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Restorative Justice

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Julianna Morin

on 11 December 2013

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Transcript of Restorative Justice

Restorative Justice
“RJ is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible”.
(Zehr, 2002: 37)
RJ and
Indigenous Tradition
Assumption of a homogenous aboriginal traditions; the way we practice RJ now we believe it is from aboriginal tradition... RJ may not be appropriate in indigenous context...
Confrontation
- dredging-up past and face-to-face confrontation simply does not happen in some communities (North American practice)
Disclosure
- practice of non-disclosure in certain communities; do not speak about personal harms aloud
Banishment and Avoidance
- accountability is done by banishment for some aboriginal cultures (whereas Western system is punitive, or emphasizes total avoidance)

Should RJ tailor its practice in order to address racism, sexism and biases of the CJS experienced by the indigenous people? Talioring the system to address the needs of and systemic discrimination faced by indigenous peoples?
positive victimology fails to challenge dominant assumptions about crime and punishment, generates competition for resources amongst NGOs (ie. shelters will receive more funding for non-Aboriginal women’s initiatives than Aboriginal women’s initiatives)
*Ebre would say we do not need to change practices to address sexism, racism, etc. as flexibility of RJ allows us to do so.
Definitions
Crime:
is a violation of people and relationships. Violations create obligations.

Justice:
involves offenders, and community members to put things right.

Focus:
victim needs and offender responsibility for repairing harm
RJ
Programs
Role of State in RJ
Reintegrative Shaming
(Braithwaite)
Theoretical model for dealing with crime at individual and community levels, integrates traditional sociological theories of crimes into a single view
Integrates five theories: control, labelling, subcultural, opportunity and learning as a one singular explanatory system
Social control theory
: individuals are naturally drawn to commit criminal acts without restraints; fundamental consensus about and rejection of criminal behaviour; primary & secondary deviance
Correlation between crime and various personal and circumstantial characteristic
Well integrated individuals feel personal responsibility
Example: collectivist Japan
Labelling theory
: Stigmatization creates secondary deviance; self fulfilling prophecy
Subcultural theory
: Group having different values form other in relation to criminal behaviour
High rates of predatory crime is indicative of the failure to shame those acts labeled as criminal, represents break-down of community ties
Perpetrators are made to feel guilty, hence deter them from committing further crime, shame has deterrent effect
Reintegrative shaming NOT disintegrative shaming (stigmatic shaming)
RJ and Neo-Liberalism
Classic Liberalism
-
laissez-faire economic system; free market economies; reigning-in of state involvement in economic and social relations
Neo-Liberalism
- challenging of welfare state; emphasis on free market economy and decrease in social spending; deemed welfare policies to be “cumbersome” and “obstacles to globalized economy”;
privatization, globalization, competition; "reference to collectivity of discourses and practices that serve to monitor and regulate the Capitalist System in a manner that encourages free mobility and maximal profits for Capitalists"; any regulation that inhibits market expansion is toppled

*Decrease state regulation, but aim for governing of population through
governmentality
Historical Development
of RJ
Trends in CJS in 1970-80s:
The loss of confidence in rehabilitation and deterrence theory
The rediscovery of the victim as a necessary party: restitution
The rise of interest in community-based justice
Crime be eradicated by addressing the “underlying causes” of poverty and discrimination…
Rise in imprisonment in 80s; "War on Crime" political agenda > the Left attacked CJS, labelling it as repressive state
Rise in prisoners’ groups and Christian groups
RJ as a new paradigm, to replace CJS, not to reform it

*1978:
Zehr facilitated victim-offender reconciliation programs (VORPs)
Restorative Principles
Harms and needs:
victim is the focus

Obligations:
wrongs and harms results in obligations; offender is accountable and responsible

Engagement:
victim-offender and the community have a significant role in justice process.

Addressing harms:
Offender to repair the harm done to victim
Community to repair harm done to victim, offender
“Re”storation, reparation

Addressing causes:
Prevention measures
Social injustices (Offender as Victim)
Restorative Pillars
Involve those with a Legitimate Stake in the Situation
Use Inclusive Collaborative Process
Address the Obligations that Result from Harms
Focus on the Harms and Consequent Needs of Victims, Communities, and Offenders
Mediation & Community Mediation
Mediators at community justice centres as powerful community-appointed arbiters
Aims of pro-active conflict resolution with volunteers
Issues: funding and referrals coming from CJS; mediation is one-sided, doesn’t involve all community members
Seek to Put-Right Wrong
VORPs
Aims to establish safe environment, voluntary participation, face-to-face interactions, follow-up to ensure all parties are living-up to agreement, provide support
Issues: time consuming, still directed by CJS, requires victim involvement, not as large a community role

Family-Group Conferencing
Uses State-appointed facilitator and police to ensure safety
Reintegrative shaming and feminist praxis to interrupt gendered assumptions about family violence
Issues: time-consuming; State presence (police)

Circles
Uses traditional justice practices of Amerindian peoples; community assembles to discuss resolution of injustice
Four stages: determining suitability of offence/offender for circle; preparation; full circle gathering; follow-up
See also sentencing and support circles (ie. COSA)
Issues: State-directed; limited effectiveness outside of traditional, close-knit communities
RJ Reparation for Crimes of Mass Violence (Truth & Reconciliation Commission)
3 Post-Apartheid Committees, spear-headed by Desmond Tutu: Human Rights Committee (selecting victims/families to recount sufferings and request reparation); Amnesty Hearings (political criminals granted amnesty in exchange for “admitting accountability”); Reparation & Rehabilitation Committee (recommendation to gov’t for victim recovery)
Issues: no offender involvement; skewed perceptions of justice State-directed

Government funded RJ programs includes empirical evaluative components:
Rehabilitating the offender
Healing victims
Restoring communities
*
Problematic inasmuch as true RJ principles/values difficult to quantify...
RJ Identities
Victim Identity
Need to be conscious of socially constructed terms “victim” and “offender” and the assumptions that go along with these labels
Construction of victim identities through processes of verbal communication/symbolic interaction
In RJ context, victims get the supports, voice, and opportunities that they are denied through CJS
Considers emotions rather than stories
Considers multiple levels of victimization
Conversely, RJ reaches only a small number of victims and tends to be offender-oriented; also fails to address critical needs of victims (ie. job loss, loss of confidence, depression, fear) and provides no active role for the gov’t in rebuilding victims’ lives
Offender Identity
CJS criminalizes risk; construction of offender as risk-bearer needing to be reintegrated into normative order
Conversely, RJ offender is accountable individual situated in broader context of social inequalities
Parallel Justice (Herman)
Two distinct justice streams: one for victim and one for offender
Guiding Principles for Implementation:
Victim safety as high priority to prevent further victimization
Victim offered continuous and immediate support, compensation, and assistance
Public disclosure of crime by victim to provide for understanding of their experience and generate awareness of issues surrounding the harm
Co-ordination of all available resources to meet victim’s needs
Victim Needs (Zehr)
Information about WHY harm was committed and how to cope
Opportunity for truth telling
Empowerment
Resititution/Vindication
Offender Needs (Zehr)
Accountability (transforms shame, addresses harms, promotes responsibility and encourages empathy)
Opportunity for personal transformation (healing from harms that contributed to anti-social behaviour, treatment for addictions/anti-social behaviour, enhancement of personal competencies)
Support for reintegration into the community
Temporary restraint
Community Identity
Community as inclusionary and inherently exclusionary; included members are excepted from “universe of moral obligations” (Woolford, 2010: 108)
Social capitol: building communities and creating networks (Putman, 2000)
Micro Communities (Purist)
– communities of care, those most directly affected by harm; suffer from intense emotional pain and shame, loss of trust, highly blameworthy and stigmatized; process-focused; justice to be done as restoring everyone to state of well-being (McCold)
This view most aligned with RJ; embracing dialogic process; restoration and prevention goals; easily achieved/relegated
Macro Communities (Maximalist)
– defined by geography and/or membership; focus on harms, loss of aggregate sense of security; action-focused; justice to be done as actions taken to protect the community (McCold)
This view cheaper, less time-consuming; addresses underlying social causes of crime
Community Needs (Zehr)
Attention to their needs as victims
Opportunities for community-building
Encouragement to take-on concern for the welfare of their members
Preventative action programs
RJ and Social Injustice
Purists critique RJ for not challenging systemic injustices; 4 key limitations:
Fails to address socio-economic roots of crime; not preventative
Buys-into status quo’s definition of crime (blue collar/street)
Buys-into status quo’s definition of victim, offender, and community (highly stigmatized, narrowly-defined labels)
Time-consuming, “band-aid” solution
*
Currie cites reasons for this being RELATIVE DEPRIVATION and over-selling of the AMERICAN DREAM
RJ and Punishment
Aims of Punishment:
Protect law abiding citizen from the harms law is designed to prevent.
Offenders should receive their 'just desserts'; punishment should ‘fit’ the crime
Redress the injustice; when wrong is done, offender must ‘pay for’ their wrong doing
Punishment should not make the offender ‘worse’ person
Trigger Events for RJ
Stages of RJ Referral:
Pre-sentencing
(common in civil cases);
Sentencing
(participants encouraged to decide upon appropriate sanction and strategy with guidance from professionals, judge approves final outcome);
Post-sentencing
(meeting in correctional facility for mediated sessions; intended to grant closure/address unanswered questions)

Trigger Events:
Crime/Civil Disputes
– reactive approach that privileges some harms over others, involves reductive identities, affirms governing power of State and its institutions, fosters non- disruptive behaviour that allows for maintenance of status quo
Need to instead address issues of social inequality, unequal economic distribution in order to incrementally adapt current CJS and provide for “transformative justice”
Harm
– too broadly defined to be sufficiently dealt-with in relational RJ system
Conflict
– difficulty of determining which conflicts need to be/possibly can be resolved, which conflicts deserve RJ attention
Normative Violations
– since normative codes are established by the group, are politically/socially constructed, and can be formal/informal, they are highly subjective
RJ must be critical in assessing the value of norms (ie. Rosa Parks)
RJ and Practice Issues (Ebre)
From being linked to a specific model of practice (VOM), RJ has evolved to multiple models, to indirect models, need-led models and to a massive influx of more models of practice (victim impact panels, letters of apology, community panels)

Restorative Theories
Abolishing current CJS, replacing with RJS (ABOLITIONIST)
Christie – conflict as social commodity, of which communities were robbed by State intervention in process of industrializing punishment to turn a profit; need to give conflict back to community to deal with it
Braithwaite – reintegrative shaming of criminal acts, not offenders
Mathieson – going into CJS with anything less than radical abolitionary measures will result in their absorption by the system
Transforming current CJS with RJ principles (INCREMENTALIST)
Purist (Sharpe) – focuses on needs of victims/offenders/communities, seeking to meet all these needs simultaneously; holistic approach
Maximalist (Sharpe) – every action primarily oriented towards doing justice by repairing harm
Zehr's 6 Questions for Evaluating/Situating RJ Programs on Restorative Continuum:
Does the model address harms/needs/causes?
Is it adequately victim-oriented?
Are offenders encouraged to take responsibility for the harms they caused?
Are all relevant stakeholders involved?
Is there an opportunity for dialogue/participatory decision-making?
Is the model respectful of all parties?
State as Resourcer
State funding of RJ initiatives
Issues: impossible to quantitatively anticipate/budget for true RJ processes; high risk of state co-optation and misappropriation of RJ principles/practices; professionalization of practice where state becomes implementer; net-widening phenomenon; legislation discouraging creativity of RJ solutions; “property” of conflict taken from communities
State as Enabler
Providing legal support; delegating some responsibilities to communities through RJ
Referring offenders to RJ initiatives; diverting them away from traditional CJS
ie. The Children, Young Persons, and their Families Act (1989, NZ); Youth Offending Teams (YOTs) (1999, Whales, UK)
Issues: unrealistic to expect that gov’t will fully devolve to RJ system from CJS in any, save for the simplest cases; if RJ to be mainstreamed through CJS, legislation must reflect this/be generated to this effect
Transformative Justice
(Morris)
When RJ creates conditions for pursuing forms of personal and social change
Applying RJ in everyday lives, thereby eventually changing the ways in which humans come to think about and interact with each other
Critically assessing whether we, as individuals, actively contribute to existing arrangement of social and distributive injustice
Transformative Justice and the Politics of RJ:
How might RJ mobilize itself, politically, to combat the co-optation of its justice philosophy and practices through processes of neo-liberal total governmentalization?
Solution: Partnering with RIGHTS AGENCIES/NGOs helps to advance change on restorative front.
RJ as “apolitical”:
PROs: funding bolstered, quicker processing, definitive referrals, guiding legislation
CONs: risk further co-optation by state, overlooking RJ core philosophies
Three-Dimensional Theory of Justice (Fraser)
RECOGNITION
Reaction to cultural-symbolic injustices
AFFIRMATIVE: superficial, does not address cultural-symbolic injustices at root of misrecognition (ie. making a bully apologize to his/her victim)
TRANSFORMATIVE: challenges structures of cultural-symbolic injustice, interrogating roots of symbolic domination (ie. addressing reasons WHY bully is bullying other pupils, such as personal victimization or self-confidence issues)
REDISTRIBUTION
Reaction to socio-economic exploitation, economic marginalization, and relative material deprivation
AFFIRMATIVE: small compensatory payments (ie. a northern mining company being forced to pay a small fine in order to continue exploiting indigenous peoples’ lands without their consent)
TRANSFORMATIVE: deeper restructuring of societal relations of production, eradicating poverty, working with anti-poverty groups (ie. making indigenous peoples part-owners or stockholders in mining enterprise on their lands)
REPRESENTATION
Response to political injustices that deny individuals and groups a sense of social belonging/of inclusion in decision-making processes/political participation
AFFIRMATIVE: inclusion of those previously excluded does not interrupt dominant system (ie. victim-impact statements being used to bolster punitive legal sanctions)
TRANSFORMATIVE: actively voicing concerns over the denial of participation to certain groups (ie. case where daughter of murder victim wrote letters and protested the death-sentence of her mother’s murderer)
Reintegrative Shaming
(Braithwaite)
Shame as "all social process of expressing disapproval which have the intention or effect of invoking remorse in the person being shamed and /or condemnation of other who become aware of the shaming" as well as "informal processes and shaming is the primary punisher; focus in the ACT, not the ACTOR"
Disapproving of the offense
Sustaining a relationship of respect for the offender
Offence is not the main characteristic of the offender
Re-accepting the offender through “words or gestures of forgiveness”
Shaming must come from the community members, relatives of the victim and offender
Reintegrative Shame Processes
A ceremony in which the criminal act is denounced and community members express their disapproval of it.
Followed by “reintegrate the offender back into the community” : inclusion and reconciliation before deviant identity is established
Aim and process that follows in RS sets it apart from SS
Encouraging offender to view their act outside of their own perspective through interactions with their personal communities of care as well as victims(s)
Pre-20th Century Schools of Thought
Retributive Model
Rooted in religious idea- Judo-Christian tradition; difficult to draw distinction between moral wrong and legal wrong
Punishment in terms of doing justice to offender in order to ‘make the wrong right’
In its purest model, focus on pain, suffering, and death
Secular retributive model: justice must be preserved by punishing the offender b/c (s)he 'deserves it'
Victim has the right to witness the harm inflicted
Offender to take full responsibility for his/her action b/c (s)he freely choose to violate moral laws
Goal of punishment to right the wrong; proportional punishment
Punishment does not constitute an injustice to the offender; demoralizes and dehumanizes offender
Similarity to RJ: restoring the justice, offender take responsibility
20th Century
Schools of Thought
Rehabilitative Model
Alternative model to punishment
Rise of the ‘Therapeutic State’
Crime as a deviant behaviour stemming from an illness suffered by the offender; pathologizing offenders
‘patient’ or ‘victim’ not blameworthy
Enforced behavioural Therapy under heavy criticism for not being effective; programs become incentives
Little agreement among clinical professionals
Prison environment detrimental to the rehabilitation model

Similarity to RJ: offender not individually blameworthy
Pre-20th Century Schools of Thought
Utilitarian Model (Bentham)
Secular roots, functional view of legal punishment; primarily concerned with using punishment as a tool for protecting the legal order by deterring offenders and would be offenders from breaking the law.
Use of structures like gaol to protect society from offender; allegedly victim-oriented and humanitarian; emphasis on maximizing social good
Effective in protecting the public in short term, but not long term; punishment cannot always be SWIFT or CERTAIN
How fair is to punish an offender to teach a lesson to others?
Focus on State and law detracting from suffering of offender
Similarity to RJ: focus on public protection; emphasis on social contract and codified law
20th Century
Schools of Thought
Restitution Model
Rooted in political libertarianism: ‘minimalist state’, government should intervene as little as possible in society, and the free market should be allowed to resolve human conflicts
Private courts and private enforcers
Reduces criminal law into civil law
Get rid of moral blameworthiness; focus on ‘loss’ and the market value of the ‘loss’
Every ‘loss’ or ‘harm’ allegedly compensable; issue that not every harm can be monetarily compensated
Rejects the punitive aspects of CJS
Defines offenses as harms to individuals not harms to ‘society’ or moral order; victim-focused
Does not deal with structural stigma and broader social issues
Minimize the moral aspects of wrong
“The wealthiest one is, the more one is able to purchase the right to harm others, and to compensate them for the loss or harm” (Brunck, 2013: 248)
Similarity to RJ: returning commodity of conflict to communities; case-by-case analysis; focus on
individual harms; victim-centred
Towards a
Restorative Model
The fundamental goal of legal punishment should be to resolve the disputes that are reflected in criminal offence
To maintain the confidence of victims and the public in the capacity of law to fulfill its function
And to do this with the minimum amount of force and violence
CJS should resolve conflicts in a way to restore justice or builds new justice=sentencing alternative
Governmentality
Management of population itself; attempts to shape human behaviour according to particular sets of norms for a variety of ends; achieved through:
RATIONALITIES
– internalized modes of thinking and organized practices (ie. neo-liberalism and free-market competitiveness)
and TECHNIQUES


discernible patterns of institutional practices/political actions which operate across a number of sites (ie. responsibilization)
RESPONSIBILIZATION
– technique of governmentality; making individuals govern themselves through internalized means; emphasis on less social security, more individual safety nets; citizens become guarantors of their own safety (ie. buying life insurance, installing home security systems, public sex offender registries, anti-rape products industry, etc.)
Relevance to RJ
Similarities to RJ:
Decentralizing of state CJS powers
Responsibilize citizen to attend RJ programs
Manages minor offenders
It does not forsake punishment
Make the offender to accept responsibility
Community involvement in the process of identifying solutions

Re-framing Core CJS Components:
What is governed? “harm” rather than “crime”
Who is governed? Victim, offender and the community
Who governs? RJ give greater agency to victims, offenders and community members
What is appropriate governing? Instead of the past, RJ direct governance of the future (avoid repetition of the crime)
Conflict with RJ:
RJ locked into conceptual and practical tendencies of the CJS
Relies on state laws to define “harm”
Does not address structural harms
Who is/are responsible for developing and advancing the philosophies and practices of RJ?
Academic Superstars:
university profs and academics
Established Guard:
CJS officials and political figures
Johnnies on the Spot:
those happened to be in areas where RJ developed and told hold in their communities
Issue Hijackers:
promote RJ for causes or issues that are not related to the needs of offender, victim and community
Where to From Here?
RJ must be put back in the hands of the community
Simple language
Total ownership to community
Dealing with harms on case-by-case basis
Injustice as
Trigger for RJ
Rawls - Justice as “Social Contract” (political/functionalist conception)
“people regulate their behaviour on the basis of widely accepted rules that are fair and reciprocal, applying to and benefitting everyone equally and which give each person an equal opportunity to act for the sake of their own good”; when conflict arises, individuals deal with it by adopting “veil of ignorance” and thinking about greatest good and underlying political values of society
To restore justice, must address harms involved in injustice and reinstate or renegotiate terminated social contract
Someone who has been harmed needs:
apology and information
Someone who is responsible for harm needs:
opportunity for reconstruction, information about consequences
Both parties need:
opportunity for full expression/exploration, information about ‘new contract’
RJ Implications:
promotes healing; places stakeholders on equal terms
Issues:
model does not account for accountability or needs
Injustice as
Trigger for RJ
Habermaas - Justice as “dialogical process”
Every subject with the competence to speak is allowed to take part in social discourse on what is right and wrong and formulation of norm validity
Everyone allowed to question/introduce an assertion; everyone allowed to express their attitudes/values/needs/desires
No speaker may be prevented, by internal or external coercion, from expressing their rights
Active community discussion to define justice
RJ Implications:

works on small scale basis; relies on active, voluntary participation of stakeholders; dynamic, discursive process; negotiation; all parties come into system neutral to decide on injustice
Issues:
not everyone will have same conceptual understandings of issues discussed in dialogue; process can be exclusionary
Injustice as
Trigger for RJ
Derrida - Justice as “experience of the impossible”; it is forthcoming, it does not exist; to understand each person’s experience of injustice, have to understand the experiences of the Other, which is impossible
Laws as reflections of economic/political interests of dominant forces in society (ie. Reagan’s “War on Drugs”);
Justice is breaking-down/deconstruction of these constructed concepts/assumptions
RJ Implications:
probe offender’s situation; seeking roots of power (similar to C. Wright Mill’s theories – 1959)
Issues:
does not involve open communication of all involved parties
*IF COMBINED WITH HABERMAAS’ THEORY, HAS GREAT RESTORATIVE POTENTIAL*
{ CRM3325 - Restorative Justice }
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