Book Review: Restorative justice: ideals and realities

By: Margarita Zernova.  Aldershot:  Ashgate, 2007.  ISBN 978-0-7546-7032-2 hbk.  162pp.  £65.00, US$ 99.95

Before jumping on the bandwagon, it is advisable to see who else is doing so and where it is heading.  This is essentially the warning this book gives to advocates of restorative justice, on the basis of an in-depth study of one English programme (now unfortunately closed because funding was not renewed).  There are gaps between the theory and the implementation, but in some respects Margarita Zernova questions the theory itself. 

The book begins with a survey of restorative justice ideals and how they have been put into action, which will be useful to newcomers to the subject.  It includes family group conferences (FGCs) in New Zealand, the police-based programme in Thames Valley, England, and, of particular interest, the Canadian sentencing circles and South African peace-making and -building which may contain the seeds of the next step forward for the restorative ideal. 

Zernova examines some of the claims made for restorative justice, in the light of her own research.  She properly points out that her study covered only one project, but she interviewed participants of all types, and it is likely that her findings could be replicated elsewhere. 

Is it an alternative to punishment or to treatment?  She presents arguments on both sides, without taking a position herself.  What does concern her is that restorative justice tends to favour stability rather than social change;  like Nils Christie, she would like to see proceedings including a political debate which could lead to reforms. 

Is restorative justice as voluntary as it claims?  For offenders there is always coercion in the background, and even victims, she argues, are under some pressure to take part.  Does it empower the community?  In many places it is in the hands of professionals, although the New Zealand FGC model allows the offender and his or her extended family to work out an action plan, and elsewhere (for example in Germany) some programmes are run by NGOs. 

Zernova implies that she would prefer the participants’ will to trump everything else;  but this sidesteps the question of who decides on who can participate, and whether there should be limits on decisions influenced by the penal populism of politicians and the media.  Restorativists would therefore limit the community choices to restorative ones. 

There is also a need for some kind of oversight to ensure that the process is properly carried out; but should judges be empowered to go beyond this and superimpose punitive measures?

Is this method, as Zernova says, a ‘benign cloak under which the state sheds its responsibilities by dumping the management of problems on communities who may have neither resources nor capacities for regulating conflicts’? (p. 52;  also p. 83n)  This could imply that the state should assume those responsibilities;  but she probably means that the state should enable communities to develop such capacities (possibly by withering away, so that they have to?).  As it is, she seems suspicious of anything done by the state, without differentiating whether or not people want it or benefit by it. 

When describing the work of FGCs, she repeatedly uses words like ‘subtle’ to imply that they are doing something undesirable.  Sometimes they are, as when an incident is defined as a crime which could well have been handled outside the criminal justice system, or a bullied child who lashes out at the bully is labelled as the ‘offender’, with the bully as ‘victim’.  But where is the harm in using ‘subtle techniques’ to encourage people to meet and resolve an incident in a way which benefits them both? 

Zernova uses Pavlich’s concept of ‘government at a distance’;  Although she describes it somewhat more clearly than he does, she does not explain why it is to be disapproved of.  It may be doing no more than trying to ‘nudge’ people to behave better, in a ‘libertarian paternalist’ fashion as described by Thaler and Sunstein (quoted by Bennett, 2008).

The criminal justice process is sometimes criticized because on occasion it encourages an innocent person, if he does not think he will be believed, to plead guilty in the hope of a lower penalty.  One might hope that the restorative process would tease out the truth in such circumstances; but Zernova quotes one case where it clearly failed to do so. 

It was the word of a boy against a police officer; and there was circumstantial evidence that the officer was at fault; nevertheless the boy was not allowed to bring his mates to support him, and his father (perhaps influenced by public rhetoric about the disciplinary duty of parents) sided with the officer.  To add insult to injury, the facilitator not only made the boy apologize to the police ‘victim’, but demanded that he do it ‘properly’.  This case, even if unusual, highlights the need for safeguards. 

The author uses revealing quotes from her interviews to question whether restorative justice is really empowering, community-based, or de-professionalized.  She is also sceptical of the ideal of restoring peace and harmony, if this has the effect of concealing serious social-structural problems;  the South African Zwelethemba programme which she describes is potentially a move in the direction of meeting this criticism. 

However, we have to live in society as it is, and not all human misconduct is the result of flawed social structure.  On balance, she advocates a bottom-up approach, not limited to crime (and hence in hock to the criminal justice system);  this would make it easier to be true to restorative ideals – which themselves should be re-examined. 

Practitioners will find this readable book stimulating as they reflect on whether there is a gap between their practice and restorative theory.  For theorists, even if they do not agree with all of it , it challenges them to look beyond restorative justice in the narrow sense and consider how it can be more than that, a first step towards a society based on discussion and mutual respect rather than the imposition of laws and procedures.  Such a society may be unattainable, but moving closer to it might be no bad thing.

Reference

Bennett, C (2008)  ‘Since when did politics become the equivalent of potty training?’  Observer 29 July, p. 31.

Martin Wright

August 2008