Reprinted from The Common Good, no 4, Pentecost 1997

www.catholicworker.org.nz

 

Restorative Justice —

Towards Abolition or Retrenchment?

 

Jim Consedine

 

Perhaps the most exciting social development in Aotearoa/New Zealand in the past decade has been the institution of a restorative philosophy for youthful offenders under 17 years of age. This has in effect married some of the best traditions of Maori with a modern European system. Building on successful experimentation in the late 1970s and early 1980s, the Government passed the Children, Young Persons and Their Families Act in 1989 which introduced an intermediary stage of procedure between arrest and sentence. That stage involved the holding of a Family Group Conference to which offenders and their families, victims and their supporters, the police, and where applicable, a youth advocate and other specialists were invited.

Guided by a facilitator, the gathering, which could be held anywhere suitable, sought apology from the offender, and allowed time to hear explanations as to the reasons for the offence and the effects it had on the victims. Seeking primarily to repair the damage done, consensus was then sought as to what to recommend to a judge in the Youth Court. Provided that all conditions of the recommendation were completed within a stated time, no conviction was entered and justice was deemed to have been done. This system has won approval all over the world, and pressure is now building to trial some adult courts to ascertain its effectiveness there.

 

Retribution: A Dead End Street

Retributive justice, on the other hand, based primarily as it is on the punishment of the individual, reflects some of the most horrific aspects of the breakdown of our understanding of the inter-dependence of life. At its worst, it takes people from their social environment, parades them publicly in a court dominated by alien symbols, and through imprisonment, condemns them to a period of months or years of deprivation by surrounding them with a culture of simmering violence and macho values. They are then subjected to an abuse of their human dignity through endless days of mindless tedium.

Statistics show that the processes of retributive justice including imprisonment guarantee a high recidivism rate, and a graduating scale of more serious crime. It is particularly harsh on the most marginalised members of our society — the alcohol and drug dependent, the unemployed, the economically poor, minority racial groups and the under-educated.

Restorative justice is a philosophy that embraces a wide range of human emotions including healing, mediation, compassion, forgiveness, mercy, reconciliation as well as sanction when appropriate. It also recognises a world view that says we are all interconnected and that what we do, be it for good or evil, has an impact on others. Restorative justice offers the process whereby those affected by criminal behaviour, be they victims, offenders, the families involved, or the wider community, all need to have a part in resolving the issues which flow from the offending. This provides a recognition, to a degree at least, that all things are interconnected.

All those involved get a chance to put a human face on the crime. They get a chance to begin a process of healing. They become empowered again

Restorative justice is a process that builds on the development of Victim-Offender Reconciliation Programmes (VORP), but cannot by itself resolve the systemic issues created by class, racial and sexual divisions. These belong to wider communal processes that seek the transformation of the social order so as to bring about equality and justice for all. Restorative justice is an important element of transformative justice but cannot on its own seek to effect such widespread change. Its processes can be used from situations in kindergartens and individual homes, through schools and communities to the course of action being followed in South Africa with the Truth and Reconciliation Commission, where a whole nation is seeking to be healed and reconciled to a criminal past.

Under restorative justice, victims and offenders assume central roles and the state takes a back seat. The process does not focus on vengeance and punishment but seeks to heal both the community and the individuals involved. This is done by a process that puts the notion of reparation in its widest sense, and not punishment, at the centre.

The goal of restorative justice is to heal the wounds of every person affected by an offence. It obviously requires the co-operation of all parties. The offender, to be involved in any useful way, must acknowledge responsibility for the crime committed and express honest regret. More than that, the full implications of the offence need to be spelt out and confronted as the offender deals with the causes of offending, where possible making restitution, and giving concrete evidence of more appropriate future behaviour.

All those involved get a chance to put a human face on the crime. They get a chance to begin a process of healing. They become empowered again. The offenders get to take responsibility for their criminal behaviour. Each of these processes produce an added dividend for family life and the wider community. There will be less alienation, stronger bonding among family members, a greater degree of personal and social empowerment.

It is important to note that not all victims are going to necessarily welcome a community group conference. Many will be very wary. This will be especially true for many child and female victims of violence and/or sexual attacks. Such conferences must at all costs seek to prevent victims from becoming doubly victimised. A major issue here is that of power imbalance between the victim and the offender. This should not be underestimated. Such cases underline the need for skilful, well-trained facilitators. It should be noted, though, that secondary victims — family and friends — may fruitfully participate in such a conference without the primary victim’s presence. Given the effect of such crimes and the amount of grief and pain they cause, it can be argued that community group conferences are often more needed in these instances than for many other crimes.

 

The Restorative Option

 

The restorative justice option offers tremendous advantages to victims, offenders, and the community at large. First, it places the victim fair and square in the centre of the justice equation. Under the current retributive system, they are shoved either right outside or stuck on the periphery at best. Second, it places responsibility at the hands of those who offend and, to a much lesser extent, their families and friends. Only a tiny percentage of prison inmates ever face the reality of what they have done. They usually have no idea of the damage they have caused. Sheeting home responsibility for criminal behaviour to the individual in the context of family and friends usually brings massive shame, guilt and regret. And that is the first step towards change. Third, a restorative philosophy has a central focus of healing — of the victim, the offender, the community. We cannot advance as a society unless we learn to heal grievances between and among people. Crime creates grievance.

And fourth and most important, restorative justice processes are indigenous. Maori traditionally operated a system of marae justice based on the need of the overall good of the community and the desire to restore its well-being. A modern restorative model of justice for adults, modelled largely on the current Youth Justice system, could be a bridge that unites people of all cultures and background. The current adversarial system would need to remain for those who are innocent or refuse to acknowledge wrongdoing. However, if the authorities could adopt a parallel process of criminal justice built on the philosophy and processes of restoration, then there would need be little difference between the principles operating in a courtroom, on a marae, or in any other cultural setting. All would be following basically similar objectives. Perhaps different styles would be employed, even different languages reflecting different cultures, but there would be one philosophy, one praxis. As Moana Jackson said earlier at this hui, ‘There can be one justice for all. The means to that justice, though, can be through more than one process.’ He went on to say that ‘Restorative justice is not an option, an alternative system for Maori. It is the process, the system.’

Here the use of language is important. The question of who defines the terms and language of restorative justice is crucial to how it will proceed. Let me state clearly that since restorative justice is a community process, the community needs to define such terms. There are thousands of people across this country who are thinking about these issues on a daily basis and are in an excellent position to debate and then define the meaning of the concepts and the processes that should flow from them. The role of the state is to affirm, support, and where appropriate, resource from taxes these processes that rightfully belong to the community.

It is imperative that such processes not be co-opted and re-defined by the state. This is what happened to the Roper Report’s concept of habilitation centres. It was a great idea about healing people and reducing crime, geared to succeeding when imagination could be used and it was placed in the hands of the community. It became a pale imitation, doomed to fail once the state had emasculated it. The governing ideology of Aotearoa is one of as little government interference as possible. Given certain safeguards, this ideology should be enacted in the area of penal policy through the empowerment of community groups charged with responsibility for penal policy through restorative processes.

 

Towards Abolition or Retrenchment?

The restorative justice process offers a pathway towards abolition. Reason tells us that procedures involving acknowledgement of personal responsibility, apology, healing, forgiveness, positive realistic sanction, and reconciliation when appropriate will produce better and more mature and integrated people. By definition, and Youth Justice shows this, this will produce a reduction in re-offending, which means less crime and safer communities in the future. Retributive justice offers no such hope.

Restorative justice then is a process towards abolition, not retrenchment. It is not utopian. It is visionary, practical and workable, stemming as it does from common sense and calling on all that is best in human nature. God works with those who seek to do good. Restorative processes would succeed for many because good was sought.