This module is a resource for lecturers
Topic four - Issues in implementing restorative justice
Restorative justice and misconceptions of being "soft on crime"
There is a popular perception that restorative justice is "soft on crime" and that a tougher response is needed to deter criminal offending. Some like to see the role of restorative justice being limited to minor offences and cases involving children, and others think restorative justice should not be applied at all when responding to crime. Some contend that victims could feel pressure to participate in a restorative justice dialogue and thereby be denied access to justice.
With respect to the perception that restorative justice might be an "easy way" for offenders, evidence suggests that offenders find it more challenging to meet the victim face to face and realize the impact of their wrongdoing than going to court. Offenders reported about their experiences:
"I think the main fear was looking into the eyes of the people that I'd stolen from. I even had nightmares over it, I was that worried."
"That [restorative justice] was my turning point. When I realised what effect my crimes had on other people, I felt ashamed and embarrassed" (Restorative Justice Council, 2014).
Research shows that restorative justice positively affects satisfaction levels of both victims and offenders, with notably higher rates compared to conventional court proceedings. According to the Restorative Justice Council, 85 per cent of victims who have been through restorative justice were satisfied with the process. By contrast, only 33 per cent of victims felt that conventional criminal justice met their needs (Restorative Justice Council, 2014).
Evidence also indicates that restorative justice, which is based on a relational approach, encourages offenders to take responsibility for their action and make amends, and offers the potential for behavioural changes. It contributes to victims' empowerment by giving them the opportunity to have a voice and be heard, and to be actively engaged in the decision-making process. Even with respect of more serious and complex crime, including gender-based violence, restorative justice has been proven to show successful results.
Research has found that restorative justice contributes to both lower recidivism rates, and reduced costs in comparison to conventional criminal justice proceedings (e.g., Shapland et al., 2007; Shapland et al., 2008; Sherman and Strang, 2007). These findings suggest that restorative justice, if well administered, is consistent with the public interest.
It is important to note that legislation that provides for restorative justice approaches is not, on its own, sufficient to ensure full implementation. Factors related to the specific legislative provisions, funding, public attitudes and awareness, cooperation between providers, and trust in the process can all impact on the quality and accessibility of restorative justice services (see for example Laxminarayan, 2014). More fundamental, however, are the philosophical differences that exist between a restorative approach to achieving justice, and the prevailing ethos of retribution. Notwithstanding, there are several ways to promote wider use of restorative justice in public and social life.
Where restorative justice intersects with criminal justice institutions, legislative and financial provisions are vital to ensure its accessibility and availability. Legislative recognition not only enhances credibility and trust in restorative justice, it can also contribute to a more systematic implementation. Quality of practice cannot, however, be legislated, but must emerge from the practitioner community itself, informed by evidence and responsive to the cultural context. It is important, moreover, that legal preconditions and severity of offence do not restrict the type of cases that are eligible for restorative justice. This also applies to sensitive cases such as sexual and gender-based violence (SGBV), which should not be excluded based solely on the fact that it is GBV, providing that standards of practice can ensure safe involvement of victim survivors. Given that restorative justice is still predominantly used as a diversionary measure in many countries, the focus should be on expanding the use of restorative processes to other stages of the criminal justice process, including sentencing and rehabilitation and reintegration.
At the national level, various countries have introduced practice standards relating to the use of restorative justice. For example, the United Kingdom Restorative Justice Council has released the 'Best Practice Guidance for Restorative Practice' (2011) and, with the publication of 'Restorative Justice Best Practice Framework' (2017), the New Zealand Ministry of Justice has updated its practice standards, setting out guiding values, principles and standards for the use of restorative justice at any point in the criminal justice process. As mentioned previously, it is also important to note the emergence of specific restorative justice standards for family violence cases and sexual violence cases have been developed, both in New Zealand (Ministry of Justice 2013; 2018) and at the European level (Mercer et al., 2015; Drost et al., 2016).
The promotion of restorative justice requires strategies for raising awareness among justice officials such as police, prosecutors and judges, as well as for fostering increased understanding about restorative justice in society more generally. Criminal justice officials need to be aware of restorative justice programmes and basic restorative justice principles to facilitate appropriate referral to services. Citizens need to be more informed about the options available to them in resolving their disputes or conflicts. This does not preclude the conventional options of court and sanctioning, but the community ought to be made aware of processes, and avenues of access to services, that may be more likely to meet their need for acknowledgment, emotional and psychological repair, and the opportunity to make amends.
There is considerable evidence to show a strong association between knowledge and attitudes: people who know the least about alternative resolution processes tend to hold the most punitive views, while those who are provided additional information about various alternatives tend to favour them over traditional punishment (Pali and Pelikan, 2010). Increased knowledge about restorative justice processes as quality alternatives, or complements, to conventional criminal justice proceedings, is key to promoting enhanced access to restorative justice processes.
Relationship to indigenous communities and 'intercultural' aspects
The question of access to justice, including equal access to restorative justice, is particularly relevant in countries dealing with the legacy of colonization and overrepresentation of indigenous populations in the criminal justice system.
While early advocates for restorative justice may have been inspired by indigenous traditions of justice, and may continue to share key traits such as participation, indigenous justice and restorative justice are not the same. For instance, many restorative justice programmes fail to consider the important differences between indigenous peoples (Cunneen, 2011) and overlook significant features of many indigenous legal traditions, such as the high importance placed on spirituality and use of kinship networks (Chartrand and Horn, 2016). In recent decades, the increase in the use of restorative justice within the conventional criminal justice system has raised questions about the extent to which indigenous peoples enjoy access to restorative justice processes in ways that meets their needs. This is further compounded by the widespread and deeply ingrained problems of structural racism or systemic bias present in Western criminal justice systems that have been widely reported. Some scholars have identified that indigenous people have less access to diversionary and restorative justice measures due to systematic biases within criminal justice processes (see, in particular for the Australian context, Blagg, 1997; Cunneen, 1997; Cunneen, 2006). Similarly, persons with an immigrant background or refugees are reported as having more difficulties in obtaining access to restorative justice services (Pali, 2017). Evidence of this kind points to the fundamental need to eliminate any form of discrimination that compromises equal access to justice, including access to restorative justice processes.