Week 8: How restorative justice works

So far we've looked at some of the historical roots of Restorative Justice (RJ), and at some of the key values: inclusiveness, informality, looking forwards rather than back, making amends rather than punishment of wrongdoing. But how does it actually work? What are the distinctive features of a restorative process?

RJ can take many forms, but we can identify a few key features. (NB: not every RJ initiative has all these features; some have only one or two.)

Restoration, not punishment

One of the key features of RJ in most of its forms is that it aims to 'restore' - to put things back to how they were before the crime. It 'restores' the victims of crime, enabling them to get on with their lives without being traumatised by the crime, haunted by their memories or obsessed by thoughts of vengeance. It 'restores' the offender, bringing him or her back into the social consensus about the crime that's been committed (i.e. encouraging a sense of shame and disapproval). And it 'restores' the community, reintegrating the offender and undoing any polarisation that has been created by the crime. As such it's forward-looking - as distinct from the backward-looking approach of the criminal justice system - and it's focused on making things better in future rather than on making the offender suffer.

Whether this actually means that RJ is not about punishment is another question. You could argue that 'punishment' refers to all the ways in which offenders are made to understand how bad their crime was and feel sorry for it; in this case RJ would not be an alternative to punishment at all, but an effective form of punishment.

Bringing victim and offender together
Victim-offender mediation is based on the idea that these two people, who have the greatest stake in the crime, are also best placed to resolve it. Victims can also play a key role in group-based forms of RJ. Reintegrative shaming, which is one of the key mechanisms for 'restoration', is based on an interaction in which the offender accepts responsibility for the offence and apologises, and the victim in turn accepts the apology; instead of being set aside and branded - stigmatised - as a 'criminal', the offender can then be accepted as a fellow-citizen, based on a shared denunciation of the crime.

Community problem-solving
One of the key values of RJ is deprofessionalisation, taking crimes and other 'conflicts' away from the specialists of the criminal justice system and enabling the community to resolve them, if necessary by a free-ranging discussion of what has gone on. (There's a certain amount of tension between this ideal and the use of RJ as a form of cautioning, and police-led RJ in general.) This is perhaps one of the areas where the gap between the ideal and the reality of RJ is largest: the idea of 'community' works much better in some contexts than others, and contemporary urban societies in the developed world are not the best context. It can be argued that we are all members of multiple cross-cutting communities rather than a single geographically-based one - family, friends, work, study, leisure, online - but this doesn't necessarily help. The 'community' which is supposed to be mobilised for RJ is a community which includes both the offender and the victim, which isn't necessarily going to work for these plural, non-geographical communities.

Community self-regulation
Another ideal associated with RJ, and perhaps one which has come closer to becoming a reality, is that of community self-regulation. The idea here is that local communities can be empowered to manage problematic elements within them, in the same way that businesses manage low-level white-collar crime. In this model, RJ is not a way to initiate a free-ranging discussion of the rights and wrongs of a particular crime (as in the previous model), so much as a way to bring moral pressure to bear on people who are causing disruption. This model fits very well into some current ways of thinking about neighbourhood disorder and anti-social behaviour; it's often associated with a 'pyramid' model, involving a threat of escalation to more coercive measures if the 'restorative' stage does not have the desired result.

So that's how RJ is supposed to work. But how does it actually work? For the rest of the unit we'll be looking at RJ in practice.

Week 7: Introducing restorative justice

One of the interesting things about restorative justice is the enormous range it covers. It's been argued that the restorative justice movement had three separate drivers, all of which point in slightly different directions - and none of which is necessarily victim-centred.

One driver is the idea that criminal justice should be more civil. The civil law is what gets invoked when you take someone to court. A civil court case doesn't end with anyone being found guilty and punished; generally, they end with someone being found to be in the wrong, and ordered to pay back what they owe or to pay the other person compensation ("damages"). Criminal law is backward-looking (you did X, therefore we'll punish you); civil law is forward-looking (you did X, so you need to put it right by doing Y and Z). Most importantly, the civil law doesn't inflict pain and hardship on the people it finds to be in the wrong; it treats them as a responsible individual and asks them to put things right. Restorative justice can work the same way, and reduce the number of offenders who are treated harshly - and, perhaps, reduce the number who reoffend.

Another idea, closely related to the first one, is that criminal justice should be more moral. The argument is that the punishments handed down by criminal law don't work because they're harsh - if anything, they work (when they do work) in spite of their harshness. What works - what makes offenders think twice and decide not to reoffend - is a form of punishment which treats offenders as people who have a conscience and would prefer to do the right thing. Some offenders come to the realisation that they've been doing bad things - and decide not to do them any more - in the course of a prison sentence; some don't. What if the moral message could be communicated without the harsh punishment - perhaps, even, instead of the harsh punishment? Restorative justice can do this, too: the victim can really get through to the offender, in a way that judges and social workers often can't.

Then there's the idea that criminal justice should be more communitarian: instead of handing over crimes to criminal justice professionals, we should find ways to mobilise the community as a whole to deal with the conflict represented by the crime that's been committed. If crime represents a breach in a community, perhaps criminal justice only makes matters worse - it introduces another level of separation, between the community and the convicted criminal (who ceases to be a member of the community and starts to look like an "Ideal Offender"). Restorative justice can work to mobilise communities, enabling them to condemn crimes while treating the offender with forgiveness and reintegration.

This summary raises a couple of questions. Firstly, these are three quite different things: can a single process achieve all three of them? If not, is there a single thing identifiable as 'restorative justice', or are there several different things which have that name?

Secondly, what about the victim? None of these theoretical models really focuses on the victim. However, I argued in the lecture that the victim of crime has become more central to restorative justice. The victim plays a key role in all these models - even if their role is to help the offender or the community - and I think the centrality of the victim has become more obvious since people started putting RJ into practice. The way that people think about RJ is starting to shift as well; we'll have more about that in later lectures.

If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).

Ask the offender:

• “What happened?”
• “What were you thinking about at the time?”
• “What have you thought about since the incident?”
• “Who do you think has been affected by your actions?”
• “How have they been affected?”

Ask each parent/caregiver: “This has been difficult for you, hasn’t it? Would you like to tell us about it?”

Have each respond to all of the following questions.

• “What did you think when you heard about the incident?”
• “How do you feel about what happened?”
• “What has been the hardest thing for you?”
• “What do you think are the main issues?”

Ask the offender: “Is there anything you want to say at this time?”

Picture yourself sitting around a table, after a crime has been committed, and answering questions like these - as the victim, as the offender, as an offender's 'supporters' (very often parents). How do you think they would make you feel? Do you think the victim would find the process useful or satisfactory?

One final thought: what would it be like to go into a restorative justice process if you weren't actually guilty but had admitted guilt for tactical reasons, e.g. because you believed you'd be treated more harshly if you went to court? Would your innocence be found out?