2.1 Introduction
Restorative justice has in recent years attracted considerable attention among those with an interest in reforming the criminal justice system. Earlier social movements, social practices and theoretical perspectives, have all contributed to this worldwide enthusiasm for restorative justice to be adopted by governments and communities alike. As McCold (2000: 358) argues 'restorative justice has come to mean all things to all people'. It is not easily defined because it encompasses a variety of practices at different stages of the criminal justice process, including diversion from court prosecution, actions taken in parallel with court decisions and meetings between victims and offenders at any stage of the criminal process (for example arrest, pTe·
sentencing and prison release). Given its extraordinarily diverse meanings and the contexts in which it has been applied, it is important for analytic purposes to bound the term to a particular context and set of practices (Daly. 2002: 57-58).
Restorative approaches to justice have developed through practice and will probably continue to do so. As a consequence there is no single notion of restorative justice, no single type of process, no single theory. It is used extensively in countries with diverse cultures and legal systems, attracting community activists and policymakers both as a way of trying to heal past conflict and wrongs and as a way of incorporating greater awareness of different cultural traditions.
2.2 Restorative justice: An overview
The roots of the modern restorative justice movement are derived from two principle sources. Firstly, the realization in ancient societies that making up for a wrong done is good (or all parties concerned. The second principle based on intellectual inspiration came (ram writers who argued that most crimes are an attack on the individual victim (rather than the state or the community at large) and that the victim has been sidelined, if not completely displaced in the modern Western trial, where it is the state (and not the victim) that brings proceedings against the offender. Nils Christie's paper, 'Conflicts as Property', has been described by Braithwaite as 'the most influential text of the contemporary restorative tradition'. Christie argued that criminal conflicts have progressively become other people's property. Conflicts provide an opportunity for participation.. for the clarification of values and principles, and in the criminal justice setting. an opportunity for victims to gain a better grasp of their experience thereby reducing their anxiety through contact with the offender. He advocates a model of neighbourhood courts which would be strongly victim orientated (Christie. 1977: 10-11).
Crawford in his 'sympathetic critique' o( Christie's 'sacred text' cautions that much of his thesis has been misinterpreted and misunderstood. Some of its flaws are inter-alia
the oversimplification of the relationship between community and state and the undue nostalgia for 'unregulated community seU regulation (Crawford, 2002: 103). He further points out that careful reading of Christie's text reveals the importance that even he accords to the role of legality and the state within restorative justice. The state's role is vital in balancing the interests of the different parties-victim, offender and community. The central idea drawn from Christie and publicised by restorative justice advocates the world over, is that of the 'theft of conflicts from victims and the public'. This notion tends to perpetuate the powerful 'myth of the sovereign state' where the state is seen to have a monopoly on the provision of social control.
The fact that there is insufficient good (historic and contemporary) research into informal conflict regulation within communities by non-state actors, outside the shadows of the courts and police, does not mean that it does not occur and that lessons cannot be learnt from them (Crawford, 2002: 103-106). Furthermore, informal dispute resolution is not necessarily preferable to formal legal processes. Experience from history shows that the 'rule of law', with its emphasis on due process and individual rights, is preferable to arbitrary power and abuse of power (as was experienced in the 'kangaroo courts' of the late 1980's and early 1990's in South African townships).
'Much of this community justice was labeled 'political' and took the form of people's courts and 'necklace' executions of political opponents' (Minnaar, 2002: 118). Informal bodies, established with the best of intentions during the periods when formal state criminal justice was both inaccessible and illegitimate, often departed from their original aspirations and imposed progressively harsher punishments (Roche, 2002:
520).
Thompson (in Crawford, 2002: 107) views due process and the rule of law, with their principles of equity and universality, as an 'unqualified human good'. Crawford (2002: 107) concludes that
... much restorative justice literature has conveniently ignored the earlier debates on the limitations of 'informal' and popular justice ... , and that extra- legal forms of social control can appear in both desirable and undesirable guises with malign and benign consequences.
Restorative justice owes part of its popularity to the widely acknowledged shortcomings of the modem cri.mina.l justice system, a defining characteristic being the marginal role played by the people most directly affected by the crime.
The state is not just the arbiter in a trial between victims and offender, the state is the victim ... U victims feel that nobody cares about their suffering. it is in part because institutionally nobody does (McBarnet in Roche, 2004: 8).
On those occasions where victims are called upon as witnesses they are expected to provide a 'calm, deadpan recitation of 'facts'. Offenders at least are present in the courtroom and may at some point be given the opportunity to speak (Roche, 2004: 8).
Since the publication of Christie's essay a number of authors have sought to develop more fully theorized versions of non-retributive forms of justice and to promote practical experimental initiatives. In 'Changing Lenses', Howard Zehr38 was among the first to develop an alternative justice paradigm in which it was proposed that
II Zehr H Changing Lenses: A new Focus/or Criminal Justice (1985).
victims should play a much more central role and offenders should assume greater responsibility for their actions and for repairing the harm caused. Zehr's early work placed great emphasis on victim offender mediation, which became particularly influential in the United Kingdom from the late 1980's onwards (McEvoy and Newburn: 2003: 3).
In its origins the restorative justice movement derived from the infonnal justice movement Many informal initiatives are benchmarked against the state. The concept developed particularly in the 1970's and 1980's to describe the shift towards community justice, de-legalization and informal dispute processing. Abe1 (in Feenan, 2002: 3) refers to it as 'nonwbureaucratic, de-professionalized, commonsensical, flexible and adwhoc'. It may be described as a reaction against all formal institutions, recently evident in the proliferation of centres for law, mediation, aIbitration and conciliation.
I t was also linked to the wider access to justice movement.
Restorative justice theory offers a conceptual framework that may reconcile apparently inconsistent criminal justice norms and standards. These inconsistencies may simply reflect a paradigm shift from a legalistic understanding of crime to a model that recognises the injuries to victims and communities as well (Van Ness in Galaway and Hudson. 1996: 17).
Legal experts argue that the formality of the courts, their adherence to an adversarial model. strict rules of procedure, and reliance on adjudication, render them inappropriate for handling many disputes in interpersonal social relationships. The restorative justice movement therefore has gained part of its strength from the perceived deficiencies of the courts. However, initiatives and attempts to implement wider adoption of restorative justice practices over time has shown that while many discussions on the subject include a critique of the state, in practice it often operates within the general parameters of the state administration of justice.
The modem development of restorative justice began in response to the first victim offender mediation programmes that developed in the mid 1970's in Canada. These started as an alternative to probation for young offenders and expanded into pre- sentence programmes that allowed the victim and offender to construct a sentencing proposal for the judge'S consideration. It was assumed that offenders would benefit from this exposure to the needs of the victim and this would both reduce recidivism as well as increase the likelihood of restitution being completed. What was not expected was that crime victims would benefit from this approach, reporting higher satisfaction levels than with the traditional court process (Morris and Maxwell, 2003: 4).
Practitioners and observers concluded that it was because victims were essentially nonwparticipants in traditional criminal justice processes that dissatisfaction arose.
They may be called in as witnesses but were neither decision makers nor active participants. Although the proceedings in court revolve around offenders, even their role is essentially passive. Generally defendants' lawyers are the active participants (Morris and Maxwell, 2003: 4). Today, criminal justice systems are giving more weight to the needs and wishes of victims3'. This shift in emphasis comes with the acreptance
)9 See a detailed discussion on this below.
that the criminal justice system has failed to reform and/or deter offenders and hence provide alternative justifications for interventions (Morris and Maxwell, 1993: 77).
Restorative justice as a framework for working with victims and offenders in the aftennath of crime has been adopted in a variety of processes and contexts over the years in many countries throughout the world.
2.3 International developments in restorative justice
The range, diversity and geographical spread of restorative justice initiatives in recent years have grown remarkably in Australia, Canada, England, New Zealand and other countries. Even more important, is its influence on the direction of criminal justice policy making at almost every level internationally and nationally, within a broad range of criminal justice agencies that include the police, prosecutorial services, judiciary and correctional services.
In August 2002 the United Nations Economic and Social Council adopted a resolution calling upon member states that are implementing restorative justice programmes to draw on a set of Basic Principles on the Use of Restorative Justice Programmes in Crimina] Matters. In 2005 the Eleventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders urged member states to recognise the importance of further developing restorative justice policies, procedures and progranunes that include alternatives to prosecution.
The restorative justice movement has yet to develop a common globa1 agreement on the particular rules that should apply to programmes. The basic principles were written as principles, designed to give guidance and not to impose rules or standards on countries. Consequently there is no obligation on member states adopt restorative justice. However, it does make it possible for countries considering implementing programmes to draw upon the experiences of other countries (Van Ness, 2003: 166).
Of particular relevance are the following important principles as contained in the Compendium of United Nations Standards and Nonns in Crime Prevention and Criminal Justice:
States must ba1ance the interests of victims, offenders and the public.
Victims and offenders must have access to fonnal and informal dispute resolution mechanisms.
Crime prevention requires comprehensive action by government and the community.
Government's role in responding to particular crimes should be to provide impartial, formal judicial mechanisms for victims and offenders.
The community's role must be to help victims and offenders reintegrate.
2.3.1 Canada
With the exception of Australia and New Zealand, restorative justice has evolved more rapidly and sunk deeper roots in Canada than any other country. Canada was the site of the first modern victim-offender reconciliation programme, as weU as Aboriginal healing circles. Sentencing developments that have been influenced by restorative justice include the use of sentencing circles to assist a judge in detennining an
appropriate and just sanction, and the statutory recognition in 1996 of reparation and acknowledgement of harm done to victims and the community, as new objectives of sentencing. The first organised victim·offender reconciliation programme involving informal and voluntary face-.to--face meetings between offenders and victim was established.
Aboriginal justice initiatives, such as Hollow Water Holistic Healing Project in Manitoba, and Toronto Community Council Project, have exercised an important influence on the restorative justice movement. These exist outside or at the frontiers of the criminal justice system and can be seen as a form of legal pluralism or alternative dispute resolution. Street committees and community courts that operate in South African townships also operate outside the formal system.
The most well known initiative in Canada is circle sentencing, in which the circle developed a consensual solution beneficial to the victim, the offender and the community to which both parties belonged. It represents a more communitarian response to offending. As part of the statutory statement of sentencing purpose and principle, Canada in 1996, codified three sentencing principles: proportionality, restraint, equity. A judge presides over the circle and is ultimately responsible for the imposition of the sentence. There is an absence of evaluation of how sentencing circles affect offender recidivism, and female crime victims, who may be vulnerable to gender and power imbalances in the rude. Some Aboriginal commentators have objected to the power retained by the trial judge and the danger of discrimination against Aboriginal women who have been victims of crime (Roberts and Roach, 2003: 244).
2.3.2 New Zealand
New Zealand has gone further than most countries in their expanded use of restorative justice. New Zealand's interest in restorative justice has been driven primarily by practitioners, not by policy makers or academics. The Children's, Young Persons and Their Families Act of 1989 introduces the family group conference (FGC) for young offenders. Today the principle model of restorative justice is the restorative justice conference, either a FGC (for youth) or a community conference (for adults).
For adult offenders, this is usually at the discretion of individual judges and through pilot programmes.
Family group conferences are used for all medium-serious and serious offending by young people (except murder and manslaughter). In 1995, pilot schemes such as Project Turnaround, Te Whanau Awhina and the Community Accountability Programme were started in collaboration with the police and local safer community councils, to divert adult offenders away from the criminal courts. Offenders are referred to either scheme by the judge at a court hearing. Outcomes typically include plans relating to obtaining employment and job training. In this instance, because victims rarely attend meetings, Te Whanau Awhina is not fully consistent with restorative processes (Morris and Maxwell, 2003: 260).
Other pilot schemes have since begun operation since October 2001. These court referred restorative processes are administered by the Department of Courts, and rely on victims and offenders (and their support people) to come up with a plan or
agreement and not the panel members. Restorative justice conferences are voluntary and only take place if both the victim and offender agree to participate (MaxweU and Morris, 2003: 257)
The outcome of most conferences will be an agreed upon plan and the conference facilitator will provide the referring judge with a copy of the agreement These may contain rehabilitative or re-integrative features. The main purpose of the conference is to provide information to the judge and not to recommend a sentence. Judges can then choose whether or not to incorporate all or part of the agreement reached into the sentence. These restorative conferences are more centrally and specifically victim focused.
Judges throughout New Zealand have been referring offenders to conferences on an ad hoc basis. In the first year of operation, all property offences with maximum penalties of two years imprisorunent or more, and other offences with maximum penalties of one to seven years, are eligible for referral by the judge. Domestic violence . offences are excluded. Subsequent studies found that adult offenders who participated in Project Turnaround and TE Whanau Awhina were reconvicted less frequently, and also for offences of less seriousness than a matched group of controls who had been dealt with by the courtsW (Morris and MaxweU, 2003: 261).
Section 8 of the Sentencing Act (2002) recognised restorative justice for adults. The Act contains a number of provisions that explicitly endorse restorative justice or the principles upon which it is founded. The principles of sentencing require the court to 'take into account any outcomes of restorative processes that have occurred'.
Therefore the court has to take into account any offer of amends made to the victim, any agreement between them as to how the loss may be remedied or to ensure it will not recur, any measures taken by the offender or his family to compensate the victim, make an apology, or otherwise 'make good the harm that has occurred .. :.
2.3,3 United Kingdom
England (prior to 1997) has been a classic example of the stand alone model for implementing restorative justice reforms. The defining feature of this model is the absence of any statutory authorisation for restorative justice programmes. The projects operate outside of the fonnal criminal justice system, usually in a fixed tenn and experimental capacity, and with the aid of small scale temporary funding. They have minimal impact on mainstream practice. Thus stand alone initiatives are local in character and have a marginal role. Their existence is highly precarious because of their dependence on the support and cooperation of the larger and more powerful criminal justice agencies. Restorative justice programmes such as family group conferences also seemed destined to languish on the periphery of the criminal justice system.
0(1 See a more detailed discussion on 'evaluation' in chapler 3.
The legislative framework has subsequently been transformed as a result of the Crime and Disorder Act of 199841, and the Youth Justice and Criminal Evidence Act of 1999.
Restorative justice elements have been incorporated as part of the mainstream response to youth offending. An important element of the restorative justice approach relates to the greater scope for victim's involvement in the sentencing process (Oignan and Marsh, 2003: 105-106).
2.3.4 Australia
Legislated approaches such as the Young Offenders Act (1993) which incorporate conierencing as one component in a hierarchy of responses to youth crime first emerged in South Australia in 1993. In contrast to the New Zealand model however, most states in Australia adopted the police-run model first piloted in Wagga Wagga.
The Wagga model has been adopted in other parts of the world where conferencing has been introduced. Conferences are used mainly in place of a fonnal caution or as another fonn of diversion. By way of contrast, in England, the Youth Justice and Criminal Evidence Act 1999 provides for automatic referral of selected cases to 'youth offender panels' which have reparative elements. The Wagga model differs from the New Zealand model in that it is facilitated by a police officer and draws heavily on the theory of re-integrative shaming (Daly, 2003: 59-83). One should note that implementation in Australia has been piecemeal and the model adopted va.ries in the different regions and between communities.
2.3,5 United States
In the United States family group conferendng (FGC) seems to be the natural expansion of the dominant model of victim offender mediation (VOM) currently being used in more than 175 programmes in North America. The vast majority of these FGC'S are run by private community based organisations that mobilize and train volunteers to serve as mediators. Similar to VOM, FCC's provide victims with an opportunity to express what impact the crime had on their lives and to participate in holding offenders accountable for their actions. While the emphasis is on juvenile offenders who commit property offences, FGC's are also used with violent offenders and adult offenders and where public officials rather than trained volunteers act as facilitators. The process casts the circle wider to incl ude more people in the community by acknowledging that more people are victimised by the offence, and is therefore broader than mediation. The process also seeks to explore the effect the crime had on the primary victim, people connected to the victim, the offender's family and others connected to the offender. Hence it is much broader than mediation (Umbreit and Zehr, 2003: 70-71).
01 See Crawford A Situaling resroralive youlhjustiee in erinu! control and prevention (2007) 4 for an in-depth analysis of youth offender panels which have become 'the single most utilised fonnal responses to youth crime in England and Wales, representing approximately a third of all court sentences given to young people (aged 10·17)'.