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. This may include police officers, parents, teachers, siblings and the victim, known as the “primary stakeholders” (McCold & Wachtel, 2003) and promotes the offender in accepting responsibilities for their actions and “repairing the harm caused by 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 conferencing, in a way of being emotionally involved and instead participate to conduct the conferencing, to support and facilitate it. The professionals do not dominate (Daly, 2002: 15).
Originating in the 1970s, mediation worked with victims and the offender, later growing to include communities in the form of conferencing. 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 looks at the view that young people know when they have done something wrong and therefore should be given the opportunity to be fully involved in the discussion regarding the impact of their actions with 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). The aim of restorative justice conferencing sessions is to seek out a solution for the offender to pay for their crime. 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, including the discussed penalty. 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, therefore fails to address any issues. The consequences of conferencing assists the building of relationships to sustain a positive change in order to reduce both the crime and the impact of crime (McCold & Wachtel, 2003).
The people most affected by 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 the young offender’s teachers, parents, siblings and other family members, coaches as well as the victim. The group may be facilitated by professionals such as police, juvenile justice team member and child protection but may refrain from actively participating.
The victims are welcomed to have “actively participated in making things right” (Umbreit, 1994: 2002), particularly when most victims in the past have felt as if they were ignored by the courts. This gives the victims a chance to speak up and relay how they feel to the offender, explaining the impact of the offender’s actions in addition to assisting in being able to identify the causes of the offending. The victim has a say in the solution which may involve 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 avoids the offender from facing stigmisation and the labelling theory, particularly as those offenders who are forwarded to the conferencing, are those who likely to be first time or minor offenders.
The responsibility of the government is to maintain order and the community to build peace (Van Ness, 2009:3). Crime is seen as a violation of people and relationships (Zehr, 1990) rather than a violation of the law and gives those people affected by crime the opportunity to be heard. It appears that many victims in the past have felt frustrated in being ignored by the law, particularly with weak penalties issued to the offender when the victim isn’t given the chance to speak up about the harm they have 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 Australia judicial courts, judges tend to forego any punishment if it appears that the indigenous person will face tribal punishment, instead of that person receiving two lots of punishment for the one crime.
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, as they must be open to admitting to their 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 in attempt to avoid young people from being labelled in order to stem the acts of crime that brought attention to them in the first place. Young people are particularly seen as vulnerable to the social effects of negative labelling (Cuneen & White, 2010: 341) and may take on the behaviours as proscribed. Conferencing is generally reserved for those committing minor offenders and who are not repeat, in order to address the behaviour before it is made worse and attempts to divert them from formal court proceedings and sanctions. South Australia originally used Children’s Aid Panels to deal with young offenders as a warning and to counsel them as an alternative to the Children’s Court but this has since been superseded by the interventions of conferencing (Cunneen & Morrow, 1994: 344).
In Australia, all states and territories have since implemented some form of conferencing particularly in the juvenile courts.
There appears to be an increasing use of conferencing in the criminal justice system in addition to the workplace, schools and family environments. It gives all participating members an opportunity to be involved in the discussion and arrive at a solution that benefits all or at least most. Since its first use in South Australia, it has now been extended to all states and territories in Australia, commonly in the youth court with the full participation of all those involved with the young person who has pled guilty.
Crime is a difficult issue to prevent but utilising the method of conferencing, 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 and possibly 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 have made mention that the government should be responsible for issuing penalties upon breaches of the law with no mention of curing the issues behind the young person. Others have argued that it is a breach of social relationships rather than specifically the law. Conferencing appears to have not fully been 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