Debating restorative justice
Jan 25, 2011
reviewed by Martin Wright:
This is the first of a new series of law books, each containing two essays of about 30,000 words on different sides of a current debate. Carolyn Hoyle suggests that there is more talk than action, and some of the action called restorative is actually punitive, such as the community service performed in conspicuous clothes. In her discussion of communitarianism she regards community participation as the presence of supporters and others at a restorative conference, but does not refer to the involvement of independent voluntary-sector mediation services (and admittedly they are thin on the ground). She considers that communitarians go too far in rejecting the state. In her view restorative justice and criminal justice are complementary: courts are necessary if the accused doesn’t admit involvement. This is true; Hoyle does not exclude the use of prison for retribution, but surely in a fully restorative system the courts would impose reparative, not punitive, sanctions. She does not explore whether these should try to be proportionate to the offender’s culpability or the harm suffered by the victim.
Once again we are up against different definitions. Hoyle rightly points to confusion about what is ‘restorative’ (p. 14), but says ‘Given that restorative justice is a form of punishment…’ (p. 63); many restorativists, however, would say that on the contrary it is a way of responding to harm that is not based on the infliction of pain, but on repair – to the victim and if necessary to the offender. As she says, this does not exclude censure, but should not revictimize the offender. A process of formulating values by deliberation (p. 69) is widely called ‘restorative practices’, but she uses this term for victim support, victim impact statements and judicially imposed reparative measures (pp 14-15).
Discussing some of the contentious problems in restorative justice, Hoyle asks, "Who should facilitate?" She has reservations about the police doing it, but does not mention the voluntary sector. Should it be used in cases of domestic violence? she challenges the radical feminists who claim to speak for victims and thereby deny them a voice, but does not mention successful applications of restorative justice in such cases, for example in Austria.1 What about crimes against humanity? Although not perfect, truth and reconciliation commissions have allowed victims to be heard; but ‘everything has its limits’ (p. 89): Zimbabwe, for example, is not yet ready to take part in a reconciliatory process in good faith.
Returning to the criminal justice context, Hoyle suggests that restorative justice may offer ‘means that tend to reduce or heal the damage, while also giving perpetrators a way back from the brink’ (p. 93). She is hard on restorativists regarding re-offending rates: there are now figures indicating substantial reductions; but she is right to say that that should not be the main criterion by which to assess restorative justice. She provides a useful annotated bibliography.
Chris Cunneen writes about ‘the limitations of restorative justice’, and from an Australian vantage point. He points to some of the issues which restorativists need to address. It ‘fails to challenge the exclusionary processes of criminalisation’ (p. 106). Hoyle criticizes its theorists for rejecting the state (p. 37), but Cunneen says that in practice it tends to work within the traditional criminal justice system. He includes the victims’ rights movement, concerned especially with serious offences like homicide and rape, among its formative influences; in the UK, however, victim support was originally concerned more with run-of-the mill offences, and was ambivalent about restorative justice for potentially ‘using’ victims in the interests of offenders.
Cunneen says that restorative justice has communitarian appeal (‘Gemeinschaft’), though he too does not mention the voluntary sector, but he rightly says that it is a moral response to crime which stresses individual accountability; ‘the role of the community in reintegrating the wrongdoing offender’ (p. 121), meeting the needs of offenders and enabling them to make whatever reparation they have agreed to, is not conspicuous in the literature or in practice. In the UK at least, risk management is in the ascendant.
When he looks at the globalization of restorative justice, state control again seems to have the upper hand over communitarianism: the state is ‘governing at a distance’, for example by deciding who is the ‘victim’ and the ‘offender’ and determining the ‘dramaturgical script’; few conferences take place without representatives of state agencies (pp. 132, 138, 137), and treating police officers a ‘victims’ can be problematical (p. 141)2. For victims, for example, Cunneen makes a string of criticisms, most of which relate to poor practice rather than any defect in restorative theory. Victims shouldn’t feel coerced, they don’t want the responsibility of deciding the offender’s future, if they feel the offender is coerced they may not consider his apology real, there is a low level of attendance; but if it’s done well, these things shouldn’t happen, or victims can be prepared for them and make their own decision about taking part. In fact, satisfaction has always been high (though admittedly we shouldn’t ignore the dissatisfied), and Northern Ireland has shown that victim participation can be high under the right conditions. Cunneen quotes your reviewer out of context: ‘As Wright has succinctly remarked, victims may be promised healing, but the “primary aims are crime reduction and re-education of the offender” ’. The article quoted (which at that point was actually summarizing a statement by the director of Victim Support) was warning against making such promises if those were the real primary aims [emphasis added], but did not claim that this was actually happening.
Cunneen raises some important concerns (e.g. the accused may feel police coercion to admit the offence), but in several of them he presents the worst-case scenario. The victim gets no restorative justice if the offender denies the offence; but in New Zealand and elsewhere it is only necessary for the accused ‘not to deny’ involvement. Victims are involved in a more confronting meeting than in court; but it is a meeting which allows dialogue and explanation.
Regarding structural inequalities, Cunneen also raises the problem of domestic violence without referring to international experience. On hate crimes, he suggests unconvincingly that it ‘may be’ better to punish the crime, and public denunciation ‘may be’ the most acceptable outcome (p. 155), yet he criticizes other people’s ‘speculative’ arguments (p. 156). He is right to say that there is little in restorative theory or practice to address underlying pressures towards crime, although small steps towards this have been taken in New Zealand and South Africa.
On ‘Law, state and community’, Cunneen returns to the competition between restorative justice and the law; again, law can trump the wishes of the community – although this may be an important safeguard, because the community is not always right. ‘Through the miracle of statistics, the most marginalised groups within society reappear as those who present the greatest risk to security’ (p. 172), and are therefore denied the benefits of restorative justice (p. 168), which is ‘yet another penal strategy reserved for those who are deserving’ (p. 173). He might have added that neither system does enough to confront the most powerful harm-doers, who often have enough influence to prevent their corporate anti-social behaviour from even being defined as criminal. He is less willing than Hoyle to accept truth and reconciliation commissions as at least better than most alternatives.
In conclusion, Cunneen asks some questions: is restorative justice making a significant impact on criminal justice, or has it merely a toe-hold as a peripheral add-on? Is it merely a normative theory, or achievable? Is it ‘endlessly malleable’(p. 187), to satisfy everyone from hard-line politicians to evangelical supporters? He sounds as if he is expecting the pessimistic answer, but he is right to ask, and both parts of this book present a constructive challenge to activists to justify their optimism.
1 Christa Pelikan, ‘The never ending story: restorative justice and domestic violence’, European Forum for Restorative Justice newsletter, 2010 June, 11(2), 1-2.
2 These points are supported by M.Zernova, Restorative justice: ideals and realities. Ashgate, 2007.