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Book Review: Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?
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Restorative justice is not a cut-and-dried system, as Dan Van Ness points out. It is a range of responses to harmful behaviour: the more of them a country adopts, the more restorative it is. Similarly this book contains a spectrum of viewpoints, from advocates of Restorative Justice, (John Braithwaite, Lode Walgrave, Mara Schiff), to academic researchers who find that their data support it (Allison Morris and Gabrielle Maxwell), to candid friends who point out the difficulties it needs to face (Kathleen Daly), to those who have not ‘changed their lenses’ and try to square it with conventional criminal justice values (Andrew von Hirsch and co-authors, Antony Duff).
By Martin Wright
Restorative justice is not a cut-and-dried system, as Dan Van Ness points out. It is a range of responses to harmful behaviour: the more of them a country adopts, the more restorative it is. Similarly this book contains a spectrum of viewpoints, from advocates of Restorative Justice, (John Braithwaite, Lode Walgrave, Mara Schiff), to academic researchers who find that their data support it (Allison Morris and Gabrielle Maxwell), to candid friends who point out the difficulties it needs to face (Kathleen Daly), to those who have not ‘changed their lenses’ and try to square it with conventional criminal justice values (Andrew von Hirsch and co-authors, Antony Duff). Somehow the latter group reminded me of John Howard’s recipe for a happy marriage: if there shall ever arise a difference between your views and mine, he told his bride, mine shall prevail. Maybe they feel the same about some Restorative Justice advocates! But to their credit they have included both editors and contributors with contrasting viewpoints.
John Braithwaite is the only author here who sees Restorative Justice as a radical transformation: ‘restorative justice is not simply a way of reforming the criminal justice system, it is a way of transforming the entire legal system, our family lives, our conduct in the workplace, our practice of politics. Its vision is of a holistic change in the way we do justice in the world’ (p. 1). He sets out the values on which he bases his ideas, especially citizen empowerment and mutual respect.
Other authors (Jim Dignan, Barbara Hudson) hold on to the notion that causing harm is wrong and that the response, even if restorative, should also be punitive (but they don’t say why) or ‘burdensome’ (Duff’s word, which some may find more acceptable). Their ‘making amends’ model is essentially top-down, based on principles such as blameworthiness and proportionate punishment. Lode Walgrave takes issue with Duff, describing punishment as ‘ethically questionable and instrumentally inefficient’ (p. 66); offenders should make restoration voluntarily if possible, but coercion may be used in the last resort. Several authors agree that Restorative Justice should have a maximum proportionate to the harm caused, but no minimum; others want it proportionate to wrong.
Joanna Shapland and Jim Dignan, both from Sheffield, believe that to avoid being marginalized, Restorative Justice must be incorporated into the system. Several authors are attracted by the idea that it can empower individuals and the community (Braithwaite, Walgrave, Bottoms); facilitators should be drawn from all sections (Van Ness). All are aware that this requires safeguards: community processes and decisions are not always restorative (Bottoms, Dignan, Hudson). Hudson considers that ‘discursive justice’ is preferable; it should lead not only to the offender taking responsibility by, among other things, engaging in rehabilitative programmes, but the state acknowledging responsibility by providing them. The process isn’t all that matters; the outcome is important too (Dignan).
Two papers have an international perspective. Van Ness usefully summarizes international resolutions on Restorative Justice and their limitations. Paul Roberts explores its use for crimes such as genocide; in countries like Rwanda it may be the only way of getting the truth acknowledged, and ‘refuseniks’ can still be prosecuted.
The last group of chapters comprises useful summaries of research. Daly highlights the gap between claims made for R J and its implementation (in South Australia): the glass is often two-thirds full, but don’t forget that it’s also one-third empty. From Canada, Julian Roberts and Kent Roach describe sentencing circles, which make no attempt at proportionality. Morris and Maxwell report on partially restorative projects in New Zealand which improved reconviction rates, especially when young people were not made to feel bad, agreed with the outcome, and felt sorry. In Thames Valley police area, in England, Richard Young and Carolyn Hoyle’s interim report revealed some un-restorative practices. After further training this led to improvements (at least in conferences observed by the researchers), but some poor practice continued.
An overview of research, by Leena Kurki, found some reduction in recidivism (but with some inadequate research designs). Kurki states that ‘All victims were less angry with the offender after conferences', the percentage being more than halved; this however seems to be an imprecise use of language, because what these figures actually show is that in both groups, the percentage of victims feeling angry was more than halved; a substantial minority remained angry. Finally Mara Schiff acknowledges obstacles to implementation and research, concluding that research needs to be refined, with dialogue with practitioners.
For those wanting to understand better the theory and practice of Restorative Justice this book provides both stimulating ideas and relevant facts; for its proponents it offers support, but also spells out some of the problems to which they need to find answers.
Martin Wright
Visiting Research Fellow, School of Legal Studies, University of Sussex.
April 2003
Last modified 2005-06-02 08:08
