be used (e.g. because the offender denied responsibility or refused to comply, or there was a serious danger of serious re-offending) it would be backed up by the courts. When the accused was convicted, the sanction could still be a restorative one as far as possible, for example community service would be seen as reparation, not punishment, and fines would be regarded as reparation for the harm caused and the cost of law enforcement, rather than as punishment. There would be built-in feedback to pass information about social problems leading to conflict and crime to the representatives and authorities responsible for social policy.

So only the highest level of wrongdoing would involve the criminal justice system, and even there, possibilities exist for restorative processes. Wherever possible a civil procedure would be used.

A society based on these values would depend on respect and co-operation rather than on power and fear. In the last quarter-century we have begun to learn how to live in harmony with the planet; now it is time to learn to live in harmony with each other.

 

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REFERENCES

 

Andersen, P (2013) ‘Development of restorative justice practices in Norway’. In: D Cornwell, J Blad and M Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

 BBC (2014) ‘Victims of crime law planned by government’ . http://www.bbc.co.uk/news/uk-29193548 accessed 15.9.2014

 Boseley, S (2014) ‘Danger of death doesn’t deter those dabbling in dark world of legal highs’. Guardian, 5 July.

 Bottoms, A, S Rex and Robinson, eds. (2004) Alternatives to prison: options for an insecure society. Cullompton: Willan Publishing.

 Braithwaite, J (2002) Restorative justice and responsive regulation. New York: Oxford University Press.

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

 Clay, J (2001) Maconochie’s experiment. London: John Murray.

 Dodds, L (2014) ‘Judge says victim statements make ‘no difference’. Daily Telegraph, August 5. http://www.telegraph.co.uk/news/uknews/crime/11012431/Judge-says-victim-statements-make-no-difference.html, accessed 6.10.2014.

 Eigen Kracht (n.d.) What we do. (http://www.eigen-kracht.nl/en/inhoud/what-we-do , accessed 3.10.2014)

 Faulkner, D, and R Burnett (2012) Where next for criminal justice? Bristol: Policy Press.

 Geldart W (1984) Introduction to English Law. 9th ed. by D.C.M. Yardley. Oxford and New York: Oxford University Press.

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

 

House of Commons Justice Committee (2009) Cutting crime: the case for justice reinvestment. First report of session 2009-2010, HC94. London: The Stationery Office.

 Kennedy, H (2005) Just law: the changing face of justice – and why it matters to us all. London: Vintage.

 Lappi-Seppälä, T (2013).Downsizing the use of imprisonment in Finland.’ In: D Cornwell, J Blad and M Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

 Macrory, R B (2006) Regulatory justice: making sanctions effective. Final report. London: Better Regulation Executive, Cabinet Office.

 Maslow, A (1970) Motivation and personality. 2nd ed. New York: Harper & Row.

 McGregor, D (1960/2006) The human side of enterprise. Annotated edition. New York: McGraw-Hill.

 Milmo, C (2014) ‘Rail delays caused by metal thieves slashed by successful new laws’. Independent, Sunday 14 September.

 Northey, W (2014), ‘A brief look at restorative justice’, Justice Reflections, (35), no. JR240.

 Prison Reform Trust (2013) Prison: the facts. Summer 2013.

 Sanders, A, Hoyle, C., Morgan, R. and Cape, E. [2001] “Victim impact statements: don’t work, can’t work”, Criminal Law Review, 447-458.

 Shapland, J, G Robinson and A Sorsby (2011) Restorative justice in practice: evaluating what works for victims and offenders. London and New York: Routledge.

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

 Wright, M (2013a) ‘Gerechtigkeit (wieder)herstellen: wenn Theorie, Gesetz und Praxis sich treffen.’ In: Servicebüro für Täter-Opfer-Ausgleich und Konfliktschlichtung, Restorative justice: der Versuch, das Unübersetzbare in Worte zu fassen. Cologne: DBH – Fachverband für Soziale Arbeit, Strafrecht und Kriminalpolitik.

 Wright, M (2013b) ‘Restorative justice: the search for the mot juste.’ Restorative justice: an international journal, 1 (1), 85-90.

 Wright, M (2013c) ‘Could a restorative system of justice be more civilised than a punitive one?’ In: D Cornwell, J Blad and M Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

 

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1Billijk? anständig? convenable?

 2The word is not only mine: Douglas Hurd, as Home Secretary in the 1980s, spoke of ‘muddles’ in sentencing, and Lord Chief Justice Lord Judge wrote of ‘the continuing burden of comprehending and applying impenetrable legislation’ (Faulkner and Burnett, 2012: 98).

 3The Borda Count works like this. If for example there are five options, each voter is given a ballot paper and asked to rank the options from 1 to 5. Each number one ranking receives 5 points, a number two ranking receives 4 points, all the way down to the number five-ranked option which receives 1 point. The system is designed to make a decision among several alternatives and is considered by many egalitarians to be a better system of voting than the majoritarian systems typically used by legislative bodies and referendums. It is promoted in Ireland by the De Borda Institute: <http://www.deborda.org/&gt;