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   This module is a resource for lecturers   

 

Topic one - Concept, values and origin of restorative justice

 

Before looking at the concept of restorative justice, the Module explores how conventional criminal justice systems seek to achieve justice.

The criminal justice system and legal justice

Conventional criminal justice systems focus largely on applying the law, assessing guilt and administering punishment. Certain acts are classified as 'crimes' because they are considered to be offences against society at large, not just against individual victims. They are thought of as public wrongdoings rather than private and, accordingly, criminal justice systems respond on behalf of society as a whole. Conventional justice responses to crime tend to focus on punishment, deterrence, denunciation, retribution, and community safety for breaches of the law, considerations which have to be balanced by the court in the process of sentencing. It is worth noting, however, that rehabilitative goals, particularly for children, have gained importance over past decades. Goals of rehabilitation are reflected, for example, in the Convention on the Rights of the Child (1990), which places emphasis on diversion from formal proceedings and the use of alternative measures whenever appropriate (article 40 (3)(b) as well as on the child's reintegration, article 40 (1)).

Punishment is the primary way that society denounces a criminal act as violating the shared norms on which society depends. The severity of the penalty is meant to be proportionate to the seriousness of the act committed, thereby rectifying the moral imbalance created by the offence. Because punishment is concerned with the infliction of pain or the withholding of certain liberties, which must be carefully and justly applied, criminal justice procedure has a range of in-built legal safeguards. To be considered 'just', punishment must be both morally deserved and proportionate to the gravity of the offence.

In recent decades, efforts to strengthen the role of victims in criminal proceedings have seen the introduction of various mechanisms for victims to "inform the court about the harm caused by the offence" (Erez, 1994, p. 63). While these mechanisms differ, depending on the legal system and the legislation in place in each country, it is largely the case that conventional criminal justice systems provide limited scope for the relevant parties to engage in dialogue with the aim of restoring respect and trust in relationships. Safeguards introduced through victim-focused reforms have been found to be partial, meaning that victims could still experience secondary victimization by the court process and/or as a result of measures to strengthen victims' rights (see Dignan, 2005). For example, victims' expectations have not been met in cases were compensation was ordered but not paid to victims, or where financial compensation does little to meet victims' psychological and emotional needs. Limited implementation of victims' rights is also shown by a Victim and Witness Satisfaction Survey conducted in the United Kingdom, in which only 35 per cent of victims gave a personal statement to the court (Wood et al., 2015). Results from the same survey show that one fifth of victims reported feeling dissatisfied with the extent to which they were informed during the criminal process, and 19 per cent of victims expressed dissatisfaction with the Crown Prosecution Service (Wood et al., 2015). For further information, see Module 11 on Access to Justice for Victims.

 

Meeting justice needs

In contrast, restorative justice is an approach to crime that focuses on trying to repair the harm that it has caused by involving those who have been affected. It understands crime not only as a legal infraction that requires public condemnation, but also as an injury to real people and relationships that needs healing. Those caught up in the event are left with a range of physical, emotional, psychological, spiritual and material needs, and these so-called 'justice needs' have to be addressed if they are to feel that justice has been served.

Victims

Victims often have the most visceral needs. To be the target of some deliberate malice or violation by another person can have a profound impact on a person's sense of well-being and self-worth. Victims are frequently left feeling bewildered, demeaned, used, angry and insecure. Their sense of freedom is constricted by fears and anxieties, by anger and bitterness, as well as sometimes by physical or material losses. The pain of the offence and the memory of the offender has the potential to exercise a debilitating influence over the victim's entire life.

Historically, the criminal justice system has given scant attention to the needs of victims. This is because victims are almost incidental to the judicial process since, in most modern criminal justice systems, the designated "victim" of the offence is the state, not the actual person injured, and the criminal charge is one of breaking the law, not harming the person. The role of the injured party is simply to give evidence on behalf of the prosecution and, beyond this limited role, victims are not typically given a stake in the process. Often, victims may not even need to be personally present during the trial, since the criminal process is not really about them, it is about the law. Consequently, when victims look to the courts to deliver them a sense of justice - as instinctively they do - they are frequently disappointed.

Offenders

Offenders also have justice needs. They need a fair trial and due process. They need to come to terms with the consequences of their actions and be held accountable for them. They need their full humanity to be acknowledged, not just their darkest deeds, and they often need help in addressing their own legacy of trauma, disadvantage and victimization. They also need the opportunity to make amends for their crime and be accepted back into the law-abiding community.

In principle, the justice system consciously tries to address the needs of offenders, especially their need for a fair trial. However, in practice, the dominant goals of the system, in determining guilt and apportioning punishment, often eclipse any attempt to address the full reality of the offender's experience and needs.

The friends, families, colleagues, associates and other members of the community of both the victim and the offender are also often affected by what has happened (see UNODC Handbook on Justice for Victims, 1999; and Module 11 on Access to Justice for Victims). The harm ripples out to touch their lives in a variety of ways. While the justice system is intended to act on behalf of the interests of the community at large, it does little to involve community members in addressing the causes and consequences of behaviour that has caused such havoc.

The impact of crime, therefore, creates a complex range of justice needs for the people involved - needs which the conventional justice system struggles to meet adequately. That is not to say that the system is totally indifferent to these needs. To find a meaningful sense of justice, victims frequently need their abuser to hear of their pain, answer their questions, reassure them of their safety, and affirm their dignity. Conversely, offenders need the victim to disclose the human consequences of their actions, to hear their remorse and receive their apology, and to give them a chance to make things right again. Both parties, in other words, hold important keys to the other's restoration - both have a role in meeting the other's justice needs and in transforming their relationship into a healthier condition.

This is where restorative justice has something special to offer. It brings together those affected by an incident of wrongdoing to name the wrong that has been done, to describe the needs it has created, to identify the obligations that now exist, and resolve together how best to repair the harm and prevent recurrence. It is these things that matter mostfor the individuals involved, and for society as a whole.

 

What is restorative justice?

How can the concept of restorative justice be understood, and what are the underlying values and principles at the heart of this approach?

Restorative justice refers to a way of responding to crime, or to other types of wrongdoing, injustice or conflict, that focuses primarily on repairing the damage caused by the wrongful action and restoring, insofar as possible, the well-being of all those involved. It reflects a more relational theory of justice because it emphasizes the restoration of respect, equality, and dignity to the relationships affected by wrongdoing. Restorative justice is called 'restorative' because it employs restorative processes, that is, processes that restore agency, ownership and decision-making power to those directly affected by the harmful event - victims, offenders, their supporters and the wider community. Rather than deferring all responsibility to the state or to legal professionals, it aims to engage the immediate participants in resolving the harm.

Restorative justice is also called restorative because it is guided by restorative values, those that favour collaborative and consensus-based procedures over the adjudicative and adversarial forms that often characterize conventional criminal justice procedures (Robins, 2009). When people who have caused injury are invited to truthfully acknowledge their wrongdoing, listen respectfully to those they have hurt, and honour their duty to put things right again, significant steps are taken to restoring dignity and meeting the needs of all parties. Furthermore, restorative justice is also grounded in feminist relational theory, based on the relational nature of human beings and "an understanding of the self as constituted in and through relationships with others" (Llewellyn, 2012). It views wrongdoing in relational terms, as "harm caused to individuals in relationship with others and in the connections between and among them".

The definition of restorative justice cited in the Key Terms of this Module, includes a range of key values, such as 'voluntary' participation, 'truthful' speaking, the creation of a 'safe and respectful' environment, a positive commitment to 'repair' and a concern to 'clarify accountability for harms'. This is not an exhaustive list of core values, but it highlights how crucial relational values are to a restorative process.

Respect is of particular importance (Zehr and Gobar, 2003). Criminal offending, and other kinds of injustice, are experienced fundamentally as an act of disrespect, a failure to value one's inherent dignity, identity, rights and feelings. This disrespect can only be remedied by respect, by a clear acknowledgement on the part of the offender that the victim did not deserve to be treated as they were, and that their rights, feelings and interests matter every bit as much as those of the perpetrator. "Restorative justice offers an alternative vision criminal justice and rightly locates the interests of victims of crime at its core" (Chan, 2013, p. 19).

While acknowledging the harm to victim/s is crucial, accountability also means assuming responsibility for addressing the consequences of one's actions (Zehr and Gobar, 2003). When the criminal justice system holds someone accountable, this means ensuring they get the punishment they deserve, irrespective of whether they accept personal responsibility for what happened. In restorative justice, accountability has a much more demanding character. It requires three things of offenders: an acceptance of personal blame for inflicting harm; a willingness to witness first-hand the consequences of their actions on the lives of those they hurt; and an assumption of active responsibility for doing all they can to put things right again (Zehr and Gobar, 2003).

 

Origin and development of restorative justice

The dialogical and restitutive character of restorative justice is not unique. Similar values and processes are reflected in several indigenous cultures. An early pioneer of restorative justice, Howard Zehr, argued that prior to the emergence of the nation state, wrongdoing was primarily viewed in an interpersonal rather than a legal context. This era of community justice was far less systematic and generally had a restitutive character. The personal, customary and negotiated features of community justice were eventually replaced by a more institutionalized and centralized system of legal justice. Rather than communities, the state had responsibility to enforce a system of laws and punishments (Zehr, 1990).

By contrast, most indigenous traditions viewed wrongdoing in profoundly communal rather than legal terms. This created a collective responsibility to respond to the harm caused by wrongdoing, involving a much wider web of relationships surrounding both offender and victim. These traditions have influenced the modern development of restorative justice, as highlighted in the preamble to the Basic Principles (2000): restorative justice "often draws upon traditional and Indigenous forms of justice, which view crime as fundamentally harmful to people." Arguably, one of the greatest harms perpetrated by European colonialism was replacing indigenous mechanisms of social regulation and belonging, with an abstract, law based system of state control and coercion.

The modern concept of restorative justice developed in the 1970s in North America, when the first restorative justice programmes emerged. In 1974, two probation workers in Kitchener, Canada, brought victims and offenders of a vandalism case together to deal directly with the wrongdoing and discuss ways to repair the harm. This successful experiment led to the establishment of the Victim-Offender Reconciliation Program (VORP) under the auspices of the Christian Mennonite Committee, and provided the inspiration that led to other innovations in North America and beyond. As the programme grew and developed over the following decades, it generated a new paradigm for thinking about crime that eventually became known as 'restorative justice'.

Around the same time that restorative justice was developing in North America, there were similar developments occurring in Europe. Norwegian criminologist Nils Christie, one of the representatives of the abolitionist movement in Northern Europe, voiced his critique of the criminal justice system in his article "Conflicts as Property" (1977). He argued that the concept of crime was an abstraction that should instead be understood as conflicts between actual people. Moreover, people have a proprietorial right to their conflicts. What transpires in the criminal justice process is that legal experts have stolen these conflicts away from the parties to which they belong, thereby denying victims and offenders the right to participate in the resolution of their case.

Christie argued that conventional criminal justice processes do not meet the needs of victims, offenders, and the wider community and, rather, those with a personal stake in a case should be empowered to take ownership of their personal conflicts to better meet their needs. The abolitionist thinking of Christie and other scholars (e.g., Louk Hulsman and Herman Bianchi) contributed to the theory of restorative justice and influenced its development, particularly in Northern and Central European countries (e.g., Norway, Finland, Austria).

The emergence of restorative justice has also paralleled other reforms and innovations in criminal justice, in particular: the influence of the victims' rights movement; and attempts to strengthen the role of victims in criminal proceedings (justice for victims is examined in further detail in Module 11). Diversionary and rehabilitative approaches in sentencing have also impacted on the development of restorative justice and, in some cases, culminated in the introduction of legislative provisions for the delivery of restorative justice services, particularly for children in conflict with the law.

The reform of the youth justice system in Aotearoa, New Zealand following the passage of the 1989 Children, Young People and their Families Act is sometimes misconstrued as a conscious attempt to recover Māori customary methods of dealing with family or tribal conflict. Nevertheless, it was awareness of the devastating impact of the mainstream European justice and welfare systems on Māori children, in particular, that provided the impetus for youth justice responses that are more participatory, family-based, and more compatible with indigenous values. This led to the birth of Family Group Conferencing, an innovation that has played a significant role in promoting restorative justice throughout the criminal justice system of New Zealand and in other parts of the world (for analysis of the influence that Family Group Conferencing has had in Thailand, for example, see Roujanavong 2005).

In addition to its application in the field of criminal justice, restorative justice has informed practice in other areas, such as child protection, educational settings (see for example Karp and Schachter, 2018; Sellman et al., 2013; Thorsborne, 2008; Hopkins, 2004), workplace disputes (e.g., Dekker and Breakey, 2016), family conflicts (e.g., Daicoff, 2015), environmental issues (e.g., Stark, 2016), elder harm (e.g., Groh, 2003), and in post-conflict settings (e.g., Aertsen et al., 2012; and Valiñas and Vanspauwen, 2009. See also Braithwaite and Tamim, 2014, for analysis of lessons regarding the utilisation of restorative justice in post-conflict Libya).

A significant limitation, in the field of restorative justice, is that much of the academic scholarship on restorative practices derives from, and relates to, the contexts of Europe, North America and countries such as Australia and New Zealand. Accordingly, it is often the programmes in these countries that are well known. Yet scholars have also noted the importance of furthering research on restorative practices that build on traditional or customary restorative processes in regions such as Asia (Chan, 2013); and Africa (see, for example, Park, 2010, on Sierra Leone; Robins, 2009, on Uganda; and Kilekamajenga, 2018, on Tanzania), and countries such as Pakistan (see Dzur, 2017, for example, for an interview with Ali Gohar). A leading restorative justice advocate, Ali Gohar, has worked extensively to highlight the complementarity of restorative justice, and the indigenous system of Jirga (a community based conflict transformation approach in the Pukhtoon belt of Pakistan) (See, for example, Dzur, 2017; Zehr and Gohar, 2003; and the website of the Just Peace Initiatives). Further illustrating that restorative practices are most effective when shaped according to local specificities, community-based reconciliation committees in Abbotobad, Pakistan, have been found to provide effective justice responses and redress serious tensions within the community (see the following film, Niazi, 2009).

 

International framework relating to restorative justice

Of considerable importance for promoting restorative justice at the global level are the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (2002), which provide standards and safeguards on the use of restorative justice initiatives. As emphasized in the Basic Principles, restorative justice is "an evolving response to crime that respects the dignity and equality of each person, builds understanding, and promotes social harmony through the healing of victims, offenders and communities" (Economic and Social Council Resolution 2002/12, preamble).

Furthermore, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1989) underlines the value of informal dispute resolution processes to enhance conciliation and redress for victims (for further information see Module 11 on Access to Justice for Victims).

Restorative justice values are also reflected in other United Nations documents, such as the (legally binding) Convention on the Rights of the Child (1989), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice - the 'Beijing Rules' (1985), the United Nations Guidelines for the Prevention of Juvenile Delinquency - 'Riyadh Guidelines' (1990), the United Nations Standard Minimum Rules for Non-custodial Measures - the 'Tokyo Rules' (1990), and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders - the 'Bangkok Rules' (2010). These documents encourage Member States to promote greater community involvement when responding to offending, and to enhance diversion and alternatives to imprisonment.

The 2015 Doha Declaration (GA Resolution 70/174) emphasizes the importance of restorative justice in the resolution of social conflict through dialogue and mechanisms of community participation, as well as in the area of prisoner reintegration (article 5(j) and 10(d)).

In Europe, guiding documents adopted by the Council of Europe (CoE) and the European Union promote the use of restorative justice. Of particular importance is the Council of Europe Recommendation (2018) 8 concerning restorative justice in criminal matters, which replaced Recommendation Rec No. (99) 19 concerning mediation in penal matters. The 2018 CoE Recommendation aims to promote the development and use of restorative justice in the criminal justice context, and elaborates on standards for its use, encouraging safe, effective and evidence-based practice. Moreover, the document aims to integrate a broader understanding of restorative justice and its principles than is laid down in the 1999 Recommendation. A further aim is to elaborate on the use of restorative justice by prison and probation services (see Commentary to recommendation CM/Rec (2018)). The recommendation emphasizes a broader shift in criminal justice across Europe towards a more restorative approach.

Furthermore, the European Union Victims' Rights Directive (2012) establishes minimum standards on the rights, support and protection of victims of crime and underlines the potential of restorative justice programmes. This legally binding and enforceable instrument can be considered a milestone in providing protection and assistance to all victims of crime in European Union Member States. It replaced Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings, which required Member States to make legislative provision for victim-offender mediation. This Framework Decision was relevant in several European countries to introduce mediation in penal matters and acknowledge the impact of restorative outcomes within criminal proceedings.

The Council of Europe Recommendation (Rec (2006) 2) concerning the European Prison Rules highlights the importance of restoration and mediation to resolve disputes with and among prisoners (2006, Rule 56.2), as well as when dealing with complaints and requests from prisoners (2006, Rule 70.2).

For children in conflict with the law, in particular, Council of Europe Recommendation No. R (2003) 20, concerning new ways of dealing with juvenile offenders and the role of juvenile justice, and Recommendation (2008) 11 on European Rules for Juvenile Offenders Subject to Sanctions or Measures (ERJOSSM) both refer to the use of restorative justice and reparation. Recommendation No. R (2003) 20 emphasizes the use of more innovative and effective responses when dealing with serious and violent offending, and encourages the use of mediation, restoration and reparation to the victim (article 8). The 'European Rules for Juvenile Offenders Subject to Sanctions or Measures' recommend that mediation and other restorative measures should be available at all stages of the criminal procedure, including at sentencing (2000, Basic Principle 12). The promotion of alternatives to judicial proceedings, particularly mediation, diversion and alternative dispute resolution, is further emphasized by the Council of Europe Guidelines on Child Friendly Justice (2010, No. 24). At a regional level, the Lima Declaration on Restorative Juvenile Justice (2009) aims to strengthen the implementation of restorative approaches in Latin America.

In addition to this guidance, devised largely at the international and regional levels, it is equally important to note that traditional and grassroots practices within communities are often based on restorative processes. Indeed, scholars have identified that effective restorative practices require a combination of importance grassroots principles about community justice, and broader mechanisms of conventional or restorative justice (see, for example, Robins, 2006, with respect to Uganda; and Kilekamajenga, 2018 with respect to Tanzania).

 

Safeguarding principles for restorative justice processes

The Basic Principles provide fundamental safeguards for victims and offenders, such as the right to be fully informed of their rights, the process and possible consequences of their decision, the right of minors to the assistance of a parent or guardian, and the right not to participate in a restorative process (2000, Basic Principle 13).

As stipulated in the Basic Principles, restorative processes should always be based on the free and voluntary consent of both the victim and the offender, and they should be given the option to withdraw their consent at any time during the process (2000, Basic Principle 7). Participation of an offender should not be used as evidence of guilt in subsequent legal proceedings (2000, Basic Principle 8).

As further emphasized in Basic Principle 15 (2000), outcomes of restorative processes should be judicially supervised or incorporated into judicial decisions or judgements and, in such cases, should have the same status as any other judicial decision or judgement. In cases where an agreement between parties at a restorative dialogue cannot be reached, this failure should never be considered to the offender's detriment (2000, Basic Principle 16), and failure to implement an agreement should never result in a more severe sentence in subsequent criminal proceedings (2000, Basic Principle 17).

Further key principles refer to impartiality of facilitators, respect to the dignity of parties and awareness of local cultural matters (2000, Basic Principles 18 and 19). Solutions should be proportionate and reasonable and agreed by all parties.

Moreover, the Basic Principles recommend that guidelines and standards on the use of restorative justice should be developed and include provisions about referral conditions and the handling of cases, the skills and training of facilitators, the administration of restorative justice and rules of conduct relating to how restorative justice programmes operate (2000, Basic Principle 12). Such standards are important to ensure the high quality of practice and promote equal access to services.

 

Research relating to participant satisfaction

In terms of participants' experiences with restorative processes and outcomes, numerous research studies have revealed high levels of satisfaction among victims and offenders (Shapland et al., 2007; Umbreit et al., 2008; Strang et al., 2013; Bolivar et al., 2015; Doak and O'Mahony, 2018; Hansen and Umbreit, 2018).

An evaluation of three restorative justice schemes in the United Kingdom found high satisfaction rates for both victims and offenders - 85% of victims and 80% of offenders were very or quite satisfied with restorative justice processes (Shapland et al., 2007). Participants also expressed high levels of satisfaction with restorative justice outcome agreements. Ninety percent of victims reported that their offenders had apologized.

Victims participating in restorative conferences reported:

"I was really pleased with what the offender said. He was sincere. There were some tools taken and I discovered where they were. He owned up to it."

"I felt the conference was quite productive, he signed an agreement about drug awareness, he's going to write to me of his progress, and by April he's agreed to pay back the money he stole. I'm glad I didn't hit him, I took pity on him really, when I walked into the room and saw his mother and girlfriend crying. I am pleased with the outcome provided he doesn't renege on it."

Offenders were also satisfied with the impact of the conference on them:

"It went surprisingly well to be honest - did not think that it would actually be like this. Actually he (the victim) was pretty OK with me considering what I did."

"Nervous about taking part, quite panicky, but after I started to relax I felt really good to be there and see the person I troubled. I felt we had achieved something - both myself and the victim."

Consistent with international findings, the New Zealand Victim Satisfaction Survey (2016) showed that 84 per cent of victims were satisfied with the restorative justice conference they attended, and 81 per cent reported they would be likely to recommend restorative justice to others in a similar situation. The survey revealed even higher levels of satisfaction of victims in family violence cases (87 per cent) compared to those in non-family violence cases (82 per cent). The study also indicated that 81 per cent of respondents thought that the conference was a good way to deal with the offence committed against them, and three quarters of victims could name at least one way that restorative justice had benefited them. Most victims (91 per cent) said they felt safe at the restorative justice conference.

Research has further revealed that restorative justice contributed to lower levels of fear and post-traumatic stress symptoms among victims, and that victims have a lower desire for revenge after going through a restorative process (Sherman et al., 2015).

 

Impact of restorative justice on recidivism

In addition to the above-mentioned research, numerous studies have indicated that restorative justice contributes to reducing recidivism among offenders (e.g. Sherman and Strang, 2007; Bonta et al., 2008; Shapland et al., 2008; Sherman et al., 2013; Sherman et al., 2015).

In their evaluation of three restorative justice schemes in England and Wales, Shapland et al. (2008) found that those offenders who participated in restorative justice committed significantly fewer offences in the following two years than offenders in the control group. Offenders' experiences with the conference, such as realizing the harm they caused, actively engaging in the process, and communicating with victims, had a significant impact on decreased subsequent offending.

The New Zealand Ministry of Justice Reoffending Analysis for Restorative Justice Cases 2008-2013 showed that the reoffending rate for adult offenders who participated in restorative justice was 15 per cent lower, over the following 12-month period, than comparable offenders, and 7.5 per cent lower over three years (New Zealand Ministry of Justice, 2016). The study found reduced reoffending across various types of offences, including violence and property related offences.

 
Next: Topic two - Overview of restorative justice processes
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