What is Restored in Restorative Justice?

In 2003, based on my various roles as Police Chaplain, prison visitor, and parish priest, and with some experience in youth advocacy, I was invited to participate in a meeting with a young offender. In a police interview this offender had confessed that, in company with another seventeen year old whom he declined to name, he had broken into a home belonging to an older couple. The home had been chosen because the couple had a regular routine which made it easy to predict when they would not be home. In addition, the offenders believed the couple could easily be overpowered if they did return home unexpectedly.

It had been suggested to the offender that if he was willing to meet with the victims, and express repentance and a willingness to make amends, this might make a difference to sentencing. This was described to me as “restorative justice.” It was a process, I was told, that was victim-centred.

Social workers and the offender’s solicitor had not been willing to supply me with any details about exactly what the offenders had done in the couple’s home. Police were more forthcoming. I was able to meet with the couple at their home prior to the scheduled meeting with the offender.

He and his companion had defecated on the lounge room carpet, urinated on furniture, pulled paintings and photographs from the wall, destroyed personal property including items that had been gifts at the couple’s wedding forty years previously, and stolen cash, cards and a few items of jewellery. The couple were on an age pension and did not have contents insurance. They had been left to clean up the mess as best they could. There were stains on the carpet, and there was still a distinct and unpleasant odour in the home. They explained that they no longer felt safe in their home, but had nowhere else to go. They could not afford to replace carpets or furniture. Some items; photos of family now deceased, paintings, glassware and porcelain which had been wedding gifts, and jewellery including the woman’s engagement ring, which had not been recovered, were not replaceable.

The couple did not wish to meet with, see, or talk to the offender. But they had been told that they might reach some “closure” by explaining to him the hurt they had suffered, and listening to him talk about his background and why he done what he had done, and to an expression of remorse. If they felt able to offer him forgiveness, they were told, that would be good for them and him.

During the preparatory meeting, at which the couple were not present, the offender asked what the meeting was for. The social worker explained that this was to help him prepare for his meeting with the couple whose home he had broken into, to give him ideas about what he should say.

O.        (offender) Oh yeah. So I should say, like, I’m sorry.

SW.     (social worker) Yes, that’s right. But you have to look sorry too.

PW.    (me) Are you sorry?

O looks at social worker for reassurance. Social worker nods.

O.        Oh yeah. For real.

PW.    What would you do if someone broke into your parent’s house and did what you did?

O.        I live with me mum.

PW.    OK, so if someone broke into your mum’s house and did what you did?

O.        I’d kill the cunt.

PW.    So you know what you did was wrong. You know that it caused harm, and you are willing to make amends?

O.        Yeah

PW.     Does that mean you are happy to pay to get their carpets replaced, to buy them new furniture, and to co-operate with police in apprehending your companion and getting the couple’s jewellery back?

O, horrified expression on his face, looks at the social worker.

SW.     Ah, no, no. That’s not what this is about. It’s about achieving a better outcome for the victims, and for O.

Restorative justice claims to be an alternative to retributive justice. Instead of identifying and punishing offenders, it is victim-centred and focussed on remedying harm and on reconciliation. Despite the fact that restorative justice claims to be victim-centred, I could not see at the time, and still do not see, how any part of that process was directed at achieving a better outcome for the victims. What exactly was being restored to them?

A clarification may be needed at this point. This paper is particularly concerned with restorative justice in the context of crime and responses to crime. There are other contexts in which it is sometimes suggested the philosophy and processes of restorative justice may be applied, for example, in schools and workplaces. Those situations are not part of this discussion, although they will be mentioned briefly later.

There are various ways of understanding what constitutes a crime. These include the view that a crime is any action that is defined as a crime by law or custom in a particular jurisdiction. Alternatively, a crime is something that everyone in a particular culture recognises is wrong and deserving of punishment. Or a society may hold some combination of these views, for example, that there are some crimes that are crimes because they are obviously wrong (eg, rape), while others are crimes because they are defined as such in common law or legislation (eg, possession of marijuana). The nature of crime may also be understood through theoretical or philosophical frameworks such as class struggle or feminism.

What all of these definitions have in common is that crimes are actions (or sometimes failures to act) in which the community as a whole takes an interest. They are not taken simply to be the private actions of persons which concern only themselves, or even the actions of one person  against another, but actions which cause harm to the community. This is so even when the action is indeed at first sight that of one person against another, for example, when a drunken party-goer punches a stranger in the head outside a nightclub.

The view of almost all societies, from tribal groups to modern industrial states, is that when any member of the community is grievously harmed, the whole community is harmed. This means the whole community has an interest and is involved, whether directly, or through a delegated group,  or by proxy through police and courts, in understanding what happened, in taking suitable action to remedy the harm done, in punishing offenders, and in preventing further harm from occurring.

The justice system in any society, however differently expressed, is the structures and processes which, when a crime has occurred, enable a society to:

• Identify what has happened including events, perpetrators, victims, and harm done.
• Remedy the harm if possible
• Punish offenders
• Prevent further harm from occurring

These structures and processes are not, and cannot be, successful in every detail and at every time. It may not be possible to ascertain every detail of a crime, or every perpetrator, or all the harm that was done. It may not be possible, even with rehabilitation programmes or an extended period of incarceration, to prevent criminals from offending again. The priority given to each aspect of these processes may vary according to culture, government policy, public opinion, or fashions in philosophy or social practice.

Restorative justice is sometimes described as an alternative to retributive justice. Retributive justice, we are told, focuses on punishment of offenders. Restorative justice seeks to arrive at a consensus about how best to remedy harm and restore relationships.

But this dichotomy is misleading. No modern liberal democracy has a justice system whose primary focus is retribution. On the other hand, there is little evidence that restorative justice, at least in the setting of criminal justice, is in practice victim-centred or primarily concerned with remedying harm and genuine restoration.

In fact, for many victims, not only is nothing restored in restorative justice, but their experiences of loss and pain are glossed over in a process which seems designed to benefit not them, but the offender. John Braithwaite noted (British Journal of Criminology 2002 42 pg 570) “We actively seek to persuade participants that they ought to listen respectfully, but we do not urge them to forgive.” The first thing that comes to mind here is that it is an astonishing dismissal or belittling of victim’s experiences, or at least a gross  lack of sensitivity, to suggest to a woman who has been raped that she ought to listen respectfully while the man who violated her speaks, or to a man whose child has been murdered that he owes a duty to the murderer to be silent while the murderer talks about his feelings.

Regardless of Braithwaite’s assertion to the contrary, many victims do feel coerced into participating, and pressured  into expressing forgiveness. Braithwaite’s own views about this are expressed more revealingly in the paper Principles of Restorative Justice:  “… if a victim rejects an apology, choosing to hate, the ideal is that the conference empowers them to do so… ” These are the options, apparently – forgive, or be a hater. Although restorative justice conferences make declining to forgive an option, this is regarded as indicative of personal failure, vindictiveness or weakness. This is very far from being victim-centred.

Being the victim of a crime does not create any obligation to the perpetrator of the crime. Apart from the duty to be truthful, a victim owes nothing to a person who has violated their property or person. That includes participation in programmes designed to produce better outcomes for the offender.

It is sometimes claimed that restorative justice reduces recidivism and, by offering an alternative path to traditional judicial procedures, reduces incarceration. This, it is suggested, is not only a benefit to offenders and society, but also to victims, since the changes in thinking and behaviour in offenders engendered by the restorative justice process mean fewer offences committed and therefore fewer victims. But there are at least three issues with these claims.

First, even if these claims were true, they do not make restorative justice victim-centred. Victims of crime are not simply part of some anonymous conglomeration whose harms, needs, and interests can be treated as if they were a single object. They are individual human beings. A possible marginal benefit for victims as a whole is not the same thing as, and may even be opposed to, caring for and meeting the needs of a particular victim.

Second, there is very little evidence that restorative justice does reduce recidivism and incarceration rates. There are many studies which claim it does, but the credibility of these is impaired by small sample size, poor study design, deficient analysis, and the remarkable co-incidence that in almost every instance, researchers find exactly the results they are hoping to find.

Finally, where restorative justice practices have been implemented within the criminal justice system, they are implemented in addition to, and not as an alternative to, normal courtroom and sentencing procedures. It is hard to see how it could be otherwise, since once a crime is demonstrated to have been committed, the prosecution of the alleged offender rests with the relevant government authority, not with the victim. This is because, as explained above, part of the definition of a crime is that it is a harm so serious that the whole society considers itself to have been harmed. Despite the interminable frippery of American law and order TV programmes, there is no such thing as a victim deciding “not to press charges.” The broader community has been harmed, and the broader community decides the action to be taken.

Restorative justice conferences inevitably add an extra layer of bureaucracy to an already expensive and for many people, confusing and over-long process, while adding nothing of value.

In democracies where rule of law is taken seriously, understandings of what is just are moulded by the values of the community. Different groups in society may have different views about what acts or omissions should be considered crimes, the threshold for delineating crimes and torts, and what is the appropriate response to particular crimes. In a state which takes representation seriously, all of these perspectives will go into the mix of ideas that eventually coalesces into legislation, regulation or policy. This is part of what democracy means.

Regardless of how distasteful it may be to some academics, most people believe a measure of punishment is appropriate in at least some criminal cases. Where offenders have used sexual violence against children, where vulnerable people to whom every cent matters are cheated out of income or savings, where a family is murdered, or in instances similar to the one I described at the beginning of this paper, most kind and reasonable people will insist that punishment is called for. More than this, they believe that a failure to punish is a failure to act justly. Refusal to punish perpetrators of serious crime is injustice to victims.

This does not mean that ordinary citizens or victims of crime are vindictive. In most people’s view, it would be wrong for offenders who cause grievous harm to suffer no consequences. Those consequences, however, are not simply retributive. They are to be purposeful.

The purposes of consequences imposed by society for criminal acts may be summarised under the following headings:

• Protection of society against further offences for the duration of any incarceration.
• To deter those tempted to criminal acts, and to deter criminals from reoffending.
• To rehabilitate prisoners: to model respectful and positive thinking and behaviour, and to offer classes and programmes to give prisoners skills for life.

Restitution is sometimes added to this list. Restitution via incarceration is the theory that prisoners are paying their debt to society by being imprisoned. This is clearly nonsense. A criminal does not pay his debt to society by costing society $250 per day ($400 per day if capital and maintenance costs are included) to keep him in prison.

Consequences imposed by courts for criminal acts are not imposed randomly. Within guidelines and accustomed practice, they are adjusted for particular circumstances including the severity of the crime and offender’s background including prior offending.

This makes it clear that even if restorative justice really was victim-centred and focussed on restoration, restorative justice and retributive justice are not the only two possible options. The dichotomy between restorative justice and retributive justice claimed by restorative justice proponents should be rejected.

In recent years, restorative justice has been suggested as an effective method of bringing about reconciliation in schools and workplaces. Conferences between bullies and the bullied in schools, for example, can help to bring about a deeper understanding of the situation and feelings of victims by the bullies, and encourage them to apologise, take responsibility and amend their thinking and behaviour. In a similar way, conferences in the workplace between those whose work has been claimed by a workmate, or who have been the victims of unfair discrimination, can restore relationships, and set the stage for more positive, open, and productive workplaces. However, this is no more than appropriating to the cause of restorative justice, practices which are well-established common-sense conflict resolution and behaviour management techniques.

Even in schools and workplaces, explicit introduction of restorative justice does not seem to bring about any positive change. Some research shows that replacing school disciplinary procedures with restorative justice conferences has a negative impact on student behaviour and academic outcomes, while the same practice in the workplace leads to more lost time and victims feeling less safe and less satisfied with the outcome of disputes.

Provisions for restitution in some tribal and ancient civilisation legal codes are also sometimes claimed by restorative justice proponents as precursors of contemporary restorative justice practices. In fact they are simply evidence that remedying harm has been part of most justice systems, at most times, in most parts of the world.

Theory is important. When based on careful, objective research, it can give new insights, make useful predictions, and help set priorities for practice. The most important question for criminological theory, for justice, and for offender rehabilitation is “What works?” Restorative justice does not work. It offers no benefits or solutions in practice. Nothing is restored. Like Marxism, restorative justice theory is a failed coagulation of idealism and coercion. It is time it was discarded.