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How Restorative Is Restorative Justice?

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How Restorative Is Restorative Justice? How restorative is restorative justice? Dr Martin Wright Visiting Research Fellow, School of Legal Studies, University of Sussex. Paper to conference, Quali prospettive per la mediazione? Riflessioni teoretiche ed esperienze operative (What prospects for mediation? theoretical reflections and practice), Museo Criminologico, Rome, 20-21 April 2001. There are certain things which we take for granted: 1) that crime is an offence against the state 2) that people who commit crimes should be punished 3) that punishment is a responsibility and a monopoly of the state 4) that the decisions about how to deal with offenders should be taken by state officials through a formal legal process. What is remarkable about RJ is that it challenges all these assumptions: it views crime not as an offence against the State but as an injury to people and relationships. Instead of punishing offenders, justice involves repairing harm caused by crime. The victim and the offender can take an active part in the process. The community can support the victim and help the offender to fulfil any agreement he has made about reparation. In the conventional system the victim and the offender are not able to tell the story of what happened in their own way, much less to communicate with each other. The damaging potential of the system is well known. It is aggravated by the fact that the system focuses on its objective - to determine guilt or innocence and decide on a sanction - and does not consider the effect of the process on the participants. Restorative justice, instead of taking the whole matter out of their hands, offers both victim and offender the chance to discuss it and decide how to resolve it, through victim/offender mediation, or an extension of this known as ‘conferencing’, in which victims and offenders are invited to include their extended families. (In this paper ‘victim/offender mediation’ will be used as a general term to include conferencing, which is similar but with members of the extended family present (as described below). The term ‘penal mediation’ (mediazione penale) will not be used, because mediation is seen as a restorative, not a punitive, process.) There are at least five ways of doing this, and it is too early to say that any of them are ‘better’ or ‘more restorative’ than others; besides, there should be at least a degree of choice for the participants. ♦ The first level, which should be used in all cases, is the initial contact with the victim and offender, to listen to them, explain the process and offer them the opportunity to take part. In some cases there will be no need to continue beyond this point; the offender may send a message to the victim, who may accept it, and the victim may not want to commit time to a meeting. ♦ This may require the mediators to make more than one visit back and forth; this is described as indirect mediation, or ‘shuttle diplomacy’. Research suggests that it does not produce such high levels of satisfaction in the participants, but they are entitled to choose it. ♦ Thirdly, there may be direct victim/offender mediation, with a face-to-face meeting. This has produced many successful outcomes; it does however depend on the skill of the mediators in conducting the meeting, and especially in using appropriate techniques to compensate for any imbalance of power between the parties. Sometimes either party may be accompanied by family members or supporters, so that there is an unclear dividing line between victim/offender mediation and: ♦ conferences. These were first used in New Zealand under the name ‘family group conferences’. Based on traditional Maori practice, they bring together the extended family of the offender, and some other significant people in his life, to work out how he should make reparation and keep out of trouble. The victim is also invited to attend, and bring a supporter. Concerns have been raised about this process: Could the offender feel intimidated by a roomful of adults, or the victim by all the offender’s family? At one stage in the procedure the offender and his family are allowed ‘private time’ with no officials or victim present; does this make the victim feel excluded? Another version is known as a community conference; which can bring in more supporters of the victim, and other members of the community for whom the offence had some relevance. This raises a different concern: if the offender’s family are having problems only indirectly related to the offence, should outsiders be present while they are resolving it? ♦ Finally, there are sentencing circles, as developed on the basis of a different indigenous tradition, in Northern Canada. Here relevant members of the local community take part – for example an alcohol counsellor, a representative of the chamber of commerce, neighbours and friends – but 2 also the judge, prosecutor and defending advocate. This means that the circle has the authority of a court of law, and the judge retains his or her powers to impose sentences, including punitive ones, in addition to any reparative or rehabilitative measures that the circle may recommend. These too have possible disadvantages; for example care has to be taken to ensure that one local family or group does not dominate the circle. To assemble a larger number of people takes time, and sometimes travelling expenses, so this method tends to be reserved for more serious offences. However, some observers (e.g. Braithwaite and Strang 2000; Morris and Young 2000) are tending to favour conferences or circles over one-to-one mediation because it is more likely that if anyone tries to dominate, someone will stand up to them, and that the larger number of people is more likely to come up with constructive ideas, and if necessary make them happen – for example, the offender could go and live with them.: What does this mean in practical terms? ‘A picture is worth a thousand words’, so I will give a word-picture of restorative justice in action. A 13-year-old boy was arrested for a disturbing act of violence: he had delivered a karate kick to ‘Mr Robertson’, a disabled man who suffered from heart trouble. Mr Robertson knew ‘Dan’, the boy concerned, who had teased his daughter, also aged 13, and spread a rumour that she was having sex with her father. Mr Robertson spoke to him about this, telling him that it was dangerous to spread such rumours; a few days later, they met in the street, and Dan kicked him in the chest. Mr Robertson, Dan and Dan’s mother were willing to take part in mediation. The mediator explained that Dan’s mother was only present because of his young age, and Dan himself should do the talking. Dan said that he was only repeating a rumour that he had heard from others, and that he and his friends had been sniffing glue; Mr Robertson explained what a trauma would have been caused to his family if Social Services had followed up such an accusation. Dan admitted that he had not thought about that; he also described how he had been worried about Mr Robertson, because he had a grandparent and an uncle who had both died of heart attacks. Mr Robertson said that he thought Dan had been very brave to come to the meeting and talk as he had done; he seemed basically a ‘decent chap’ and should come and knock on his door next time he felt like sniffing glue. Dan said he had been frightened of the meeting, but was glad he had gone through with it; he was surprised that Mr Robertson had been so understanding, and not angry. 3 Dan received a formal caution, and reported that recently, when asked to join a glue-sniffing session, he told his friends that he had arranged to go elsewhere, and had visited Mr Robertson. (summarized from Marshall and Merry 1990: 55-7) So, what unites all these varied practices? What is the thinking behind them? Although RJ is not a systematic theory, there is a general agreement among RJ proponents about what it stands for: Restorative justice seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society. It seeks to assist the recovery of the victim and enable all parties with a stake in the justice process to participate fruitfully in it. (RJC 1999) Before we go any further let us look at the words. ‘Justice’, giustizia, comes of course from the Latin ius, law, and should not be used as if it were synonymous with punishment (as is often implied in phrases like ‘he should be brought to justice’); in a restorative context the emphasis is less on the letter of the law, and more on a peaceful, well-ordered society, encapsulated in the Hebrew word shalom (Zehr 1995). ‘Restorative’, in English, means restoring something which has been damaged to its former condition. My small dictionary does not give riparativo, but riparazione di torto o offesa can mean reparation for a tort or offence, and riparazione di danno is compensation for harm. Riparare includes the idea of rimediare offesa o gaffe (to make up for an offence or mistake), as well as aggiustare (to repair or mend) and proteggere (to protect). Aggiustarsi in turn can mean accordarsi (to come to an agreement). The English word ‘to restore’ can also mean restituire (to give back) or ripristinare (to revive an old custom or law). Already a single word, like a seed, has grown into a tree: all of these are useful ideas to bear in mind when thinking of the idea of la giustizia riparativa, restorative justice.
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