From restorative justice to restorative action: towards a new social order

Revised 22.7.2010

 Restorative justice beginnings

Originally, the application of restorative justice was limited: it was a reaction to criminal wrongdoing. The story of how it began in 1974 after two young men in Elmira, Ontario, made reparation to their 22 victims has often been told1. Another landmark was established in 1989, when Family Group Conferences were introduced in New Zealand. They were for young people in trouble, whether or not they had committed an offence, and were distinguished by the fact that the young person’s extended family was invited to attend, and the process included ‘private time’, in which they could speak among themselves with no officials or social workers present. Other pioneers developed the idea, for example in schools and care homes by the International Institute for Restorative Practices2. Anthropologists traced its roots in other cultures in Africa and elsewhere3. In the United Kingdom, local community-based groups began to offer mediation, especially to neighbours who were in dispute about such matters as noise; and mediation was increasingly used in other contexts.

 Distinguishing features of restorative justice

What are the key features of restorative justice, which make it different from criminal justice, and without which a programme cannot properly be called restorative? The starting point is dialogue, facilitated by a mediator. In the criminal justice context, this means that the mediator listens to the victim and the offender, inviting them to meet (or at least communicate indirectly), discussing who else was affected and what can be done towards putting things right (especially, but not only, by the offender). Ideally this leads to a sense of closure for the victim, and the ‘earned redemption’ and reintegration of the offender. Restorative justice is not punitive. This does not means that it is ‘soft’: the demands it makes on the offender are not to endure an amount of pain or discomfort, but to accept responsibility for the harm caused, especially when it is caused to another individual. The process is voluntary on both sides, and offenders who cannot face it are dealt with in court in the usual way. Many victims are willing to take part when it is explained well and arranged to take account of their needs. The emotion it aims to encourage in the offender is not fear for him or herself, but empathy for the victim; and it is not uncommon for the victim to feel empathy as well, having heard about the offender’s background. The community also has an essential part to play, but this is the constructive one of enabling the offender to make reparation, rather than helping him to overcome the damaging effects of punishment, especially imprisonment.

Restorative questions

Instead of the conventional questions, What law has been broken? Who did it? How should they be punished? in restorative justice the questions are What happened? What were you thinking and feeling at the time? Who has been affected by what happened? What do you need for the harm to be repaired, so you can move forward? What needs to happen now, and what can you do? The questions are asked, in a similar form, not only to the offender but to others affected; not only to the direct victim but to others who are close to the victim, and often the offender’s own family. In cases where the victim and offender are known to each other, it is often found that the ‘victim’ had been bullying or harassing the ‘offender’, who finally lashed out4, so that it is misleading to say which is the offender and which is the victim, and these terms are best avoided.

The ‘restorative’ concept spreads

The term ‘restorative justice’ is also beginning to be used outside the criminal justice context, to describe mediation in other settings, taking ‘justice’ to mean fairness, rather than the official justice system. It has broadened into the wider concept of restorative practices, which also operate in a preventive way. It can be applied in schools, between neighbours, or in the workplace. The principles, however, are very similar, as we shall see below. The Restorative Justice Consortium in England and Wales uses ‘restorative justice’ in this broader sense of restorative processes, to include for example:

 

  • decision-making
    • Restorative processes need not wait until there has been a conflict; they can be used as a decision-making process, which may avoid the conflict
  • response to conflict
    • They can be used to resolve a dispute. Emphasis on how the disputants will act in future, and how they will communicate
  • response to harm
    • When actual harm has been caused, the processes can be used to agree how best to put it right
  • response to criminal harm
    • When the harm has been caused by a criminal act, they can be used
      • instead of criminal procedure,
      • as part of criminal procedure
      • after criminal procedure

Of these four, only one, the last, is limited to criminal harm. Perhaps we can attempt a definition, with ‘restorative justice’ in the broad sense just mentioned, and ‘mediators’ used to include facilitators of various kinds of restorative process:

 Restorative justice is a process in which those most involved in a problem come together, with the help of mediators, to find their own answers, respecting each other’s needs and as far as possible resolving how to repair any harm caused.

It can be thought of in four ways: as principles, as a process, as a psychological approach, and as communication. It can be argued that many of these apply whether or not the criminal justice system is involved, and whether the process used is one-to-one mediation, conferencing, or another model. We may imagine, for example, how they would be interpreted in contexts such as criminal justice, community disputes, schools, workplaces and so on. As an example, we will look more closely at schools later.

Principles or values

Restorative practitioners in any of these fields would put similar values high on their list: mutual respect, acknowledgement that everyone has a right to their feelings and their point of view, together with awareness of shared responsibility for the mediation session5.

Process

There are two aspects to the process: the actual restorative encounter, and the social structures for making it available around the country.

The basic process often involves asking participants to sit in a circle. This recognises that everyone has an equal right to contribute, and it can often be agreed that everyone speaks in turn. At least one organization, the Roca project for young people in a deprived area of Boston, MA, uses circles throughout its work for youth development, empowerment, accountability, healing, and for managing the system 6. The circle can be used to agree the ground rules, and then to apply them. It is often described as ‘family group conferencing’, especially in the criminal justice context, or ‘community conferencing’ if more indirectly affected members of the community are brought in. Similarly. a restorative manager could run staff meetings on restorative lines.

The other aspect of the process of delivering restorative practices is the administrative structure. Those who advocate the greatest possible community participation would like to see throughout each country a network of independent NGOs, affiliated to a national NGO which would require them to maintain standards. In England the Restorative Justice Consortium is working for the acceptance of practice standards; there are some local NGOs, but they are not by any means nationwide, and many of them are limited to community mediation. In Norway, a Municipal Mediation Service Act was passed in 1991; an Act of 2003 made mediation a national service7. Mediators have to be volunteers; management is by local municipalities, supervised by a national government body, the Conflict Council (Konfliktråd). In Germany there are a few independent NGOs and a national one (Servicebüro für Täter-Opfer-Ausgleich und Konfliktschlichtung), but little or no use is made of volunteers. For schools, local mediation services can promote mediation in schools in their area, and in other contexts such as workplace and community conflicts; indeed they are increasingly being pressed to do so as they search for sources of funding.

Psychology

Restorative justice works on an essentially different psychological paradigm. The punishment/deterrence one is based on making people afraid of what will be done to themselves if they do wrong, whereas the restorative one is based on encouraging them to feel for the other person, whom they have harmed, and this often leads to the other person feeling for them, in other words empathy. Perhaps empathy should therefore have a place in our definition. In schools the same principle applies: to secure good behaviour because it will be in everyone’s interest, not under threat of punishment.

The other aspect is harder to put into a single word: something on the lines of encouraging the person’s feeling of self-worth; but I think that underneath this is an aspect which I haven’t seen expressed, namely that part of the enhanced self-worth comes precisely from the fact that he or she is feeling empathy for someone else, and he didn’t realize he was capable of this. In the context of a criminal offence it is quite common for the victim (if I can use that word as shorthand) to show empathy for the offender, and in some cases this can be how the offender learns what empathy is, never having experienced it much in his life. The ex-offender Peter Woolf describes how he felt when he realized the harm he had caused to his victims, and how he was deeply affected by the fact that, despite this, they showed more concern for him than some members of his own family8

It is striking that authors who are also practitioners agree that punishment is not an effective tool for teaching9. Nor does it help in getting people to accept responsibility for what they have done: punishment is the enemy of truth, and makes it harder for people to accept responsibility for the harm they have caused.

The psychologist Marshall Rosenberg suggests that making demands with the threat of punishment is ‘life-alienating’, while making requests is ‘life-enriching’.10 Teachers in schools, for example, are finding that they get better discipline when they recognise the needs of their students, and make the students aware of their own needs, instead of threatening punishment. The word ‘restorative’ is increasingly being used to describe this approach to relationships.

Communication

The fourth aspect of restorative justice is communication. There are basic skills which mediators learn, such as active listening, re-phrasing in neutral language, separating the person from the act, and so on. the idea is taken further in Marshall Rosenberg’s ‘non-violent communication’11. On the basis of experience as a clinical psychologist, he proposes ways to maintain good relationships, or to rescue those which have run into difficulties. His approach could be described as inviting another person to feel empathy by showing empathy to them. You identify your own feelings, and express them, and show the other person that you are trying to sense their feelings. You also express your needs which give rise to those feelings, and try to show that you recognise their needs too. You don’t describe the other person, because this can be judgemental, but you describe their action, in neutral language, and then make a request that would meet your needs. For example, instead of saying ‘You are annoying when you drum your fingers on the table’, you might say ‘I feel annoyed when you drum your fingers on the table, because I need to finish this article, so would you please not do it while I am working?’

Rosenberg analyses personal interactions into four elements:

  • Observing without evaluating (judging)
  • Identifying and expressing feelings
  • Taking responsibility for our feelings, from
    • Blaming ourselves
    • Blaming others

to

    • Sensing our own feelings and needs
    • Sensing others’ feelings and needs
  • Requesting that which would enrich life

Language is important. One method used by mediators is reframing violent statements in neutral language. Rosenberg gives a striking example12 concerning a conflict between Christian chiefs and Muslim chiefs in northern Nigeria.

One hundred of the four hundred people in the community had been killed, and three of the people who were eventually persuaded to meet knew that someone who killed their child would be in the room. Rosenberg began by asking those on each side to express their needs. One of the Christian chiefs shouted at the Muslims: ‘You people are murderers!’ Rosenberg asked, ‘Chief, are you expressing a need for safety that isn’t being met? You would hope that things could be resolved with non-violence, correct?’ He said, ‘That’s exactly what I’m saying.’

Rosenberg asked if a member of the other tribe would repeat what the chief from the first tribe had said, to make sure he had heard. One of them screamed, ‘Why did you kill my son?’ Rosenberg repeated his summary of what the first chief was feeling and needing; eventually the chief was able to do so.

Then he asked the other chiefs what were their needs. One of them said ‘They have been trying to dominate us for a long time, and we’re not going to put up with it any more.’ Rosenberg again summarized: ‘Are you upset because you have a strong need for equality in this community?’ ‘Yes.’

After about an hour of shouting, each side had heard just one need of the other, when one chief exclaimed, ‘Marshall, we can’t learn this in one day. And if we know how to talk to each other, we don’t have to kill each other.’ Several of them volunteered to be trained.

Restorative schools

In the school context, the restorative process has been formalized by Ron and Roxanne Claassen in Fresno, California, as ‘Discipline that restores.’13 This begins with students and teacher agreeing on the process at the beginning of the school year; the students are invited to agree their own ground rules and set their own targets for the year. Then if there is a pupil-teacher conflict, the following 8 stages follow as agreed. They are listed in a ‘flowchart’ of increasingly serious but non-punitive interventions, including a ‘constructive reminder’ of the ground rules, the ‘four options’, a family conference, and ultimately the school authority structure. At each stage, if the matter is resolved, this is celebrated; stages may be omitted if the matter is too serious of the student too uncooperative or defiant. The stages include:

  • Usual constructive reminder of agreed rules
  • Formal reminder of agreement
  • Active-listening and/or I-message
  • Four Options model (see below)
  • Student-teacher meeting
  • ‘Thinkery’ (reflection with another staff member)
  • Family conference
  • School authority structure

The teacher remains in charge of the framework of the student-teacher relationship, but respects the student by offering choices at every stage. Attempts to control through punishment can make matters worse;

One tool is the ‘Four Options’ model, which identifies four basic ways in which a conflict can be handled:

    1. I impose on you,
    2. we go to an arbitrator,
    3. we go to a mediator,
    4. we agree between ourselves.

When an issue arises, a student is invited to choose which method to use; usually they choose No. 3 or No.4. For uncooperative students there may be a spell in the ‘thinkery’ – not a punishment but a place where another teacher helps the student to think through what happened, who was affected, and a plan for working together. (This is comparable to Rosenberg’s ‘Do-nothing room’, with a teacher who has mastered NVC, to protect the rights of students who want to learn14) The method could be adapted to other organizations.

Belinda Hopkins takes this further and proposes how restorative approaches could be integrated into the residential system for looking after children, through a restorative mindset, dialogue, conferencing, circles and a multi-agency approach15.

The effectiveness of restorative practices in schools is shown by Collingwood Primary School, in the English city of Hull. In 2004 it was stigmatized as ‘needing special measures’, but by 2007-2008 there were

  • Fewer classroom exclusions 98.3%
  • Fewer lunchtime red cards 77.8%
  • Fewer racist incidents 75.0%
  • Punctuality improvement 86.7%

At the Riverside Project, also in Hull, 3500 staff have been trained at 12 primary and 2 secondary schools, children’s homes, family resource centres, police, volunteers, and others. Staff in all children and young people’s services are being trained in restorative practices. Hull claims that it is becoming ‘the world’s first restorative city’, and there will be a conference later in 2010 to report on this.

 

Restorative communities

Where restorative methods are widely practised, we may hope to see the development of restorative communities, where people will routinely have the opportunity to agree together16, People in the restorative movement believe that 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 mediators17. It has been suggested that it should include an unusual but necessary feature of social policy: namely community-building and feed-back on crime prevention to policy-makers.

Conclusion

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 many, with Marshall Rosenberg18, would identify as the key to universal human values. As we have seen, it has been suggested that it should include community-building, and 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 processes can show us the way.

 euforumVOM RJ0/Bilbao RJ … rev 107

July 2010

 1 Peachey, D (1989) ‘The Kitchener experiment.’ In : M Wright and B Galaway, eds. Mediation and criminal justice: victims, offenders and community. London: Sage. See also Zehr, this conference.

2 Wachtel, T (1997) REAL justice: how we can revolutionize our response to wrongdoing. Pipersville. PA: Piper’s Press.

3 Wright, M (1996). Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press, pp. 67-75.

4 For an example see M. Zernova (2007) Restorative justice: ideals and realities. Aldershot: Ashgate, p. 99.

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

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

7 Bolstad, T (2004). ‘Norway’. In: D Miers and J Willemsens, eds. Mapping restorative justice: developments in 25 European countries. Leuven: European Forum for Restorative Justice and Victim-Offender Mediation.

8 Woolf, P (2008) The damage done. London: Bantam Books.

9Claassen, R and R (2008) Discipline that restores: strategies to create respect, cooperation, and responsibility in the classroom, South Carolina: BookSurge Publishing,. (www.disciplinethatrestores.org ); Faber, A and E Mazlish (1980) How to talk so kids will listen and listen so kids will talk. New York: Avon Books; Hopkins, note 5 supra.

10 Rosenberg. M (1999) Non-violent communication: a language of compassion. Del Mar, CA: PuddleDancer Press.

11 Note 10, supra.

12 Rosenberg. M (2005) Speak peace in a world of conflict: what you say next will change your world. Encinitas, CA: PuddleDancer Press, p. 121-5.

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

14 Rosenberg, note 10 supra. p. 125.

15 Hopkins, B (2009) Just Care: restorative justice approaches to working with children in public care. London: Jessica Kingsley.

16 Wright, M (2010) Towards a restorative society: a problem-solving response to harm. London: Make Justice work. www.makejusticework.org

17Mirsky, L (2009) ‘Hull, UK: toward a restorative city.’ http://www.safersanerschools.org/library/hull09.html (accessed 28.1.2010)

18 supra note 10.

Derecho, justicia y la aptitud para su fin: Hacia una respuesta restaurativa para la delincuencia

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

 

Una mujer se quejó a la policía de una ciudad del norte de Inglaterra: unos chicos se estaban reuniendo en frente de su casa, para gritar comentarios racistas. Ella le dijo al policía que no quería que los chicos fueran juzgados: ella tenía chicos de esa edad y sabía perfectamente lo que implica para un chico de esa edad tener antecedentes penales. Ella solamente quería que dejaran de hacerlo. Como la mayoría de los oficiales de policía de esa ciudad había sido educado en los principios de la justicia restaurativa. Por eso juntó a todos los chicos e invitó a la mujer a hablarles. Ella les dijo que había venido de Sudáfrica y les contó lo que era para una persona de raza negra vivir bajo el régimen del apartheid. Ella se llevo a su familia de allí y se la trajo a vivir a esa ciudad porque pensaba que se trataba de forma decente a la gente de color. Esta explicación causó gran impresión a los chicos, que sabían nada acerca de Sudáfrica. Ellos se disculparon y prometieron no volver a hacerlo, y le dijeron a sus amigos que también dejaran de hacerlo.

Esta historia muestra varias cosas acerca de la Justicia Restaurativa. En primer lugar la victima puede influir en la forma en que el asunto es tratado, y toma parte activa en el proceso. En segundo lugar el conflicto puede resolverse fuera del sistema de justicia penal. En tercer lugar los policías que han sido bien entrenados en los principios restaurativos pueden hacer frente a los asuntos menos graves de esta manera. Los infractores aprenden que la razón por la que no se deben comportar de esa manera no es porque van a ser castigados, sino porque una persona va a sufrir un daño por sus acciones. Y además hay una ventaja para el cumplimiento de la ley: el caso fue resuelto por la policía en tres horas, mientras que presentar el caso al juzgado y fiscalía, rellenar la denuncia e investigar el asunto implicaría mucho más tiempo.

Es posible que hayáis oído decir que si preguntáis a dos economistas sobre un problema ellos ofrecerán tres soluciones. Existe una situación similar si preguntáis a los defensores de la Justicia Restaurativa acerca de una definición. Pero antes de intentar dar una definición, me gustaría comenzar pensando que es lo que el actual sistema de justicia trata de hacer, cuales se suponen que son sus objetivos y sus defectos. Después tomaremos en cuenta lo que la Justicia Restaurativa nos puede ofrecer: las ventajas, lo que necesita para funcionar bien, qué podría hacer que funcionara mejor, cuales son los problemas que surgen de introducirla en un sistema tradicional de justicia y para concluir en qué medida la Justicia Restaurativa puede ser parte de una transformación social.

¿Qué trata de hacer el sistema actual?

¿Podemos considerar como aceptable que lo que queremos es una sociedad razonablemente justa en la que se trate a los demás con respeto y tengamos la oportunidad de vivir una vida gratificante? La construcción de una sociedad de estas características, por supuesto, no es una tarea del sistema de justicia penal, pero si de la política social: las personas deberían tener la oportunidad de recibir una educación adecuada, trabajar por un salario justo, tener un lugar decente donde vivir y así sucesivamente. Un lugar donde se quiera ir hacia una sociedad más justa donde la mayoría de la gente no quiera causar daños a los otros debería suponer una reducción de la delincuencia. Esto se ver reforzado con un “situación de prevención del crimen” a través de cámaras, cerraduras, conserjes, patrullas de policía y otras maneras de hacer que cada vez sea más difícil físicamente cometer un delito sin ser descubierto. Los problemas comienzan cuando las personas no se tratan con respecto y se causan daños unas a otras. ¿Cómo reacciona el sistema de justicia penal entonces y es esa la mejor forma de reaccionar?

¿Qué pasa con el sistema actual?

La justicia criminal que en muchos países es llamada justicia penal, se base en varios supuestos, que en el mejor de los casos son verdades a medias que se contradicen entre si. La primera es que la forma de motivar a las personas para que se comporten bien con los demás es amenazarlas con consecuencias severas si no lo hacen. Hay varias falacias en esto. La primera es que lo que nos hace comportarnos la mayor parte del tiempo de forma correcta no es el miedo sino la autoestima. No queremos menospreciarnos a nosotros mismos. Tenemos algo que perder, es decir nuestra opinión sobre nosotros mismos, o la opinión que los demás tienen sobre nosotros. La fuerza disuasoria no funciona a menos que la persona se pare a pensar acerca de las probabilidades de ser atrapado, calcule que el riesgo es alto y sabiendo cual puede ser el castigo tenga miedo.

Si alguna de estas condiciones falla, y la persona ha cometido un delito surgirán dos problemas. Primero, la amenaza que estaba destinada a disuadirle de cometer el delito hará que quiera escapar del castigo. El (o ella) intentará negar o minimizar el delito, cuando la victima lo que quiere es un reconocimiento pleno de su gravedad. Puede que se escape. El puede interferir y molestar a los testigos e incluso si la victima es el único testigo podría llegar a matarla (por ejemplo, veáse Wright 2008: 41-2). En segundo lugar si la amenaza del castigo se lleva a cabo, especialmente si consiste en pena de prisión, hace que sea más y no menos propenso a cometer nuevos delitos porque la prisión le hace romper con sus relaciones personales, le hace más difícil conseguir trabajo y frecuentemente les deja sin hogar. Cuantas más personas están en prisión más difícil es contrarrestar los efectos no deseados. Así de esta manera, por ejemplo cuando el Ministro de Justicia ingles anunció el 10 de noviembre de 2009 que la pena mínima de prisión para cualquiera que utilice un cuchillo para matar se elevaría de 15 a 25 años, no fue más que un gesto vacío. Detrás de todo esto descansa una gran y cuestionable suposición y es que el castigo es la respuesta apropiada y que funciona para el beneficio de a sociedad.

Estas son las razones por las que en cierta manera el actual sistema de justicia penal no es apto para su propósito. ¿Hay una forma o camino mejor?

¿Qué tiene la Justicia Restaurativa que ofrecer?

Ventajas

Es importante recordar que Justicia Restaurativa empieza cuando una persona admite que ha participado en un acto delictivo dañoso. Se argumenta que en un sistema restaurativo es más probable que el acusado admita esto porque la aceptación de su responsabilidad le ofrece la oportunidad de corregir el daño y empezar de nuevo, mientras que el sistema punitivo concluye en castigo. Esto es difícil de probar por supuesto, algunas personas no estarán muy interesadas en reparar el daño, pero muchas querrán expresar su pesar y otros al menos preferirán la reparación del daño al castigo.

Una vez que la responsabilidad es aceptada, la Justicia Restaurativa ofrece una serie de preguntas: ya no es ¿quién es el culpable y cómo debe ser castigado? Pero si es ¿quién ha sido afectado y como se puede corregir las cosas? Inmediatamente esto lleva a la victima al proceso: no como un testigo que ayuda al Fiscal a probar que el acusado es culpable pero si como una persona que ha sufrido un daño. Hay cuatro razones fundamentales por la que la Justicia Restaurativa es diferente de la actual justicia penal.

Primero, hay muchos casos, especialmente aquellos en que hay violencia, donde las dos partes se conocen y no esta muy claro quién es el infractor y quién es la víctima. El sistema penal tradicional etiqueta a uno como delincuente, le pone antecedentes penales y acaba con su relación. Un proceso restaurativo ofrece la oportunidad a ambos de reflexionar en el conflicto que subyace al delito, puede ser resuelto a través de mediación y no necesariamente el caso tiene que entrar en el sistema de justicia penal.

Segundo, la victima participa en el proceso, puede hacer preguntas y obtener respuestas que la ayudan a comprender el incidente y en qué condiciones viven algunas personas dentro de la comunidad. Además pueden discutir acerca de la forma más adecuada en que el infractor debe hacer la reparación del daño.

Tercero, la justicia restaurativa reconoce que la victima directa del delito no es necesariamente la única persona afectada por ejemplo, la familia del infractor puede sufrir ansiedad o sentir vergüenza. Ellos pueden ser llevados al proceso y en vez de mediación, podría usarse “conferencias restaurativas”. Estas conferencias fueron introducidas en Nueva Zelanda en 1989 y ahora el Foro Europeo de Justicia Restaurativa está estudiando su uso en Europa.

Cuarto, el infractor puede dar respuestas y explicar lo que le ha llevado a comportarse de esa manera. Muchos infractores cuando oyen el daño que han causado, quieren disculparse y hacer algo para poner las cosas en su lugar, su participación en la mediación puede contribuir a ello.

¿Qué se necesita para que funcione bien?

Para que la Justicia Restaurativa funcione bien es necesario que sus objetivos sean entendidos de forma clara. En cierto sentido el proceso es el objetivo. Pero esto es solo para el caso de que tanto la victima como el infractor estén dispuestos a participar, no deben ser presionados a participar para aumentar el número de mediaciones. Resultados, como las disculpas, reparación del daño, trabajo en beneficio de la comunidad son ventajas adicionales pero no el único criterio para el éxito.

Sin embargo, cuando un acuerdo ha sido alcanzado la comunidad debe proporcionar los medios necesarios para que el infractor pueda llevarlo a cabo. Si necesita trabajar para ganar dinero y pagar la reparación del daño debería tener la posibilidad de encontrar un trabajo, y obtener ciertas habilidades para ello. Si está de acuerdo en hacer trabajos en beneficio de la comunidad para reparar el daño deberá tener oportunidad para ello, proporcionándolo o bien ONG o bien el Ayuntamiento, por ejemplo. Trabajo en beneficio de la comunidad, no debe considerarse como un castigo o un trabajo deliberadamente desagradable, sino debe considerarse una oportunidad para que el infractor demuestre que él o ella son capaces y además están dispuestos a hacer una contribución constructiva a la comunidad. El foco de atención no debe estar en el mal que causaron en el pasado sino el bien que pueden hacer en el futuro.

¿Quién llevará a cabo la mediación? El requisito esencial es que los mediadores deben estar capacitados y entrenados y deberían entender los principios básicos de la mediación. Existen diferentes versiones acerca de esto elaboradas por el Consejo de Europa (1999, 2007), las Naciones Unidas (2002) y países individuales incluido el Reino Unido (Consorcio de Justicia Restaurativa 2004). Los mediadores pueden ser personal del sistema de justicia penal (pero en este caso sería difícil para ellos dejar fuera su formación y actitudes previas).Pueden ser mediadores independientes, y se puede sostener que deberían existir servicios de mediación en todos los lugares igual que existen Juzgados en todos los lugares. Podrían ser ONG locales, miembros de organismos nacionales que se encargarían de mantener y controlar que se cumplan los principios básicos. Ellos podrían reclutar, entrenar, apoyar y supervisar a los mediadores. Los mediadores podrían ser voluntarios entrenados debidamente, de la comunidad local. Se ha descubierto que personas sin diplomas ni títulos pueden ser buenos mediadores aunque por los asuntos complejos y largísimo, quizá fuera mejor utilizar mediadores profesionales. La financiación de los Servicios de mediación debería buscarse de tal forma que fuera independiente del control político. La relación de la Justicia Restaurativa con el sistema de justicia penal tradicional necesita ser manejada cuidadosamente. Debería existir una presunción general de que la Justicia Restaurativa puede ser considerada en todos los casos y se utilizará a menos que existan razones de peso para no hacerlo. Deberían existir facilidades para acceder a una instalación donde se lleven a cabo las reuniones victima-infractor, preferiblemente fuera de los juzgados.

Los criterios de actuación deben de ser compatibles con las exigencias del proceso restaurativo. Los resultados restaurativos deben contar para policías, fiscales, oficiales de libertad condicional y jueces tanto como una condena.

Lleva su tiempo contactar con la víctima, permitirles poner en orden su mente para ver si desean ser parte, y encontrar tiempo para que la reunión conjunta sea en el momento más adecuado para la victima, y esto no debe verse limitado por la exigencia de la “justicia rápida”.

El proceso necesita ser flexible: puede implicar trabajo individual con la victima o con el infractor. No se debe excluir un enfoque particular: las directrices deberían dejar claro que diferentes modelos de mediación o conferencias pueden utilizarse siempre que se sigan las normas restaurativas reconocidas. Esto no significa que todo tipo de prácticas puedan etiquetarse como restaurativas. Un sistema preocupado por el bienestar de las victimas, apoyará a aquellas cuyos infractores no han sido capturados, o han rechazado la mediación o no son aptos o aquellas victimas para las que la mediación no ha ayudado tanto como debería. Si los infractores no participan por la razón que fuere, el caso llegaría al juzgado el cual impondría una sanción y esta debería ser si fuera posible una reparación. Si fuera necesario privarle de libertad, para la protección de la sociedad en general, el régimen de internamiento debería ser reparador también, es decir debería estar basado en la reparación y rehabilitación no en el castigo.

¿Qué podría hacer que funcionase mejor?

Las prácticas restaurativas serán mas efectivas en una comunidad que les fuera familiar y obviamente el mejor lugar para empezar es introducir estos principios en los colegios (Hopkins 2004, Claassen and Claassen 2008). La ciudad inglesa de Hull, por ejemplo, esta usando métodos restaurativos en colegios y otros entornos y la policía los utiliza para manejar conflictos entre vecinos. Los colegios informan de mejores comportamientos. Estas prácticas se han extendido por todos los hogares de los chicos en la ciudad, reduciendo de forma considerable las fechorías de los chicos y la participación de la policía, y Hull aspira a ser una ciudad restaurativa (Mirsky 2009)

La formación suele hacer hincapié en el desarrollo de unas normas de grupo (que son los cimientos de una comunidad restaurativa como una clase o personal de una empresa) y estas normas se desarrollan cuando identificamos lo que cada uno necesita para trabajar de la mejor forma. Solo entonces las personas pueden identificar las acciones que pueden satisfacer estas necesidades. Por ejemplo, una cosa que suelen decir las personas (mayores y jóvenes) es “necesito que me respeten”, entonces con los trabajos en círculos, en parejas y grupos se pueden llegar a acuerdos sobre diferentes conductas que demuestran respeto. Cuando estamos intentando resolver problemas, identificar necesidades es un requisito previo para encontrar una solución y un camino a seguir y es una parte natural de los encuentros restaurativos.

Idealmente debe el colegio proporcionar a los chicos, todo el conjunto, de modo que pueden llegar a normas acordadas y a los procedimientos que se seguirán sino cumplen con ellas y la puesta en marcha de todo esto si fuera necesario.

Hasta los niños mas pequeños pueden establecer normas muy razonables como “no golpear con manos y pies”, “sigue las instrucciones de los profesores”, ellos pueden ser animados a expresarse de una forma positiva mejor que con una prohibición, por ejemplo “habla con propiedad, sin palabrotas”. (Belinda Hopkins, comunicación personal).

La justicia restaurativa, tiende a tratar un caso individual, sin embargo un programa, con otros grupos de personas inspirados en él, puede ir un poco más allá. En Zwelethemba, una ciudad en el Cabo Occidental de Sudáfrica, los comités de paz manejan una amplia gama de casos penales y de conflictos civiles, para cada caso los mediadores reciben una contraprestación económica, pero también los comités reciben una suma de dinero. Esto se utiliza para la consolidación de la paz, para mejorar la comunidad local y reducir el desempleo, como construir un parque infantil o concesión de prestamos a pequeñas empresas (Roche 2003, 264-5). Las medidas restaurativas tienen el potencial de reducir la población carcelaria. En Irlanda, la comisión nacional de justicia restaurativa (2009:18) estima que la desviación de las penas privativas, podría reducir entre 42 y 85 espacios en las prisiones al año. (Alrededor del 1 o 2 por ciento de una población carcelaria de más de 3000). Se estima que este nivel de reducción podría generar ahorros potenciales en costes de prisiones entre 4.1 millones a 8.3 millones de euros. Lo que se necesita un sistema en el que el ahorro de los gastos en las prisiones sea transferido al mantenimiento y mejora de programas restaurativos y similares. Esto podría hacerse mediante la vinculación de la financiación de programas restaurativos directamente al número de prisiones cerradas.

¿Cuáles son los problemas de su introducción en un sistema tradicional?

Existirán tensiones entre los valores restaurativos y sistema retributivo actual. Diferentes victimas pueden pedir diferentes cantidades por la reparación. Algunas personas pueden sentir que debe existir una reparación a la comunidad aunque la victima pida poco o nada. Un periodo de transición será necesario, pero esto no puede ser una oportunidad para que los valores restaurativos sean absorbidos por los tradicionales. Como hemos visto, los trabajos en beneficio de la comunidad deben elegirse por su valor para la comunidad y para el infractor y no porque sean desagradables.

Puede existir una necesidad de legislación especifica según la Comisión Nacional de Irlanda ha argumentado (2009). Medidas restaurativas deben ser la norma, salvo los casos en que hay razones para lo contrario. Las leyes deben ser elaboradas por personas con conocimiento de los principios restaurativos. El sistema juvenil de Nueva Zelanda por ejemplo, las conferencias de familia, tienen lugar antes de que el juez decida la sentencia, generalmente las recomendaciones de la Conferencia son usadas para la sentencia, pero como medida de salvaguarda el juez puede modificarlas.

Esto debe ser hecho con cuidado, porque sino la responsabilidad dada a victima e infractor es devuelta al juzgado.

En la legislación inglesa más reciente, el juzgado puede mandar hacer una “actividad” incluida una actividad cuyo propósito es la reparación, este tipo de actividad puede ser una que conlleve el contacto entre infractor y víctima de su hecho delictivo (Ley de justicia penal de 2003, sección 201(2)), pero este requerimiento es hecho al mismo tiempo que una serie de requerimientos y que no son el resultado de una reunión entre victima e infractor. En un sistema de justicia restaurativa el propósito de la prisión tendrá que cambiar, desde el castigo a la protección del público y la ejecución de medidas restaurativas.

La transición puede comenzar con el uso de los principios restaurativos dentro de las prisiones como el principal medio de resolver conflictos y mantener la disciplina (Cornwell 2007, Edgar and Newell 2006).

Conclusión: práctica restaurativa como parte de una transformación social.

Después de explorar algunas aplicaciones prácticas de los principios restaurativos, quizá es hora de tratar de definirlos. Básicamente la palabra restaurativa solo significa, “tender hacia una reparación” pero hemos intentado introducir en ella otros ideales como la participación, la toma de decisiones de las partes, asegurando la voluntariedad y preservando la confidencialidad ya que no se trata de un juicio personal. Estos principios deben basarse en la mejor forma de respectar las necesidades de los otros, esto es, comportarse de una manera que sería aceptada y aceptables, si cualquiera se comportara de manera similar, y no porque esté prescrito en las leyes de cualquier de nuestros códigos o lo enseñe una religión aunque en verdad, suelen coincidir. Estos incluyen tratarse unos a otros con respecto, toma de decisiones por acuerdo mutuo, y así sucesivamente aunque en última instancia cierto grado de coerción y autoridad puede tener que ser usado. Ron y Roxanne Claasen (2008) por ejemplo, proponen a un proceso restaurativo de 8 etapas, antes de acudir a las autoridades educativas de la escuela.

La decisión también puede tener que ser impuesta por falta de tiempo, o de consenso o porque un individuo se niega a cooperar. Los bomberos no se van a sentar en un “circulo restaurativo” para discutir como combatir el fuego, pero pueden hacerlo después con un pirómano o una persona que ha efectuado una llamada falsa. Idealmente las organizaciones que solicitan aplicación de principios restaurativos deberían regirse ellos mismos por directrices restaurativas ( ver Boyes-Watson 2008). El concepto general se ha llamado “Enfoque Restaurativo” o “Prácticas Restaurativas” (esta expresión se ha dado cierta legitimidad en el resto del mundo con el nombramiento de un jefe de Práctica Restaurativa en la ciudad de Hull). Parece que la palabra Restaurativa ha ganado cierta actualidad, sin embargo, no todo el mundo es consciente de estos matices, por eso debemos mantenernos y hacerlo comprender mejor.

Por eso una definición podría ser:

Las prácticas restaurativas son una manera o forma de permitir a todos los interesados acordar juntos la manera de cómo actuar en el futuro, dando peso al respeto a las necesidades de otros.

La aplicación de estos ideales restaurativos a la justicia penal es lo que llamamos Justicia Restaurativa, y en paralelo Colegios Restaurativos, lugares de trabajo restaurativos y comunidades restaurativas (o ciudades como Hull), familias restaurativas y así sucesivamente. Se suelen usar métodos como círculos restaurativos de toma de decisión y comunicación no violenta (Rosenberg 1999) pero existen una serie de métodos disponibles.

La Justicia Restaurativa, es un término ampliamente aceptado, que es usado cuando se ha causado un daño que algunas veces ha violado el código penal.

Sin embargo, no debería limitarse a actos delictivos, porque nos gustaría encargarnos en la medida de lo posible de estos actos fuera del marco del derecho penal por ejemplo una disputa entre vecinos o pelea entre conocidos.

Una definición podría ser:

Justicia Restaurativa es la aplicación de las prácticas restaurativas para rectificar los daños causados por las personas entre sí, especialmente (aunque no exclusivamente) cuando la acción dañosa es contraria a la ley penal.

Al principio ha sido limitada la aplicación de la Justicia restaurativa, simplemente como reacción a un acto delictivo. Ahora se ha ampliado en un concepto de prácticas restaurativas que también operan de forma preventiva. Cuando se trata de una práctica generalizada podemos esperar a ver el desarrollo de las comunidades restaurativas donde las personas habitualmente tendrán la oportunidad de ponerse de acuerdo. La esencia de esto, supone una forma diferente de relacionarnos entre nosotros, especialmente en situaciones donde una parte ejerce cierto poder sobre la otra: colegios, familias, lugares de trabajo…Todo el mundo debería tener acceso a prácticas restaurativas y justicia restaurativa. Las prácticas restaurativas tienen el potencial de construir capital social, fortalecer las relaciones y comunidades, especialmente cuando se ponen en práctica por ONG y voluntarios. En Noruega, por ejemplo, la ley exige que haya mediadores voluntarios. Estos principios se basan en la necesidad de respeto, consideración, cooperación, apoyo y pertenencia y según Marshall Rosenberg (1999) quien ha desarrollado los principios de la comunicación no violenta, se identificarían como la clave de los valores humanos universales. Como hemos visto, se ha sugerido que debería incluirse la construcción de comunidades, y una característica inusual pero necesaria de la política social, a saber una reacción para los responsables de la política social.

En los últimos dos o tres décadas, hemos aprendido la importancia de vivir en armonía con el planeta, ahora es vital aprender a vivir en armonía unos con otros, y los principios restaurativos puede mostrarnos el camino.

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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.

= = = = = = =

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.

Why restorative justice needs research

6 May 2009

Before we consider how restorative justice tries to make the criminal justice system work better, we can take a step back to consider how restorative practices can create a society in which people are less likely to harm each other; but when it happens, we would help the victim, and look for ways to prevent further trouble.

How to reduce the crimes and other harms which people inflict on each other?

Hungary has followed this logic, by introducing a National Strategy for Community Crime Prevention in 2003. This includes non-violent conflict resolution, enhancing small-community integration and control and other social measures (Lévay 2007-8) Criminologists have suggested many ways of reducing the pressures towards crime; most of them are part of social policy, and have little to do with criminal justice policy.

A comprehensive policy for reducing the amount of harm which citizens cause to each other would ideally start in schools, and the Zöld Kakas Liceum1 has shown how this can be done even with students who had not been successful in other schools. Among other things they were encouraged to make their own rules; but soon they found that they had so many rules that many of them were broken. They therefore concentrated on the essential rules, and at the end of the year they summed up their achievement: ‘We’ve learned punctuality. We’ve learned to respect our fellows. We’ve learned to cooperate. We’ve learned to be serious in serious situations’ (Kerényi 2006).

Schools in Hull, in northern England, have adopted restorative practices, with striking results for improving behaviour and the school’s performance generally; there are plans to give restorative training to everyone in the city who works with children, and to make Hull into a ‘restorative city’. (IIRP 2008; Mirsky, n.d.)

Another version of this method is ‘discipline that restores’ (DTR). The principle is that the teacher remains in charge of the framework of the student-teacher relation­ship, but respects the student by offering choices at every stage. After analysing how attempts to control through punishment can make matters worse, Roxanne Claassen, the main author, invites each new class at the beginning of the school year to agree their own ground rules and set their own targets for the year. A ‘flowchart’ of increasingly serious but non-punitive interventions is explained. When a conflict arises, the first step is a ‘constructive reminder’. The next time, the teacher will ‘actively listen’, and talk to the student. If there is a further problem, the student can choose between ‘Four options’ for dealing with it (I impose on you, we go to an arbitrator, we go to a mediator2, we agree between ourselves); usually they choose #3 or #4. For uncooperative students there may be a spell in a ‘thinkery’, a place where another teacher helps the student to think through what happened, who was affected, and a plan for working together. If the problem is still not resolved, a ‘family conference’ is held. Only then, if necessary, the school authority structure will be used (Claassen and Claassen 2008). Methods like these have the potential to teach children respect for each other, animals, and the environment.

Research in schools is also reported by Sherman and Strang (2007: 53-4) in a wide-ranging review of published research, reporting reduction in anti-social behaviour and increased feelings of safety among students, though not all the findings were statistically significant.

The next step towards a restorative society is to create a network of community mediation centres, as in Finland3, Norway, and parts of the United Kingdom. They can deal with civil disputes and those which can be privately prosecuted in continental legal systems; they could also extend their work to include victim-offender mediation.

How to respond when crimes are committed?

The traditional justice system, as we know, is based on confirming that a crime was committed; that the accused is guilty of committing it; and imposing a punishment (or sometimes another sanction). This gives the accused an incentive to deny or minimize what he or she has done. Although restorative processes are only used when the accused accepts responsibility, it is claimed that they make offenders more likely to do so. They ask different questions:

  • What happened?

  • Who was affected?

  • What is needed to put it right?

  • Who should do it?

  • How can members of the community be involved?

  • What would make it less likely to happen again?

The task of fundamental research is to ask whether these are good questions; practical research asks whether they were asked in the right way and led to the repair of the harm.

How well are we doing?

Just as , when we were considering how to respond to crime, we began by considering how to prevent it, when we now consider the response itself, we begin by considering how the response is designed. So we have to ask, What are the qualities of a good justice system?’ We do not go straight to the outcome; we look first at the structure and the process. In this context, research could be compared to an audit.

Structure

Researchers, then, should be involved in the design of the system (in German this is called Begleitforschung, accompanying research), although this is not always possible for political reasons: it can be difficult to explain to senior lawyers and politicians the relationship of restorative justice to criminal justice. Mediation in criminal cases has only recently been introduced in Hungary (Act CXXIII of 2006, quoted by Lévay 2007-8), so there is still time to influence the direction in which it develops. Researchers may begin by looking at the preventive policies mentioned above, and how widely restorative practices are used in schools and communities. As regards criminal cases, if it is accepted that restorative justice should include participation of the community, as supporters of victims and offenders, as volunteer mediators, and managers of NGOs, researchers with their knowledge of the theory and practice in other countries can advise on legislation that enables this to happen; evaluate how well it is working, both numerically and qualitatively; and recommend changes later if necessary. They can assess whether there is full use of volunteers, and whether these represent all groups of society, including ethnic minorities: for example, how many Muslim mediators are there in the UK, how many Roma mediators in Hungary? Some programmes have used police officers as mediators; research has found that some do it very well, and the experience can broaden the outlook of the officers, but there are problems such as under-preparation, coerced participation and lapses in neutrality, ‘particularly in the case of the more experienced facilitators’ (Hoyle et al. 2002: 66).

If we accept the principle of minimum state intervention (‘as much state as necessary, but as little state as possible’), researchers should look at the extent to which cases which do not need the full power of the state are ‘diverted’ (kept out of the system); for example, do prosecutors refer cases to be assessed for mediation rather than prosecution? Can people go straight to mediation, for civil or privately prosecutable cases? It is helpful if the legislation is designed so as to make this possible.

The response to crime is a matter of public concern, and researchers would want to see what arrangements are made for public accountability. Is an annual report published? Are some resources of staff time allocated to explaining the restorative concept .to the public and to professionals?

Process

Then researchers can see whether the process is being operated according to restorative principles. This is because in restorative justice the process is important, as well as the outcome. So researchers will look at how well it was carried out, and whether it involved victims, offenders and members of the community? Since restorative justice is concerned about victims as well as offenders, they will also ask if support is available for victims whose offenders are not caught? In Hungary, for example, this would mean examining the operation of the Act CXXXV of 2005 on Victim support and state compensation (Lévay 2007-8), but many victims need emotional support as much as, or more than, compensation, so this should also be part of a restorative system.

Participation by victims will never reach 100 per cent, since it is a voluntary process, but if it is well explained and becomes well known, the level should rise. There is a presumption that the take-up will be higher if the process is explained to victims (and offenders) by mediators, who understand the process well. The way in which they are contacted also makes a difference: by letter, phone or visit. Mediators may also discuss with victims whether they would prefer one-to-one mediation, or indirect mediation, or a ‘conference’. One reason for low attendance can be that victims are not consulted about the time when the meeting will be held. Research in the early days of youth offender panels in England found that only 22 per cent of victims attended meetings (Crawford and Newburn 2003: 185), although (partly as a result of this research) efforts are being made to improve this.

Research into the process will include questions such as:

% of victims contacted

% of victims agreeing to mediation

% of cases enabling victim and offender to meet in a mediation/conference

There has been criticism of the conferencing process, especially for young offenders, on the grounds that they may be intimidated by ‘a roomful of adults’. With this in mind the English legislation allows a young person to be accompanied by an adult supporter (invited by the young person with the panel’s agreement) and anyone else whom the panel considers to be capable of having a good influence on the offender, in addition to parents or guardians. The early research found that only in 15 per cent of panels was the young person accompanied by more than one adult (Crawford and Newburn 2003: 122).

The supporters need not be lawyers – some would say that lawyers should not take part in the mediation, because the restorative meeting is not a trial. It does not take place unless the accused has already accepted some responsibility for the harm caused. Advocates of restorative justice argue that the prospect of a restorative process, rather than a punitive one, encourages the admission of guilt; the presumption of innocence until guilt is proven ‘means no accountability, and it sets the conditions for re-offending’ (Sawatsky 2009: 120). It is common for defending lawyers to advise their clients to plead ‘Not guilty’ and say nothing, in the hope that in some way, perhaps a procedural technicality, they can escape punishment. The accused is of course entitled to legal advice, under Article 6 of the European Convention on Human Rights (Right to a fair trial), but the lawyer should be aware of restorative principles. When the outcome is a restorative one, the accused has an incentive to admit his or her involvement in causing harm, and ‘wipe the slate clean’. It will be interesting to see if researchers can find a way to explore this hypothesis. It is supported by the experience at Hollow Water, Manitoba, Canada where considerable sexual abuse was admitted, in two cases without a victim even coming forward (Sawatsky 2009: ch. 4). Of 107 cases, only 2 were found to have re-offended (p. 99). Further evidence is provided by research in England, where the use of restorative justice doubled (or more) the offences brought to justice as diversion from criminal justice. In an experiment in Brooklyn, a crime was twice as likely to be brought to justice where restorative justice was used, as compared with the court process (Sherman and Strang 2007: 4, 82-3)

Any good system needs some form of follow-up and feedback, to assess its performance. Research is an investigation in depth, which can usually only be carried out every few years; monitoring is routine record-keeping, including asking the participants how well they thought the process was conducted. In both cases the results should be given to the mediators, and included in the training of future mediators. It may be possible to establish a practice review group, including practitioners, administrators and researchers, to consider issues that arise in day-to-day practice and consider whether changes are needed. These may be local arrangements, or may be passed to the national organization which supervises restorative work. It is suggested by Sherman and Strang that this organization should be an official ‘Restorative Justice Board’ (2007: 88), but there is also a case for an organization that is independent of government and can even press the government to make changes when necessary.

Researchers will also want to look at the training of mediators, both for their skills in listening and leading the meeting, but also to ensure that they learn to recognise their own prejudices and treat everyone with respect, including ethnic minorities. They will also want to consider whether arrangements are in place to make sure that the process is conducted fairly. In addition to the basic skills, such as active listening, and condemning the act but not the person, mediators need to learn what to avoid, such as dominating the discussion and imposing opinions. There are also more complex issues: has the facilitator used subtle techniques to persuade the victim and offender to follow a ‘script’ of forgiving and apologising, which may not be what they really want (Zernova 2007)? Or is that the correct thing for the facilitator to do, in the interests of individual well-being and social harmony?

Even a restorative process, however, can be conducted well or badly; in addition to the routine monitoring, researchers will want to discover whether there is a grievance procedure (a restorative one, of course!), and whether the principles of restorative justice are correctly explained to the participants – otherwise they may mistake bad practice for normal practice, and not realize that they have grounds for complaint.

Research by Lawrence Sherman and Heather Strang (2007: 44-5) examines questions of this kind, and finds that restorative justice in general, and the programmes which they studied in particular, comply with legal principles and those of the United Nations (2006: annex II). Other standards which researchers may want to use as a basis for assessment include those of the Council of Europe (1999 ) and CEPEJ (European Commission for the Efficiency of Justice) (2007).

Finally, a detail which may be unexpected: researchers may want to ask whether refreshments are offered to the participants after mediation? In some models of mediation and conferencing, this is normal practice; it may for example fill the time while an agreement is being written out, and sharing food and drink is a profound way of symbolizing reconciliation.

Outcome

Having looked at the structure and the process, let us now turn to the outcome. At this point the research becomes more numerical. But with these numerical data, and the ones I mentioned earlier, it is important to remember the dangers. Firstly, numerical research, and randomized controlled trials (RCTs) in particular, are not necessarily the best method for all purposes. They need large numbers in order to achieve statistical significance, and therefore it is often not practicable to explore in depth the quality of the services being studied. Was it good restorative justice, indeed was it restorative at all? With smaller numbers, statistically conclusive findings are less likely to be achieved, leading to disappointment all round. There is a tendency to focus on a primary outcome of interest to the funder, which is often the reconviction rate. Aidan Wilcox and other researchers (2005) have pointed to several problems. Drop-out rates can be as high as 33 to 68 per cent, and there is then a danger that the remaining cases are no longer representative. RCTs originated in medical research, but in social research the important element of double-blind is not possible.

Offenders may have received other treatments in addition to the victim-offender meeting, so the latter may not be responsible for the ‘success’. (Conversely, Wilcox and colleagues might have added, if additional measures which the offender needs are not provided, this lack rather than the restorative justice process may be responsible if he or she re-offends.) As for victims, their satisfaction may be simply because someone has listened to them, rather than resulting from the restorative meeting itself. (Wilcoxet al. 2005). In one case, when the random allocation method was used, satisfaction was lowest among the victims who were promised restorative justice but were then allocated to the control group and consequently did not receive it (Sherman and Strang 2007: 63-4).

Qualitative research, despite its necessarily smaller samples, can complement the findings of RCTs. Action research or ‘accompanying research’ has already been mentioned., and was used by Carolyn Hoyle and colleagues (2002). It does not merely tell us about ‘restorative justice’ in general, but indicates whether this restorative programme is being well conducted; and it tells us not after the project but during it, and can (as these researchers did) propose improvements while it is still running. The relatively small numbers of such studies may be criticized; but research such as that of Hoyle and colleagues, and Zernova (2007), can at least draw attention to issues, suggesting that other projects should be on the look-out for them. If they turn out to be widespread, changes may need to be made in the practice – and even the theory – of restorative justice.

Secondly, there can be undesirable side-effects of basing policy on statistics.. This has been a particular problem in Britain. People do things to make the statistics look better, which do not necessarily make people feel better. One example among many: the efficiency of the police is judged by the number of arrests they make, so they arrest people who are easy to arrest, or people for whom a warning would be quite sufficient. Some more serious offenders, whose cases are more difficult to investigate, remain free; others are not referred to mediation, although their cases might be suitable. There are other examples of the harmful effects of statistical targets, from the National Health Service and schools.

A question that will naturally be asked is the percentage of agreements fulfilled fully or partly. An interesting finding is that an agreement to make reparation may be at least as effective as enforcement by the threat of punishment (Sherman and Strang 2007: 58-9). However, in those cases where reparation is not completed, some form of enforcement will be necessary, and researchers will want to see whether it is carried out in a restorative way, and how effective it is.

Reparation

Reparation can take different forms. Some victims want no more than an apology, or ask that the offender should do some community work; for others the priority is that he or she should not offend again, and should undertake training, education, therapy, anger management, or other programmes that will help to avoid re-offending. Therefore researchers should ask whether there were adequate opportunities for community work, perhaps offered by NGOs, and appropriate rehabilitative programmes. If these are not available, and there is a high rate of re-offending, it cannot be said that ‘restorative justice’ has failed – it is the supporting services that were not provided. In one English prison a mediation was carried out between a burglar and three young women who shared a flat which he had broken into. The session was observed by a former Chief Inspector of Prisons, who was impressed. It went well, they expressed their feelings, and the offender told them how and why he became a burglar. He had had a typically disadvantaged upbringing, had missed school and had not learnt to read and write, he had other problems including drug addiction. He agreed to attend programmes including literacy classes and addiction therapy. Afterwards the former Chief Inspector spoke to the prison governor, and asked if those programmes were available in the prison; he was shocked to hear that none of them were (Lord Ramsbotham, personal communication). If that young man fails to keep his agreements, who is responsible?

Researchers may also ask whether young people who have made reparation by community service receive thanks and perhaps a certificate; this symbolizes the fact that they have not been punished as outcasts, but have made a contribution to the community and are part of it. Even better, they may work alongside volunteers who are not offenders, and a plaque can be installed giving them credit for their work. Programmes in prisons, for example in England and Hungary4, show ways of developing the good qualities of offenders. The current practice in England of making offenders work in public places, stigmatized by wearing distinctive coloured jackets, is completely contrary to this principle.

A common criterion is ‘victim satisfaction’, which in almost all research is found to be very high, and significantly higher than courts when this comparison is made. Victims who experience restorative justice are less likely to suffer post-traumatic stress, and return to work sooner. But research has its pitfalls: in one study there were so many restrictions on cases that could be included in the programme that the numbers were insufficient (Sherman and Strang 2007: 83).

When people, especially politicians, ask ‘Does restorative justice “work”?’ they commonly mean ‘Does it reduce reconvictions?’ Sherman and Strang found (2007: 68-71, 88) that reconvictions were often reduced, not always significantly, but were almost never increased. In the controversial field of violence within families, they cite Canadian research finding a reduction by a half in emergency visits to the home, compared with an increase of 50 per cent in comparison families (citing Pennell and Burford 2000).

A study of three groups of programmes in different parts of England looked at the question of reconvictions. Results varied, but in total offenders who participated in restorative justice were reconvicted statistically significantly fewer times than those in the control group. It may be relevant that the programme which did best was the one (in Northumbria) which used conferencing rather than one-to-one mediation. (Shapland et al.: 66-7)

Restorative justice can save costs in courts, in prisons, and in health care for victims, according to Sherman and Strang (2007: 86). They could have added that at least some of the savings could be used to provide more restorative justice and other non-custodial measures, if there were a simple method of transferring the funds. The research by Shapland et al. (2008: 67) found significantly lower costs in one group of programmes, although in the other two the difference was not statistically significant.

CONCLUSIONS

This paper began by referring to the aim of reducing crime, for which social policy is more important than criminal policy. But can restorative justice contribute to it? When many offenders tell their stories, there are bound to be indications of societal pressures that lead to crime. This is not to deny that individuals have choices about resisting those pressures; but even a healthy plant cannot grow well in poor soil. New Zealand, once again, has shown the way: some facilitators, when they notice clusters of cases from a particular geographic location or school, gather a number of people from social services, police and so on to consider whether there can be a plan to tackle the pressures that affect they young people. Similarly in South Africa, the Zwelethemba programme links the ‘peacemaking’ with ‘peacebuilding’, and includes a system for transferring funds to it (Sawatsky 2009: 59). This does not address major problems, including inadequate funding of essential services such as education, or inequalities in society, but it is a step in the right direction. The involvement of volunteers in the process helps to spread public awareness of social needs. If similar schemes can be introduced in other places, they will need to be researched to assess their effects.

I have tried to go back to first principles, and suggested that we should begin by thinking about prevention. If young people learn to resolve their differences and misunderstandings in a respectful way, we shall be building a society in which people respect each other’s humanity. Research on such programmes can show how well it is working and how it can be improved, and can inform others so that the pioneering examples can be followed. Similarly, the extent and quality of community mediation can be assessed.

Some of these proposals are based on a particular view of restorative justice, believing in the value of involving members of the community, and where possible resolving conflicts by agreement, without the imposition of authority

Of course some people will still harm each other, and the restorative movement proposes that we should respond with a different set of questions, based on putting right the harm and looking for ways to avoid more of it happening in the future. This response needs research into its structure, its process and its outcome, and I have suggested that researchers should be involved at the design stage, to assist the legislators (and to avoid excessively detailed legislation). I suggested some of the points which researchers could consider.

May I end by stressing three particular points which researchers should look for: (1) when offenders agree to make reparation, are arrangements in place to enable them to do so? (2) Are the circumstances regularly discussed, to see how pressures towards crime can be reduced? (3) Can a system be introduced by which money saved on prisons could be transferred to non-custodial ways of dealing with offenders? If research is focused on these questions it will help us to achieve more effective restorative justice and to build a more restorative society.

REFERENCES

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

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

Council of Europe. Committee of Ministers. (1999) Recommendation No. R (99) 19 … to member states concerning mediation in penal matters. Reprinted in I Aertsen et al., 2004..Rebuilding community connections: mediation and restorative justice in Europe. Strasbourg: Council of Europe.

Crawford, A, and T Newburn (2003) Youth offending and restorative justice: implementing reform in youth justice. Cullompton: Willan Publishing.

Hoyle, C, R Young and R Hill (2002) Proceed with caution: an evaluation of the Thames Valley Police initiative in restorative cautioning. York: York Publishing Services.

IIRP (International Institute for Restorative Practices), Hull Centre for Restorative Practices (2008) The City of Hull: Riverside Project.

Kerényi, M (2006) ‘About the Jumpstart Programme of the Zöld Kakas Líceum.’ Paper from “Improving Citizenship & Restoring Community,” 10th International Institute for Restorative Practices World Conference, Budapest. http://www.safersanerschools.org/library/hu07/hu07_Kerenyi.html (downloaded 11.4.2009

Lévay, M (2007-8) ‘Development of criminal policy in Hungary during the first decade of the 21st century.’ Archiwum Kryminologii (Warsaw) XXIX-XXX, 543-554.

Mirsky, L (n.d.) ‘Hull, UK: toward a restorative city.’

http://www.safersanerschools.org/library/hull09.html#top (downloaded 11.4.2009)

Pennell, J, and G Burford (2000) ‘Family group decision making: protecting women and children.’ Child Welfare 79(2), March/April.

Sawatsky, J (2009) The ethic of traditional communities and the spirit of healing justice: studies from Hollow Water, the Iona Community and Plum Village. London: Jessica Kingsley Publishers.

Shapland, J, et al (2008) Does restorative justice affect reconviction? The fourth report from the evaluation of three schemes. (Ministry of Justice Research Series 10/08). www.justice.gov.uk/publications/research.htm

Sherman, L W, and H Strang (2007) Restorative justice: the evidence. London: Smith Institute. www.smith-institute.org.uk

Wilcox, A, with C Hoyle and R Young (2005) ‘Are randomised controlled trials really the “gold standard” in restorative justice research?’ British Journal of Community Justice, 3(2), 39-49.

Zernova, M (2007) Restorative justice: ideals and realities. Aldershot: Ashgate.

martinw@phonecoop.coop

conference papers/budapest

1 Described By Borbála Ivany in a workshop at this conference.

2 Terms such as ‘mediator’ and ‘facilitator’ will be used interchangeably in this paper.

3 described by Aarne Kinnunen in a workshop at this conference.

4 described at this conference in workshops by Andy Hudson and Melinda Gyökös.

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.

Punishment and restorative justice: an ethical comparison

Rev 27.6.20

 “BELTING SON “ACCEPTABLE” This was the headline in an English provincial newspaper, reporting a court case. The father was accused of hitting his three-year-old son with a leather belt after the boy damaged a television set and tried to blame it on his baby sister, although the father had repeatedly asked the boy to tell the truth. The boy had red marks and bruises on his arm, back and ribs. The judge indicated that he intended to pass a custodial sentence, but the accused failed to appear at court. His wife, a schoolteacher, said that her husband was “a good dad”, and had been brought up to believe that physical chastisement is an acceptable way of disciplining children. Although she had originally contacted the police, she said that she regretted doing so and tried to retract her statement, because she never expected that her husband would be arrested. This case illustrates several points: that once punishment is legitimated there is a danger that it will be overdone; that fear of punishment is liable to make people tell lies and deny what they did, like the little boy, or try to run away, like the father, instead of taking responsibility for their actions; and that the fear of overreaction by the state can make people, like the wife, think twice about reporting wrongdoing.

 This was clearly an example of the wrong sort of punishment. There are many more throughout history, and still to-day: amputations, solitary confinement, “supermaximum” security prisons … . Humankind has been horribly inventive in thinking up ways of inflicting pain. But is there a right sort of punishment?

 In comparing punishment and restorative justice, this chapter will consider definitions, and two kinds of justifications: instrumental and symbolic. It will show that punishment and restorative justice are based on different psychological principles, and different axioms. The question is asked how a “pure” restorative system would respond to certain problems, such as enforcement, and protection of the public; the concepts of “natural consequences” and “protective use of force” are proposed, but questions remain: how long should they last? Do restorative responses have to be “burdensome”, and if so do they cross the line separating them from punishment? An attempt is made to weigh the two philosophies in an ethical balance.

 Definitions

 Punishment is essentially the infliction of a painful or at least inconvenient measure on a person (including a “legal person” or organization: RJC, 2005) who has broken a rule. The intention is to show that the action was unacceptable, and to discourage or deter the offender, and others, from repeating itii. Some writers extend the definition to include coercive measures which are not intended to be painful, such as rehabilitation or reparation. They justify this on the grounds that the measure restricts a person’s liberty, and may be painful even when not intended to be, as with unreasonably long detention in a supposedly rehabilitative institution, or unreasonably heavy reparation. There is no objection to this definition so long as it is made clear that the word is being used in this way.

 But even if these measures are called “punishment”, they are clearly different kinds of punishment, intended to operate in different ways and should therefore be labelled differently, for example “rehabilitative punishment”, “reparative punishment”, and the somewhat tautologous “punitive punishment”. It seems simpler to call them rehabilitative or reparative “measures”, while recognising that their coercive aspects may unintentionally cause pain or inconvenience. We might use “interventions” for those that require the offender’s consent (but see discussion of consent, below). “Punishment” is then reserved for the deliberately punitive ones.

 Most definitions of restorative justice include the idea of reparation or healing of the harm done; dialogue between the victim and the offender in deciding how reparation can be made – sometimes called “deliberative” justice (for example by Walgrave 2005, 6); or both. Others add involvement of members of the community: as mediators, as organizers of NGOs providing a mediation or conferencing service, and/or as participants in the process itself: relatives and supporters of the victim and offender, and sometimes other people affected by the offence.

 In its purest form restorative justice replaces a court appearance, or takes place after completion of the criminal justice process, so that no one can feel under pressure to try to influence the decision to prosecute, the sentence, or the date of release from prison.. Punitive sanctions are normally imposed by a judge; so are rehabilitative ones, although some may require the offender’s consent, for example probation and community service orders when they were first introduced in England and Wales (but no longer, now that they have been re-named “community orders” with various “requirements” including “unpaid work” (Criminal Justice Act 2003 sec. 177)).

 Ideally, “Mediation in penal matters should only take place if the parties freely consent” (Council of Europe, 1999, Appendix, article 1). This consent is however limited if mediation takes place before the final decision of the criminal justice process: offenders inevitably hope for a lighter sentence or earlier release if they take part, even if they are told that this will not happen. Offenders may indeed accept the restorative justice process willingly, but this could only be entirely voluntary if they were told “You can take part in restorative justice, but if you do not, nothing will happen”; this would not be acceptable except for the most minor offences. Despite this, the fact that restorative justice offers offenders the choice whether to take part, and the opportunity to discuss reparation with the victim, does distinguish it from punishment imposed by a court.

 Justifications

 Punishment and restorative justice may be justified either by their effects or, as we shall see later, because they are believed to be a symbolically right response to wrongdoing. It is hard to justify ethically a society based on fear and the threat of harm, if another way of preserving social order is available. In addition, deterrence does not work when people think they can “get away with it”. What keeps most people from wrongdoing most of the time is primarily the desire to have self-respect and to be valued by those whose respect is important to them. They may also be influenced by the desire to keep the material possessions which often accompany their status. Thus, especially for acquisitive crimes, an appropriate strategy for prevention would be to ensure that, as far as possible, everyone can gain a reasonable amount of respect, status and possessions. Otherwise the only way to penalize those whose life conditions are already poor is to make them worse still. There is however a problem when the social status is regarded as arising from the material possessions, because this may tempt people to try to acquire more at other people’s expense. This applies at all levels, from the teenage robber who wants the latest mobile phone to the business executive who wants a bigger yacht and is willing to exploit people, or even commit ”white-collar crimes”, in order to get it.

 Instrumental

 Since punishment (on the definition we are using) causes pain and often harm, it would seem that it can only be justified if it is more effective than any less harmful method of promoting the common good. In other words, only if it works, and certainly not if it makes matters worse: primum non nocere, the first thing is to do no harm.

 The wrongdoing of the powerful should not be (but too often is) overlooked. Regulatory or “white-collar” offences can result in financial hardship, injury and death. Methods for dealing with them could with advantage be applied to other crimes (see below, “natural consequences”) However, since “street crimes” generate most public debate, we will focus on them. A high proportion of convicted offenders come from a background deprived of basic needs for educationiii, affection and even safety; what they need is to be included, valued and respected for what they are, despite what they have done. Often they need help and support, ideally of course before they have done wrong; if it is not provided until afterwards, it may look as if they are being rewarded for bad behaviour. But if they are punished, they are further excluded, stigmatized and devalued: the opposite of what is likely to persuade them to behave more acceptably.

 Antony Duff argues for punishment as a way of communicating censure (Duff, 2005), although he concedes that present forms of punishment do not comply with the ideal of the communicative theory. But in practice its message is that the use of force is the way to control people. It communicates lack of respect and tells people what they should not do, not what they should do.

 Can punishment claim to be effective? A review of the psychological literature (Wright 1999, Chapter 2) shows that it inhibits unwanted behaviour only temporarily, and only if it is immediate, certain and not excessive – rare qualities in the criminal justice system. Also, an alternative form of behaviour must be available to the subject. Punishment can be counterproductive, by eliciting aggressive behaviour. People try to avoid it, but not necessarily by behaving well: offenders not only tell lies, try to blame others, or attack the police, but have even killed their victims in the hope of avoiding detection (ibid. pp. 41-2) – and the more severe the threatened punishment for one crime, the greater the incentive to try to escape it by committing another. It can produce what Braithwaite (2002, 106-7) calls “reactance”: people react to attempts to control them by acting in a contrary way, including aggressive behaviouriv. It can inflict disastrous “collateral damage” on the offender’s family. The most severe punishment (in civilized countries with no death penalty) is imprisonment, which is in a class by itself for producing unwanted side-effects: it separates people from potential good influences and prevents them from taking responsibility, besides being proverbially a “university of crime”. It is also commonly accepted that the younger people are when sent to prison, and the more often they have been imprisoned, the more likely they are to re-offend (Prison Reform Trust, 2006, 5).

 In her study of social and psychological influences, Fellegi (this volume) argues that retributive justice makes people more likely to stay at a “rule obeying” level, “neutralizing” (excusing) their behaviour to avoid punishment, rather than progress to moral values that take account of the needs of other people and society. It also stigmatizes them and makes it harder to form or preserve constructive social bonds.

 To compare restorative justice with punishment ethically, we must ask whether it achieves at least as much. The commonest question is, Does it deter offenders from re-offending? It has long been accepted that it is not the severity of punishment but the certainty of being caught that really deters (Wright 1982, 172-82). So a highly punishing system with ineffective authorities or with very low level reporting will not be effective in deterrence. As Cornwell (2006: 83) concludes, “The best that can be assumed about the operation of deterrence is that it might be a desirable by-product of punishment, but it remains one that we cannot reasonably rely on”. Advocates of restorative justice would say that in any case this is not its primary aim: so long as re-offending is not increased, it is justified by its other advantages, especially for victims. In any case, if it reduces re-offending, this is not the result of deterrence, fear of the consequences, but of persuasion, through empathy, showing what the offender can do, “earned redemption”. Moreover, restorative justice recognises – or ought to recognise – that although the quality of the process affects the outcome, offending or re-offending behaviour is mainly influenced by the person’s circumstances in early life before the restorative process, and the support they receive afterwards (Maxwell and Morris 2001). To over-simplify, whereas punishment says that offenders have done wrong, and rehabilitation says that they are disadvantaged or maladjusted and should receive help not blame, restorative justice recognises both individual free will and the effect of social and psychological pressures.

 There is, nonetheless, a growing amount of research indicating that when restorative principles are followed, re-offending can be reduced. The Restorative Justice Consortium (2006) has found that 34 of 46 studies showed positive results, 9 had mixed or neutral results, and only three, negative ones. Even allowing for methodological factors (most of them had comparison groups rather than random allocation), this is a favourable result. Sherman and Strang, in an extensive review of the evidence, conclude that “in many tests, offenders who receive restorative justice commit fewer repeat crimes than offenders ho do not”, especially in cases of violent crime, and that “diversion from prosecution to RJ substantially increases the odds of an offender being brought to justice” (Sherman and Strang, 2007, 88).

 In a culture conditioned to expect “toughness”, is restorative justice “soft”? The question implies that if it is, it is inferior to punishment. However, firstly, for many people, facing the person you have harmed is not a soft option (and for many, punishment is not a particularly tough one). Secondly, even if it is less tough, is that not justified as an encouragement to take part in a process which can benefit victims? Thirdly, as we have seen, it is doubtful whether the harm caused by tough punishment is outweighed, and therefore justified, by any beneficial results.

 Punishment has harmful side-effects; but could restorative justice also make matters worse? It can happen. Heather Strang found that 18 per cent of victims whose cases had been to conference said that the process made them angry; this is not a negligible figure, although when offenders had been to court, and hence mostly punished, nearly twice as many victims felt that way. Describing some of these cases, she concludes that most of the problems were due to poor practice, but in some cases it may be because the programme is set up in an offender-centred way (Strang 2002, 137-154). Some of the disappointment was due to the research design, in which some victims who wanted a conference did not get one because they were randomly assigned to the control group (ibid. p. 199). Kathleen Daly (2005) has also studied the victims’ perspective. In one study substantial numbers of victims were distressed, especially when the conference was not done well, but there was no comparison group to assess court experiences. Another study, of cases of sexual assault, did make the comparison: conferences were arranged more quickly than court hearings and led to more apologies, community service, and “measures that matter to victims” such as acknowledgement of the wrong. She adds however that she would hesitate to support conferencing for sex offenders unless a programme was available to help offenders to stop sexual abuse and harassment (ibid. p. 171-2, note 25). This is an example of how an offender’s co-operation with rehabilitative measures can be incorporated into the concept of reparation.

 There are also objections to restorative justice on the basis of its theory, not merely its implementation. Matthews (2006) is critical of the theory of reintegrative shaming, and of police-led conferencing; however, many, probably most, restorative justice programmes are not based on it, and are not run by police. Matthews does not make comparisons with the courts, which certainly impose non-reintegrative shaming; his thesis is mainly limited to recommending a “divorce” of restorative justice from reintegrative shaming, a conclusion with which many restorativists would not disagree. Other criticisms of restorative justice theory are dealt with by Morris (2002).

 As for rehabilitative measures, there is no space here for a detailed comparison but there is evidence that they can “work” (Bottoms et al. 2005). Thus, as there is no convincing evidence that punitive sanctions ar more effective than restorative interventions, punishment cannot claim ethical legitimacy on the grounds of being a more effective way of maintaining social order.

 Symbolism: a choice of axioms

 The basic axiom on which punishment is based is either simple retribution, “just deserts”, or the slightly more nuanced notion that if you gain some advantage over another person by unacceptable means, some harm should be inflicted on you to restore the status quo. The implication is that although this does no good, or even makes matters worse, it is still the right thing to do: “the guilty deserve to suffer” (Duff 2003: 48). The theory of deserts does not focus primarily on prevention and deterrence, but bases its argument on proportionate punishment for the act.

 Restorative justice is based on a different axiom: if you have caused harm, you should put it right as far as possible. It maintains that this has greater ethical validity than the criminal justice one. It also proposes a different procedure: the victim and the offender should have an opportunity to meet so that the incident can be seen as harm caused to another person, not just a breach of the law. Where there is no individual victim, the community may be regarded as the victim.v In fully restorative justice, the community is involved in the process, and community participation, it can be argued, is likely in the course of time to lead to community acceptance.

 One basic difference is that punishment is imposed, whereas reparation, in a restorative system, is agreed – or rather, there is an opportunity to agree on a measure, and only if that fails is it imposed. This is less than total voluntariness, but it can be argued that it is much less than total coercion, or at least coercion with an element of choice.

 Psychological principles

 The psychological basis for attempting to deter wrongdoing by punitive responses is a behavioural one: it is assumed that, like rats in a psychological laboratory, people who suffer pain after a certain action will stop doing it. If it “worked”, it could be considered justifiable, but the foregoing discussion does not support this.

 Restorative justice is based on a different psychological mechanism. In place of fear (of pain, rejection, being regarded as worthless) it puts hope (of actively earning reacceptance, and help towards it); instead of using victims, if at all, as a tool for securing a conviction, it offers them the opportunity to take part in the process of finding a constructive outcome. There is however a danger that it too can use victims as “a tool to prevent re-offending”, as Teresa Reynolds of Victim Support has pointed out (quoted by Johnstone 2002: 82).

 Punishment: the problem of quantum

 One problem with punishment, whether instrumental or symbolic, is that there is no logically defensible way of determining how much to inflict. (These questions are explored in more detail by Wright, 1999, Chapters 5, 6; Wright, 2003) If instrumental, how long is necessary to deter any individual? The more we have to lose in other ways, the less additional punishment is necessary to deter us. But then people who were already fortunate when they committed their crimes would be punished least, whereas a woman who was desperate to feed her family would risk even a severe punishment for doing what she believed to be right.

 If it is intended to be symbolic, how much punishment is needed to reflect our condemnation of, say, a burglar or an employer who ignores health and safety regulations? There is no way of quantifying the “wrongness” of an action, nor the amount of punishment that it should attract, except in relation to other punishments. Which is worse: a minor sexual assault or a major burglary? A short prison sentence, several years on probation, a fine, or some other measure? It is just as impossible to quantify these on symbolic grounds as on instrumental ones. Thus it appears that even if punishment were defensible, the amount of punishment has no logical basis. However, restorative justice has comparable problems, as will be seen below.

 Does restorative justice have benefits that punishment does not have?

 In several ways restorative justice claims to outdo criminal justice, and hence to be ethically superior. Courts and punishments will be considered together, since one normally leads to the other. It is important to compare like with like: restorative justice only takes cases where the accused has at least admitted involvement, so where the accused denies this, the victim’s experience of being cross-examined in the witness box has to be excluded from the comparison. However, if the restorative justice process accepts an admission of involvement, without insisting on a full admission of guilt, the accused can hope to avoid or mitigate punishment and is therefore more likely to make an admission and spare the victim her ordeal. Some victims of sexual offences may prefer to obtain such an admission, and possibly tell the offender the effects of his action, rather than use the criminal justice process with its notoriously high acquittal rate. As Daly (2005, 165-6) has pointed out, “The potential of restorative justice is that it opens up a window of opportunity for those who have offended to admit what they have done, without the potential risks associated with a court-imposed sentence”, whereas if a case went to court the chance of any sexual offence being proved was only 51 per cent.

 Victims have complained that the criminal justice process does not allow them to be heard. In some jurisdictions they are allowed to make victim impact statements, or even to speak to a court or parole board. But if this affects the punishment there are problems of fairness, because punishments would be even more inconsistent than they are already; and if it does not, they may wonder what is the purpose of it. Restorative justice, on the other hand, is concerned only with reparation, not punishment, and it seems appropriate that the victim should have a say. It also allows them to ask the offender questions, which the criminal justice process would exclude.

 In many cases, especially of violence, the victim and offender are known to each other, and the offence is the outcome of a dispute, often with faults on both sides. If one is responsible for having the other punished, their relationship is likely to be damaged or destroyed, leaving the offender unwilling or unable to make reparation; mediation, in contrast, offers the possibility of resolving the dispute.

 Potential for crime reduction

 The atmosphere of a mediation or conference session is intended not to be punitive, but is based on problem-solving; this encourages the offender to explain, and the victim to take part in the same spirit. It has also been claimed that a successful conference could then be compared to a small “truth and reconciliation commission”, where the background can be explored. “Restorative justice does not (or should not) aim only at persuading individual offenders not to re-offend but at a more nuanced strategy of reducing social pressures towards crime. This means that the mediation service can build up a picture of factors which tend to lead to crime: not merely security factors such as easy-to-steal goods in supermarkets, but high unemployment, inadequate schools, lack of adequate recreational facilities for young people, members of ethnic minorities denied opportunities because of discrimination, and many more” (Wright 2005). Unlike the conventional system it encourages discussion of the offence and its background in a non-adversarial atmosphere, and can therefore point to types of situation where offending behaviour is more likely, so that preventive action can be taken – if there is the political will. “We should cease to look to severity of punishment to control crime …[but] should look primarily to measures of crime prevention outside the criminal justice system” (Cavadino et al., 1999, 51). One example comes from Zwelethemba and other townships in South Africa (Froestad and Shearing, 2006 and this volume; Roche 2003, 264-6). This is another feature that punishment does not offer.

Issues

 It comes down to this. There are two competing axioms: that lawbreakers should be punished, or that those who cause harm should repair it or make amendsvi. For some, the ethical choice is clear: a method which tends towards healing is preferable to one which inflicts further harm. For pragmatists, the decision between them should rest on their results. Here it is argued that the prevention of re-offending is by no means the only criterion for assessing the results, and restorative justice offers several advantages over criminal justice. There are however problematic areas which need to be considered when comparing restorative justice with punitive justice. One is proportionality: while judges do at least try to be consistent in applying a “tariff”, there would inevitably be wide discrepancies in the amounts of reparation asked by different victims. Restorativists reply that if one offender and his victim agree one form and amount of reparation, and a quite different settlement is reached in another similar case, each is right for the people concerned. Other questions include: what happens when the victim or the offender will not take part? How can reparation be enforced, and how would the public be protected? Should restorative justice make “burdensome” demands on the offender? In each case, does the restorative measure then become a punishment?

 It can be argued that in the case of serious offending the option of attempting to heal the conflict could intensify it and inflict more harm.  Van Stokkom (this volume) appears to accept the possibility that punishment can increase the risk of re-offending, but suggests that failure to punish serious offenders can stir up emotions, societal animosity and punitive mentalities, and perhaps do even more harm to society. For those individuals who demand punishment regardless of its effects this may be true; restorativists accept that actions must have consequences, but believe that those consequences should be constructive. They should benefit the victim and/or the community, and try to lead offenders to regret their actions if they do not already do so. Many restorativists would accept that if offenders do not make amends voluntarily, they could be compelled, and that if there is a serious risk of a further serious offence, they should be restrained or detained. But this, they would argue, is different from punishment, or at least a different kind of punishment.

 How would a “pure” restorative justice system respond?

 There are situations in which a fully restorative process cannot take place. Must we then resort to punishment? The victim may be unwilling to meet the offender or even to conduct an indirect dialogue, or the facilitator may decide, after speaking to them, that such a dialogue could be damaging or even dangerous to one or other. In these cases an offender who was willing to make amends to the community instead would be enabled to do so.

 To answer the following questions, two concepts distinct from punishment are proposed. The first is “natural consequences”. If someone is caught in an act of dishonesty, he will for a time not so readily be trusted; for a more serious offence, other people will naturally try to ensure that he will not be able to commit it again for some time, for example by disqualification from holding certain positions. Some traditional societies have no way of translating the word “guilty”; instead, people are asked if they take responsibility for what has occurred, and Aboriginal people emphasise not what has been done wrong, but on what needs to be done to put it right (Rudin 2005, 92) – which is also a central feature of restorative justice. The Navajo also speak of natural consequences rather than “right” and “wrong”: for example, if you do not tell the truth your fellows will not trust you and you will shame your relatives (Ross 1996, 107). If you have committed burglary or fraud, people will not readily employ you to paint people’s houses or handle money. In place of adversarial trials they aim at the restoration of harmony through co-operative problem-solving, and punitive prison sentences have been replaced by community healing programmes; “deterrence cannot be permitted to get in the way of healing” (ibid. 217, 216). Some natural consequences of wrongdoing are that others will want to change the behaviour of the wrongdoer, to eliminate any financial benefit, to put right any harm caused, and to encourage more considerate behaviour in future. These principles have been proposed for regulatory offences (Macrory, 2006) but could be no less applicable to “street crimes”. This is admittedly a difficult concept, and will need further work.

 If there is a serious risk of repeating a serious offence, the second concept may have to be applied: “protective use of force”. It is familiar to police officers: when a person cannot be controlled by other means, he can be restrained, but no more force than necessary must be used. It may result in restriction or deprivation of liberty (Wright 1982, 255-8, 262-3).

 What if offenders fail to perform reparation, or are totally unco-operative? For business regulation, which can also involve criminality, Braithwaite (2002: 31) proposes a “regulatory pyramid” in which, after persuasion and a warning letter, the next stages would be a civil penalty and a criminal penalty, followed by suspension and then revocation of licence. The civil penalty might be regarded as a “natural consequence”, but the criminal one seems out of place: if we use restorative measures because they are believed to be better than punitive ones, it seems illogical, when they don’t work, to use the punitive ones after all.

 If offenders refused to fulfil the agreement, first they would be warned and given an opportunity to re-negotiate it; after that it seems a natural consequence that their freedom could be restricted until they had done so. It can be argued that this is not punishment, because it stops as soon as they comply. But if they never do, the problem arises: for how long should their freedom be curtailed? This will be considered below.

 Although these measures would be for enforcement, not punishment, it has to be admitted that in this case the dividing line is very thin. It would also be a salutary reminder of the limits of state power: although the state can always inflict punishment, it cannot compel anyone to make reparation if they are determined not to.

 The offender may be assessed as so likely to commit a further serious offence that her liberty must be restricted. In that case, she might be disqualified from being a company director, placed under curfew, house arrest, or even detention, but without punitive intent. She could still make reparation – as some prisoners already do. Although these measures would have features in common with punishment, that would, once again, not be the intention; houses of detention would still take away freedom, but their ethos would be restorative rather than deliberately spartanvii.

 Restriction: another problem of quantum

 In all these cases where restriction of liberty is imposed, and especially where this is on grounds of public protection, the question arises: how long for? When we were looking at punishment, we argued that no logical basis for determining the amount of punishment can be justified, except in relation to other punishments. Is restorative justice open to the same criticism? Even in a mainly reparative system, the problem cannot be avoided. There are essentially only two ways of deciding. One is at the outset, on the basis of a “tariff” or a prediction of how long the person will remain a risk; but that can be affected by conditions in the institution and. especially after release. There is a risk that some individuals will have to be released despite being assessed as still being a danger to the public. Or the period can be indeterminate, and the individual can be assessed at intervals. There are strong objections to the latter option. There is no way of predicting “dangerousness” that is not wrong as often as it is right (Floud and Young, 1981). It was a feature of many totalitarian regimes which abused the criminal law, and could be oppressive even when ostensibly used with rehabilitative intentions. Indeterminate sentences ‘for public protection’ have however recently been introduced in England and Wales (Criminal Justice Act 2003, sec. 225). Their wide use has helped to increase the prison population to crisis levels, and they are being challenged by prisoners who allege that there are not enough rehabilitative programmes to enable them to qualify for release (Guardian, 23.6.2007, 13).

 It is hard to square this circle; one possible approximation is a semi-indeterminate sentence, with upper and lower limits, the exact release date being determined at regular assessments.

 Should there be lower or upper limits to the amount of reparation? A lower limit might be thought necessary because, even if a victim were so understanding and forgiving that they asked for little or no reparation, others in the community might want the offender to make substantial amends, possibly for non-restorative reasons such as retribution or deterrence. An upper limit to reparation might be needed because, although restorative justice does not attempt strict proportionality, it would be possible for an offender who was very contrite – or intimidated – to agree to a totally disproportionate amount of reparation. This raises the question, at what point does reparation become excessive, and who should decide?

 The final question is whether, as Duff (2005, 121) has suggested, although a restorative response should not be painful in the way that many prisons are, it should at least be “burdensome” to the offender. There are times when the boundary between restorative justice and punishment is not entirely clear. Walgrave (2002) argues that the intention of the punisher does make a difference. To take an analogy made by the late Dr Peter Scott, a prison psychologist, conditions on a small warship in a storm in the North Sea were almost unendurable; if they had been inflicted as punishment they would have been cruel, inhuman and degrading, but the men, even though they were conscripts, believed that they were serving their king and country and accepted the discomfort as part of their duty.

 Many people will have sympathy with the idea that restoration should entail at least some effort, if not pain, a $10 000 payment “weighed in favour of restorative objectives” (Roach, 2006, 185). But there is no mention of whether the victim was offered mediation or a conference, where he would have to face her and hear her feelings. If she did not want that, was making a payment enough? The restorative argument would be that when someone shows himself so insensitive to other people’s feelings and rights, they will naturally demand that he make a substantial effort to understand what he has done wrong, and make up for it, for example by attending a suitable course of gender awareness and performing community service. Does the fact of being ordered to make reparation turn it into punishment? It is only if we demand this because it is “burdensome” and writing a cheque is not burdensome enough, that it would be classified as punishment.

 This is comparable to the religious notion of repentance: In order to show that you feel sorrow for your action, you undertake a penance by confessing what you have done, promising to amend your life and to make restitution. It is recognised in the Austrian penal code as tätige Reue, active repentance, which can be a ground for reducing the sentence (Dünkel and Rössner, 1989, 157). Although the word penitence has the same root as “penal”, this definition does not include the infliction of pain for its own sake; but merely an appropriate act symbolizing contrition (Macquarrie and Childress, 1986, 462).

 Conclusion

 If we take punishment to be the infliction of pain on a person who has behaved in an unacceptable way, a definition which, it is argued, does not include restorative justice, there could be two types of justification. One is instrumental: deterring that individual, and others, from similar acts. It is suggested that this could only be justified if it were more effective than measures which do not cause harm; but it is not – on the contrary, punishment often makes matters worse. The second type of justification is symbolic. It has traditionally assumed as an axiom that punishment is what ought to happen to wrongdoers. A different axiom is proposed: that people who cause harm ought to do as much as possible to put it right. It is argued that restorative justice achieves the main aims of punishment more effectively and with fewer side-effects, and other aims which criminal justice does not attempt. Since on this view punishment has no clear practical advantage, the ethical choice rests on the symbolic, declaratory functions; of the two, the one based on repairing the harm to the victim and enabling the offender to earn reacceptance seems preferable.

Originally published in Images of Restorative Justice Theory  by http://www.polizeiwissenschaft.de/, 2007.

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Wright, M., “The paradigm of restorative justice”, in: Research and Practice section, VOMA Connections (Victim Offender Mediation Association, USA) 2002 (11), Summer. (also published in Russian: “Парадигма босстанобительного правосудия”. Вiдовне Правосуддя в Украïнi, Киïв, Украïнський Центр Порозумiння (1/2 2005).)

COST/First drafts Wright WG3 punt Dec 06C

i The Star (Sheffield), 11.5.2006 and e-mail from The Star, 30.5.2006

ii Van Stokkom (this volume) argues that state punishment has other intentions, such as deflecting demands for mob punishment; but community-based restorative justice programmes have shown that structured community responses are not necessarily punitive..

iii Presumably something must also have been lacking in the education of white-collar criminals.

iv Restorative justice also attempts to influence behaviour, but by persuasion rather than coercion.

v The issue of what “the community” is has of course generated much debate, which cannot be summarized here.

vi In either case, those considered to present a serious risk of committing further serious offences may have to be restrained by restriction or deprivation of liberty, but this is a different type of intervention which may or may not be combined with punishment or reparation.

vii There is always a danger that people with power over others in a closed institution will abuse it (Haney et al., 1973), and proper safeguards would be necessary.

Restorative justice: victims’ needs and rights; experience of building up mediation services in the UK

 Reconciliation and forgiveness are ancient traditions, in Albania as elsewhere: they are a ‘manifestation of magnanimity, nobility, fortitude, patriotism and evidence of the civilization level of Albanian people.’ 1 Punishment and revenge are also very old human practices, but it should not be assumed that they are either effective or justifiable, or that they meet the needs and wishes of victims2,3 This paper will consider restorative justice, crime and responses to crime, especially from the point of view of the victim, with reference to recommendations of the council of Europe and the United Nations, with comments on the implementation of restorative measures in England and Wales.

 Understanding restorative justice

 Restorative practices include restorative justice, which focuses on repairing harm, but also on the process4,5 . They also include mediation6 in different contexts, such as communities and schools.

 Where possible the outcome is reached by agreement. It is based on a new set of questions: not

 has a crime been committed?

who was to blame?

how should they be punished?

 but:

what happened?

who has been affected by what you did?

what do you think needs to happen to make things right?

 The message of punishment is ‘If you behave like that, we will inflict pain on you’; the restorative message is ‘If you repair the harm, we will help you and re-accept you’. Repairing the harm may include an apology, compensation for the victim, work for the victim or the community, or co-operating with a programme that will help the offender not to commit more offences.

 It is also worth spending a moment thinking about the meaning of ‘crime’. Almost all crime causes harm to someone (or to a country, or to animals or the environment). There are other forms of harm which have not been defined as criminal; they may be dealt with by lawsuits for compensation under civil law. We should remind ourselves that crime does not only mean burglary, robbery and violence; it also means actions by large companies, such as frauds, or failure to ensure the safety of workers (in a factory) or passengers (on a train or a ship). These can also be dealt with by restorative processes 7 Even in the most serious cases, such as murder and manslaughter, a restorative process can help both offenders and the relatives of their victims, although here the process will be an addition to another sanction, not an alternative8. There is another category of crime, which is not usually recognised by legal textbooks: crimes where the victim and offender know each other. These can be especially suitable for mediation: often there is a conflict in which both parties are to blame, and it is in the interests of both to resolve their conflict, rather than for one of them to be responsible for the other getting a criminal conviction.

 When an action is defined as criminal (and when it is reported to the authorities), it means that the state can deal with it – usually by punishment, but punishment is not the only response, and it is not necessarily the most effective one. If the punishment consists of imprisonment, it often makes the situation worse: it separates the offender from people who could have a good influence on him, it gives him a stigma which makes it harder for him to find work. Courts can impose rehabilitative sanctions in the community, which may be constructive (to attend a course of training, or to learn to read and write), or restrictive (not to go out after 19.00 hours). Now they can also be restorative.

 Victims’ perspective

This is what many victims want. An ICM survey of 1,085 victims of non-violent crime in the UK, for the Ministry of Justice in England, found that 81% would prefer an offender to receive an effective sentence rather than a harsh one, and nearly two thirds (63%) disagreed that prison is always the best way to punish someone. An overwhelming majority of respondents (94%) said the most important thing to them was that the offender did not do it again. This figure is higher than the last survey in 2006 (91%). Many surveys (for example Shapland et al. 20079)have found that the great majority of victims who have experienced a restorative process found it helpful, enabling them to tell the offender the effects of his or her actions, and ask for answers to questions, and the satisfaction rate is much higher than when the cases went to court (although it has to be remembered that cases are only referred to mediation when the accused admits being involved in the offence). However, victims should not be ‘used’ to help the rehabilitation of the offender, and no pressure should be placed on them to take part 10

Since so many victims benefit from it, a restorative process should be offered to all victims, at any stage of the process 11, which is unfortunately not the case in the United Kingdom. This requires the availability of restorative justice services throughout the country, which will be considered in the next section. There should be general public awareness of this; victims and offenders in particular should have the process explained to them 12; and all concerned should be aware of it: criminal justice personnel, police, lawyers, judges and social workers 13. Awareness of restorative methods should start in schools 14, and these Recommendations should themselves be widely disseminated 15, and translated into all languages of the Council of Europe, where this has not already been done 16

 It should be remembered that there is a minority of victims who are not satisfied with the process, and everything possible should be done to keep this number as low as possible. Thus there is a need to maintain high quality through standards 17 which are the basis of the training, support, supervision and professional development of mediators 18 . Mediators should know how to handle a power imbalance between the victim and the offender and ensure their safety during the process 19 . There should be procedural safeguards20 and continuing research and monitoring 21. There should be a complaints procedure22 (and this should itself be based on restorative principles, which CEPEJ does not mention). Special attention should be given to protecting minors 23; The guidelines should also mention other vulnerable participants, and should point out that victims as well as offenders should be protected.

 An important safeguard is that all victims and offenders should be treated equally before the law: those who refer cases to mediation should make sure that victims or offenders who come from an ethnic minority (black, Asian or Roma, for example), or another disadvantaged group such as homosexuals and people with disabilities, have as much opportunity as anyone else to take part in a restorative process. During the process they should be treated equally by mediators; mediators should be trained to be aware of their own prejudices.

 Delivering restorative justice

 What is necessary for restorative justice to be delivered? Firstly, there needs to be a good understanding of it. This does not mean that there is only one way of doing restorative justice; we are still learning how to do it better. But it does mean that the basic principles have to be understood; otherwise we sometimes find measures which are called restorative but are not really restorative, for example because there is not enough effort to encourage victims to take part, or because the measure imposed on the offender is a disguised form of punishment..

 Secondly, as already mentioned, general awareness of restorative processes is important: everyone should know about them.

 Thirdly, its relationship to the criminal justice system should be clear24. As we have seen, in cases where the victim and offender know each other (or both are offenders and both are victims), they should be able to refer themselves to mediation (and here, with respect, I question the Council of Europe recommendation which says that a decision to refer a criminal case to mediation should be reserved to the criminal justice authorities 25). After that, in England and Wales, it is possible for the police or prosecutor to ‘caution’ or ‘warn’ the offender, and in some areas this is being done ‘restoratively’, which means encouraging the offender to understand that he has not only broken a law, he has caused harm to someone. In some cases the victim can be invited to take part.

 In some countries prosecutors can decide to defer prosecution, to allow an opportunity for a restorative process to take place, but this is not yet used in England and Wales. The court can defer the sentencing decision (for up to six months in England and Wales), to allow the offender the opportunity to change his life, and this also provides a space in which mediation can take place). A sentence can be suspended, which has a similar effect, except that the period of time is longer, and if the offender does not comply, the sentence will be imprisonment. A community sanction can be imposed, as mentioned above.

 In England and Wales there is a special measure26 for young offenders (under 18) who admit their offence and are in court for the first time (unless the offence is too little or too serious). It is called a ‘referral order’, and means that the offender must be referred to a ‘youth offenders’ panel’. It consists of one official and two members of the public, volunteers who have been trained. (This fulfils one of the aims of restorative justice, namely involvement of the public, although their training and operation are kept within the official framework.) The aim is not to punish the offender but to make an ‘action plan’ which will help him to keep away from crime. It may include reparation to the victim, if the victim wants it, and victims and their supporters should be invited to be present. Until now, however, not many of them do. We believe that there are two main reasons for this: that the process and its advantages are not explained clearly enough, by someone who understands restorative principles, and that they are not consulted about the time of the meeting. An early research study found that only 13 per cent of victims attended a hearing27, but efforts are being made to improve this.

 In Northern Ireland victim-offender mediation has community roots: it was started by two groups, one Nationalist, one Loyalist, as an alternative to punishment beatings by paramilitary gangs. Now the Justice (NI) Act 2002 makes mediation, or ‘conferencing’, part of the juvenile justice system: cases are referred by youth courts and the Public Prosecution Service to youth conference co-ordinators. Extension of the programme to adults is under consideration. The community-based programmes, however, are now finding great difficulty, because the authorities are imposing conditions which they are unable or unwilling to meet. 28.

 Fourthly, obviously, restorative services should be available throughout the country. It is common for them to be introduced in a few places at first, and only for selected offenders, such as juveniles, but the aim should be a universal service. There is a debate about whether they should be provided by the criminal justice system, or by non-governmental organizations with support from the state. One consideration is that non-governmental organizations have more independence, and can maintain restorative principles. Another question is, Who should be mediators? Criminal justice professionals, professional mediators, or trained volunteers? Criminal justice professionals may find it difficult to change from a conventional philosophy to a restorative one, although some have done so very successfully; there is general agreement that they should not mediate in a case where they are also involved in an official role. In England we have found that mediators only need training in mediation, and do not require, for example, a degree in social work or psychology; this is in line with the principle that ‘mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities’, provided of course that they have sound judgement and interpersonal skills 29.

 Governments should therefore enable NGOs or others to provide mediation services,, and provide safeguards, but preferably leave detailed guidelines to NGOs, because they are more flexible, innovative, directly involved with day-to-day practice, and insulated from political pressure (although they will inevitably be open to some pressures while they are dependent on the government for funding30. The Council of Europe says that there should be guidelines, but leaves open the question of who makes them31; mediation services should have sufficient autonomy in performing their duties32. CEPEJ and the United Nations, on the other hand, recommend that member states should consider establishing guidelines, standards and codes of conduct, provided that there is regular consultation between criminal justice authorities and administrators of restorative justice programmes.33 This should however not be necessary if there is a well supported national NGO, whose members are local mediation services which can propose updates in the light of practical experience. This would be the competent body which, in the Council of Europe’s recommendation, should monitor mediation services34. CEPEJ recommends the use of NGOs35.

 The fifth requirement is that offenders should be enabled to make amends in the way that they have promised. If they have undertaken to work for the community, the community (NGOs, the municipality, or private employers) must provide work for them to do. If they need therapy or treatment before they can undertake that, these should be available, and they should also be enabled to acquire necessary skills. The need for this is shown by a recent example. a distinguished visitor (formerly Chief Inspector of Prisons) was invited to observe a victim-offender mediation session in a prison. The victims were three young women sharing a flat, which had been burgled. They met the burglar in prison, with a prison officer as facilitator, and told him the impact of feeling that their home had been violated and their possessions taken. The offender apologised, and told them of the difficulties he had faced in life, including alcohol and drug problems and not being able to read and write. He agreed to seek treatment for drug and alcohol addiction and to enrol for a literacy course. The young women asked him to write at intervals to let them know about his progress. The visitor saw the prison governor afterwards, and asked whether those programmes were available in the prison. The governor replied that they were not. The visitor was very critical of the fact that the governor allowed his staff to conduct a mediation in which the offender agreed to terms which, through no fault of his own, he would not be able to fulfil 36

 Conclusions

 In conclusion I should like to make two points. One is that restorative justice procedures provide an opportunity to look beyond the narrow legal question, such as Did this person commit this crime? In the course of discussing the context of the offence, participants will be able to see factors which offenders have in common. If many of them come from a certain school, or a certain district, or are members of an ethnic community such as Roma, the agencies responsible for social policy should look at those places and groups to see what social conditions are putting pressure on them to commit crimes. Then preventive measures can be taken – provided there is the political will..

 Lastly, I suggest that above all we should put our faith in developing restorative practices in schools. Restorative principles are very simple, as we saw in the basic questions at the beginning, and teachers are finding that they make discipline easier and more educative. In February 2009 I visited the Riverside multi-agency project in Hull, a city in the north of England with a population of 250 000. It is working with twelve primary and two secondary schools and aims to introduce restorative practices to everyone who works with children. In one school, in 2007, an average of 60 pupils per week were made to leave their classrooms for misbehaviour; a year and a half later, the average was only one. In another, the average number excluded from school was reduced by 44%, and physical abuse by 40%.37 It is hoped that longitudinal research will be possible to see whether, in the course of time, the rates of crime and anti-social behaviour in that city will be reduced.

 Albania 092.doc

1 Elezi, I. Mediation in penal case reconciliation. Transl. Merita Xhediku. Tirana: Foundation ‘Conflict Resolution and Reconciliation of Disputes’, 2006, p. 16.

2 M. Wright. ‘Punishment and restorative justice: an ethical comparison’. In: R Mackay et al., eds. Images of restorative justice theory. Frankfurt am Main: Verlag für Polizeiwissenschaft, 2007.

3 M. Wright. Restoring respect for justice. 2nd ed. Winchester: Waterside Press, 2008, Chapters 2,5,6.

4 The following abbreviations will be used: CE = Council of Europe Recommendation R(99)19 of the Committee of Ministers Mediation in penal matters ; CEPEJ = European Commission for the Efficiency of Justice, Draft guidelines for a better implementation of the existing recommendation concerning mediation in penal matters (2007); UN = United Nations Basic principles on the use of restorative justice programmes in criminal matters (2002). The Articles quoted here are a selection, and do not include every relevant reference.

5 CE definition

6 CEPEJ 6

7 Restorative Justice Consortium (2006). Regulatory justice: sanctioning in a post-Hampton world: a response from the RJC. London: RJC. Macrory, R B (2006) Regulatory justice: making sanctions effective. Final report. London: Better regulation executive. paras. 4.32-4.43. www.cabinetoffice.gov.uk/regulation/penalties [Note: A report by Mr P Hampton, Reducing administrative burdens (2005) recommended a comprehensive review of regulatory penalties.]

8 Restorative Justice Consortium (2005) Hearing the relatives of murder and manslaughter victims: response to government’s consultation. London: RJC.

9 Shapland, J, et al (2007) Restorative justice: the views of victims and offenders. the third report from the evaluation of three schemes. London: Ministry of Justice Research Series 3/07.

10 CE 11, 31

11 CE 3, 4

12 CEPEJ 32-33

13 CEPEJ 43-50

14 CEPEJ 42

15 CEPEJ 38-41

16 CEPEJ 37

17 CE 19

18 CEPEJ 14-15, 19-21

19 UN 9-10

20 CE 8, 10

21 CE 34, CEPEJ 41, UN 22.

22 CEPEJ 29 (and this should itself be based on restorative principles, which CEPEJ does not mention).

23 CEPEJ 24-26

24 CE 33

25 CE 9

26 Youth Justice and Criminal Evidence Act 1999,

27 Crawford, A, and T Newburn (2003) Youth offending and restorative justice : implementing reform in youth justice. Cullompton: Willan Publishing, p. 185.

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

29 CE 22-23; UN 19

30 Zernova, M (2007) Restorative justice: ideals and realities. Aldershot: Ashgate. P. 139.

31 CE 7

32 CE 20

33 CEPEJ 27-28, UN 12, 21

34 CE 21

35 CEPEJ 12

36 Lord Ramsbotham, personal communication, March 2009.