Restorative justice describes various processes designed to correct the harm that the criminal inflicts on it’s victims and communities (Braithwaite,1999). It requires all parties; victims, offenders and communities, to establish ways of repairing the harm of crime and prevent it from happening again (Strickland, 2004, Cornwell, 2009).
Although such practices may be seen as a more equitable and humane form of justice, it has been criticised for extending the criminal justice system (net-widening) (Garland, 2001) and for it’s propensity to ‘privatise’ the justice estate, by its use of informal and less accountable forms of, what Foucault refers to as ‘governmentality’ (Foucault, 1975, Pavlich, 2013). However, research shows that restorative justice has been successful in reducing reoffending rates and more significantly, giving a voice to the victims of crime, previously ignored by the prevailing criminal justice system.
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Restorative justice describes various processes designed to correct the harm that the criminal inflicts on it’s victims and communities (Braithwaite,1999). It requires all parties; victims, offenders and communities, to establish ways of repairing the harm of crime and prevent it from happening again (Strickland, 2004, Cornwell, 2009). This paper will explore the conceptual underpinnings of the restorative approach that will examine it’s development within the theoretical and practical framework of contemporary punishment practices.
It will argue that those who advocate restorative justice claim that traditional ways of responding to harm tend to neglect the needs of victims and communities (Braithwaite, 1999). Van Ness & Strong (2010) contend that the prevailing policies and practices of the criminal justice system focus entirely on the offender as law breaker, that only address legal guilt and punishment (Stohr et al,2012). Further, over the last three decades, within the context of the rise of neo-liberal populism, that has seen decline of the rehabilitative ideal, restorative justice practices have the potential to mitigate the worst excesses of punitive punishments (Garland, 2001).
However, the theoretical underpinnings of restorative justice, as this paper will show, has been attacked in various ways, due, in part, to its propensity to either be seen as undermining the impartiality of the criminal justice system, or as yet another form of what Foucault (1975) describes as ‘governmentality’. From this perspective, restorative justice is seen as an informal process that results in a net-widening of state control (Garland, 2001, Pavlich, 2013). This, in turn, has generated a significant ideological debate over the future of criminal justice (Johnstone & Van Ness, 2007).
Proponents of restorative justice, however, argue that within the prevailing punitive regime, the increase in custodial sentences has generated a penal crisis that may be mitigated by the use of restorative approaches (Cavadino & Dignan, 2006). Restorative justice may therefore be seen as a significant and pragmatic means of lowering the rate of recidivism and bringing about a more humane and equitable justice (Sim, 2008, Cornwell, 2009).
The Demise of the Rehabilitative Ideal
Since the eighteenth century, idea’s surrounding state punishment have led to a mixture of approaches that prevail today (Stohr et al, 2012). Clarkson, 2005, suggests that these theories in turn have generated continual discourse surrounding the moral justifications for punishment, which are; retributivism, deterrence, rehabilitation and incapacitation. Sim (2009), citing Foucault, argues that although the prevailing literature on the history of the criminal justice system has placed an emphasis on the shifts and discontinuities in the apparatus of punishment, such as the move from retributive punishment toward a more progressive rehabilitative approach, since the mid 1970s punishment has been underpinned and legitimated by a political and populist hostility to offenders (ibid, Garland 2001, Cornwell, 2009).
Garland (2001) argues that the last three decades has seen a shift away from the assumptions and ideologies that shaped crime control for most of the twentieth century. Today’s practices of policing and penal sanctions, Garland argues, pursue new objectives in a move away from the penal welfarism (rehabilitation) that shaped the 1890s?1970s approach of policy makers, academics and practitioners. Cornwell (2009) argues that although the rehabilitative model of punishment was seen as a progressive approach in the middle years of the last century, when it was widely accepted that the provision of ‘treatment and training’ would change the patterns of offending behaviour, the ideology failed to work out in practice (Garland, 2001).
In turn, there became a disenchantment with the rehabilitative approach, and the ‘Nothing Works’ scenario became an accepted belief, given the reality of prison custody (Martinson, 1974). Muncie (2005) claims that the 1970s neo-liberal shift in political ideology saw the rehabilitative welfare model based on meeting individual needs, regress back towards a ‘justice model’ (retributive), that is more concerned with the offence than the offender. From the 1990s, Muncie argues, ‘justice’ has moved away from due process and rights to an authoritarian form of crime control.
The Prison Crisis
Cornwell (2009) claims that the effect of the ‘justice model’ on the prison population cannot be overstated (Sim, 2008). In England and Wales in 1990 the average daily prison population stood at around 46,000, by 1998 this figure increased to over 65,000, by 2009 the number rose to 82,586 (ibid). Further, the findings in the 2007 Commission on Prison’s suggest that a ‘crisis’ now defines the UK penal system (The Howard League, 2007). Despite a 42,000 decline in reported crime since 1995, the Commission argue, the prison population has soared to a high of 84,000 in 2008, more than doubling since 1992. Cornwell (2009) claims that at present the costs of keeping an offender in prison stands at around ?40,000 per year, where the estimated cost of building new prisons to accommodate the rise of the prison population will take huge resources of public money. Prison has therefore become the defining tool of the punishment process, where the United Kingdom (UK) now imprisons more of its population than any other country in Western Europe (ibid: p.6).
A History of Restorative Justice
In response to the prison crisis, experimentation in the 1990s began to see various forms of restorative justice models in order to mitigate retributive punishment and as a means of re-introducing a greater emphasis on the rehabilitation ideal (Muncie, 2005). The arguments for restorative forms of justice, Cornwell (2009) claims, are not just about cost and sustainability on national resources, but more significantly, the notion of the type of unjust society the United Kingdom (UK) is likely to become unless this surge in punitive sanctions is not abated (ibid, Sim, 2009). Cornwell (2009) suggests that the main strength of the restorative justice model is that it is ‘practitioner led’, deriving from the practical experience of correctional officials and academics who have a comprehensive understanding of the penal system. From a ‘Nothing Works’ (Martinson, 1974) to a ‘What Works’ experience, the emphasis of restorative justice has been to identify a more humane, equitable and practical means of justice that goes beyond the needs of the offender (rehabilitative goal) toward addressing the victims and their communities (Cornwell, 2009).
Restorative Justice ? Theory and Practice
Howard Zehr (2002), envisioned restorative justice as addressing the victim’s needs or harm that holds offenders accountable to put right the harm that involves the victims, offenders and their communities (Zehr, 2002). The first focus is on holding the offender accountable for harm, the second is the requirement that in order to reintegrate into society, offenders must do something significant to repair the harm. Third, there should be a process through which victims, offenders and communities have a legitimate stake in the outcomes of justice (Cornwell, 2009.p:45). In this way, Zehr (2002) redefines or redirects the harm of crime away from its definition of a violation of the state, toward a violation of one person by another. At the same time, the focus of establishing blame or guilt shifts toward a focus on problem solving and obligations. As a result, communities and not the state become the central facilitators in repairing and restoring harm (ibid).
Although restorative justice has received wide recognition across many western countries together with the endorsement of the Council of Europe in 1999, progress toward the implementation of restorative justice principles into mainstream criminal justice practices is slow (Cornwell, 2009). Further, restorative justice, both in theory and practice continues to generate a substantial and contentious debate (Morris, 2002).
Restorative Justice ? A Critique
Acorn (2005) argues that ‘justice’ has traditionally symbolised the scales of impartiality on the one hand, and the sword of power, on the other. Justice is thereby possible when a neutral judge calculates a fair balance of accounts to make decisions that are backed by state power. Restorative justice, by its practice of informal dispute resolutions, can be seen as a call to a return of a ‘privatised’ form of justice (ibid, Strang & Braithwaite, 2002). This criticism is qualified by the propensity of restorative justice advocates (Braithwaite, 1989) that critique punitive justice responses and thereby view the power of the state as harmful. This in turn, at least theoretically, erodes state power and state created crime categories, thereby threatening to create a ‘privatised’ justice process (Strang & Braithwaite, 2002). Within this process, Strang & Braithwaite (2002) argue, restorative justice cannot be seen to ‘legitimately’ deal with crimes. Acorn (2004) suggests that unlike the prevailing criminal justice system, the desire to punish (retribution) is replaced by a version of justice that is centred on specifically nuanced concepts of harm, obligation, need, re-integration and forgiveness. Such values guide Family Group Conferences, Community Mediation, Victim-Offender Commissions and various forms of tribunals (Alternative Dispute Resolution (ADR)) (MacLaughlin et al, 2003). Family Group Conferences is a prominent practice in restorative justice, that includes community members (paid or unpaid) to ‘hear’ disputes and help parties to resolve conflicts. However, rather than a diversion from the criminal justice system, such conferences involve offenders already convicted (Acorn, 2004). Garland (2001) views this arrangement a form of ‘net-widening’, where informal justice becomes part of the social landscape that encompasses a widening and ever expanding form of crime control (ibid). Although restorative justice advocates argue that informal justice creates domains of freedom that empower victims, offenders and communities, opponents claim that restorative justice represents another pernicious way in which community mediation expands state control, while claiming to do precisely the opposite (Acorn, 2004, Garland, 2001, Pavlich, 2013). Restorative justice proponents are clear in their critique of the criminal justice system that is seen to not represent victims or their communities, where state officials, such as the police, lawyers and judges, are impartial, and thereby have no direct understanding of those affected by criminal offenses (Pavlich, 2013). Here, Pavlich refers to Foucault’s concept of ‘governmentality’, where the state subtly arranges the background settings to produce subjects who think and act in ways that do not require direct coercion, in what Foucault terms the ‘conduct of conduct’ (Pavlich, 2013, Foucault, 1975). In this way, Foucault argues, self governed subjects are produced when they buy into the logic and formulated identities of a given governmentality (Foucault, 1975).
Garland and Sparks (2000) claim that restorative justice, as a form of govermentality has, in part, come about by the increased attention, over the last twenty-five years, toward the rights of the ‘victim’. Here, Garland (2001) argues that the last two decades has seen the rise of a distinctly populist current in penal politics that no longer relies on the evidence of the experts and professional elites. Whereas a few decades ago public opinion functioned as an occasional restraint on policy initiatives, it now operates as a privileged source. Within this context, Garland argues, victims have attained an unprecedented array of ‘rights’ within the criminal justice system, ranging from; ‘the right to make victim impact statements’, the right to be consulted in prosecutions, sentencing and parole together with notifications of offenders post release movements and the right to receive compensation. Further, the right to receive service provision entails the use of Victim Support agencies who help people address their feelings and offer practical help and assistance, mitigating the negative impact of crime (Reeves and Mulley, 2000). Wright (2000) suggests that while such developments may be seen as a triumph for victim support movements, these reforms do not fundamentally alter the structural position of victims. This, Wright explains, is because the punitive structural system remains intact whereby the victim’s interests will necessarily remain secondary to the wider public interest, represented by the crown (Wright, 2000).
It can be argued that while critics may be seen as correct in their perception of restorative justice as a form of governmentality or net-widening by the state, the attack may be seen as premature, given the early stages of its development (Cornwell, 2009). Cornwell argues that critics have not given restorative justice enough time to develop and potentially emerge as a stand alone resolution to the problem of crime and its repercussions for the victims, offenders and their communities (ibid). Restorative justice programmes are still at an embryonic stage, where they are attracting critique, mainly due to their attachment to the Criminal Justice System (Cornwell, 2009, Morris, 2002, Ministry of Justice, 2012). Cornwell (2009) also addresses the argument that the restorative approach places too much emphasis on the status it affords to the victims of crime. In reality, Cornwell suggests, that status is very much based on political rhetoric rather than actual reform. The publication of the Criminal Justice Act 2003 that anticipated an advance in restorative and reparative measures into the criminal justice system, in reality bought in a much more punitive provision. Restorative measures under the Act are initiated on the basis of a ‘mix and match’ arrangement for ‘custody plus minus’. Here, (Garrielides, 2003) points out that restorative justice has therefore become somewhat removed from its underlying theory (Garrielides, 2003). Put simply, the restorative approach has been cherry picked to support other punitive initiatives, leaving its central tenets at the margins of the criminal justice system (Cornwell, 2009).
Restorative Justice – Does it Work?
Since the 1990s a number of restorative justice trial schemes began to take place, in order to measure success in terms of re-offending and victim satisfaction. According to a Ministry of Justice Report (Shapland et al, 2008), measuring the success of restorative justice against criminal justice control groups, it was found that offenders who took part in restorative justice schemes committed statistically significantly fewer offences (in terms of reconvictions) in the subsequent two years than offenders in the control group. Further, although restorative justice has been generally reported to be more successful within youth justice, this research showed no demographic differences, for example; in age, ethnicity, gender or offence type. The report also showed that eighty-five percent of victims were happy with the process (ibid). These results are reflected in various case studies. Published by the Restorative Justice Council (2013) the following gives an example of the positive impact that restorative justice can have on the victim, the offender and communities:
Arrested in February last year, Jason Reed was sentenced to five years in prison after admitting to more than fifty other burglaries. During the criminal justice process, Jason expressed his wish to start afresh and make amends, so he was referred to the post-conviction restorative justice unit. After a full assessment to ensure his case was suitable for restorative justice measures, three conferences took place between Jason and five of his victims. The victims had different motivations for taking part and they were able to express their upset and anger directly to the offender. Jason agreed to pay back an agreed amount of compensation and the victims showed some acceptance and forgiveness (Restorative Justice Council, 2013).
Overall, this paper has argued that restorative justice may be seen as an attempt to address the disillusion within the criminal justice system in the 1970s that had conceded that ‘Nothing Works’. The demise of the rehabilitative ideal (Garland, 2001), against the backdrop of political shifts toward a neo-liberal ideology, bought about a more punitive, retributive stance toward punishment and offending (Sim, 2008). As a result, the rise in prison populations has bought about a penal crisis. In response, new initiatives in restorative justice began to develop, emerging as a more equitable, humane form of punishment (Cornwell, 2009). The advantages of the restorative approach cannot be overstated, as this paper shows, rather than the state focusing on the offender (as is the case with the prevailing criminal justice system), restorative justice seeks to address the needs of the victim and community participation (Zehr, 2002). In practical terms, there appears to be some success in terms of re-offending and victim satisfaction (Ministry of Justice, 2008). Despite the criticisms (Garland, 2001), it can be argued that restorative justice demonstrates an opportunity and potential to mitigate the worst excesses of the criminal justice system and bring about a more equitable and humane approach (Cornwell, 2009).
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