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Restorative Justice

 



RESTORATIVE JUSTICE

Creating a Safer Society


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Restorative justice


Contents

1. Introduction

2. What is Restorative Justice and why is it Important?

3. Forum Sentencing

4. Psychological Aspects of Restorative Justice 

5. Restorative Justice Reduces Recidivism

6. NSW's Prison Restorative Justice Unit

7. Conclusion



------------------------------------- 

1. Introduction

Restorative Justice is a form of mediation that aims to reconcile the tensions between offenders, victims and the community, rather than retributive justice, which merely punishes the offender. “Restorative Justice aims to heal the community bonds and to have a humanising effect on the system of punitive justice”.[1] It enables stakeholders to cooperate and come to an agreement on appropriate outcomes at different stages of the criminal process, not just in the pre-trial process, as it is commonly perceived to be. 

This research paper has been prepared in light of questions of the effectiveness of Restorative Justice for reducing recidivism rates.[2] International studies referred to in this paper dispel this criticism. For Restorative Justice to be effective, emphasis is placed on reconciliation, where offenders accept responsibility for their actions and make amends and in turn create a level of empowerment in their own rehabilitation. 

Effective use of Restorative Justice processes can displace resources from the prison systems, enabling them to be put into the community. The term “justice reinvestment” describes the transfer of those resources into the source area of the problems. Trained community workers reconcile the tensions, often using those same people who have personally experienced the process, either as victims or offenders. For this role to be effective it must have trust, be independent of the coercive process and protected by privacy legislation such as created for community justice centres.

This paper proposes the extension of Restorative Justice programs from not just the pre-sentencing stage as an alternative to imprisonment, but also to working with offenders and victims throughout any sentence. This is an unrecognised opportunity for offenders to accept responsibility for their actions through a process of working with community mediators, learning new skills and learning to overcome feelings of guilt. The victims can gain an understanding of the offender, feel safer, lessen their recrimination, and gain closure. This process eases an offender’s acceptance and reintegration into the community.


2. What is Restorative Justice and why is it important?

Restorative Justice brings together those with stakes in specific offences in order to identify and address harms, needs and obligations as part of a healing process. It puts the people most affected by crime - the victims - at the centre of the process.[3] Restorative Justice encompasses practices at different stages of the criminal justice process; it includes diversion from court prosecution, action taken in parallel with court decisions, meetings between victim and offender at any stage of the criminal justice process, (e.g. pre-sentencing, arrest and prison release).[4] It has been used not only in Indigenous communities and with young offenders, but also in adult criminal matters and a range of civil matters.

There are many different treatments and programs for Restorative Justice, such as family treatment, circle sentencing, forum sentencing, mediation, reparation, and victim-offender conferences. The purpose of these programs is to create direct interaction with offenders, communities and victims through dialogues in order to achieve understanding and allocate responsibility.[5] According to a Canberra conferencing experiment in 2001, offenders are more likely to understand what is going on in conferences than in court cases. They felt empowered to express their views, have more time to do so, and most importantly they felt their rights were respected.[6] Restorative Justice Processes through Community Justice Centres are but one example of such an experiment. In this environment, free mediation is provided in order to solve disagreements and disputes, be it a component of a court hearing or to steer a case away from the criminal justice system all together. Issues of trust may arise during conferences, as there may be a fear amongst the offender or the victim disclosing information that may make them liable of an offence yet to be acknowledged or recognised. However, as is written under section 28(4) of the Community Justice Centres Act (1983) NSW, at any stage or arrangement of a mediation session, “evidence of anything said or of any admission made in the mediation session is not admissible in any proceedings, before any court, tribunal or body.”[7] This shows that parameters are taken to establish a dialogue of trust so that parties may express their views in confidence.

For young persons deemed ineligible for a warning or police caution, the investigating officer must refer the matter to a specialist youth officer who will refer the matter to a Young Justice Conference process.[8] This conferencing brings young people face-to-face with the victims of the offence and any other supporting groups or persons, who strive to re-integrate the offender into his or her family and community network. It aims to encourage young people to accept responsibility for the offence and attempt to repair the harm.[9] The accused discuss the consequences of the crime, drawing out the feelings of those who have been harmed, how that harm might be repaired and any steps that should be taken to prevent re-offending.[10] Family support in the Restorative Justice conference and process has been demonstrated to be of great significance in reducing recidivism.[11]

Problems arise when considering the variety of forms involved in the application of Restorative Justice schemes. The effectiveness of Restorative Justice cannot be analysed as a single or generalised scheme. For example, in January 2011, a BOCSAR study (for which Weatherburn is the director) written by Lind Bronwyn found that recidivism was highly prevalent in all types of programs dealing with juvenile justice, including many Restorative Justice programs.[12] However, those Restorative Justice programs that incorporated either family involvement or active involvement by researchers had significantly lower rates of recidivism.[13]

The importance of effective initiatives, which have the potential to significantly reduce recidivism, can be seen when examining figures of re-offending in Australia’s criminal justice system. According to Payne, research from the Steering Committee for the Review of Government Services found that the highest rate of recidivism was in NSW where approximately 43.5% of prisoners return to prison within 2 years.[14] In regards to youth offending, a study conducted by the NSW Bureau of Crime Statistics reported that Restorative Justice schemes in the format of large-scale youth conferencing reduce re-offending rates by 15-20%.[15] From these findings it is evident that some schemes are more effective than others. Particular programs, and the various aspects within them, that are effective should be identified, encouraged and improved if the issue of recidivism is to be addressed.
 

3. Forum sentencing

Forum sentencing is an adult-focused Restorative Justice program offered as an alternative to regular court sentencing procedures. Although circle sentencing and forum sentencing focus on adults alike, there are some significant differences between the two. Circle sentencing operates in Aboriginal courts, and forum sentencing operates in NSW Local Courts.[16] With both programs, eligible adult offenders can have their crimes dealt with at a community conference rather than in court. 

Criteria for eligibility of offenders include being aged between 18 and 24 years, if an offender has admitted their crime, been found guilty, facing the likelihood of a prison sentence, showing a willingness to participate and not being charged with any offences that automatically exclude them from participation in the program.[17] Currently, forum sentencing operates at two sites in NSW: Liverpool and Tweed.
[18]

Don Weatherburn refutes that forum sentencing can reduce re-offending or act as a serious sanction. The BOSCAR report in June 2009, written by Craig Jones, concluded that offenders who had gone through the forum-sentencing program were just as likely to re-offend as those who had been dealt with through conventional court proceedings.[19]

Conversely, industry peak bodies such as The Criminal Law Committee of the Law Society of New South Wales in October 2011 have declared their ongoing support for Restorative Justice programs, stating ‘the Committee [still] supports forum sentencing’ which in their view, had been demonstrated both domestically and internationally to be ‘more likely to achieve reductions in re-offending and other benefits for both victims and offenders’.[20] In February 2010, the BOSCAR seminar showed that Restorative Justice is effective in relation to serious crime and with adult offenders. There has also been a 27% reduction in repeat convictions and 27% less crime among offenders who had been involved in the Restorative Justice process.[21] Other benefits attained from forum sentencing include the significant reduction of crime victims, post-traumatic stress symptoms, reduced criminal proceeding costs, and reduced crime victims’ desire for violent revenge.[22] 

In relation to Weatherburn’s statements, he comments firstly that forum sentencing has “no effect on re-offending in NSW” and secondly that it stays in place in spite of “negative results”. There are several problems with these statements. The first statement demonstrates a lack of recognition for various other ancillary benefits associated with such programs: “Restorative Justice is not solely about reducing re-offending rates, but has many objectives which can benefit victims, offenders, and society at large”.[23]

Weatherburn’s descriptions of “negative results” and of “no effect” are simplistic as well as being a broad generalisation. Such a statement fails to accurately identify particular aspects of Restorative Justice that are performing poorly and the details of how they were measured. Furthermore, the “negative results” may be attributed to Weatherburn’s methodology rather than the performance of Restorative Justice programs themselves. After an examination of his own research in September 2008, Weatherburn acknowledged that a crucial caveat within the study was that results are impacted by the fact that the study sample consisted of offenders that had particularly entrenched habits.[24] While this weakness remains unaddressed, Weatherburn failed to reiterate this concern in 2012 when discussing the “negative results” of Restorative Justice.

Finally, whilst Weatherburn’s research shows evidence for no apparent beneficial reduction in New South Wales recidivism rates, the wealth of more optimistic international studies cited in this report demonstrate that the issue might not lay with the principles of Restorative Justice but rather the specific way they are applied to a situation. As such, there is at the very least, notable competing evidence to Weatherburn’s statements. 


Forum sentencing has great potential. Rather than dismissing this restorative scheme as having ‘no effect’, those in the position to do so should be advocating for support, improvement and encouragement of a system that seeks for such change.

 

4. Psychological aspects of restorative justice

Offenders held in detention cannot re-offend as they are confined to the prison complex. Restorative Justice uses a different approach by placing the victim and offender together, surrounded by the people that care for them. Restorative Justice is a rehabilitative and healing process, attempting to change offenders’ behaviour by enabling them to become aware of their mistakes. Another psychological aspect of Restorative Justice is the positive effect it has on the victim’s ability to understand and empathise with the offender. Restorative Justice processes provide a much-needed opportunity for those involved (both offenders and victims) to be exposed to the social realities of each other’s communities, and thus be confronted with the underlying causes of their behaviour. It is crucial to accept the significance that the social environment has on offending behaviour.

4.1 Victim Empowerment

The Restorative Justice process allows for conversation and action to be taken with attempts to address the sociological factors (which may include school, family, friends) that influence offending behaviour. Concerns from all parties are raised, as participants are encouraged to openly engage with the issues faced by both offender and victim. Some offenders employ techniques of neutralisation in order to minimise their responsibility for harm caused by their actions. For example, a thief may argue that the owner of the store can ‘get it back on insurance’. However, through Restorative Justice, the victim may have their say and help the offender understand the actual harm their offence caused.[25] This could happen possibly before the conviction or even during the sentence.

Some proponents of Restorative Justice regard it as being a powerful tool in empowering victims by giving them a voice and increasing their choices as well as augmenting their safety through the participation of family and friends.[26] There has been growing realisation that often a victim’s ‘voice’ is lost in criminal proceedings. However, through the use of Restorative Justice, victims are given an opportunity to express their emotions; acquire answers and information; and feel the sense of closure, recovery and safety.[27] Arguably, this can dramatically aid in the healing process for the victims, possibly diminishing any resentment or anger that they may feel as a result of the crime. This could be of great value when attempting to restore and maintain community ties, especially in Aboriginal and Indigenous communities.

It is quite possible also, that the victim may receive an apology from the offender, when aware of the issues that the victim is facing. According to Johnstone and Van Ness, an apology is a meaningful way of making amends; because it is an ‘acknowledgement of wrongdoing’.[28] It requires acknowledgment of fault and acceptance of responsibility, empowering a new paradigm of prisoner responsibility. As Doolin suggested, repairing harm should go beyond physical and material losses to encompass emotional aspects, which is restoring the victims’ self-respect and feeling of safety, and the offender’s sense of belonging.[29] Not only does this provide an emotional support to the victim, but this understanding on the offender’s behalf is essential in attempting to reduce the risk of recidivism. Ward and Langlands (2009) state that ‘the purpose of Restorative Justice is to facilitate community healing by repairing the harm that results from crime; and more specifically, repairing the fractures within relationships between victims, offenders, and the community that inevitably occur following offending’.[30]

4.2 Effect on Community
The community has an imperative role in the Restorative Justice process, especially in the Aboriginal and Indigenous community. Through active participation in the resolution process, the community is given a legitimate voice in how crime is dealt with. The community is given the opportunity to meet the needs of parties, aid accountability and reintegration and alleviate the source of conflict. According to McCold, the purpose is to ensure that communal ties are strengthened, relationships re-established and that the community is reassured that what occurred was wrong and steps are being taken to prevent similar future incidents.[31]

This is imperative within Aboriginal and Indigenous communities. The process of forum sentencing (or circle sentencing) is a tool that empowers Aboriginal communities to have a role in the justice process. The presence and authority that Aboriginal Elders possess are of psychological and emotional significance to the offender. An evaluation of circle sentencing programs by the NSW Attorney Generals Department (2008) found that the engagement of Elders in a judicial process re-asserts their status and respect, and that their traditional positions in the community have merit. In this way, Circle Sentencing can be seen as institutionalising this traditional authority.[32] Their influence within Indigenous community circles also provides a personal level of commitment and accountability that courts are incapable of providing. A testimonial statement of one of the offenders revealed: “Because you see the Elders every day in the street, it keeps you straight.”[33]

Restorative Justice centres on the impact of harm experienced by victims and community rather than offender only. The aim is to encourage offenders to take responsibility for their behaviours and restore relationships with both victim and community. More importantly, it provides offenders with the ability to reintegrate back into society.[34] The importance of this cannot be denied.

4.3 Positive Shaming
Re-integrative shaming, also called ‘positive shaming’, is a tool employed in some Restorative Justice initiatives.[35] Through the process of re-integrative shaming, the offender, victim and community view the offending behaviour as separate from the offender as a person. The offender, perceiving the behaviour as shameful, and also as separate from themselves, may then impersonally analyse it and express the underlying causal factors which led to its occurrence. Through negotiation, the victim, community and offender may discuss the harm caused by the offence, the needs of the victim, and address the problems of the offender.


Positive shaming contrasts with the negative shaming or labelling that is inherent in conventional criminal justice processes and that brands offenders as ‘bad’ people. Offenders carry this label that is then reinforced by the community, media, and/or by criminal justice agents such as police and correctional services. This often results in offenders living up to the stereotype that has placed upon them. Labelling has a long-term effect on offenders. They often suffer the consequences for one mistake throughout their whole lives. Successful re-settlement into society, including finding a job and being accepted back into the community, is a difficult process once labelled a criminal. Restorative Justice acknowledges that people change and promotes initiatives that facilitate such change. Restorative Justice provides the support that offenders find hard to receive in a society where they are depicted as being ‘bad’.

Restorative Justice gives victims a voice and has proven to reduce recidivism where retributive justice as a correctional policy fails. Re-integrative shaming can humanise a system of justice that presently relies on repression rather than forgiveness and self-reflexivity.[36] Furthermore, Restorative Justice allows the community to reconcile with the offender and provides a meaningful experience to understand and reflect upon the extent of the offence with the support of both victim and offender’s close and social circles.

 

5. Restorative Justices Reduces Recidivism
Key research has shown that, whilst forum sentencing does have certain limitations, there are identifiable areas for reform that would surely produce beneficial results. For example, one 2007 study assessed the efficiency of Restorative Justice programs including victim-offender mediation throughout the United Kingdom, United States of America, Australia and Canada. It found that forum sentencing type programs would in fact be more effective if the Australian criteria allowed for some of the currently excluded more serious offences.[37] Other research suggests that forum based programs need to address offenders on an individual basis; addressing their characteristics and behaviors that are associated with criminal activities but that can be changed.[38] Jones outlines that effective rehabilitation has to be structured, focused and include multiple treatment options such as training and education, community work-placement, and cognitive behavioral therapy based on individual outcomes.[39]

Evidence and follow up periods detail that in comparison to more retributive approaches to criminal behaviour, Restorative Justice programs have shown reductions in recidivism rates and greater success for those offenders in treatment programs.[40] Restorative Justice procedures have evidently had a positive impact in lowering recidivism rates in Winnipeg, Canada. The gap between Restorative Justice participants and probationers widens as the time-span for recidivism rates increases. The statistics from the Canadian study proves this trajectory trend: “In the first year, the Restorative Justice offenders had a recidivism rate of 15% compared to 38% for the probation group. In the second year the respective rates were 28% and 54% and by the third year the rates were 35% and 66%”.[41]

Several studies conducted on an international scale focusing on Restorative Justice indicate that recidivism decreases by up to 7%, hence having a generally positive effect.[42] In the UK, it has been found that Restorative Justice, especially the Young Offenders’ programs, is a more cost-effective approach than the mainstream retributive justice system. This means that while reducing recidivism, Restorative Justice programs also bare significantly less financial burden, by up to 185 million pounds ($AU 275 Million).[43] Such studies also note the simple fact that a reduction in re-offending equates to a reduced fiscal demand from prison expenditure on taxpayers. Haverty also gives a strong indication of positive results of Restorative Justice practices via a recent study conducted by Lawrence Sherman. “Evaluations conducted by seven Cambridge led experiments in Restorative Justice showed that the experience of victim-mediation reduced reconviction and recidivism by 27%”.[44] This comprehensive quantitative study directly contradicts Don Weatherburn’s generalisation that Restorative Justice programs are ineffective.

 

6. NSW Prison Restorative Justice Unit
The development of restorative justice processes adopted within Australian states and territories has been derived from the conferencing model established in New Zealand. Most restorative justice schemes aim to direct cases away from the criminal justice system to avoid offenders ending up in incarceration. However, more recently, initiatives have been implemented that focus on restorative justice post-sentencing. In New South Wales, the Restorative Justice Unit (RJU) operates through the Department of Corrective Services (DCS). The information below sourced from the DCS website sounds promising, and does show an acceptance of the benefits of restorative justice, however according to various stakeholders, in reality this unit is under utilised and under resourced. Also, in practice offenders do not have much interaction with this unit unless the victim initiates the processes. To ensure that this program utilises its full potential, it would also be idyllic to have it run external to DCS.

Nonetheless, it is still imperative to explore the current initiatives to ensure that they are used properly and discover avenue for improvement. This program facilitates a range of restorative justice processes however focus is specifically on victim-offender conferences. This type of conference will only take place post-sentencing of an adult offender and will only commence if the offender takes full responsibility for their actions, making the service non-coercive for the offender.[45] The victim must also be willing to participate. The RJU aims to ensure that all conferences are of a private nature and facilitated by trained personnel that support each party and their needs. The role of the trained facilitators is to assist in the process of victims moving forward through feelings of empowerment and expression of thoughts and feelings. It is important for victims to be able to explain to offenders how they have been impacted crime as this allows the offender to accept responsibility and seek to amend the harm they have caused. Through this, it is evident that the NSW RJU encourages reconciliation between victim(s) and offenders, and can be seen as a positive approach in attempts of mending broken social relationships prevalent through the committal of crime.

7. Conclusion
There is compelling research suggesting that forum sentencing and Restorative Justice as a whole reduces rates of recidivism. This is in addition to the secondary benefits that exist beyond the scope of quantifiable statistics. Quantifiable evidence, and the wealth of other ancillary benefits, demonstrates that Weatherburn’s media comments were too general, and lacked the depth required to provide adequate insight into the subject. As such, Justice Action believes that satisfactory evidence exists to argue that Restorative Justice measures, such as forum sentencing, and its Aboriginal counterpart, circle sentencing, at the very least have more credibility than what Weatherburn’s sweeping statements indicate. At best, Restorative Justice deserves expansion as a critical reform to the criminal justice system. It foregrounds community healing and social reintegration as well as individual responsibility and self-reflexivity and should thus be encouraged rather than denying its further potential in recidivism.

 


 



[1]J Prihan, ‘On the Social Theory of Restorative Justice’ (2009) 4(2) International Journal of Restorative Justice 35.


[2] Dr Don Weatherburn (Director of the NSW Bureau of Crime Statistics and Research).

[3] Corrective Services NSW, Restorative Justice. <http://www.correctiveservices.nsw.gov.au/information/restorative-justice> at 28 December 2011.

[4] Australian Institute of Criminology Trends & Issues, Restorative Justice and Conferencing in Australia, Report No. 186 (2011).

[5] M. Liebmann, What is Restorative Justice, Restorative Justice: How it works (2007) 26.

[6] Ibid 48.

[7] Community Justice Centres Act 1983 (NSW).

[8] Australian Institute of Criminology, Youth Justice Conferences verse Children’s Court: A Comparison of Time to Finalisation, Report No 74. (2011).

[9] Australian Institute of Criminology, Youth Justice Conferences verse Children’s Court: A Comparison of Time to Finalisation, Report No 74. (2011).

[10] J. Braithwaite, Theories of Why Restorative Justice Might Restore, Restorative Justice: Theories and Worries, 123rd International Senior Seminar Visiting Experts’ Paper, (1999) 47.

[11] M. Liebmann, What is Restorative Justice, Restorative Justice: How it works, (2007) 26.

[12] NSW Bureau of Crime Statistics and Research, Screening cautioned young people for further assessment and intervention, Report No 149, (January 2011).

[13] Clinical Psychology Review, A meta-analysis of experimental studies of diversion programs for juvenile offender, Report No 32 (2011) [26].

[14] Australian Institute of Criminology, Recidivism in Australia: findings and future research, Report No 80 (2007) [61].

[15] Australian Institute of Criminology, Restorative Justice as a crime prevention measure, Report No 20 (2004).

[16] Lawlink, CPD Programs. <http://www.lawlink.nsw.gov.au/lawlink/cpd/ll_cpd.nsf/pages/CPD_projects>; at 15 December 2011.

[17] Australian Institute of Criminology, Does Forum Sentencing Reduce Re-Offending?, Report No 129 (2009).

[18] Ibid.

[19] Ibid.

[20] The Law Society of New South Wales, NSW Law Reform Commission Sentencing Review- preliminary submission, (2011).

[21] Crime and Justice Bulletin, Restorative Justice, (2011) [20].

[22] W. Sherman Lawrence, Heather Strange, Restorative Justice: The Evidence (2007) [5] Restorative Justice Online <http://www.restorativejustice.org/articlesdb/articles/7893> at 31st January 2012.

[23] Ibid.

[24] Crime and Justice Bulletin, The NSW Drug Court: A Re-evaluation of its Effectiveness, Contemporary Issues in Crime and Justice (2008) Report No 121.

[25] M. Liebmann, Restorative Justice: How it works (2007), 26.

[26] Dignan J. (2005) Understanding Victims and Restorative Justice, United Kingdom

[27] Aziz, Sagufta (2010), ‘Should Restorative Justice Be Used For Cases Of Domestic Violence?’ (2010) 6 International Journal Of Restorative Journal 1, 1-48.

[28] Johnstone (2002); Van Ness (2002) cited in Ibid, 6.

[29] Doolin (2007) cited in Ibid, 6.

[30] T. Ward & R. Langlands, Repairing the Rupture: Restorative Justice and the rehabilitation of offenders (2009) 206.

[31] McCold, 1996, cited in Ibid, 2.

[32] NSW Attorney Generals Department, Evaluation of Circle Sentencing Program (2008) 64.

[33] Ibid.

[34] L Keena; A Fulkerson & L Krieger, ‘Stepping Outside The Box: Perceptions of Judges And Attorneys Of The Drug Court’ (2010) 6(1) International Journal Of Restorative Justice, 49, 49-70.

[35] J. Braithwaite, Restorative Justice: Ideas, Values and Debates (2002) 120.

[36] J. Braithwaite, Restorative Justice: Ideas, Values and Debates (2002) 118.

[37] Crime and Justice Bulletin, The NSW Drug Court: A Re-evaluation of its Effectiveness, Contemporary Issues in Crime and Justice (2008) Report No 121.

[38] NSW Bureau of Crime Statistics and Research, Does Forum Sentencing reduce re-offending? (2009) Report No 129 [12].

[39] Ibid, 13.

[40] Research And Statistics Division Methodological Series, Department of Justice Canada, The Effectiveness of Restorative Justice Practices: A Meta-Analysis (2001) 14.

[41] Public Safety Canada, Restorative Justice and recidivism <http://www.publicsafety.gc.ca/res/cor/sum/cprs200301_1-eng.aspx> at 3 March 2012.

[42] D. Sullivan, L. Tifft, Handbook Of Restorative Justice: A Global Perspective, Restorative Justice And Recidivism Promises Made, Promises Kept? (2006) 114.

[43] Restorative Justice Council, Restorative Justice Works <http://www.restorativejustice.org.uk/restorative_justice_works/>; at 31 January 2012.

[44] Martin Haverty, Restorative Justice in Ireland: Present and Future Direction, Conclusion (2009).

[45] New South Wales Government, Corrective Services NSW, Restorative Justice <http://www.correctiveservices.nsw.gov.au/information/restorative-justice>.

 


 

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