Punitive Restoration and Restorative Justice
123
enabling both understanding and healing.6 Perhaps the best-known working definition of restorative justice approaches is offered by T. F. Marshall: “Restorative justice is a process whereby all 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.”7
Marshall’s focus on the process of restorative justice approaches illumi- nates one distinctive difference from models of traditional sentencing. Judges and magistrates determine the sentencing outcomes for con- victed offenders from their courtroom benches following a set of formal pro- cedures. A growing concern in recent years is that these procedures exacer- bate victim displacement, a position stated eloquently by John Gardner:
we seem to have lost sight of the origins of the criminal law as a response to the activities of victims, together with their families, associates and supporters. The blood feud, the vendetta, the duel, the revenge, the lynching: for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it today came into existence.8
The challenge is to discover some process whereby the victim can play a more substantive role in criminal justice without returning to the many problems that led to victim displacement.
Restorative justice approaches, such a victim–offender mediation and restorative conferencing, suggest such a process—and they provide us with an alternative to the traditional, formal procedures for sentencing. Restorative approaches endorse a more informal means to secure out- comes located away from courtrooms led by a trained facilitator instead of a judge or magistrate. Facilitators
conduct meetings that require the offender to admit guilt beforehand. Offenders are permitted a legal repre- sentative although they are not nor- mally present and offenders are expected to engage directly with others present.
Both mediation and conferences begin by the facilitator clarifying the parameters and purposes of the meeting with guidance available from the Restorative Justice Council. The victim is then provided an oppor- tunity to speak next and to address the offender to explain the impact of the offender’s crime on her. Restorative conferences next permit any members of the victim’s support network, such as their friends and family, as well as select members of the local community, to discuss how the offender’s crime impacted them. The offender speaks last and is expected to account for his crimes, typically including an apology to the victim. These meetings conclude by participants confirming a contract that the offender is asked to agree. If the offender does not do so, or if he fails to honor its terms in full, then the next step can include a transfer to a consideration of the alleged offence in the courtroom, where potential out- comes can be more punitive.9
Restorative approaches are more than a process, and aim to provide real benefits. The first is that mediation and conferences lead to “restorative contracts” agreed to by all parties, including offenders, in about every restorative meeting: studies have found contracts agreed to in up to 98% of cases.10 The second benefit is that the contracts agreed upon improve the reduction of reoffending by offenders. These contracts can better target the specific needs of offenders because of the
Thom Brooks
124
greater flexibility of the more informal process of restorative meetings. Stan- dard outcomes include requirements that offenders attend treatment to overcome their substance abuse or problems with anger management, training is provided to improve employability and general life skills, some compensation to the victim is agreed on, and some element of com- munity sentencing is often included. This improved targeting of offender needs has been found to contribute to up to 25% less reoffending than alternatives.11
Restorative approaches are found to improve our ability to address pro- blems associated with victim displa- cement. Nils Christie argues:
The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own case. It is the [state] that comes into the spotlight, not the victim. It is the [state] that describes the losses, not the victim.12
Restorative justice approaches address these problems in a poten- tially fruitful way. Victims report high satisfaction with restorative approaches, especially participation in restorative conferencing—and this is true for all participants, including offenders.13 While victims regularly report feelings of alienation for cases heard in courtrooms, restorative meetings outside the courts provide a more informal and less intimidating context where victims are encouraged
to vocalize their experience of crime and its personal effects in an attempt to find closure in a safe and construc- tive environment.
This higher satisfaction f
Punitive Restoration and Restorative Justice
123
enabling both understanding and healing.6 Perhaps the best-known working definition of restorative justice approaches is offered by T. F. Marshall: “Restorative justice is a process whereby all 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.”7
Marshall’s focus on the process of restorative justice approaches illumi- nates one distinctive difference from models of traditional sentencing. Judges and magistrates determine the sentencing outcomes for con- victed offenders from their courtroom benches following a set of formal pro- cedures. A growing concern in recent years is that these procedures exacer- bate victim displacement, a position stated eloquently by John Gardner:
we seem to have lost sight of the origins of the criminal law as a response to the activities of victims, together with their families, associates and supporters. The blood feud, the vendetta, the duel, the revenge, the lynching: for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it today came into existence.8
The challenge is to discover some process whereby the victim can play a more substantive role in criminal justice without returning to the many problems that led to victim displacement.
Restorative justice approaches, such a victim–offender mediation and restorative conferencing, suggest such a process—and they provide us with an alternative to the traditional, formal procedures for sentencing. Restorative approaches endorse a more informal means to secure out- comes located away from courtrooms led by a trained facilitator instead of a judge or magistrate. Facilitators
conduct meetings that require the offender to admit guilt beforehand. Offenders are permitted a legal repre- sentative although they are not nor- mally present and offenders are expected to engage directly with others present.
Both mediation and conferences begin by the facilitator clarifying the parameters and purposes of the meeting with guidance available from the Restorative Justice Council. The victim is then provided an oppor- tunity to speak next and to address the offender to explain the impact of the offender’s crime on her. Restorative conferences next permit any members of the victim’s support network, such as their friends and family, as well as select members of the local community, to discuss how the offender’s crime impacted them. The offender speaks last and is expected to account for his crimes, typically including an apology to the victim. These meetings conclude by participants confirming a contract that the offender is asked to agree. If the offender does not do so, or if he fails to honor its terms in full, then the next step can include a transfer to a consideration of the alleged offence in the courtroom, where potential out- comes can be more punitive.9
Restorative approaches are more than a process, and aim to provide real benefits. The first is that mediation and conferences lead to “restorative contracts” agreed to by all parties, including offenders, in about every restorative meeting: studies have found contracts agreed to in up to 98% of cases.10 The second benefit is that the contracts agreed upon improve the reduction of reoffending by offenders. These contracts can better target the specific needs of offenders because of the
Thom Brooks
124
greater flexibility of the more informal process of restorative meetings. Stan- dard outcomes include requirements that offenders attend treatment to overcome their substance abuse or problems with anger management, training is provided to improve employability and general life skills, some compensation to the victim is agreed on, and some element of com- munity sentencing is often included. This improved targeting of offender needs has been found to contribute to up to 25% less reoffending than alternatives.11
Restorative approaches are found to improve our ability to address pro- blems associated with victim displa- cement. Nils Christie argues:
The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own case. It is the [state] that comes into the spotlight, not the victim. It is the [state] that describes the losses, not the victim.12
Restorative justice approaches address these problems in a poten- tially fruitful way. Victims report high satisfaction with restorative approaches, especially participation in restorative conferencing—and this is true for all participants, including offenders.13 While victims regularly report feelings of alienation for cases heard in courtrooms, restorative meetings outside the courts provide a more informal and less intimidating context where victims are encouraged
to vocalize their experience of crime and its personal effects in an attempt to find closure in a safe and construc- tive environment.
This higher satisfaction for all par- ticipants is a product of the dialogue brought about through restorative meetings whereby each participant has opportunities to engage with others to better understand the wider context of a particular crime and its effects on others, aimed at bringing closure. Victims gain some insight into crimes committed against them and offenders benefit from greater knowledge about the consequences of their actions. Finally, restorative approaches are much less expensive than traditional sentencing. One study found restorative approaches saved £9 for every £1 spent.14
Restorative justice is not one prac- tice, but a broad tent encompassing a wide diversity of practices. This article focuses on restorative justice approaches that are an alterna- tive to sentencing. These approaches demonstrate significant promise as restorative meetings might achieve the benefits of improved victim satis- faction through greater participation opportunities, less reoffending through better targeting of offender needs, and promotion of constructive engagement at much reduced costs. Restorative justice may be an impor- tant first step towards meeting the twin challenges of improving public confidence while reducing reoffending.
or all par- ticipants is a product of the dialogue brought about through restorative meetings whereby each participant has opportunities to engage with others to better understand the wider context of a particular crime and its effects on others, aimed at bringing closure. Victims gain some insight into crimes committed against them and offenders benefit from greater knowledge about the consequences of their actions. Finally, restorative approaches are much less expensive than traditional sentencing. One study found restorative approaches saved £9 for every £1 spent.14
Restorative justice is not one prac- tice, but a broad tent encompassing a wide diversity of practices. This article focuses on restorative justice approaches that are an alterna- tive to sentencing. These approaches demonstrate significant promise as restorative meetings might achieve the benefits of improved victim satis- faction through greater participation opportunities, less reoffending through better targeting of offender needs, and promotion of constructive engagement at much reduced costs. Restorative justice may be an impor- tant first step towards meeting the twin challenges of improving public confidence while reducing reoffending.