What is restorative justice?
Restorative justice is a “penalty phase of the criminal process for admitted offenders” (Daly, 2002: 4) and is used in a wide range of settings from both juvenile and adult courts, civil, workplace and school settings. It is largely renown for youth conferencing, which involves all those affected by the offence, committed by the young person. It aims to help the offender accept responsibility for their actions and repair the harm caused by the crime (Daly, 2002: 5).
The primary stakeholders will determine the outcome themselves. “All primary stakeholders are given an opportunity to express their feelings and have a say in how to repair the harm” (McCold & Wachtel, 2003).
The secondary stakeholders are those not connected to the conference, in the way of being emotionally involved and instead, participate to conduct the conferencing, support and facilitate it (Daly, 2002: 15).
Originating in the 1970s, mediation worked with victims and the offender, later growing to include members of the community in the form of conferencing. The objectives of restorative justice ranges from “victim restoration, shaming and denouncing offenders, citizen involvement through to community empowerment” (Bazemore, 1997: 339).
Some conferencing deals entirely with the needs of the victim, whilst others attempt to deal with the underlying issues that caused the offender to commit the crime in the first place (Cunneen & White, 2010: 339).
The republican perspective takes a view that young people know when they’ve done something wrong and therefore, should be given the opportunity to be fully involved in the discussion, particularly the impact of their actions on the victim. This is seen as the most positive and constructive solution to addressing criminal acts (Cunneen & White, 2010: 342).
Repairing the harm
Crime causes harm and justice should focus on repairing that harm (Van Ness, 2009:3). One aspect of conferencing focuses on how the offender can make up for their negative actions and how to encourage future law abiding behaviour (Daly, 2002: 6). The young person then signs an agreement on paper outlining what must be done by what particular time to rectify the situation. This may include a letter of apology, compensation or work for the victim (Daly, 2002:4).
Critics have suggested that a crime against the state requires the participation of the state, rather than the direct victim (Ashworth, 2002: 2). A criminal justice system that doles out punishment, instead of attending the emotional and social needs of the offender, fails to address any issues. Conferencing helps to build relationships to sustain a positive change in order to reduce future offending and the impact of crime (McCold & Wachtel, 2003).
The people most affected by the crime should be able to participate in its resolution (Van Ness, 2009:3). “It is a process where all parties who have a stake in the particular offence, come together to resolve the situation and how to deal with the aftermath of the offence and its implications for the future” (Braithwaite, 1999:5). This may include police officers, parents, teachers, siblings, other family members, coaches as well as the victim, known as the “primary stakeholders” (McCold & Wachtel, 2003).
The group may be facilitated by professionals such as police, juvenile justice team member and child protection but may refrain from actively participating, as they are secondary stakeholders.
The victims are welcome to “actively participate in making things right” (Umbreit, 1994: 2002), particularly as most victims in the past have felt ignored by the courts. This gives the victims a chance to speak up and tell the offender how they feel, discuss the impact of the offender’s actions, as well as to help identify the causes of offending. The victim has a say in the solution which may involve the young person working for the victim, some form of compensation and a contract the young person must sign in order to promise to change their behaviour. This helps the young person to avoid stigma, particularly as they are usually referred to conferencing as first time or minor offenders.
The responsibility of the government is to maintain order (Van Ness, 2009:3). Crime is seen as a violation of people and relationships (Zehr, 1990), rather than a violation of the law. Conferencing gives those people affected by crime the opportunity to be heard. Many victims in the past have felt frustrated in being ignored by the law, particularly when offenders receive weak penalties and the victim isn’t given the chance to speak up about the harm they’ve suffered.
“Restorative justice is grounded in traditions of justice” (Braithwaite, 1999: 1) and in such cases of indigenous offending, may include harsh physical punishment and banishment from their communities. In some cases heard in Australian judicial courts, judges tend to forego any punishment if it appears that the indigenous person will face tribal punishment, so that person isn’t punished twice.
Conferencing should be completely voluntary for all participants and the offender needs to accept responsibility for the harm. An offender cannot access the conferencing option if they plead not guilty. They must admit their guilt to the crime in order to come to a fair solution, as discussed by all parties of the conferencing group.
Practice in the criminal justice system
Conferencing was first trialled in New Zealand during the 1980s (Cunneen & White, 2010: 341). Diversion has been used in Australian courts, particularly Youth Courts, as young people are particularly vulnerable to the social effects of negative labelling (Cunneen & White, 2010: 341) and may take on the behaviours as proscribed.
Conferencing is generally reserved for those committing minor offences and who aren’t recidivists, in order to address the behaviour before it becomes worse and as a diversion from formal court proceedings and sanctions.
South Australia originally implemented Children’s Aid Panels to deal with young offenders, as a warning and to counsel them, as an alternative to the Children’s Court. This has since been superseded by the interventions of conferencing (Cunneen & Morrow, 1994: 344).
There appears to be an increasing use of conferencing in the criminal justice system. It gives all participating members an opportunity to be involved in the discussion and arrives at a solution that benefits all or at least most of the participants. Since it was first used in South Australia, it has now been extended to all states and territories in Australia.
Crime is difficult to prevent but utilising the method of conferencing, it appears to tackle the causes of the crime instead of just issuing a penalty and moving onto the next offender. There is more chance of a lasting change. It is a positive attempt to prevent further crimes or harm being committed by the person at risk, by giving them an opportunity to address their issues in a conference environment.
Critics argue that the government should be responsible for issuing penalties upon breaches of the law, with little focus on addressing the issues behind the young person’s offending.
Conferencing rarely appears to be implemented in the adult courts but perhaps this will change in the future, as more attention and research is given on conferencing.
Ashworth, A. (2002). Responsibilities, rights and restorative justice. British journal of criminology, 42(3), p. 578
Braithwaite, J. (1999). Restorative justice: assessing, optimistic and pessimistic accounts. Crime and justice: a review of research 25(1), p. 1 - 127
Cunneen, C., & Morrow, J. (1994). Alternative penal sanctions. Australian law and legal thinking in the 1990s. Faculty of Law, University of Sydney, Sydney.
Cunneen, C., & White, R. (2010). Juvenile justice: youth and crime in Australia. Victoria, Australia: Oxford University Press.
Daly, K. (2002). Restorative justice: The real story. Punishment & society 4(1), p. 55
Daly, K. (2002). Mind the gap: restorative justice in theory and practice. Unpublished manuscript: Griffith University, Queensland, Australia.
McCold, P, & Wachtel, T. (2003). In pursuit of paradigm: a theory of restorative justice. XIII World Congress of Criminology, Rio de Janeiro.
Umbreit, M. (1994). Victim meets offender: the impact of restorative justice and mediation. Monsey, New York: Criminal Justice Press.
Van Ness, D.M. (2009). Key principles of restorative justice. Retrieved from the Restorative Justice Web Site: http://www.restorativejustice.org/whatisslide/keyprinciples