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Restorative Justice and the Practice of Imprisonment Gerry Johnstone is a Professor at the Institute of Applied Ethics at Hull University. He has published extensively on restorative Justice, including Restorative Justice: Ideals, Values, Debates (2001) and, with Daniel Van Ness, the Handbook of Restorative Justice (2006).

It is widely believed that, in the aftermath of criminal justice — such as incapacitation — to be wrongdoing, justice is achieved if the wrongdoer achieved concurrently. experiences pain in proportion to the magnitude Imprisonment also has advantages over other of his or her wrongdoing. In contemporary society conceivable ways of imposing pain upon offenders. The it is further believed that, in the aftermath of monetary fine, for instance, also deprives people of criminal wrongdoing, the state has sole something highly cherished in contemporary society responsibility for imposing such pain. and enables the quantity of pain to be varied. Restorative justice challenges such beliefs (see Accordingly, it is the most commonly used punishment Johnstone, 2002 and Van Ness and Strong, 2006). One for many types of offence. However, there are of its central tenets is that justice in the aftermath of enforcement problems in that many offenders will fail wrongdoing requires that the harm done to people and to pay or be unable to pay. Also, fines can be paid by relationships be repaired; it is not enough — and it may people other than the person on whom they are not even be necessary — that the wrongdoer imposed; as a result the wrongdoer might undergo little experiences pain. Another tenet is that the direct pain and somebody else who was not personally victims of criminal wrongdoing and people closely culpable might incur pain. More generally, the fine can connected to them — along with offenders and people have a differential impact in a society where money is closely connected to them — should be given leading very unevenly distributed. A particular problem is that it roles in the process of deciding what to do about the can enable very wealthy offenders to commit wrongs offence. with near impunity. This paper explores the implications of these tenets Imprisonment also compares favourably as a mode for the practice of imprisonment. One implication of pain imposition with corporal punishment, in that it seems clear: restorative justice, by putting in question a is much less offensive to contemporary sensibilities. core belief underlying the practice of imprisonment, And, it compares favourably with ‘community raises serious questions about the validity of the punishments’ which tend to be perceived by the public practice. More recently, however, restorative justice as insufficiently painful as a response to serious advocates have become more interested in reforming wrongdoing (Kahan, 1996). the practice of imprisonment in line with the principles Of course, imprisonment also has disadvantages of restorative justice. This development is controversial compared with these other ways of imposing pain. In within the restorative justice movement, with many particular, as critics incessantly point out, it is very costly advocates arguing that restorative justice is best and has a whole range of unintended harmful pursued, ‘not as a policy of prison reform but as an consequences. Advocates of restorative justice alternative to prison’ (Guidoni, 2003: 66). This paper frequently reiterate these standard criticisms. In will examine the arguments of those who are sceptical addition, however, they challenge the very assumption about ‘restorative prison’ projects. upon which imprisonment is based: that justice requires the imposition of pain upon offenders. By arguing that Undermining the practice of imprisonment there are other and better routes to justice in the aftermath of crime, restorative justice attacks the idea If we start with the belief that justice requires us to of imprisonment at its heart. impose proportionate pain upon offenders, Restorative justice advocates also suggest that, if imprisonment seems like a useful and indeed we accept that restitution or reparation is essential for indispensable social practice. It causes pain by depriving the creation of an experience of justice, imprisonment prisoners of something which is cherished by most becomes problematic as an obstacle to justice. It creates people in contemporary society: freedom. Moreover, psychological obstacles, in that imprisoned offenders the amount of pain caused can be varied, albeit crudely, are likely to regard their prison sentence as adequate by changing the length of a prison sentence. amends for their crime and hence are unlikely to agree Imprisonment also enables other central goals of that they have a liability to contribute further to repair

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of the harm they have caused. But, even if they did movement must identify and address the impediments recognise such a liability, their imprisonment makes it to the development of restorative justice as an difficult for them to fulfil it. Having been cut off from alternative to imprisonment. He himself identifies four the possibility of earning significant money, they are not steps that need to be taken: in a position to pay restitution. And, being deprived of their freedom, they are not in much of a position to
Incorporate ‘displacing imprisonment’ into the undertake reparative work. definition of restorative justice: Standard Furthermore, imprisonment acts as an obstacle to definitions of restorative justice fail to include the having restorative processes. A central idea of objective of displacing penal confinement. restorative justice is that personal encounters between Reducing incarceration needs to be included in offenders and victims to discuss the harm done and standard lists of the goals of restorative justice and how it can be repaired can be very beneficial for both given prominence in discussion and debate. parties. For instance, through such encounters,
Educate professionals : According to Immarigeon, offenders become more aware of the harm they have educational efforts need to be focused not on the caused to another person with whom they can public — who are less punitive than often empathise, and victims become divested of fearful supposed — but on professionals working directly images and benefit from the opportunity to express and with offenders and victims in criminal justice, the have validated their feelings media, mental health and social about what happened. However, services. These are the people such encounters are very difficult best positioned to influence to arrange even when both ... Not surprisingly, those wielding financial and parties are in the community. advocates and political power. When one party is imprisoned,
Pursuing displacement of the difficulties are compounded. supporters of imprisonment in practice: So, not surprisingly, Immarigeon recommends that advocates and supporters of restorative justice those implementing restorative restorative justice are highly justice measures should ensure critical of the practice of are highly critical of that the offenders they work with imprisonment. Indeed, restorative the practice of are in fact prison-bound. He also justice is often presented as an argues that part of the alternative to imprisonment and imprisonment. intervention should be planning the movement as a whole has and advocating sentences that significant roots in the prison exclude imprisonment. abolition movement (Van Ness
Shift in research focus: and Strong, 2006: 17-18). Yet, as some observers quite Immarigeon argues that few researchers explore convincingly argue, the restorative justice movement the success of restorative justice schemes in has had little success in its efforts to encourage the use diverting people from imprisonment, and that this of restorative interventions as alternatives to needs to be redressed. imprisonment. Rather, restorative justice has been used predominantly in cases which would not usually result Within the restorative justice movement, many no in a prison sentence. Russ Immarigeon, in particular, doubt will disagree with at least some of Immarigeon’s states: specific proposals and may have other ideas about what can and should be done. Nevertheless, Restorative justice measures rarely divert Immarigeon’s article is important in that it challenges anyone from imprisonment, particularly in the the restorative justice movement to reflect critically on United States, although this also seems the the extent to which it has succeeded in achieving the case in Australia and Canada. Some evidence aspiration of reducing society’s reliance on exists that New Zealand is using restorative imprisonment and it challenges the movement to justice as an alternative to detention, but even examine critically what it is doing, and what it could that evidence is weaker than one would hope and should be doing, to achieve this aspiration. for (2004: 144) . Restorative justice in prisons Immarigeon nevertheless endorses the aspiration of replacing imprisonment with restorative justice In recent years, some within the restorative justice measures in a significant number of cases. In order to movement have begun to think about its implications achieve this aspiration, he argues, the restorative justice for the practice of imprisonment in a rather different

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way. Accepting that the goal of a large scale restorative justice in prison whilst simultaneously replacement of imprisonment with restorative justice is acknowledging the conflicts between restorative justice unlikely to be achieved in the short-medium term, they and imprisonment. A ‘purist’ refusal to pursue are campaigning for and experimenting with the restorative justice in the prison environment will result, application of the principles of restorative justice within it is suggested, in a restriction of restorative justice to prison settings 1. less serious cases where it would operate as an Within the restorative justice movement, this alternative, not to imprisonment, but to some other development is quite controversial (Edgar and Newell, non-custodial sanction (ibid.: 24). 2006: 22-3). As we have seen, for many of its Later, I will look more closely at the arguments advocates one of the main purposes of restorative against restorative prison projects. First, though, it justice is to steer offenders away from punitive and might be helpful to know a little more about restorative segregative sanctions — which are exemplified by justice programmes taking place in prisons. What are imprisonment — into restorative programmes that the aspirations and objectives of these programmes? benefit rather than damage them and at the same time What sorts of effects are they having? And, crucially, better meet the needs of victims how do these programmes deal and communities. From this with the tensions between perspective, the idea of Restorative justice imprisonment and restorative restorative justice in prisons is justice? In the following I provide contradictory and dangerous. initiatives are taking the briefest of overviews. The offender will be severely harmed by the experience and place in prisons Aspirations of restorative nothing that comes out of a around the world. prison projects restorative justice programme will be able to offset that harm. The These initiatives vary Restorative justice initiatives coercive, segregative and enormously in their are taking place in prisons around authoritarian nature of the prison the world. These initiatives vary will, in any case, undermine any origins, aspirations, enormously in their origins, efforts at genuine restorative aspirations, objectives, form and justice, which requires voluntary objectives, form and scope (Van Ness, 2007). Very involvement, engagement with scope. schematically, one might place the community, informality and efforts to develop restorative flexibility. Worst of all, the very processes in prisons on a fact that ‘constructive’ continuum based on their programmes such as restorative justice are taking place intended impact upon the prison itself. At one end of is prisons will simply make imprisonment a more this continuum are projects in which efforts are made attractive option for sentencing authorities and will to bring imprisoned offenders to greater awareness of enhance the legitimacy of imprisonment in the minds the harm they have caused and of their obligation to of politicians and the public. desist from further harmful acts in the future (ether Advocates of restorative justice in prisons are within the prison or on their release), but which do not mostly well aware of these concerns and, indeed, explicitly seek to bring about wider organisational and readily admit that there are conflicts between the cultural changes in the prison and the prison system. practice of imprisonment and restorative justice An example is the policy of the Minnesota State principles. They argue, however, that these ‘tensions’ Department of Corrections, in which prisoners are need not and should not prevent efforts to transform encouraged and assisted to write letters of apology to the ethos of prisons by introducing restorative justice their victims, with the letters then being put in a ‘victim schemes within them and by using restorative justice apology letter bank’ for reading by those victims willing principles to bring about organisational and cultural to do so (Umbreit et al, 2005: 266). At the other end changes in prisons (ibid.: 23). Given that, for the are projects in which restorative justice principles are foreseeable future, serious crime will continue to be used as a guide to prison reform — where the ultimate met with imprisonment, the restorative justice goal is to create a restorative prison. Here, my focus is movement needs to explore the possibilities of mainly upon the latter type of project.

1. See Van Ness (2007) for a general overview and guide to further reading. Robert and Peters (2003) analyse one of the most ambitious projects: the ‘restorative detention’ project in Belgia: prisons. On initiatives in the UK see Stern (2005) and Edgar & Newell (2006). For developments in north America, in addition to the papers by Van Ness and Immarigeon already cited, see Toews (2006). For a useful survey of developments in the rest of the world see Liebmann (2006). Guidoni (2003), focusing on project in an Italian prison, provides a critical perspective.

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A good example of this type of project is the identity. Second, the view of prisoners held by Restorative Prison Project 2000-2004, which took place members of the community would change — they in the north east of England and which is described by would be seen as people who are capable of good Vivien Stern in the paper Prisons and their Communities as well as bad actions. These two changes would (2005). Lofty ideals underlie this project. The reinforce each other resulting in a shift in the International Centre for Prison Studies, which image of prisoners, who would be regarded as developed and managed the project, envisage it as ‘citizens’ who are temporarily imprisoned. providing a new model of imprisonment ‘to counteract
Prisons should have a policy of helping prisoners to worldwide trends towards technological warehousing understand the effects that crime has on its of prisoners with no social, ethical or purposive input’ victims. Instilling such an understanding is both (ibid.: 9). Even more ambitiously, the project is seen as important and difficult. The whole experience of an exploration of the possibility of changing the prison imprisonment tends to make prisoners feel into a very different type of institution than it has been victimised themselves. At the very least, coping historically. Instead of being instruments of ‘retribution’ with the hardships of imprisonment leaves and exclusion prisons might, it is suggested, be re- prisoners with little space to think about those conceived as places where prisoners begin to repair the they have harmed. harm they have done, by doing
In dealing with the conflict positive work for the community, that inevitably arises in prisons, and in turn gain a stake in the much more so than in other community and win its respect ... Critics tend to be institutions, mediation and other (ibid.: 9-11). sceptical about the alternative dispute resolution In pursuit of these ideals, the processes should be preferred to project leaders identified four possibility of more formal and confrontational changes ‘that would have to take methods. place in a prison if it were to integrating the move from a retributive model to constructive ethos Anybody familiar with one based on the notion of contemporary imprisonment restoration’. of restorative justice prisons will recognise that such within a changes would entail a complete
A new relationship between transformation of thinking about the prison and its local punishment-based the management and control of community should be prisons, planning of daily fostered. There are a social institution routines, staff-prisoner number of aspects to this: such as the prison. relationships, and much else. the core purpose of prisons They would also involve a should become to prepare fundamental shift in public prisoners for return to the perceptions of prison and community as law-abiding citizens; strong links prisoners and in public understandings of the meaning should be created between prisons and the of imprisonment. Stern’s paper is quite candid about communities in which they are located; prison the enormity of the task and provides a useful walls should become more ‘permeable’ with discussion of what needs to happen for enduring members of the community coming in to change to occur. participate in its work and prisoners going out to do constructive work in the community; prisoners Scepticism about restorative imprisonment should go to a prison based in the community in which they are from; and responsibility for he As we have seen, critics tend to be sceptical about health, education and social care of prisoners the possibility of integrating the constructive ethos of should be transferred to local bodies and restorative justice within a punishment-based social authorities (ibid.: 11-12). institution such as the prison. The sceptical case is well
Prisoners should be provided with opportunities to represented by Guidoni (2003). Although he himself work for the benefit of others (as opposed to was involved in a restorative prison project in Italy with doing less meaningful work or being deprived of many similarities to that described by Stern, he the opportunity to work at all). This, it is describes his attitude towards such projects as suggested, would have two important results. ambivalent. Whilst some good came from the project First, prisoners would develop their own personal he was involved with, he suggests that rather than qualities and adopt a more positive sense of prisons being transformed in line with restorative justice

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principles, the more likely outcome of such projects is behaviour and opportunity for redemption which the temporary adoption of limited aspects of restorative the project was designed to achieve; rather it was justice, which are then used to add legitimacy to an things like early release and more privileges. In a institution which remains essentially punitive. similar way, prison staff, he claims, conceived the Guidoni identifies what he sees as six of the project in terms of their (non-restorative) goals: structural obstacles to the success of restorative prison they saw it as a means of exerting greater control projects (pp. 62-5): over prisoners.
‘Autonomy denied’: Guidoni argues that whereas
‘Conflict over the reconstruction of the self’: restorative justice requires that participants be Guidoni argues that a main goal of restorative empowered and that decision making be justice is to help offender reconstruct their self- ‘democratised’, prisons are hierarchical and image and identity. He also suggests that authoritarian institutions. Restorative justice, in achievement of this goal is a other words, requires pre-condition for achieving professionals to think of their role other goals of restorative It has been argued in a radically different way: to justice, for example the become mere facilitators rather offender taking action in that ... the more than chief decision makers. support of victims. However, likely outcome of Prison staff were simply unable or all prisons — even ‘humane unwilling to contemplate such a and open’ prisons — destroy such projects is the change. the self and erase identity temporary adoption
‘The social conditions of a through their mortification restorative justice prison’: and degradation rituals. of limited aspects of Guidoni’s basic argument here is Imprisonment therefore that given the awful social works in the complete restorative justice, conditions in most prisons opposite direction of which are then used (overcrowding, interethnic restorative justice. tensions, unsatisfactory hygiene
‘Competing with prison to add legitimacy to and so on) it is unrealistic to culture’: The basic point here expect prisoners to be able to is that restorative justice an institution which focus, not on their own hardship requires offenders to remains essentially and how to get along within such become engaged with the an environment, but on the harm world of their victims and punitive. they caused to others whose lives the community. Prisons, are probably much more however, develop powerful comfortable then their own. sub-cultures in reaction to their disciplinary regimes. These exert a constant pull on the offender — away from the new world they may Assessing the critique wish to inhabit.
‘Nonviolent conflict resolution versus prison How damaging are these criticisms? In my view, disciplinary action’: A central pillar of many Guidoni succeeds in identifying a number of aspects of restorative prison projects is the establishment of imprisonment which conflict with the ethos of non-violent and negotiated forms of conflict restorative justice. What is less clear, however, is that resolution. Achieving this goal, Guidoni argues, is the obstacles identified by Guidoni are particular to the virtually impossible given the levels of violence prison, although they may well be more pronounced within prisons and the commitment of prison within prisons. For instance, the reconstruction of the administrations to harsh disciplinary sanctions. self is surely extremely difficult to achieve in any context
‘The difference between stated and perceived (Sullivan and Tifft, 2001) and there are of course goals’: Guidoni suggests that in the project he was renowned examples of it being achieved in prison. The involved with, participants took part for pull of delinquent sub-cultures has long been ‘instrumental’ (he could have said ‘selfish’) recognised as a major obstacle to any effort at personal reasons, rather than because of commitment to reform. The tendency to resolve conflicts by imposing the goals of restorative justice. Prisoners wanted solutions coercively from above is pervasive in to gain something from their participation in the contemporary society. People outside prison, as much project. But, what they wanted was not the as those within it, tend to enter restorative justice with greater awareness of the consequences of their a thin commitment to its ethos, something that seems

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to change once they actually enter the process. the institution but to eliminate it entirely, is of course Persuading professionals to take a back seat and to let not unreasonable. But, what one would then expect is lay people take control of deliberation and decision- a clear strategy for achieving this goal and clear making is a problem that dogs any attempt to de- defence of doing nothing about existing prisons in the professionalize or democratise decision-making meantime. In the absence of this, the preferred option processes. And, the social of the optimists — to try to conditions in which of many reform the institution whilst offenders live outside of prison recognising and ‘running the risk are by no means conducive to of being coopted into the prison’s restorative justice. The restorative ideology of punishment’ In pointing these things out, (Guidoni, 2003: 66) does not I do not mean to question the justice movement look unreasonable. claim that there is a huge gap The main objection to this between the environment of a has implications for from the pessimists, is that prison and the ethos of the practice of experiments with restorative restorative justice. Rather, my justice in prison will enhance the point is that there is also a very imprisonment in image of legitimacy of an large gap between the two ways. On the institution which, in their view, environment of many parts of lacks any legitimacy. I cannot see contemporary society and the one hand, it puts in this as a significant danger. It ethos of restorative justice. This, would only become a salient of course, is precisely why question a belief — issue if the legitimacy of the restorative justice is such a that wrongdoers prison was already in doubt. My challenging (and for many guess is that the standing of hopelessly aspirational) idea. deserve pain ... On imprisonment in the eyes of the Another question we need the other hand, it judiciary, politicians and the to ask is how immutable are the public, is already sufficiently high obstacles to restorative justice suggests that the that experimentation of identified by Guidoni. He seems restorative justice will have to think they are unalterable. practice of relatively little impact upon it. Hence, he describes them as imprisonment might ‘structural’ (p. 61) and quotes Conclusion with approval the following from itself be reformed ... Stanley Cohen: ‘The core of a The restorative justice prison system — detention with movement has implications for the purpose of punishing the practice of imprisonment in criminals within buildings which two ways. On the one hand, it are separated from the rest of society — cannot be puts in question a belief — that wrongdoers deserve changed. The prison is exactly this; either we eliminate pain — which goes to the heart of imprisonment, and the institution entirely, or we keep it ... intact’ 2. In therefore suggests that the practice lacks validity. On expressing approval of this idea, Guidoni seems to be the other hand, it suggests that the practice of asserting dogmatically the precise claim which imprisonment might itself be reformed so that it serves advocates of restorative prison projects contest. Edgar restorative rather than punitive functions. Within the and Newell (2006), for instance, identify very similar restorative justice movement, these are sometimes seen obstacles, but seem to think they leave some space for as alternative strategies between which one must successful experimentation with restorative justice and choose. The overall thrust of this paper has been to that such experimentation might even result in a reform suggest that both strategies can be pursued of the prison environment. concurrently. It is possible to raise doubts about the In fact, the difference between Guidoni, on the validity of imprisonment, by undermining faith in the one hand, and Edgar and Newell, on the other, is idea on which it is based, whilst also working to largely one between a structuralist pessimism about the improve the practice as it currently exists. possibility of reform and a very cautious optimism. The A full list of references is available from the author. preferred option of the pessimists, not to try to reform

2. This is Guidoni’s translation of a passage from an article by Cohen in Italian.

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