This module is a resource for lecturers
Topic two - Overview of restorative justice processes
Restorative justice is a flexible and culturally responsive process, rather than a fixed or standardized programme, in which the parties constructively discuss how to bring about change. Flexibility and responsiveness are among the aims of restorative processes, as outlined in the Basic Principles (2000, Preamble and Basic Principle 9).
Since its inception, several practice models of restorative justice have become prominent. The type and content of the models vary in different regions and jurisdictions, reflecting their legal, socio-political and cultural contexts.
Restorative justice programmes can be categorized in numerous ways (see for example Zehr et al., 2015 on various models). Some speak of a continuum of restorative potential, ranging from 'fully restorative' to 'partly restorative'. This depends on several features, such as the level of participation of those affected in the restorative process, the degree of accountability provided by the process, or the outcomes the processes achieved.
The following restorative justice models, principally applicable to both children and adults, can be distinguished in the criminal justice context:
Victim-offender mediation, also known as victim-offender dialogue, victim-offender conferencing or victim-offender reconciliation programme, emerged in the 1970s and is one of the most widely used restorative justice models in the criminal justice system (see for victim-offender mediation in Europe, Dünkel et al., 2015). Although named victim-offender mediation, it is important to note that this restorative practice differs from mediation in other areas, such as civil and commercial mediation.
Victim-offender mediation is a meeting between victim and offender facilitated by a trained third party to discuss the impact of the offence and to seek a way to resolve the issue. A victim-offender mediation process starts with separate meetings of facilitator(s) with victim and offender to assess case suitability and to ensure that the offender is willing to take responsibility for the harm. These preliminary meetings are followed by a joint conversation, in which the parties can express their feelings, tell their stories, and talk about how to address the harm. Both parties may bring supporters into the dialogue process. Agreements often include apologies, compensation for the material or immaterial harm done, restitution, and services to the victim. Often, there is a follow-up arrangement to monitor the offender's fulfilment of the agreements. Mostly, victim-offender mediation includes face-to-face encounters, but indirect meetings are possible as well, usually at the request of the victim.
While conferencing was first mainly used in the context of juvenile justice, it is now widely used in cases involving adult offenders. Conferencing is a process that involves a wider circle of participants than just the offender and victim, such as family members, friends, and community representatives. Furthermore, the goals of conferencing are often broader in scope. In addition to the objectives of victim-offender mediation, conferencing also seeks to: enable the offender to recognize the impact that their offence has had on not only the victim and their families but also their own family and friends; and provide all parties with an opportunity to restore relationships.
First developed in 1989 in New Zealand, family group conferencing is used in the fields of youth justice and child protection. With respect to youth justice, this process includes the young offender and the family, police, victim and support people. Conferencing allows the family of the young person, as well as the victim and their supporters, to be actively involved in the decision-making process.
Example: Family group conferencing in Aotearoa, New Zealand
In 1989, New Zealand passed into legislation the Children, Young Persons, and Their Families Act (The Act has subsequently been re-titled as the Oranga Tamariki Act, 1989; or the Children's and Young People's Well-being Act, 1989). The legislation heralded a revolution in the way the State addresses the needs of young people at risk, especially in the areas of youth justice and care and protection. Dissatisfaction with the way the Government engaged with Māori (the indigenous people of Aotearoa) and their over-representation in the youth justice and welfare system led to an overhaul of the youth justice legislation (Kingi et al., 2008). The new Act sought to chart a new direction in youth justice policy, based on some clear guiding principles:
- Any decisions regarding the child should solicit the involvement and agreement of the wider family or whānau.
- The rights and interests of the child must be paramount.
- Children should have a say in how their offending is addressed.
- Victims should be given a role in the resolution process, if they choose to be involved.
- The imposition of criminal sanctions should be secondary to a process that brings together all the affected parties, in a family group conference, to seek solutions through a dialogue.
The new approach clearly distinguished between welfare and justice needs. In addressing children's justice needs, preference must be given to collaborative, solution-focused practices that address the root causes of the behaviour.
The mechanism for diverting children from court or custody, while still holding them accountable for their offending, was the Family Group Conference (FGC). This refers to a meeting of family members, including young persons, along with justice and social welfare professionals, that is charged with devising recommendations to address the child's needs in a rehabilitative manner. The meeting also considers the needs of victims, who are invited to attend the conference, although the original intent behind this measure was to allay any concerns the public might have about the process becoming too lenient. The FGC is convened by an FGC coordinator, who has an independent statutory role in the process. In effect, through this mechanism, the State devolves part of its decision-making power relating to the offender to the offender's immediate community of care.
The FGC model borrowed elements from Māori tradition, particularly its focus on the role of the extended family. However, it was not designed by Māori themselves, nor was it intended to recover customary processes. Rather, it provided a statutory vehicle for Māori involvement in addressing the needs of their own children. Core principles of the FGC process include: addressing the harmful consequences of offending; providing victims with an opportunity to be involved in the justice process; recognizing the role of wider communities of care in the resolution process; the use of consensus based decision-making; and the goal of reintegrating offenders at the local level. (Kingi et al., 2008)
Figure 1: Stages of the conferencing process
Circle processes involve a wider range of participants in a decision-making process that are guided by values such as respect, honesty, trust and equality (for an insight into circle processes, see Pranis, 2005; for a comparative overview, see Zinsstag et al., 2011). Circles are facilitated by one or two trained 'circle keepers'. Participants agree on values and norms to guide the process, and a 'talking piece', a physical object that often has significance to the group or the facilitator, is passed around from person to person, to give each participant uninterrupted speaking rights.
The circle format symbolizes the equality of participants, while the talking piece enables everyone to have equal voice in the deliberations without being interrupted. Circles are highly effective processes to address power imbalances and to achieve collaborative outcomes.
Figure 2: Circle processes
They can be used in a variety of settings within or outside of the criminal justice system. In criminal matters, they are used to develop a plan for addressing the crime and its underlying causes. Circle processes may involve victims, offenders, their supporters, community members and justice professionals.
Circle processes (mostly known as peacemaking, healing or sentencing circles) were developed in Canada and later in the United States to deliver alternative processes to court proceedings and reduce overrepresentation of indigenous offenders in prisons. Drawing on circle processes used in various forms by Aboriginal or Native American communities, circles strongly emphasize community empowerment and involvement in decision-making. The Four Circles of Hollow Water in Manitoba, Canada, illustrates the use of healing circles as a collective response to harm experienced over a long time in a community.
In Australia, circle sentencing is used in some Indigenous Courts, which were set up to provide culturally appropriate alternatives to conventional criminal justice courts and involve indigenous communities in the courts' sentencing. As they primarily focus on offender rehabilitation, they cannot be regarded as fully restorative, but they include restorative elements.
Community panels or boards
Community panels or boards are used to hold young or low-level offenders directly accountable to a group of community or tribal representatives. These processes aim to provide the offender the opportunity to take responsibility in a constructive way and address the harms and needs of the victim and the community. The community board or panel decides on a suitable sanction that enables the offender to redress the harm and give something back to the community. It is a process that aims for reparative outcomes, based on strong community participation in decision-making.
In cases where victims do not wish to participate directly in a restorative process for various reasons, victim-surrogate programmes provide the opportunity for the victim to be replaced by a chosen representative. 'Surrogate' victims act on behalf of the victim to reflect their needs, and to bring the victim's perspective into the restorative process.
Other types of surrogate programmes are often used in prison or treatment settings, for example victim empathy and awareness programmes. Here, offenders meet with victims of other crimes to gain a greater insight into the kind of harm they have caused their victims, and to process their experience together with other offenders. A well-known example is the Sycamore Tree Project developed by Prison Fellowship International, which is an in-prison programme to bring together victims and unrelated offenders.
The Sycamore Tree Project® is a five to eight-week programme in operation in prisons in more than thirty countries worldwide, including Bolivia, Nigeria, Colombia, Senegal, Ukraine, USA, Fiji, Kyrgyzstan, Australia, The Netherlands and Germany (Centre for Justice and Reconciliation, no date). Based on restorative justice principles, the programme gives the opportunity for offenders to meet with a victim of an unrelated crime to share experiences and understand the impact of crime. The face-to-face meetings encourage a deeper understanding about the effects of crime, and open the way for a dialogue about responsibility, restoration, reparation and healing.
"The Sycamore Tree Project® really makes you think. It's not like any other course I've been on. It makes you think about feelings. It's about what's inside. It changes how you feel about victims and that. I've done the ETS [Enhanced Thinking Skills] and that's easy. You know all the answers before you go in there. That doesn't change anything. STP is different because it's about what's in here." - Offender from England and Wales (Centre for Justice and Reconciliation, no date)
Truth and reconciliation commissions (TRCs)
Truth and reconciliation commissions (TRCs) have been used by various countries to address the aftermath of large-scale crimes of political violence, state sanctioned human rights abuses and the legacy of colonial exploitation and slavery. Examples include: the post-apartheid Truth and Reconciliation Commission in South Africa (1995-2002); the Commission for Reception, Truth, and Reconciliation, in Timor-Leste (2002-2005); the Rwandan Truth Commission, which commenced in 1999 and was made permanent in 2002; the Truth and Reconciliation Commission in Peru (2001-2003); and a range of Truth Commissions in the United States that have sought to address racially motivated crimes and injustices (for a global database of TRCs see the website of the United States Institute of Peace).
While the mandate for each TRC relates to the specificities of past abuses in each context or country, TRCs generally involve research and reporting on the respective abuses, and offer a forum for victims, their families and perpetrators to share their personal accounts. There is considerable scholarship on whether restorative justice principles are complementary to, and reflected in, respective national TRCs (see, for example, Ame and Alidu (2010) for an analysis of Ghana's National Reconciliation Commission; Gade, 2013, for a discussion of restorative justice and the South African Truth and Reconciliation Commission; and Graybill, 2017, for a study of the restorative justice dimensions of the TRC in Sierra Leone). Scholarship of this kind illustrates that while restorative justice and TRCs both pursue reparative outcomes - often on the basis of relational principles and practices that facilitate honest exchange about wrongdoings, harm, and the importance of healing - the complexities of TRCs mean that they are, in both theory and practice, quite distinct from restorative justice as it is used in criminal matters.
The use of restorative justice in criminal matters
There is considerable variation in the implementation of restorative justice processes worldwide. These can be differentiated by examining the various roles that restorative justice plays in relation to the criminal justice system. Restorative justice processes may be integrated into justice systems, form a component of diversion programmes, or be used outside of the justice system (see Handbook on Restorative Justice Programmes (UNODC, 2006)).
There are further differences in the way restorative justice services are administered (e.g. community based services, police-based programmes, court-based programmes), and whether restorative encounters are facilitated by professionals or trained volunteers.
Use at all stages of the criminal justice system
As emphasized in the Basic Principles, restorative justice programmes may be used at any stage of the criminal justice system (2000, Basic Principle 6). This includes the pre-charge (police), pretrial (prosecution) and sentencing (court), and post sentencing stages.
Likewise, several regional standards and country jurisdictions encourage the use of restorative justice at all stages of the criminal procedure. For instance, in Germany, the Code of Criminal Procedure (1987, section 155a) requires that judges and prosecutors consider victim-offender mediation (called Täter-Opfer-Ausgleich) at every stage of the criminal proceedings and, in appropriate cases, work towards its use. Furthermore, it provides that, in appropriate cases, the accused person should be informed of the possibility of victim-offender mediation at their first hearing (German Code of Criminal Procedure, 1987, section 136)). The offender's effort to achieve reconciliation with the victim has to be considered when establishing the sentence.
In South Africa, the Child Justice Act (2008) strongly embraces the notion of restorative justice and provides a range of diversionary and sentence options, including family group conferences and victim-offender mediation. As laid down in the preamble, the Act aims to "expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law…" (South Africa Child Justice Act, 2008, Preamble). For a general overview of restorative justice at the stages of the criminal justice process in South Africa, see Skelton and Bartley, 2008.
In many countries, restorative justice is most often applied at the pre-trial stage, as a form of diversion from prosecution, particularly in cases concern children. This is the case in several African countries, for example, including Uganda, South Sudan, and The Kingdom of Lesotho, which "use diversionary measures for juvenile justice that involve customary law conflict resolution" (Kilekamajenga, 2018, p. 21). In Uganda, for example, village courts facilitate "reconciliation, compensation, restitution, caution and other restorative remedies for the parties", while in The Kingdom of Lesotho, restorative processes at the grassroots level include "child justice committees" (Kilekamajenga, 2018, p. 21). While restorative practice in both countries is seen as protective of children's rights, it is noted that restorative approaches are rarely made available to adult offenders in Uganda, South Sudan, or The Kingdom of Lesotho (Kilekamajenga, 2018, p. 21). While there is limited scholarship on the use of restorative processes in African criminal justice systems (Robins, 2009, p. 69), several scholars have explored ways of building on existing legal provisions, and customary practices, to further the use of restorative justice in criminal matters in Uganda (Robins, 2009) in Tanzania (Kilekamajenga, 2018).
Example: Ward tribunals in Tanzania
"Tanzania has a long history of reconciliation through ward tribunals"(Kilekamajenga, 2018, p. 22). Tribunals operate at the community level, and comprise four to eight elected members to facilitate mediation in the interests of restoring harmony. All interested parties, and their families, may attend and provide evidence. Accountability mechanisms include "compensation, restitution, apologies, fines, corporal punishment and community service" (Kilekamajenga, 2018, p. 22). Additional resources, and specialised training, are needed to ensure that ward tribunals operate as effective restorative justice mechanisms (Kilekamajenga, 2018).
A recent study of juvenile justice systems in ASEAN Member States found considerable divergence, within the region, regarding the use of restorative justice approaches in instances where children are accused, alleged, or recognised as having breached the law (Raoul Wallenberg Institute, 2015, p. 10). As already identified with respect to The Kingdom of Lesotho and Uganda, children in some ASEAN countries may be diverted to mediation within their own village (Raoul Wallenberg Institute, 2015, p. 10). This is one possible response when a child comes into conflict with law in Laos, for example (Phochanthilath, 2013, p. 69), and also in Vietnam (Ngoc Binh, 2013, p. 189). By contrast, restorative justice processes are governed by statutory and institutional controls in several other ASEAN countries (Raoul Wallenberg Institute, 2015 p. 10). For example, in 1997 the Juvenile Court in Singapore adopted restorative justice as the guiding approach to children in conflict with the law (Chan, 2013). Children may be referred to family group conferencing in instances where the Juvenile Court decides that it would be "in the best interests of the offender" (Chan, 2013, p. 8). In practice, children who are well supported by family, and who have committed less serious offences, are more likely to be referred for a family group conference. It should be noted that, in Singapore, family group conferencing is not a diversionary measure, as referral is contingent on a plea or finding of guilt. Nonetheless, the scheme has demonstrated positive effects, as follows:
The main reason given by juvenile offenders for why they think that family conferencing is useful is because it made them realised they have caused their parents to suffer. This is notable considering that one of the aims of restorative justice is to emphasise to the offender the human dimension of their crime and that others may be affected by the offender's conduct. (Chan, 2013, p. 10)
Example: Victim-offender mediation in Austria
In Austria, victim-offender mediation (called Tatausgleich) can be used as a diversionary measure prior to, or at, a court appearance for offences with a maximum punishment for five years. Further prerequisites for case diversion include that the facts and circumstances of the case have been adequately clarified, the offence is not punishable by imprisonment of less than five years, and the accused is willing to assume responsibility and take measures to compensate for the harm.
Public prosecutors are the main gatekeepers in this process, exercising their discretion to refer cases to restorative processes. Cases are referred to the central provider of victim-offender mediation, NEUSTART, an autonomous body under the Ministry of Justice, which offers further community service measures. In cases where an agreement has been reached and fulfilled, the charge will usually be dropped. If charges have been brought before the court, the judge can decide to close the case after successful completion of the agreement. Mediators take part in comprehensive four-year training, which is given by the central provider (see Gombots and Pelikan, 2015).
The Council of Europe has led on the development of a range of recommendations and documents refer to restorative justice at the post sentence stage (e.g. Council of Europe Recommendation (2018), European Rules for Juvenile Offenders Subject to Sanctions and Measures (2008); and European Prison Rules (2006)). The importance of restorative justice at the later stages of the criminal justice process has also been articulated, at the international level, in the Doha Declaration (article 5 (j)). In practice, however, there is still room to improve the application of restorative practices in the context of prison and probation. Restorative justice in prisons offers promising potential to enhance the offenders' reintegration into the community, prevent reoffending, help generate important social ties and provide victims with a sense of closure (see for example Van Ness, 2007). Research on prison-based programmes has also revealed significant improvements in prisoners' empathy towards victims and attitudinal changes towards offending behaviour (Feasey et al., 2009; Crocker, 2015).
An example worth highlighting is the implementation of restorative practices in prisons in Belgium. The 'Mediation for Redress' Programme, which focuses on serious offending, including rape, armed robbery and murder, is available in all Belgian prisons. It can be initiated upon request of the inmate, the victim, or the victim's family. Furthermore, in Belgium, initiatives have been undertaken to implement a restorative-based model in the prison system, including training for prison staff and the development of specific programmes in prisons (Aertsen, 2015).
Application to serious crimes
In recent years, there has been a growing trend to use restorative justice for cases involving serious crime, including, but not limited to, homicide, serious violent assaults, sexual assaults or gender-based violence. As pointed out by Council of Europe Recommendation (2018), "Restorative justice should be a generally available service. The type, seriousness or geographical location of the offence should not, in themselves, and in the absence of other considerations, preclude restorative justice from being offered to victims and offenders" (CoE Recommendation (2018), Basic Principle 18).
In many countries around the world, the use of restorative justice still tends to be limited to young adults and children in conflict with the law, first time offenders or for relatively minor offences. Yet, there is growing evidence that a restorative justice process can be quite effective in cases involving serious offences or offenders entrenched in patterns of serious crime. Research has shown that restorative justice had the strongest impact in reducing recidivism with high-risk repeat offenders (Sherman et al., 2015).
The implementation of restorative justice programmes in situations involving serious and violent crimes has proceeded very cautiously. There are many reasons for this, including: (i) concerns for the victim's safety; (ii) the fact that there often is a power imbalance between the offender and the victim; (iii) the traumatic impact of the offence on the victim as well as the concern that the restorative justice process itself may compound the trauma; (iv) fear of re-victimization; (v) the need to assess victims and ensure that they are psychologically ready to participate in a restorative justice process; and (vi) the lack of victim assistance services for follow-up support. These concerns are generally present in cases of serious crimes, but they may apply differently depending on the type of offence. Legal and procedural safeguards are therefore of fundamental importance to ensure that restorative justice processes are not detrimental to participants, especially to victims.
Restorative justice and gender-based violence
Similar reasons come into play when restorative justice is applied in situations of gender-based violence. This area remains highly debated, due to aspects relating to power imbalances between the victim-survivor and the offender, the fear of potential manipulation of the process by the offender, possible pressure on the victim to participate in a restorative justice process, a lack of specially trained facilitators, and inherent risks of re-victimization (see for example Daly and Stubbs, 2006; Drost et al., 2015).
Consequently, prerequisites relating to victim safety, voluntariness and informed consent are considered paramount when delivering restorative justice and alternative dispute resolution (ADR) processes. Various international documents refer to the use of restorative justice in the context of gender-based violence, setting out conditions for a safe application.
The Committee on the Elimination of Discrimination against Women has recommended that cases of violence against women, including domestic violence, are under no circumstances referred to any alternative dispute resolution procedure, including mediation and conciliation (CEDAW Committee, General Recommendation 33). The Committee has highlighted that any use of those procedures should be strictly regulated and allowed only when a previous evaluation by a specialized team ensures the free and informed consent of victims/survivors and that there are no indicators of further risks to the victims/survivors or their family members (CEDAW Committee, General Recommendation 35). While restorative justice processes are distinct from other alternative dispute resolution processes, the above-mentioned concerns regarding power imbalances, safety risks, and the critical need for safeguards in cases involving violence against women, are equally relevant to restorative justice processes. Staff must be specially trained to handle cases of gender-based violence. The Commission on the Status of Women has recommended that Member States take the necessary legislative and/or other measures to prohibit compulsory and forced alternative dispute resolution processes, including forced mediation and conciliation, in relation to all forms of violence against women and girls. Similarly, the Council of Europe's Istanbul Convention (2011), which requires States to prevent violence against women and protect its victims, prohibits the mandatory use of ADR processes, including mediation and conciliation. article 48(1) thus allowing its use on the provision that it is based on the free consent of the victim.
In Strengthening Crime Prevention and Criminal Justice Responses to Violence Against Women, the United Nations Office on Drugs and Crime (UNODC) encourages Member States to develop guidelines on the use of restorative justice processes in the context of violence against women, given that the same or greater protection measures should be in place to ensure victim safety. High-risk cases should be excluded, and victims need to be fully informed and consent to the process. Furthermore, referrals to restorative justice should only occur after charges have been filed and the prosecutor or investigative judge has given approval (UNODC, 2014, p. 77).
There is also a body of scholarship that considers the practical challenges, and possibilities, associated with restorative justice in cases of family violence or sexual assault (see, for example, Daly and Stubbs, 2006; Kingi et al., 2008; Ptacek, 2010; Daly, 2011). "A unifying theme [within this literature] is that a standard 'off the shelf' conference model is not likely to be suitable for gendered violence cases unless it is modified appropriately and facilitators are competent and experienced in these cases" (Daly, 2011). Specialised protocols and practices, adapted to the situations gendered violence, are therefore necessary.
In recent years, practice guidelines of this kind have emerged. For example, in 2013, New Zealand published restorative justice standards for cases involving family violence and sexual violence, stipulating that additional safeguards be observed in such cases (Ministry of Justice, 2013; 2018). In Europe, the European Union funded project 'Restorative Justice in Cases of Domestic Violence', coordinated by the Verwey-Jonker Institute in the Netherlands, developed a practitioner's guide on minimum standards for restorative justice in cases of intimate partner violence (IPV) (Drost et al., 2016). The guide sets out principles tailored to the complexity of IPV cases, ensuring that victims are dealt with in a safe and competent way (for a practice guide on restorative justice in sexual violence cases, see: Mercer et al., 2015).
In practice, several countries deal with gender-based violence through restorative justice processes. Austria is considered an example of good practice in family violence and gender-based violence situations, providing high-quality standards and methods to deal with these sensitive issues. Cases are facilitated by a pair of mediators from different genders who have specialized knowledge about family violence. Approximately 20 per cent of victim-offender mediation cases are partner violence related (see Haller and Hofinger, 2015; Drost et al., 2015). In Finland, victim-offender mediation has been used in situations of domestic violence cases since the 1980s. Most mediators are not specialists, but rather trained volunteers with specific knowledge on domestic violence. Inter-agency cooperation between mediation providers, police and public prosecutors is considered to be effective (see Drost et al., 2015; Lünnemann and Wolthuis, 2015).
Research in the field of gender-based violence and domestic violence shows promising results relating to: the satisfaction of participants with restorative justice processes; allowing the victim's voice to be heard; acknowledging the harm they have experienced; and ensuring that they experience a sense of justice (Kingi et al., 2008; Liebmann and Wootton, 2010; Jülich and Landon, 2013; New Zealand Ministry of Justice, 2016; and for a differentiated overview on restorative justice and family violence, see Strang and Braithwaite, 2002).
Empirical research on victim-offender mediation in cases of intimate partner violence conducted in Austria showed high levels of victim satisfaction and the potential for restorative justice to empower women and reinforce processes of change in close relationships (Pelikan, 2000; Pelikan, 2010). 83 per cent of women did not experience further violence over the following 1.5 to two-year period. Most (80 per cent) of these women believed that victim-offender mediation had contributed to the prevention of further violence (Pelikan, 2010). Further research carried out in Austria showed that 2.5 to 3.5 years after taking part in a victim-offender mediation, 84 per cent of offenders had not reoffended, with an even higher rate (89 per cent) in intimate partner violence cases (Hofinger and Neumann, 2008).
A large empirical study in Germany compared domestic violence cases with other cases dealt with by victim-offender mediation, and found that, in cases of domestic violence, restorative justice is as effective as in other cases. Restorative encounters resulted in high levels of agreements (88 per cent) and, in most cases (80 per cent), agreements were completely fulfilled (Bals, 2010).
As practical experiences show, restorative justice offers promising potential in the field of gender-based violence if: safeguards are in place and effectively enforced by institutions that have sufficient capacity and resources to adequately ensure victims' safety; and models of practice are based on the best available knowledge and experience.