Debating Restorative Justice

Chris Cunneen, Carolyn Hoyle

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847317339
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

'Debating Law' is a new, exciting series that gives scholarly experts the opportunity to offer contrasting perspectives on significant topics of contemporary, general interest. In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative justice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system.

The Case for Restorative Justice

I. INTRODUCTION

EARLY WRITINGS on restorative justice were firmly rooted in critiques of mainstream criminal justice. Restorativists were at great pains to emphasise shortcomings and then, having painted a grim picture of the criminal justice landscape, would present the reader with the alternative of restorative justice—the white rabbit pulled triumphantly from the hat. Whilst section II. below explores the contested nature of definitions of restorative justice, it might be helpful before we go any further to provide a brief description of restorative justice for the uninitiated reader.

Although a universal definition of restorative justice remains elusive, probably the most frequently quoted definition is provided by Tony Marshall, who sees it as

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 implication for the future.¹

An alternative (though not too dissimilar) definition is provided by Paul McCold and Ted Wachtel, who describe restorative justice

as a process where those primarily affected by an incident of wrongdoing come together to share their feelings, describe how they were affected and develop a plan to repair the harm done or prevent reoccurrence.²

They add that the essence of restorative justice ‘is a collaborative problem-solving approach to social discipline intended to reintegrate individuals and repair affected communities’.³

What is clear from these definitions is the inclusive and collaborative nature of restorative justice’s problem-solving focus, and that for an intervention to be considered to be restorative the parties have to come together in dialogue as they do in restorative conferencing and direct mediation. Further, that the restorative justice process reaches beyond victims and offenders by encompassing other stakeholders, including the wider community affected by crimes. Hence, restorative justice can be contrasted with criminal justice, even though restorative justice practices are typically situated within criminal justice systems.

Criminal justice refers to the statutory responses to crime and disorder of organisations such as the police, prosecutors, defence lawyers, the courts, the prisons, and probation and management offender agencies. It draws on a set of normative and theoretical justifications for attempting to limit and control the actions of citizens and, in those cases where citizens transgress, for sanctioning their behaviour and causing them pain. Such justifications fall into backward- and forward-looking aims. Forward-looking philosophies include deterrence (trying to persuade people not to reoffend), incapacitation (physically preventing them from reoffending) and rehabilitation (using education or therapy to change people’s attitudes and behaviour to stop them reoffending). However, when restorative justice is compared to criminal justice, most commentators have in mind the backward-looking justification of retribution. Retributive justice responds to the offence committed, rather than trying to prevent further offending. It treats all citizens as moral actors who are responsible for their behaviour. Hence, it aims to punish transgressions rather than heal the transgressor, although only with as much punishment as fits the crime. In other words, the punishment must be proportionate to the crime. Retributive justice focuses on the offender and pays little regard to victims or to the wider community. Clearly, restorative justice is a distinct sentencing practice (more like mediation than other sentences such as prison or probation) and is driven by a philosophy distinct from other justifications for punishment, particularly retribution.

Restorative justice, its early advocates argued, provides a new lens through which to see crime and identify the appropriate and just responses to it. These early treatises were aspirational, even evangelistic, but rather unsophisticated.⁴ In promoting the benefits of restorative justice they found it necessary to reject outright criminal justice and, in order to justify this rejection, to present it as little more than victim-insensitive, state-sponsored vengeance. Failing to acknowledge the various victim-centred and reparative measures that were already being introduced into the criminal justice system, they presented restorative and retributive justice in dichotomous terms, with the former representing all that was good about community responses to crime and the latter all that was harmful with the state monopoly over justice. Restorative justice was promoted as the answer to society’s criminal ills, with its promise to bring together victims, offenders and their communities, whilst keeping the state at arm’s length.

Whilst praising inclusive restorative approaches, the early literature, with few exceptions, failed to problematise concepts such as ‘victim’, ‘offender’ or ‘community’. Victims and offenders were presented as homogeneous groups, ‘communities’ were presumed to be supportive and inclusive, or at the very least benign, with ‘society’ seen as largely irrelevant. Criminal justice was criticised for having too much regard for society and too little for victims or communities, as if the latter groups were not part of wider society. All in all, concepts were blurred or undefined and the new lens had a distinctly rosy hue. This is not to say that the new product did not deserve promotion, rather that it was worthy of, and could stand up to, depiction and analysis that had integrity.

This essay makes the case for restorative justice. It argues that restorative justice can and should have a role to play in responding to most crimes and incivilities in most jurisdictions. But it does so without reliance on false dichotomies and without erecting straw men. It is unhelpful in seeking to understand the potential of restorative justice to start with the question of what is wrong with criminal justice, as so many academic commentators have. Rather, we should start with the question of what harms befall society when some of its members commit offences or behave in uncivil ways towards one other. We should not be constrained by official categories of ‘victims’, ‘offenders’ and ‘crimes’, but should consider harms done to citizens by criminality or antisocial behaviour. And we should then explore the various ways in which society can respond to repair those harms and to restore order, and what role restorative approaches can have in that response.

Thinking about harms in this way reveals the potential of both restorative and criminal justice, and the scope for complementary approaches that draw on both. This, of course, requires careful consideration of the potential and the limitations of both restorative and criminal justice but rejects the presumption that we should choose between the two. This essay presents arguments both for the exclusive use of restorative justice for many non-serious offences and for approaches that integrate restorative and retributive philosophies and thereby provide the scope for taking restorative practices into the ‘deep end’ of criminal justice (see section VI. for an explanation of the ‘deep end’ and ‘shallow end’ of criminal justice). Indeed, it is explicitly critical of the current reluctance to use restorative processes in anything but the ‘shallow end’ of criminal justice, most notably for young offenders or for minor offences. Hence, it considers the potential, and dangers, of restorative practices in the broader societal response to two ‘deep end’ crimes that test the efficacy of criminal justice: domestic violence and crimes against humanity.

In presenting the case for restorative justice, this essay adopts a clear normative stance that communities and the state in late modern society should be more restorative in responding to the harms caused by crimes, antisocial behaviours and other incivilities. It does not make a plea for a return to some romanticised notion of traditional community justice. And its pro-restorative position is not premised on the belief that the state has no appropriate role in responding to conflicts in different communities, no matter how divided or alienated those communities might be. Furthermore, it is cognisant of the dangers posed by more participatory and dialogic approaches to crimes.

What follows primarily draws on theories and philosophies of justice, rather than on empirical research. This is not because empirical research on restorative justice is without value but because it is ultimately inadequate to the task of establishing a normative position. Furthermore, some of the research on restorative justice is built on a false premise—that it is meaningful to compare restorative conferences with courts in order to evaluate the relative efficacy of both. Such comparative work is not useless—indeed, it provides valuable information on the differences and similarities between both processes, and it measures programme integrity and the extent to which restorative goals are realised in practice—however, it cannot provide proof that restorative justice is superior to criminal justice, or vice versa. This is because in asking questions about the participation of victims and offenders in the process, and the response of offenders to the process, it compares the proverbial apples with oranges. At least some of the questions which lead to the apparently greater satisfaction of both victims and offenders with restorative processes are heavily biased in its favour: questions such as ‘Did you receive an apology?’, ‘Did you feel that the apology was sincere?’, ‘Did the offender understand the harm caused to you?’, ‘Did people indicate that you were forgiven?’ are much more likely to be answered in the affirmative by those who experience restorative justice than by those who go to court. This is simply because these are the primary goals of restorative justice, but not of the court process. Whilst rarely drawing on the evidence about restorative justice in practice, this essay acknowledges up front that restorative justice often fails to live up to its potential; that there is, as in all areas of criminal justice, oftentimes a gap between justice in books and justice in action. Programme integrity is sometimes compromised, and organisational resources and sometimes apathy can conspire against the appropriate use of restorative principles in the real world. Nonetheless, given that the administration of justice can be attended to, there is value in considering the potential of restorative justice theory.

II. A ROUTE THROUGH DEFINITIONAL CONSTRAINTS AND IMPRECISION

A. Introduction

This section challenges some of the definitions used in the literature on restorative and criminal justice which limit our imagination and understanding of the two forms of justice and the relationship between them, as well as their potential to tackle harms caused by crime and disorder.

In the absence of a universally agreed definition of ‘restorative justice’, the concept has become deeply contested amongst its proponents and critics. Most restorative theoretical frameworks, including my own, encompass values, aims and processes that have as their common factor attempts to repair the harm caused by criminal or other types of antisocial behaviour. Restoration should address emotional as well as material loss, safety, damaged relationships, and the dignity and self-respect of victims and other stakeholders recognised as having a legitimate interest in determining the societal response to those offences committed against them. Accordingly, restorative justice is concerned with ensuring appropriate reparation to victims and their communities. But it is also aimed at lessening the fear of crime, strengthening the sense of community, and restoring the dignity of all of those harmed, including the perpetrators.

The two most frequently discussed examples of restorative justice within the extant literature are victim–offender mediation and restorative or family group conferences. These practices typically involve a face-to-face meeting between the victim and offender (or those involved in conflict where disputants cannot be categorised as such) in a safe environment to discuss the incident, the harms it has caused and how these harms should be repaired. Conferences, unlike victim–offender mediation, typically include supporters of the disputants and other concerned community members, and sometimes representatives of the state, such as police officers, social workers or housing officers. Restorative meetings can also be facilitated through indirect or ‘shuttle’ mediation; victims and offenders discuss their case individually with a restorative facilitator, who then feeds information back to the other party.

In face-to-face encounters, facilitators usually arrange for all those affected by an offence or an incident to attend a meeting. At the start of the meeting he or she will make clear that discussion should concentrate on the offender’s behaviour, not its author—thus promoting the notion that the criminal act is to be condemned rather than the actor as a person. It is also made clear that the conference will ultimately focus on how the harm caused by the offence might be repaired.

Participants are helped to tell their stories by specific (often scripted) questions; to talk openly about the offence and ask relevant questions of the others, with everyone getting a chance to respond to what other people have said. The dialogic process typically begins by focusing on the perpetrator’s accountability for the crime or incident. The facilitator then encourages those harmed by the incident to describe its impact, at the time and since, with a view to exploring the relationship between actions and consequences, and encouraging the perpetrator to take full responsibility for those harms. The meetings should be empowering and inclusive, and enable all stakeholders to reveal fully how the incident has affected them, with no one silenced by domination.

The facilitator’s questions and prompts do not simply aim to promote communication between the participants but rather seek to encourage constructive dialogue. Restorative processes should address a range of damaged relationships: not only between victims and offenders, but also between offenders and their communities, and with society as a whole. Where this is realised, the prospects of the participants achieving restorative outcomes—whether an apology or material reparation—are much improved. Offenders should also be encouraged to learn from the process, in order to address those factors which may have contributed to their offending in the first place. Where the offender needs help to overcome those factors, the state should provide it, as is consistent with its duty to promote social integration.

B. Defining Victims and Offenders

The decision to prosecute offenders in eighteenth century England was generally taken by the victims, or by those they chose to represent them. Representatives of central government were only rarely involved in arbitration. There were inequities within this system, but it was clearly focussed on the resolution of conflicts and reparation of harms caused by offences.

The following two centuries witnessed the emergence and entrenchment of a professional, state-run criminal justice system. This brought about a shift from crime control mechanisms which were essentially local, personal and entrepreneurial to crime control institutions which are bureaucratic, largely impersonal and increasingly centralised. Beneath the details, the place of the victim in the design of each adversarial contest remained constant throughout this period. In all but a handful of private prosecutions—events so rare as to warrant extensive media attention when they do occur—the state, in the shape of the police and prosecutors, has become the intermediary between the victim and the court. Some sociologists, such as Nils Christie, have criticised the state for taking ownership of offences and disputes which at one time were the preserve of local individuals and communities, and in doing so usurping the right of victims to have a say in the response to their criminalisation and to seek reparation and recompense for harms suffered.⁵

This criticism was not unique to particular jurisdictions, but was at its most obvious in common law systems. In the UK and US, for example, until the changes brought about in recent decades, the role of victims had been relegated to that of witnesses, and they had been excluded from meaningful participation and decision making. This marginalisation of victims left them increasingly dissatisfied and reluctant to cooperate with the criminal justice system, as was evidenced by numerous academic and government surveys. Towards the end of the 1980s, there was mounting criticism within both the academy and victim support organisations of the treatment of victims by all criminal justice agencies. The stage was set for a further significant shift in the relationship between the state and victims.

From the late 1980s, victims’ rights groups sought to enhance the place of victims in the criminal process and began to advocate that specific legal rules be introduced to give greater weight to victims’ interests, and to provide them with restitution and compensation. Victims already had greater rights of participation in criminal trials in the civil law systems of Continental Europe, but political leaders elsewhere responded swiftly to the new victim awareness, and the demands of victims’ groups soon found a legislative response in common law countries. This was most apparent in the introduction of measures to provide victims with information on ‘their’ cases, to allow victims to make personal impact statements and, in some jurisdictions, for some cases, the emergence of restorative justice.⁶ These reforms were introduced with the explicit aim of ensuring that the victim was no longer the forgotten actor in the criminal process and, perhaps, the less explicit aim of making sentencing more punitive.

These changes embedded within the criminal justice lexicon, as well as the public imagination, a fixed definitional and increasingly value-laden concept of victimhood. Victims’ rights organisations, in particular in the US, used ‘the victim’ as a worthy cause to press not only for enhanced victim rights, but also for more punitive responses to offenders. With the rising power of the worthy and blameless victim in need of protection came, inevitably, diminishing respect and tolerance of those labelled as culpable dangerous offenders. The fear that such offenders were posing ever-increasing risks to society was used to justify progressively harsher and more exclusive treatment by the state. Despite persuasive empirical evidence of the significant overlap between the two groups (victims and offenders), in political rhetoric th...

Table of contents

• Cover
• Title
• Copyright
• Series Editors Preface
• Acknowledgements by Carolyn Hoyle
• Acknowledgements by Chris Cunneen
• The Case for Restorative Justice by Carolyn Hoyle
• The Limitations of Restorative Justice by Chris Cunneen
• Index