Addressing Crime and its Effects. Critically consider the strengths and weaknesses of restorative justice.

Addressing Crime and its Effects.

Critically consider the strengths and weaknesses of restorative justice.

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Although the term restorative justice is contemporary, the principal and practices relating to it are ancient and based on the family or community dealing collectively with the wrongdoing of one of it’s members. Any form of conflict resolution has at it’s centre the victim and offender and relies on the values, ethics and sense of right and wrong which relate to specific cultures. (www.victimsa.org 2003 pg1). Much of the work undertaken in support of restorative justice was formulated and based on North American sentencing circles (Native Indians) and New Zealand (Maori) justice. Both have contributed to the development of group, family or community conferencing circles. In recent years it would appear that restorative justice is emerging as an increasingly important element in mainstream criminological practice. First discussed in the 1970s by Barnett (1977) and Eglash (1977) when considering restitution as a concept within the criminal justice system, restorative justice has now been accepted and integrated into criminological thinking through the works of Braithwaite (1989), Marshall (1985), Umbreit (1994) and Zehr (1990).

 It should be noted that even though restorative justice is becoming more credible within criminological debates, the concept in itself still remains ambiguous. Restorative justice has previously been used to define many ideas. “The term has been used interchangeably with such concepts as community justice, transformative justice, peace making criminology and relational justice.” (Bazemore & Walgrave 1999). Although a universally accepted interpretation of the term restorative justice has yet to be established, it is my intention to use the definition presented by Marshall (1997) for the purposes of this essay. “Restorative Justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future” (Marshall (1997) Cited in HORS 187 (1998) pg88).

Victims today have gradually lost their central role in the pursuit of redress following a crime or wrongdoing. Most modern western societies through the use of their statutory agents (police, courts, prisons and probation etc) choosing to take over the responsibility of investigating, prosecuting, convicting and punishing offenders on behalf of the victim.  Crime has therefore become a violation of the State rather than the individual. The victim’s role within the judicial system having been reduced to that of a witness acting on behalf of the State whenever a case is contested. Victim’s however do retain the right to pursue their grievances through the civil courts should they believe the State has not served their interests. “One of the aims of restorative justice movement is to replace forms of state justice for a wide range of offences and offenders. This means changing the focus of the term “criminal justice” itself, away from the assumption that it is a matter concerning only the state and the defendant/offender, and towards a conception that includes as stake holders the victim and the community too.” (Ashworth 2002 pg578). State involvement in the restorative justice process has become a central issue to the debate, as a consequence this narrative will focus on whether restorative justice should remain community governed or alternatively, state funded, state managed and state lead.

 In broad and simple terms, restorative justice signifies those measures that are designed to give victims of crime an opportunity to tell the offender about the impact of the offending on them and their families. It is also used to encourage offenders to accept responsibility for, and to repair the harm they have caused. Its general aims are to reduce re-offending, to restore the relationship between the victim and the offender that was disturbed by the offence, and to improve the victim’s experiences within the criminal justice process. More importantly it is an attempt to involve, include and listen to the victim’s account of events through the use of direct and indirect mediation. The victim is empowered through the use of dialogue with the offender. Both parties (victim and offender) are encouraged to explore the offence; questions can be posed in order to facilitate a mutual understanding of the impact the crime has had. The offender is given the opportunity to explore the aftermath of his or her actions by being introduced to the victim. Crime then is no longer faceless, mediation and restorative justice condemns the offence on behalf of the community.

Since the 1997 general election, the Labour government’s policies have displayed mixed messages surrounding crime and punishment. New Labour, having been elected on the back of Tony Blair’s message: “tough on crime and tough on the causes of crime” would now suggest that this country and its Government have adopted an even more punitive approach to criminal justice. However Dignan (1999) argues that the government is displaying a significant shift in at least two areas of contemporary criminal policy. The first, being a move towards a more inclusive approach to criminal justice policy making. This has been characterised by a growing emphasis on community safety and a switch to problem-solving policing (see Thames Valley Police). Above all, there is now increased support for an alternative approach to the offending of young people. The second consists of a growing acknowledgement of the disproportionate amount of effort and resources that continue to be devoted to developing and strengthening ways of responding to crime. Both themes are reflected in the Crime and Disorder Act (1998), and are both highly relevant to the future prospects of restorative justice.

 The White Paper, No More Excuses – A New Approach to Tackling Youth Crime in England and Wales (Home Office, 1997). Led to the introduction in the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999 of a number of new measures concerning the youth justice system. First, sections 65 and 66 of the Crime and Disorder Act 1998 introduced a new procedure for the reprimand and warning of children and young persons which replaces the police caution. In essence, these represent a tiered response to first time offending: a reprimand is intended for young offenders who have not previously been in trouble and warning for those who have. Young offenders who receive warnings will be referred to a youth offending team (YOT). Also introduced by the 1998 Act and which came into operation on 1 April 2000, YOTs operate under the auspices of the local authority. Their purpose is to agree co-ordinate and monitor programmes of behaviour for young offenders. These may include rehabilitation programmes, which may in turn include sessions on victim awareness or the wider consequences of offending behaviour. (Miers et al 2001 pg11)

Second, there are new orders applicable to young offenders who come before the court. Referral orders, introduced by section 1 of the Youth Justice and Criminal Evidence Act 1999, are mandatory for most young offenders pleading guilty at their first court appearance. The court must refer them to a youth offender panel established by the local YOT. In this case the statutorily stated aim of the programme of behaviour is to prevent re-offending, the means to be guided by the principles of restorative justice. Whatever is agreed is confirmed in a youth offender contract. Section 8(2) provides an indication of what restorative practices may be included in the contract: direct and indirect reparation, mediation with the victim, participation in initiatives such as alcohol or drug awareness programmes. In other words, the state legally retains control of what constitutes the restorative justice process.

 Marshal (1999) argues that restorative justice is based on the assumption that crime has its origins in social conditions and relationships within the community. As a result crime prevention becomes ever more dependent on the individual communities taking increased responsibility for the social conditions that create crime in a given area. Restorative justice principles then invite the wider community to become involved with the aftermath of crime by facilitating personal involvement through the use of mediation and group conferencing circles. This approach (certainly within the current youth justice system) avoids the adversarial and retributive approach currently employed by adult courts. However as Marshal (1999) points out these ideologies are based on the premise that societies are integrated and share common belief systems.

 Modern society is now more divided, many choosing to disassociate themselves from, and not becoming involved with the wider community. Even within small demographic areas there can be huge cultural, religious, class, social and age differentials. It is unclear how restorative justice would address such differences within group conferencing circles. This ideology is also based on the premise that the offender will accept that they belong to a given social group. It is hard to see how a community can “police” and negotiate with an individual who will not recognise their authority or legitimacy on the grounds that they have no attachment to or any sense of belonging to that community. For example, which community would take responsibility for members of this country’s transient population i.e. immigrants, travellers and holidaymakers etc. “A third related, limitation for restorative justice is the existence of social injustice and inequality in and between communities. While problems such as these continue the degree to which communities can be supportive, caring and controlling is restricted. Social divisions also make voluntary participation less likely or less effective”. (Marshal 1999 pg8). Placing justice solely into the hands of an identified community could potentially lead to collusion, corruption and even further discrepant sentencing disposals. In other words, offenders could expect to be dealt with differently in different geographical areas without the use of state intervention, monitoring and control, a situation that could possibly lead to “sentencing by postcode.”

The theoretical basis for extending the concept of restorative justice into the wider field of crime prevention strategies is based on Braithwaite’s (1989) theory of reintagrative shaming. Here it is argued that societies, which develop effective techniques for shaming offenders reintegratively, will generally experience less crime than those societies that rely on stigmatised shaming that is prevalent within the current adversarial judicial processes. The main difference between the two is that reintagrative shaming attempts to force the offender to accept his/her actions through discussions and contact with the victim. This process in theory prevents the offender from minimising the event and their involvement, by allowing the victim to express their feelings directly. Under the current system, offenders are stigmatised by the state and become labelled as outcasts of society. Having little or no contact with the victim gives the offender the opportunity to dismiss and to a large extent ignore the feelings of the victim and his or her family. The offenders only worry being the outcome of the judicial process itself, i.e. their sentence or penance. However, much of Braithwaite’s work is based on studies of stratified indigenous groups (Maori’s in New Zealand, Aboriginal groups in Australia and the Japanese) that do not reflect the cosmopolitan societies that now exist throughout Western Europe.

 Reintergrative shaming is by no means universally accepted as part of restorative justice theory. Many are unhappy with its over tones, as shaming can be misapplied in a negative way. For instance, it goes against the grain of Braithwaite’s original ideas for state agents to apply reintergrative shaming as is applied in social work and current group conferences run by youth teams and the police. There is a contradiction between state agencies engineering community-based processes in order to secure rehabilitation through shaming and the state facilitating a group conference that might result in the shaming of the offender. Whether or not this happens should depend on the individuals involved in the process (victim, offender and their representatives).

 According to Galaway and Hudson (1996), “Three elements are fundamental to any restorative justice definition and practice. First, crime is viewed primarily as a conflict between individuals that result in injuries to victims, communities and the offenders themselves and only secondarily as a violation against the state. Second, the aim of the criminal justice process should be to create peace in the communities by reconciling the parties and repairing the injuries caused by the dispute. Third, the criminal justice process should facilitate active participation by victims, offenders and their communities in order to find solutions to the conflict” (cited in Barton 2000 pg3). There is an unstated assumption behind this description that restorative justice processes rely critically for their effectiveness on the empowerment of the primary stakeholders (victims and offenders) in the dispute. However it fails to recognise the need for the state and its representatives (police, probation etc) to act as key players in the process. It is argued that the state would have a significant role in facilitating any form of mediation between conflicting parties.

There is an important distinction between tribunals responding in a principled manner to relevant factual differences between cases and responding on the basis of their own views or preferences. In other words, who has control during the mediation process? Who is represented? Should the offender be allowed to include his/her extended family and possibly outnumber and intimidate the victim further? Surely this would constitute secondary victimisation on the grounds that the victim may not wish to be confronted by the offender at any point in time. By bringing the offender face to face with his/her victim during the mediation process would imply that the offence that has occurred becomes negotiable and the victim should in part take some responsibility for being a “victim”. The latter is then encouraged to help rehabilitate the offender through reliving the criminal act and exploring his or her own association with that event. State financial involvement would inevitably lead to bureaucratic pressures to achieve compliance along with a value for money approach that would be target lead. On this basis would victims then be pressurised by the community or state to attend meetings and take part in the process?

 It could be further argued that during the mediation process itself, the professionals present (victim support, legal reps, police and probation etc) could hijack the meeting. Suppose the victim attends mediation, but does not feel empowered enough to participate confidently because of poor preparation or facilitation in the meeting, or they feel intimidated by the offenders presence in the absence of family and friends who were not invited or encouraged to attend. Suppose the offender lacks similar representation because they have even fewer friends or family to rely upon. In such a meeting it is inevitable that the legal advocates or professionals would dominate the discussion. The legal advocates from both sides attempting to represent interested parties to secure the best “deal” for them. This scenario then, becomes reminiscent of and a recreation of the traditional courtroom, with all the characteristics of adversarial justice at work, the judge being replaced by a chairperson or like minded state appointed panel. The panel almost certainly being a reincarnation of the predominately white, middle aged, middle minded and middle class magistrate’s currently used in this country. “One cannot lay claim to a restorative justice foundation simply because features of a new system borrow from restorative justice. The use of a panel, some members of which may be drawn from the local community and the involvement of victims do not make something restorative justice. There must be a link between the range of measures that may be applied and the stated intention of the system.” (Haines 2000 pg60-61)

 In conclusion, I fully accept that during the course of this assignment and within the confines of 2,500 words; it has not been possible to discuss other critical areas of restorative justice that many would argue deserve equal attention. Although I have focused on the state’s role within the restorative justice process, it is essential to acknowledge the presence of net widening, secondary victimisation, legitimacy, vigilantism and the fact that some offenders would view mediation as a “soft” option. This list is by no means exhaustive, but does highlight the fact that due to the limited amount of research data available, restorative justice still has many questions to answer.

The practice of restorative justice is based on the premise that the appropriate response to a crime requires much more than the delivery of a “just measure” of pain to individual offenders, which is epitomised by the current retributive judicial process. Restorative justice is more concerned with the preservation and restoration of relationships, both at the individual level and the societal level. However exciting this prospect may be, the ideology relies heavily on communalization and the voluntary participation of its members. In other words, to repair the damage done to a community, it becomes a pre-requisite that a recognised and stratified community exists to begin with. As previously stated, there is much excitement and literature surrounding restorative justice. However the production of statistical data supporting this approach remains scarce, many practical implementation issues remain ambiguous and unproven. Restorative justice has now been incorporated into the margins of mainstream criminal justice, its emergence into this country’s youth justice system is an indication that there are important lessons to be learned. However, it could be argued that this governments shift towards restorative justice is based more on faith and desperation rather than hard empirical evidence. “Restorative Justice will never become a mainstream alternative to retributive justice unless long-term research and development programs show that it does have the capacity to reduce crime” (Braithwaite 2003 pg1)

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