03 PSJ 174 Text Pages:Prison Service Journal 2/11/07 10:25 Page 15 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 Issue 174 Prison Service Journal 15 03 PSJ 174 Text Pages:Prison Service Journal 2/11/07 10:25 Page 16 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 16 Prison Service