The Good, The Bad and the Community: Restorative Justice

1. The Good, The Bad and the Community:Restorative Justice Dan Ellingworth Troubles of Youth 2nd February 2009

2. Lecture Outline • Principles and Theories of Restorative Justice • The Referral Order and Youth Offender Panels • Evaluation

3. Restorative Justice: a critique of traditional justice • Crime = violation of the state • Social injury result in another social injury • Community represented by the State • Dependence on professionals: offender and victim passive • No encouragement for repentance and forgiveness

4. Traditional Justice Offenders The State Problem: breaking the law

5. Restorative Justice Problem: Conflict between offender, victim and community Offenders Victims Community

6. Restorative Justice Definitions (?) Restorative justice is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future. (Marshall, 1999) • Crime = violation of one person by another • Offender encouraged to take responsibility • Negotiation replaces adversarial style • Focus on repair of social injury • Direct involvement of participants • Community involvement

7. Restorative Justice Practices Flexibility, Problem Solving, Voluntary

8. Some Key Theorists • Howard Zehr • retributive justice and restorative justice seen as diametrically opposed • emphasised benefits for victims, and the active participant of offenders • not (initially) as concerned with issues of community involvement • Nils Christie • traditional justice “stole” the conflicts from the injured parties: advocated the return of conflict to the two parties • a shift back to civil rather than criminal justice • Martin Wright • concerned to encourage the integration of traditional and restorative justice • emphasised the importance of community involvement as a way of appeasing calls to public-interest more associated with traditional justice • John Braithwaite • reintegrative shaming • a distinction drawn between alienating shaming and reintegrative shaming

9. Youth Offender Panels and Referral Orders • Established by Youth Justice and Criminal Evidence Act 1999 • Referral Orders • given to a young person who pleads guilty to an offence when it is their first time in court. • not given if offence is so serious that the court decides a custodial sentence is absolutely necessary, or the offence is relatively minor where a fine or absolute discharge would suffice • Youth Offender Panel • Two volunteers, plus a member of YOT • A contract is drawn up with agreement between offender and victim lasting between 3 months and a year • The conviction is ‘spent’ once the contract has been successfully completed. • 6000 cases in 2006/7

10. Aims • Diversion • early, non-stigmatising, interventions • reduce the need for custody • Reduced re-offending • Demonstrating Impact of Offending • challenging “Techniques of Neutralization” (Matza) • Effective Remedies for Victims • psychological and material • Community Involvement

11. Victims’ experiences of YOPs • Crawford and Newburn (2003) • Evaluation of pilot programmes • Total 696 cases • No victim - 128 cases • Identifiable Victim – 544 cases • Victim Attended – 71 cases (13%) • Victim contact not particularly effective • (2005-6 87% of victims contacted: 48% accepted) • 53% of victims ‘would have attended given the opportunity’

12. Victims’ experiences of YOPs • Initial reaction: 30% voiced nervousness and apprehension • Few victims expected ‘a result’: most expressed a hope for acknowledgement / apology • 35% thought should attend ‘out of duty’ • 43% thought victims should have a say in resolution • 60% attended ‘to see how they worked’

13. How sorry did you feel for the offender?

14. Victim’s Respect for the CJS

15. Evaluations of RJ initiatives Shapland, J et al (2004) Implementing Restorative Justice schemes Home Office Online Report 32/04 • Victim involvement higher where offender was young • Little representation by the community • Offenders admitted a lot or quite a lot of responsibility for the offence in 60% of the conferences observed, with 11% admitting only a little or no responsibility. • Disapproval of the offence and shaming of the offender in most meetings. Apologies almost always offered, but offenders recognised this was insufficient in serious offences. Explicit forgiveness of offender rare. Sherman and Strang (2008) Restorative Justice (YJB) • Evidence of effective outcomes • RJ is effective at reducing victim trauma and stress • Inconclusive evidence about reduction in future offending

16. Limitations of RJ • Reliant on voluntary cooperation • what happens when one, two or all three parties are unwilling to cooperate? • Always reliant on traditional justice where RJ fails for one reason or another • Reliant on already existing degrees of community integration: • capacity for communities to be supportive and re-integrating, rather than exclusionary are dependent on a range of resources available to different communities • Conflict with other CJ agendas (eg. ASBOs?)

17. Key Issues in the development of RJ • Defendants’ Rights • wrongful convictions, and particularly disproportionate punishments • overly punitive victims? • Victims’ rights • possibly left aggrieved • actually there to serve a role more related to the offender? • Truly Voluntary? • Justice and Fairness • comparability across different cases?