This report concerns the application of restorative justice to youth offenders. In an era of rising prison numbers and increasing use of short custodial sentences, questions are being raised over the efficacy of the criminal justice system. In particular, there is an issue of how appropriate it is when applied to young offenders. This report seeks to determine how the criminal justice system can be supplemented and complemented by a focus on more restorative forms of justice.
The report is in three parts: Part I introduces the emergence of restorative justice and explores its central propositions; Part II describes some current applications of restorative justice to youth offending, including examination of the nature, role and extent of community involvement; Part III provides critical reflection on the weaknesses and benefits of restorative justice as an alternative to more retributive discourses.
This includes analysis of how restorative justice can impact on community cohesion and whether it can be a vehicle for improved social justice. Finally, based on the evidence presented in this report, conclusions are drawn about where or even whether restorative justice could be located within the mainstream criminal justice system as applied to young offenders.
Part I: The theoretical origins of restorative justice and its central propositions
There has been growing recognition in recent years that the ‘traditional’ Western justice system is proving ineffective as a deterrent to crime. Its incapacitative function ostensibly cannot be questioned, but there are concerns that stigmatising prison sentences promote and reinforce subcultures of criminality (Braithwaite, 2003b, p56). In addition, the representation of offenders and victims by legal professionals wrests control, power and a sense of justice from the key stakeholders.
These facts add up to the UK facing an exponential growth in the burden on a criminal justice system that already is failing in terms of public perception, use of resources, present-day service and future functional capacity. A new discourse on the governance of crime has been developed, partly in response to the failings of the system and partly to respond to neo-liberal modes of government (Garland, 2003, p457).
In this climate of unrest, more restorative modes of justice are being employed worldwide. Drawing on the New Zealand Maori principles of collective responsibility (Tauri and Morris, 2003, p44), restorative justice seeks to decentre the state’s status as the lynchpin in dealing with crimes. Instead, it operates by drawing together all those involved in an offence in an environment promoting more equitable power relations and deliberative dialogue to address the harm caused and collectively agree how mutually satisfactory restoration can be made.
A crucial element to restorative justice is that the community is seen as a key stakeholder in the offence. This can take a diversity of forms, from the neighbourhood in which the offender and victim live, or their wider social networks of family, friends and colleagues (Zehr and Mika, 2003, p41). This allows for extended dialogue beyond that of only the offender and victim, so that the magnitude of the harm caused by the offence can be explored.
Restorative justice has four central propositions: (1) redefining crime as ‘harm’; (2) empowering the stakeholders to define and explore the harm caused by the offence, seen as more appropriate and fitting to a fair outcome than state representation; (3) the victim, their hurt and suitable reparation are placed at the centre of discussion, rather than notions of injury to the state; (4) there is potential for effectively rebuilding damaged relationships and achieving true resolution, rather than pursuing punishment. I expand on each of these points in turn.
Point (1), advocating a discourse of crime as harm, is a key tenet of restorative justice. Crime is not viewed as a breach of legal codes created and sustained by the state. Instead, focus is on the breakdown of relationships between the offender, the victim and the community. What stands to be addressed within restorative justice is not injury to the state or to some abstract third party but the harms caused by the offence (Braithwaite, 2003c, p157; Zehr and Mika, 2003, p43; Muncie and McLaughlin, 2005, p71).
With regard to point (2), empowering the key stakeholders to define the offence and the harm caused allows those most directly involvement to dictate the agenda for conflict resolution and appropriate reparation. This is not always possible in a criminal court; professional legal representatives decide the ‘best’ argument to be pursued and negotiate a settlement in the interests of the state. Thus, the conflict has been ‘stolen’ from the offender, the victim and their respective communities.
This loses the victim the opportunity to input to the process and explain the effect of the harm caused, and it loses the offender the opportunity to express remorse and be forgiven (Christie, 2003, pp25-26). Restorative justice seeks to heal as well as put right any wrongs, and this can only be done through a deliberative process of respectful, meaningful dialogue between key stakeholders in determining individual needs and outcomes (Zehr and Mika, 2003, p42).
The recentering of the victim, point (3), is a crucial principle of restorative justice. In criminal trials, the victim’s representation by the state renders them virtually invisible; they are spoken for and about, and typically receive no compensation for their loss or injury (Christie, 2003, pp25-26). By contrast, restorative justice affords the victim opportunity to describe the effect of the harm caused and to decide on personally meaningful reparation. Maximising victim input in a supportive environment is an empowering process that can restore some of the hurt and indignity of the offence (Zehr and Mika, 2003, p42; Braithwaite, 2003b, p55). This leads to perhaps the most significant principle of restorative justice, point (4), that of restoring relationships and building community bonds.
A leading proponent of restorative justice, John Braithwaite, suggests that it can restore community harmony and build relationships through an overall feeling of justice having been done (Braithwaite, 2003b, p57). To this end, restorative justice espouses equal concern to offenders and victims, community involvement and the fostering of collaboration and reintegration as opposed to coercion and isolation (Zehr and Mika, 2003, p43).
Reintegration is achieved by encouraging the offender to accept responsibility for their harmful actions and embrace accountability for putting things right. In this way, relationships between and across all parties concerned have the potential to rebuild and move forward. Secure social networks are particularly important when dealing with young offenders, as research shows that restorative family relationships promote less delinquency than those employing more punitive and/or stigmatizing approaches (Braithwaite, 2003b, p59).
It can be seen that restorative justice emerged from an alternative cultural experience but its principles are well appropriated by the UK criminal justice system. Part II of this report examines the application of restorative justice to young offenders and provides examples of it in action.
Part II: Restorative conferencing, young offenders and the community
As explained in Part I, restorative justice is a non-adversarial, community-based sanctioning process. There are four main models: circle sentencing, reparative probation boards, victim-offender mediation, and family group conferencing (FGC). The precise process in each model differs but each retains the key restorative principles. I examine each of these models in turn. However, as most restorative youth offender processing in the UK resembles most closely FGC, this report highlights this model.
Circle sentencing is used when an offender admits guilt and expresses a desire to change their behaviour. The process is open to the whole community for attendance. Emphasis is on the needs of the victim in terms of them choosing their support group, relating their feelings and deciding on the outcome. The primary outcomes are addressing the victim’s concerns through reparation, improvement of community strength, and prevention of future crimes (Bazemore and Griffiths, 2003, pp79, 83, 86). Restorative probation boards typically involve non-violent offenders who have been given probation. Preparation is minimal and community involvement is via a Community Reparative Board (CRB).
Input from the victim is encouraged but currently is rare. Reparative probation aims to engage citizens in decision-making through the CRB to agree a reparative plan and find ways to prevent recidivism (Bazemore and Griffiths, 2003, pp79, 84-85). Victim-offender mediation is used as a probation option. Extensive preparation is key to successful mediation and ideally involves personal contacts with victim and offender to explain the process. However, minimal community involvement is permitted, with family and others rarely participating. The victim has maximum input and the session is managed so as to empower them and meet their individually-defined needs. The required primary outcomes are for the victim to feel satisfied with the process, for the offender to appreciate the harm of their actions, and for agreed reparation (Bazemore and Griffiths, 2003, pp79, 82-84).
Turning to family group conferencing, this model is used extensively throughout Australia and New Zealand. The latter employs FGC for nearly all juvenile offending and in Australia it is at the discretion of the police. Within the UK, FGC is gaining momentum. Schemes in London, Hampshire, Sheffield and Kent operate for young people aged from 10-17 years. Within the domain of child welfare, half of English social services departments operate FGC (Dignan and Marsh, 2003, pp107-108).
Almost all young offender police cautions throughout Aylesbury and surrounds are administered by the Restorative Cautioning Unit (Young and Goolds, 2003, p94). With regard to the FGC process, all parties volunteer to participate. Preparation is moderate, usually consisting of telephone contact to victim and offender to explain the process. The independent convening coordinator, the offender and the victim identify participants, including family of the victim and offender in addition to social services and police personnel. The victim is encouraged to express their feelings about the offence and to input to the reparative plan. The offender is brought face-to-face with the impact of their behaviour, including the effect on their own family, and encouraged to be accountable for the harm caused.
Primary outcomes are clarification of the facts of the offence, negotiating agreeing written plans for suitable reparation to the victim, and reintegration of the offender into their community (Bazemore and Griffiths, 2003, pp79, 83-86; Umbreit and Zehr, 2003, p72). FGC has benefits for the victim as well as the offender. The British Crime Survey showed that in instances of mugging or burglary more than two-thirds of victims do not seek imprisonment for their offender. Instead, the opportunity to relate the harm caused by the offence and ask questions of the offender is seen as more valuable and conducive to relinquishing lingering trauma (Wright, 2002, p63).
In most models of restorative justice, community involvement is important. However, for successful FGC it is vital. A UK governmental survey showed that more than half the young offenders questioned ranked the most significant consequence of being arrested as what their family and friends would think – more than five times the number who considered being arrested the most important factor (Braithwaite, 2003a, p393). In terms of the nature, role and extent of community involvement in FGC, ‘community’ has two meanings: (i) the victim or offender’s family or immediate social network, from which FGC participants are drawn; (ii) the wider community in which they live and/or work.
The community of participants is active in drawing up an agreed plan for reparation of the harm done, with particular care taken to involve the offender. This is very important because research shows that when young people are actively included in FGC decisions and outcomes, they are more likely to complete the reparation programme and desist from offending; Home Office studies show that in these circumstances reoffending rates drop from 35% to only 3% (D315 CD3, 2005). In addition, involvement can help to prevent the young person employing techniques of neutralization to absolve themselves of blame for their actions (Sykes and Matza, 2003, pp231-234).
In terms of practical application, FGC has effected a decrease of up to 80% in court caseloads in New Zealand (Umbreit and Zehr, 2003, p70). Application of conferencing techniques has had similar benefits in the UK. The Milton Keynes retail theft initiative has been successful in terms of efficient use of police time. When caught shoplifting, young offenders undergo a restorative conference in which their families participate.
Mediated by the Retail Theft Coordinator, the process includes the store manager speaking about the impact of theft on the shop and staff. There is also an educative element to the conference, with the police employing ‘protective behaviour’ techniques to teach the young person how to cope with bullying and/or peer pressure to offend (D315 CD3, 2005). Thames Valley Police have pioneered restorative cautions in the UK, and claim greater offender and victim satisfaction, restored victim confidence and sense of safety, and restored community relations. (Ludlow, 2003, p65; Wright, 2002, p62).
It is demonstrated that restorative justice has current application in the UK and that communities have potential for involvement. Part III of this report examines weaknesses and strengths of restorative justice and critiques the possibilities for improving community solidarity and social justice.