REWRITING HISTORY : TOWARDS A GENEALOGY OF RESTORATIVE JUSTICE Kelly May Richards A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy College of Health and Science University of Western Sydney 2006 1 INTRODUCTION During the mid to late 1970s, there appears to have been little awareness or information sharing between programs experimenting with the concept of mediating victim-offender conflict (Umbreit, 1995, p. 264). The Reverend Peter Taylor, Chaplain at the Rochester Youth Custody Centre, a closed institution for approximately 350 young males…was routinely asked, “What you do is good for the offenders, but what about the victims?” After some thought…Taylor in March 1983 wrote a letter to local Victim Support Scheme staff asking if they would like to participate in a program at the facility that would bring together burglars and burglary victims….At the time, Taylor reports that he was wholly uninformed about American and Canadian victim- offender reconciliation practices, research about victim and offender perceptions of one another and even about which British authorities in London, 13 miles to the north, were available to help him (Immarigeon, 1994, p. 9). Family group decision making was developed for use in child welfare where it has been used extensively in many different jurisdictions….The concept emerged simultaneously in New Zealand, where it is known as family group conferencing, and in Oregon, where it has been known as Family Unity (Resource 2 Center for Family-Focused Practice, n.d., Family-Centered Practice section, para 1). Why Research ‘Restorative Justice’? My original interest in the field of ‘restorative justice’ came about due to a broad interest in new and innovative ways of dealing with offenders. In this sense, ‘restorative justice’ was one of many potential topics of study, including home detention, electronic monitoring, drug courts and boot camps, for example. In the early stages of acquainting myself broadly with the concept of ‘restorative justice’ in this regard, however, I quickly became sidetracked, and developed an interest in how ‘restorative justice’ had emerged as a legitimate criminal justice practice. My interest in this area evolved as a result of engaging with two themes within the ‘restorative justice’ literature: the apparently widespread political and public appeal of ‘restorative justice’. The Political Appeal of ‘Restorative Justice’ That ‘restorative justice’ appeals across the political spectrum, receiving support from both ‘liberals’ and ‘conservatives’, is a commonly made observation in the ‘restorative justice’ field (Braithwaite & Mugford, 1994, pp. 309-310; Garkawe, 1999, p. 42; Nyp, 2004, p. 32; Pollard, 2004; Roche, 2004, p. xiii; Strang, 2000, p. 25; Wilkinson, 1997, p. 6). Roach’s (2000) comments are typical of the argument made in this regard: 3 Liberals on the left tend to stress restorative justice as an alternative to destructive forms of imprisonment and a means in which offenders can be healed or rehabilitated. Conservatives on the right stress restorative justice as an alternative to costly forms of imprisonment and as a means to ensure that offenders are made to account to victims and communities (p. 262). Moreover, advocates’ claims about the political allure of ‘restorative practices’ seemed to have been confirmed by the effortless passage of ‘restorative justice’ legislation through parliaments in many jurisdictions. New South Wales’ Young Offenders Act (1997), for example, progressed through parliament with bi-partisan support (Youth Justice Advisory Committee, n.d., p. 3). Transcripts of the parliamentary debate indicate that this legislation, which formalised the use of ‘youth justice conferencing’ across the state, received support from the left-wing Greens and Democrats parties, both the major parties, and even the far-right Call to Australia party fronted by the Reverend Fred Nile (New South Wales Legislative Council, 1997a). The literature on ‘restorative justice’ indicates that New Zealand’s quite radical ‘family group conferencing’ legislation similarly received bi-partisan support. Doolan (1990) explains: “the reforms underway in youth justice elicited little debate…[partly]…because they had widespread acceptance….The young offender aspects of the bill achieved almost total political unanimity” (pp. 80-81). In Northern Ireland also, the Criminal Justice 4 Review Group’s (2000) report on criminal justice, which McEvoy and Mika (2002, p. 535) claim impacted directly on the development of ‘restorative justice’ projects in a number of communities, stated that “we were struck by the widespread support for the concept of restorative justice put forward in the consultation process, not only across a wide spectrum of political opinion, but also amongst the voluntary and community groups” (p. 203). Having only recently at that time completed an Honours thesis exploring the heated debates – prevalent in the 1970s and 1980s – over women’s participation in pornography, this notion of broad political consensus sat uneasily with me. In the fight to ban pornography, far-left radical feminists and far-right religious conservatives famously campaigned together to rid society of what both groups saw as a dangerous scourge. On the surface, therefore, political adversaries had banded together for what many considered the ‘common good’; beneath this, however, lurked a multitude of problems, divergences of opinion and ideological disparities. I began to wonder, therefore, what might be ‘lurking beneath the surface’ of the common political support for ‘restorative justice’. This seemed an even richer area for contemplation given that, as stated above, this pervasive support existed not merely at an ideological level, but had begun to be felt on the ‘ground level’ of criminal justice, via the enactment of ‘restorative justice’ legislation, for example. Related to these claims of unanimous political support for ‘restorative practices’ was my discovery that in many locations in which such practices 5 had been introduced, authorisation had been provided retrospectively by existing legislation. Miers’ (2001) report on the use of ‘restorative justice’ in criminal justice systems around the world indicates that in a number of jurisdictions – including Belgium, Finland, France, Germany, Poland and the Australian Capital Territory – ‘restorative justice’ has been “indirectly authorised” (Miers, 2001, p. 12) by existing laws. In Belgium, for example, ‘mediation’ between juvenile offenders and their victims is authorised by the Juvenile Justice Act of 1965 (Miers, 2001, p. 12). Similarly, in Minnesota, the implementation of ‘restorative’ programs occurred “within the discretion of existing statutes” (Pranis, 2004, p. 151). In other words, although laws in these localities do not explicitly endorse these ‘restorative practices’, they can be read retrospectively to conform to the ‘restorative justice’ ethos. In a sense, therefore, some scholars have made claims that political support for ‘restorative justice’ already existed. This furthered my interest in the emergence of ‘restorative justice’. Public Opinion and ‘Restorative Justice’ In addition to highlighting the political appeal of ‘restorative justice’, scholars in this field frequently claim that it has great popular appeal. Public opinion research that indicates community support for ‘restorative justice’ is often recited in support of this concept (J. Roberts & Stalans, 2004; Strang, 2000, p. 31; Umbreit, 2001, pp. xxxiii-xxxvi; Walgrave, 1995, p. 242; Wright, 1989). Drawing on a range of research, Braithwaite (1996) claims, for example, that “the evidence is now strong that ordinary citizens like restorative justice” (p. 328). Indeed, the support of the public is held in high regard by some 6 ‘restorative justice’ proponents. As Umbreit (2001) contends, “despite growing governmental and organizational support for restorative justice theory and practice, the question remains, Is the larger public really interested? Is there evidence of public support for the principles of restorative justice” (p. xxxiii)? Lord Justice Auld’s (2001) review of the court system in England and Wales, which recommends the implementation of a national ‘restorative justice’ strategy, also stresses that “care will also need to be taken to inform and persuade the public that it is a force for good” (p. 391). A number of respondents to a consultation about New South Wales’ ‘youth justice conferencing’ scheme similarly stressed the importance of gaining community support for this type of program (Blazejowska, 1996, p. 17). As I became acquainted with the ‘restorative justice’ field, this repeated concern with the views of the public struck me as rather contentious. In the area of criminal justice, public opinion is frequently disregarded by academics and policymakers on the grounds that it is not informed by relevant research, and represents mere ‘law and order commonsense’ (Hogg & Brown, 1998). A significant majority of Australian citizens have, for example, indicated their support for the reintroduction of capital punishment, a view that has been consistently disregarded by those in power (Freiberg, 2003, p. 226). Additionally, although research has indicated that members of the public tend to be less punitive when they are provided with specific - rather than hypothetical - information about offenders’ circumstances (Braithwaite & Mugford, 1994, p. 293; Freiberg, 2003, p. 228; Wright, 1989, p. 267), it 7