Restorative Justice and Practice Research Paper

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In recent times the promulgation of restorative justice has come to exert an increasingly strong influence in criminal justice policymaking. The restorative paradigm conceptualizes criminal behavior in a very different manner from orthodox models of criminal justice and aims to give “ownership” of the dispute to the primary stakeholders: the victim, the offender, and the community. There are many different forms of restorative justice practice, though they are frequently classified under four main heads: victim-offender mediation, panel-based interventions, police-led restorative cautioning, and family group conferencing. Overall, research shows that both victims and offenders are more likely to express satisfaction with restorative schemes than with court-based processes. There is also evidence to show that restorative interventions can have an impact in reducing recidivism.

Introduction

Restorative justice has developed as victim-centered approach which conceptualizes criminal behavior in a very different manner from which it has been traditionally conceived within orthodox models of criminal justice. In recent years, it has come to exert an increasingly strong influence over juvenile justice systems as policymakers have become increasingly concerned about the capacity of the traditional criminal justice system to deliver participatory processes and fair outcomes that are capable of benefiting victims, offenders, and society at large.

Proponents of restorative justice conceptualize criminal behavior in a very different way from orthodox criminal law theory. Crime is viewed first and foremost a violation of people and relationships, and the restorative process aims to repair the harm that has been caused to victims, offenders, and communities (Zehr 2005). The retributive focus of the traditional justice system and the prioritization of punishment and just deserts are thus not the primary goals of restorative justice. The normative frameworks of the traditional criminal justice system are thus viewed as being largely ineffective and even undesirable insofar as they can be counterproductive in their failure to meet the needs of those most affected by crime (Zehr 2005). By contrast, the restorative process looks to the needs of the individual parties. It seeks to repair the injuries caused, restoring relationships, repairing harm, and addressing the needs of the offender. In turn, restorative approaches are said to promote greater community protection and safety by promoting offender responsibility, restoring and reintegrating the key stakeholders, providing empathy and understanding for participants, and ultimately (hopefully) reducing the likelihood of reoffending (Braithwaite 1989; Zehr 2005).

Defining Restorative Justice

In spite of its growing popularity, restorative justice remains a contested concept, which has proved difficult to define in concise terms. One of the most widely accepted definitions is that provided by Marshall (1999 p. 5), who described it as “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.” However, other commentators have argued that as an alternative to associating the with a specific archetypal process, the term should be instead thought of as encapsulating a body of core practices which aim to maximize the role of those most affected by crime: the victim, the offender, and potentially the wider community (Dignan 2005).

The potential fluidity of the concept underscores the risk that it may come to mean “all things to all people” (McCold 2000). Such a danger is highlighted by the fact that restorative justice programs worldwide vary considerably in terms of what they do and how they achieve their outcomes – let alone the level of actual “restorativeness” in terms of what is done. Practice often differs according to the situation and the manner in which programs have developed in local areas. For instance, not all schemes accept all restorative principles in equal measure, and there is also considerable divergence on the extent to which schemes may be integrated into existing criminal justice structures. As such, there is no single “prototype” format for practices that adopt the “restorative” label. While the best-known restorative schemes often operate in relation to youth or lower-level offending, there are now programs covering a diverse range of issues including corporate crime, conflicts in prisons and schools, domestic violence, serious violent crime, and political violence (see further Johnstone and Van Ness 2006).

Schemes may also differ in relation to the degree of formality or legality. Some schemes are based in statute and require that offenders be dealt with through a strict legislative (restorative) framework. In such instances, considerable resources are often invested across a range of statutory agencies, and widespread training and a change in working culture of the police, prosecutor, and courts are required. By contrast, other schemes may be practice led and “voluntary” and are much more informal. Typically, such schemes will lie on the fringes of the criminal justice system and may experience problems with resources and logistics.

Even where restorative programs become integrated within the formal criminal justice system, the conditions for referring a young person may vary considerably, with some schemes taking referrals as diversionary interventions or as a form of police caution, while others may be referred by the prosecutor or by the courts as an official form of disposal (Dunkel et al. 2011). Programs can be led by different agencies, such as the police, an independent conferencing service, or even local community mediation organizations. Programs also differ according to the level of victim involvement, with some using face-to-face meetings, while others use indirect mediation or those that rarely involve victims. Even the nature of the offence and type of offender differ, with some schemes only taking first-time offenders who have committed relatively minor offences, to others that consider a whole range of offences and individuals who have offended in the past. In essence, restorative practice is highly divergent and in considering how programs operate, one needs to be aware of their scope, range, and intentions (Doak and O’Mahony 2011).

Restorative Justice In Practice

Although restorative justice has permeate both law and criminal justice practice in around the world, there are clear differences in how these interventions are delivered and what they are designed to achieve. The following describes the main types of interventions, which include mediation, panel-based interventions, police-led restorative cautioning, and family group conferencing models.

Victim-Offender Mediation

Victim-offender mediation programs were first developed in Ontario, Canada, in the mid-1970s. They were promoted by the Christian Mennonite movement to promote personal reconciliation between victims and offenders. As such, they seek to bring together victims and offenders with a facilitator or mediator, who is usually professionally trained. Mediation aims to give victims and offenders a safe environment in which they are able to discuss the crime, its impact, and the harm it may have caused and to allow an opportunity to put right the harm caused.

Victim-offender mediation has proved very popular and is currently the most common form of restorative practice used across the United States and Canada (Dignan 2005). The technique is also widely used as a form of dispute resolution used to deal with conflicts within communities, especially where there has been a history of tension between the parties that has not been resolved by other forms of intervention. Mediation has also gained in popularity across many parts of Europe where it is currently one of the most dominant forms of restorative practice (Miers et al. 2001).

Most mediation projects are used to divert minor juvenile or adult offenders away from criminal sanctioning. Often prosecutors act as the gatekeepers to such programs and refer cases to mediation before they reach court. There is considerable variation in the types of programs available and some – particularly in cases involving young people – are based on an extension of welfare legislation, rather than being used as a penal measure.

The use of mediation is relatively a commonplace in Austria as a means of diversion for both juvenile and adult offenders. The process is designed to ensure that a much more comprehensive form of restitution is delivered which is more constructive for victims of crime than just a court-imposed sanction. The mediation process has three possible components which provide compensation for personal injury, loss, or damage; reconciliation talks which provide apologies and may help the victim; and in exceptional cases community service or payments to public welfare institutions or “symbolic restitution” (Miers et al. 2001).

Mediation services are generally delivered by organizations linked to the Probation Service. The mediation usually takes place directly with the victim, offender, and mediator in the same room. Unlike conferencing, supporters and representatives of the wider community are not generally permitted unless juveniles are involved. Occasionally indirect or “shuttle mediation” is also arranged, where the parties are reluctant to meet in person. Mediators meet regularly with members of the judiciary and representatives of the public prosecutor’s office to share experiences and discuss difficult cases.

Similarly, Norway makes considerable use of mediation and the services are run directly by the central Ministry of Justice. Mediation referrals are usually made by the police or prosecutor, though they can also be ordered by courts as part of a community sentence or as a condition of a suspended sentence. The process only takes place after an admission or finding of guilt and the prosecutor usually decides whether the case is suitable for referral to mediation. Providing the parties agree on the facts of the case and consent to the process, mediation will be offered as an alternative to a formal penal sanction. The prosecutor will also take into account whether there is a personal victim, as well as considerations relating to individual deterrence. Thus, despite mediation being well developed throughout the country, it is still generally confined to less serious offences and retains its diversionary character (Keme´ny 2005).

The mediation process in Norway usually involves face-to-face meetings between victims and offenders. The mediation event may be brief, as is typically the case with offences against property, or prolonged, as is the case with neighbor disputes or violence (Miers et al. 2001). Services are normally provided by trained volunteers, who receive a nominal fee. Volunteers are trained through a national accreditation program, and are accountable to a coordinator based within the Ministry of Justice. In addition, the Ministry of Justice arranges annual conferences and publishes a regular journal for mediators to inform and generate exchange and good practice (Miers et al. 2001). The vast majority of mediated cases reach an agreement in Norway and nearly all of these agreements are fulfilled. The major forms of disposals include compensation, work, and reconciliation.

In the United Kingdom, there have been a number of victim-offender mediation projects; however, these have mostly developed on an ad hoc basis. Generally, they have been relatively small scale and have been local initiatives, rather than being “mainstream” projects. This has largely been the result of a lack specific legislation to formally establish them and the provision of little or no central funding, which has obviously impeded their development (Dignan 2005). Although the Home Office funded a number of pilot projects in the 1980s, funding was not continued beyond the pilot phase. Most of the schemes that operate today have been developed at a local level, through good working partnerships between criminal justice agencies such as probation, the police, and social services. However, they continue to experience considerable logistical and resourcing difficulties, concerning which agencies should fund them and where their referrals come from.

Recently, the government undertook to fund a number of these voluntary schemes and offered financial backing and an evaluation as part of its Crime Reduction Programme (Shapland et al. 2011). These schemes were established primarily to concentrate on cases involving adult offenders at different stages of the criminal justice process, from presentence through to release from prison. They are largely typical of those operating on a local level around the country, although they cover offenders convicted of serious crimes, including assaults, robberies, and burglaries.

Panel-Based Interventions

Panel-based interventions such as community reparation boards have been commonly used in the United States. While these are primarily used for adult offenders convicted of nonviolent offences, more recently their use has been extended to cover juvenile offenders. Such boards are typically composed of a small number of community representatives who hold face-to-face meeting with offenders, who have been referred by the courts. The board, with the offender, decides the sanction that should be imposed for the offence, monitor compliance, and report back to the court on its completion. The main goal of the boards is to promote community involvement and empowerment in relation to offending and to promote offender responsibility and victim reparation (Bazemore and Umbreit 2002).

In the United Kingdom, panel-based interventions are used as part of the referral order. It is a mandatory court disposal for first-time low-level juvenile offenders between the ages of 10 and 17. The referral order operates by diverting a young person away from court to a Youth Offender Panel. The panel then decides how the offence should be dealt with and what form of action is necessary. If the victim wishes, they may attend the meeting and can describe how the offence affected them. Parents are required to attend the panel meeting (if the young person is under the age of 16) and meetings are usually held in community venues.

The panel offers a discussion forum, and in theory, it gives the young person an opportunity to make reparation to the victim and community, take responsibility for their actions, and achieve reintegration into society. Although similar mechanisms in certain North American jurisdictions require the young person to consent to taking part in such a program, this is not the case with the English system of referral orders. However, the disposal is the result of a contract that must be negotiated and agreed and not simply imposed on a young person. Usually, a contract will contain specific offender-orientated interventions such as family counselling, mentoring, victim awareness sessions, and drugs or alcohol programs, which may be complemented by reparative measures, like a verbal or written apology, or an offer to repair damaged property. The amount of reparation and length of the plan have to be proportionate to the seriousness of the offence, and the young person must agree to the plan. In the event that there is no agreed outcome, the Youth Offending Panel will report back to the court, who will then reconsider how to deal with the young person.

Referral orders allow young people to play more of a role in how they are treated and they may find their plan or contract “useful,” especially compared to the experience receiving a punitive sentence by the Youth Court. However, concerns have been raised about referral orders, especially where young people and parents may feel forced into agreeing plans. Some panels have experienced difficulty devising suitable plans because of a lack of local resources, and there have been ongoing difficulties of involving victims in the process (Crawford and Newburn 2003). The low level of victim participation in these panels arguably places a significant limitation on their overall restorative potential.

Police-Led Restorative Cautioning

Police-led restorative cautioning schemes were developed in the early 1990s, mostly as an alternative approach to the traditional formal police caution. The approach spread and was taken up and used in various forms in New Zealand and America, particularly in Minnesota and Pennsylvania in the mid-1990s.

The approach is largely based around Braithwaite’s ideas of “reintegrative shaming” (Braithwaite 1989). In essence this approach deals with crime and its aftermath by attempting to make offenders ashamed of their behavior but in a way which promotes their reintegration into the community. It is different to the traditional police caution, which has been described by Lee (1998) as a “degrading ceremony” in which the young person, most often a first-time and minor offender, is given a “dressing-down” and good talking by a senior police officer.

The process is achieved by firstly attempting to get the young person to realize the harm caused by their actions to the victim, their family, and themselves. The focus is placed on the wrongfulness of the action or behavior, rather than the wrongfulness of the individual. The process attempts to reintegrate the young person, after they have admitted what they did was wrong, by focusing on how they can put the incident behind them, for example, by repairing the harm through such things as apology and reparation. It thereby allows the young person to move forward and reintegrate back into their community and family. The whole process is usually facilitated by a trained police officer and involves the use of a script or agenda that is followed in the conferencing process. The victim is encouraged to play a part in the process, particularly to reinforce upon the young person the impact of the offence on them, but as Dignan (2005) notes, restorative cautioning schemes have typically placed a greater emphasis on the offender and issues of crime control than on their ability to meet the needs of victims.

Despite these concerns, it has generally been found that the police are enthusiastic and committed to the restorative process. They are usually well trained and young people and their parents often place a high degree of confidence and support for the scheme. There is also evidence that restorative cautioning schemes can have other beneficial effects especially in terms of helping improve police/community relations (O’Mahony and Doak 2004; Doak and O’Mahony 2011).

Restorative Conferencing

Perhaps the best-known restorative conferencing scheme is the family group conferencing model, first developed in New Zealand. The model was devised as part of a more general initiative to address difficulties in the way young people were being treated in the criminal justice and welfare systems in New Zealand – particularly minority group offenders. The model sought to develop a more culturally sensitive approach to offending that emphasizes inclusive participation and collective decision making, bringing together young people, their families, and the broader community to determine appropriate means of redress for victims (Maxwell and Morris 1993).

The family group conferencing scheme was brought into New Zealand under a reform agenda that emphasized diverting young people away from criminal justice interventions through police cautions or informal resolutions. The legislation made conferencing the main avenue of disposal for all but the few most serious offences like murder and manslaughter. In effect, family group conferencing became the main statutory method of disposal for young offenders being prosecuted. Young people can only be prosecuted if they have been arrested and referred by the police. The courts are required to send offenders for family group conferences and they have to consider the recommendations of the conference and usually do not deal with cases until they have had a conference recommendation (Maxwell and Morris 1993).

Northern Ireland has also adopted a fully mainstreamed statutory-based restorative conferencing model for young offenders. The measures provide for two types of disposal, diversionary and court-ordered conferences. Both types of conference take place to provide a plan to the prosecutor or court on how the young person should be dealt with for their offence. For the diversionary conference, which is usually for less serious offences, the successful completion of a conference plan will avoid a court appearance and criminal conviction. Courtordered conferences, on the other hand, are referred for conferencing by the court. An important feature of the legislation is that the courts must refer all young persons for youth conferences, except for offences carrying a mandatory life sentence. The court may refer cases that are triable by indictment only or scheduled offences under terrorism legislation. In effect, the legislation makes conferencing mandatory except for a small number of very serious offences. However, for conferencing process to take place, the young person must agree to the process and they must either admit guilt or have been found guilty in court.

The format of the youth conference itself bears much similarity to the general model used in New Zealand, though the Northern Ireland model places the victim much more at the center of the process. It normally involves a meeting, chaired by an independent and trained youth conference facilitator (employed by a Youth Conferencing Service), where the young persons will be provided with the opportunity to reflect upon their actions and offer some form of reparation to the victim. The victims, who are actively encouraged to attend, are allowed to explain to the offender how the offence affected them, in theory giving the offender an understanding of their actions and allowing the victim to separate the offender from the offence. Following a dialogue a “youth conference plan” or “action plan” will be devised which takes into consideration the offence, the needs of the victim, and the needs of the young person. The young person must give their free consent for a plan to be used. Plans can run for a period of not more than 1 year and usually involve some form of reparation or apology to the victim. Ideally the plan will include elements that address the needs of the victim, the offender, and the wider community, so as to achieve a restorative outcome (O’Mahony and Campbell 2006). Plans may include restrictions and requirements of the young person, including curfews. They may even recommend a custodial sentence.

The direct involvement of offenders and victims in conferencing and their ability to engage in dialogue contrast starkly with the conventional court process. In court, offenders are afforded a passive role – generally they do not speak other than to confirm their name, plea, and understanding of the charges – and are normally represented and spoken for by legal counsel throughout proceedings. Similarly, victims are able to actively participate in the conferencing process and many report the experience as valuable, in terms of understanding why the offence has been committed and in gaining some sort of apology and/or restitution.

The vast majority of conference plans are agreed by participants and victims and offenders usually report being happy with the content of the plans. Interestingly, plans often center on elements designed to help the young person and victim, such as reparation to the victim or attendance at programs to help the young person. The most positive aspects of conferencing for participants often relate to its ability to provide a means of moving forward for both parties, beyond simply punishing the offender. Both victims and offenders who have been through conferencing express a strong preference for it, as opposed to going to court, and they see conferencing as offering a more meaningful environment for them.

Research And Evaluation

The vast majority of research studies on restorative programs to date report high levels of satisfaction among participating victims irrespective of the seriousness of the offence or cultural or geographical variations. Satisfaction rates are particularly high where comparative research has evaluated the experiences of victims who went through a restorative process compared with those who went through conventional processes. Umbreit and Coates (1993) noted that 79 % of victims who participated in mediation schemes in the USA were satisfied with the way in which their cases had been handled, compared with only 57 % of those whose cases were dealt with in a non-restorative manner. McCold and Watchell (1998) reported statistics of 97 % satisfaction for the restorative process compared with 81 % for the non-restorative process, and Sherman et al. (2005) reported that 70 % of victims who had participated in a restorative conference were satisfied, in comparison with 42 % whose cases where dealt with by a court. These findings are reflected in Latimer et al.’s meta-analysis (2001), where participation in a restorative scheme was found to result in higher victim satisfaction ratings when compared with comparison groups in all but one of the 13 programs examined. More recently, similar findings have been reported by Poulson (2003), who found that victims who had participated in restorative programs were half as likely to feel upset about the offence afterwards compared with those victims who attended court.

One of the more significant research evaluations to date has been the Canberra-based Reintegrative Shaming Experiments (RISE), which randomly assigned cases to a police-led conference or a court hearing and sought to compare the effectiveness of each procedure. The researchers arrived at the “inescapable” conclusion that “both victims and offenders can name many ways in which they prefer conferences to court” (Sherman et al. 1998: 165). Perceptions of fairness among victims and offenders were higher and observations reported greater participation, emotional intensity, procedural justice, apologies, forgiveness, and time and effort given to justice in conferences than in court (Sherman et al. 1998). Furthermore, conferences were said to increase offenders’ respect for the law and the police, and over 70 % of contractual obligations were fulfilled by offenders (Sherman and Strang 2007). Similar positive data relating to stakeholder satisfaction have been collected in evaluations of police-led projects in the United States (see, e.g., McCold and Watchell 1998).

More mixed evaluation results have been found in relation to police-led restorative cautioning. The Thames Valley scheme evaluated by Hoyle et al. (2002) found most offenders and victims were generally satisfied and felt they had been treated fairly. But a significant minority felt they had not been adequately prepared for the process or said had been pressured into it.

Most evaluations report that victims gain a strong sense of procedural justice. Mediators/ facilitators have been widely regarded as fair and objective (see, e.g., Shapland et al. 2011; Campbell et al. 2005), with victims feeling that they had adequate opportunity to express themselves (see, e.g., Trimboli 2000; Hayes and Daly 2004; Campbell et al. 2005; Shapland et al. 2011). Typically, victims place particular value on the ability to explain the effect the crime has had on them, put a face to the offender, and to have questions such as “why me?” answered (Hayes and Daly 2004; Campbell et al. 2005; Shapland et al. 2011). In relation to outcomes, satisfaction levels are similarly high (Campbell et al. 2005; Shapland et al. 2011).

Research also indicates that offenders are generally satisfied with their experience of the restorative process. In Northern Ireland, 92% of the young offenders felt the conference had helped them realize the harm they had caused and 93 % felt the conference plan was fair (Campbell et al. 2005). Similarly, 71 % of the young offenders were satisfied with their conference. In New Zealand, 84 % of offenders and 80 % of parents said that they were satisfied with the outcome of the family group conference. By contrast offender perceptions of their involvement in the process were much lower: 34 % of young people felt involved and only 9 % felt that they ultimately decided the outcome (Maxwell and Morris 1993). Results from more recent research suggest some level of improvement with around half of the sample of young people reporting that they felt involved in the conference process (Maxwell et al. 2004). Arguably, the inclusion and active participation of the offender is vital to the restorative process and the extent to which it is achieved may impact upon their perception of fairness and justice.

The perceived success or failure of restorative programs is often linked to their impact on recidivism rates. An overview of 14 different studies conducted by Nugent et al. (2003) found that those who participated in mediation had a statistically significant lower rate of recidivism. A broadly similar study conducted by the Canadian government (Latimer et al. 2001) found that restorative programs including mediation and group conferencing yielded reductions in recidivism compared with other non-restorative approaches. For programs involving group conferencing and sentencing circles, Umbreit et al. (2006) found somewhat mixed results. For the majority of the studies, the results were generally positive and showed that those who had gone through a conferencing process were less likely to reoffend than those who were traditionally processed. However, some of the studies reported differing results for different types of offenders. They note the RISE experiments from Australia showed a reduction in reoffending for violent crimes, but not a statistically significant reduction for the other categories of offences studied (mostly property offences). The research conducted by McCold and Watchell (1998) similarly found in their study of police-led conferencing that conferences had a more positive impact on recidivism rates for participants whose offences were relatively more violent.

A comprehensive meta-analysis of research looking at restorative interventions and their impact on reconviction was completed by James Bonta and his colleagues (Bonta et al. 2008). This meta-analysis was based on a wide review of differing programs that had a restorative basis and included court-imposed family group conferences and a range of community-based forums. Their analysis included studies with a comparison sample and recidivism data. Some 39 studies were used and nearly half were situated within a court setting, covering a range of restorative based programs. Overall, the researchers found the restorative programs produced a statistically significant 7 % reduction in recidivism rates over an average 17-month follow-up period (Bonta et al. 2008). In the case of violent offenders, the effect of the restorative intervention was stronger, with a reduction in recidivism of about 15 % (Bonta et al. 2008). However, the research suggests that the restorative interventions may be less effective with repeat, high-risk offenders – who by definition have a much higher rate of recidivism. These research findings are generally supported by other similar research, especially more recent studies (e.g., Shapland et al. 2011; Sherman and Strang 2007). In sum, therefore, it appears that restorative interventions have the ability to deliver lower levels of recidivism, especially compared with other criminal justice interventions. They also appear to work better with offenders who have committed more serious types of offences than petty offences.

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