The criminal justice system has traditionally concentrated on detaining and committing offenders rather than examining the roots of their problems and providing community-based services that effectively addressed them. Crime rates continue to soar under the present system and the search is ever stronger for a solution to deal with a rising prison population, high costs, overcrowding and poor conditions, coupled with an increasingly alarming disproportionate rise in the female jail population linked to “one-size-fits-all” harsh sentencing.
This essay examines the concept of ‘restorative justice’ in practice as both an alternative for and a compliment to the present system.
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It focuses in particular on how the theory is applied to youth offending and in particular, where the offender is female. It summarises the benefits purported to be achieved by the restorative justice approach and balances these with problems experienced and envisaged. The implications of these findings for future policy making in the field are then discussed.
Restorative justice requires a change in the way we think about crime and justice.
As a set of values, restorative justice offers a solution that promotes the healing and strengthening of community bonds, by addressing the harm done to victims and communities (Van Wormer, 2002). Arising from a number of “activists, academics, non-governmental organizations and policy entrepreneurs” (McLaughlin1, p.2), restorative justice is cited to have its roots in indigenous cultures, drawing on the early practices of conflict resolution in non-state societies (Tauri & Morris, 1997). Although there is some criticism of this as being used just to give the theory credibility (Daly, 2002), there are certainly distinct parallels between the Maori justice processes of collective responsibility and the way restorative justice is working today. Both seek to address the needs of not only the victim but also their family, and both look at the offender’s lack of balance in a social and family context (Tauri & Morris, p.44-45). A similar approach can be found in Christianity and many other world religions – the concepts of ‘confession, repentance, forgiveness, hating the sin and not the sinner’ are values which have a close parallel to those found in restorative justice (McLaughlin1, p.3, Hadley 2001, p.3).
The process has also links to the theory of reintegrative shaming proposed by Braithwaite, which relates to the Japanese reintegrative shaming practices. Again, parallels to restorative justice can be found – the offence rather than the offender is condemned, shaming is followed by repentance and reacceptance ceremonies much like restorative justice looks to heal and rebuild. In shaming ceremonies, the offender apologizes and so ‘splits himself into two parts – the part that is guilty of an offense and the part that disassociates itself from the delict and affirms a belief in the offended rule’ (Goffman in Braithwaite, p.396). Closely tied to this is the abolitionist values of “symbolic compensation involving new communal rituals of sorrow, grief and forgiveness” (McLaughlin3, p.9).
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Restorative Justice also holds the distinctly feminist values of care and response, in contrast with the rights/justice orientation of the present justice system. Rights/justice is linked to respect for rules and hierarchy of power, where an individual’s rights are controlled or redressed through a predefined set of logic and rules (Harris, p.31) (which are, again, ‘one size fits all’ – Von Wormer, 2002). A care/response approach considers the “needs, interests and motivations” of all persons involved and assumes an interdependent community where conflicts are dealt with by ongoing communication and involvement (Harris, p.31).
Unlike the retributive theme of the traditional justice system, restorative justice is a healing and learning process. The definition of restorative justice is a system of values which focus on restoring the harm caused by an offence to all parties affected by, or “having a stake in” that offence (McLaughlin1, p.164). The harm caused may have broken down relationships between the victim, the offender, their families and the community in general – these relationships need to be restored (Zehr, p.41).
The victim may have experienced physical harm to themselves or their property, together with emotional distress both at the time of the incident and in the aftermath. Those closely related to the victim (such as the victim’s children or partner) may have also experienced the effects of both material loss and emotional pain.
When addressing crimes, restorative justice focuses on the harm done by the offence and seeks to address repairing that harm. This is achieved when the people who are involved or have been affected by the offence, come together to try and resolve matters (Hill, Audio CD 3). Morris explains, restorative justice is about restoring balance and putting things right. The aim is to make amends to the victim rather than punishing the offender. The offender held accountable for offending in meaningful and constructive way, and given the opportunity to ‘put something back in’ to repair harm they have done rather than simply experience a penalty for it (Morris, Audio CD 3). The principle that the victim should receive material and status compensation for their suffering is closely tied to abolitionism and indeed, abolitionists have played a key role in the development of restorative justice (McLaughlin3, p.9).
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An example of this in practice can be found in family group conferencing. This is held usually in a community hall or local setting. After a welcome and introductions, the Police outline elements of the offence and the offender admits or denies facts as set out. Once there is a basis for an agreed summary of the facts, the victim has the opportunity to speak, which has a twofold purpose, in making the offender aware of the harm that they have caused, and in involving and empowering the victim (Audio CD 3).
Members of the victim’s family may also have the opportunity to speak about how the offence has affected them. This is done with the aim of motivating the offender to accept responsibility for their actions, and to offer a genuine apology. However, this is not expected or coerced and wherever possible, offenders are encouraged to volunteer their participation and apology. Further, the offender is helped and encouraged to offer a real, practical solution to make amends – this may include repairing or replacing damaged property, or providing services to the victim in compensation.
The harm may be to the wider community – for example, vandalism and damage to public property, and the offender may be encouraged to provide a similar practical solution to repair the damage done and ‘pay back’ to the community as a whole. Some schemes such as reparative probation focus largely on this aspect of restorative justice and do not include dialogue with the victim although the case may be referred to victim mediation.
The process of restorative justice has been applied in a number of settings and using a number of different models. Family group conferencing has been used for all juvenile offenders in New Zealand except those who have committed murder and manslaughter. Other programs include victim offender mediation, a process which encourages respectful, open dialogue primarily between the victim and the offender where there is no specific ‘scripts’ or ‘agendas’ as can sometimes be used in family group conferencing (Bazemore, p.76), and circle or healing circles where all members of the group have the opportunity to speak as they hold a feather or ‘talking stick’ (Bazemore & Griffiths, p.79).
In a traditional justice system, the state takes over from the role of the victim and defines the obligations of the offender according to the law (Christie, pp.21-39). The ‘battle’ that follows is fought between professionals and may come down to technicalities in law or individual lawyer’s ability, remote from the victim’s pain and suffering (Christie – p.21, Von Wormer, 2002). In contrast, restorative justice empowers victims, giving them the opportunity to speak about the offence and the way it has affected them, and so it is the victim that defines the obligations of the offender, which should be relative to the offence (Zehr & Mika, p.41).
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In turn, the offender is given the opportunity to tell ‘their story’ and for their supporters to speak on their behalf. All participants equally are supported and the needs of all parties are considered. Factors such as the offender’s background, health, education, employment prospects and general social welfare may be discussed with the offender – indeed, the whole process reinstates that it is the offence and not the offender that is being condemned; a value promoted by peacemaking criminologists (McLaughlin3, p.9). The offender may themselves have experienced harm in their life leading to the offence, and support workers draw together possible solutions to prevent reoffending by reintegrating the offender back into the community. The process is, therefore, one of healing for the offender as well as for the victim, and where the victim demonstrates their forgiveness, this can have a powerful effect on the offender and their future behaviour (Braithwaite p.156).
Support workers must further consider the victim’s future needs and how the community can help restore their sense of security and dignity, assist in their long term recovery and build on the healing process (Braithwaite, p.156).
Some advocates of restorative justice believe the process can be applied to all offences – there is ‘no cut off point’ (Hill, Audio CD 3). Others believe caution must be applied in relation to very personal crimes such as rape, sexual offences and domestic violence where there is very little experience in using this system and a real danger that the victim could be revictimised (Pollard, Audio CD3).
Despite some differences in the field, it is agreed that restorative justice takes the justice process away from the courtrooms and puts it back into the community. The community bears responsibility for supporting and enabling all its members, offender and victim alike, and for healing and reinstating them. Community resources are drawn on but the process results in the building and strengthening of the community as a whole (Zehr & Mika, p.42). However, not everybody sees this as a good thing. Ashworth believes that taking the responsibility for outcomes away from the state and into the hands of the victims and family is a negative. There are matters which are civil where the concern is between the parties involved – and there is activity that is criminal, which, he says, are in the wider public interest – and the public agree to obey laws in return for protection of those interests (Ashworth, p.168). The state owes it to the victim, “whose wrong it shares”, and to the offenders in exercising power to the same extent in similar cases, providing consistency and certainty (Duff, 2000 in Ashworth, p.169). Whilst we could counter this criticism using Christie’s arguments in ‘Conflicts as Property’, it is worthy of consideration in relation to future policy making. Consistency and certainty are important values in relation to crime control and prevention – most rational people do not break the law because they know the likely outcome of any given behaviour – and with this comes the necessity to ensure consistency in the proportionality between the offence committed and the acts agreed on for making amends. Without consistency and certainty, minority groups may find themselves on the end of particular local views and responses (for example, young female offenders displaying ‘inappropriate behaviour’ – see below). Ashworth rightly notes that there is no proportionality theory developed as yet (Ashworth, p.170).
Braithwaite also notes the mixed role of the police in restorative justice. As facilitators of a conference, they appear to take on roles of “investigator, prosecutor, judge and jury”. This is against the doctrine of separation of powers (which states that the government, executive and judiciary should function separately to avoid tyranny and oppression) and also against Article 6 of the Human Rights Act which gives the right to a fair trial controlled by some independent and impartial person – Ashworth points out that the police having both investigative and prosecutional roles do not fulfill this requirement. Again, this is useful criticism and when formulating policy the future role of the police in conferencing might be reconsidered.
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Restorative justice may show promise where other methods of dealing with crime fail, but there is a danger of falling into the same practice of ‘one size fits all’ displayed by the present criminal justice system. As Alder points out, much of the literature on restorative justice is generic rather than gender specific (Alder, p.117). But studies show that young female offenders face different issues than that of young males. For example, research in the USA has shown that from 1993 to 1995, the typical female young offender was 15 or 16 years old, belonging to a minority group, a “high school dropout” who lived in a poor, inner-city neighborhood and was frequently a victim of sexual and/or physical abuse or exploitation. The study further showed that in the 1990s, “most female young offenders were from single-parent families, who have been placed in foster care, lack adequate work and social skills, and are substance abusers” (Bergsmann, 1994). It is increasingly apparent that these specific issues must be addressed when formulating any future justice policy.
A further issue is that women are often perceived as feminine and are expected to act in accordance with this perception – behaviour outside of this social ‘norm’ (‘status offences’) is deemed unacceptable and inappropriate. This has led to various difficulties in a justice context – for example, in a review of sentencing practices relative to young female offenders it was found that regardless of the girl’s offence, almost invariably reference was made to accompanying behavior perceived to be socially unacceptable. Further, the report found that girls were more likely than boys to be committed to an institution if there was any evidence of sexual activity, regardless of the offence for which these females had been initially convicted (LEAA, 1975). Research has shown that decisions made by parties in relation to young female offenders may indeed be influenced by concerns about the “girl’s sexuality” and their “passionate and willful behaviour” (Alder, 1998, Hudson 1984). Again these views have an implication for whether the outcome will be proportional in relation to the offence when the parties involved may already have biased attitudes.
As a result of these attitudes, studies have shown that young women have often been subjected to more ‘prolonged and intrusive interventions’ than young men (Chesney Lind & Sheldon, 1992). Part of the restorative process involves reintegration into the community and the community either has a greater acceptance of offending by young males, or is perceived to have this by the young female offender (Kitcher in Alder, 2000, p.119). This in turn affects the likelihood of young women successfully completing community based activities – for example, in one study girls were found to be twice as likely to be breached for non-compliance with the conditions of a community service order than boys (Beikoff in Alder, 2000, p.119).
Further, young women may perceive their offending as affecting their status and value as a woman, which may affect their sense of identity and self worth (Alder, 2000). In turn this may affect the way young female offenders expect others to react to them and in how they treat other’s reactions. This and a tendancy for self blame leads to guilt and shame. To feel guilt and shame for the offence and to express this by way of an apology is part of how the restorative process works, but guilt and shame for a young woman has a different context. Sandor explains, shame has been a “powerful tool of domestic control of women”. Young women in particular have a tendency to resort in self harm as a response to the emotional pain and frustration of shame. Further, self-reported data in the US shows that more than half of young women in ‘training schools’ have attempted suicide and 64 percent of those have tried more than once (American Correctional Association). If restorative justice is be a healing and rebuilding process, this ‘delicate balance’ between feeling remorse and destructive self-blame needs to be considered carefully (Sandor, in Baines 1996).
Alder finds that those working with young female offenders find girls “more difficult” to work with than boys. But in a restorative justice context, girls may find it difficult to speak about their life experiences, particularly where ‘managing their own life story’ is a part of their own self protection and self sufficiency. They may wish to keep their experiences to themselves as this provides a mechanism for managing their privacy and independence. However, restorative justice requires an open dialogue and encourages the offender to take responsibility for their lifestyle and social problems and effectively, to seek help. Advocates of restorative justice have suggested that there are positive benefits for young female offenders in taking an active role in the modification of their own behavior. Putting them “in touch with their own victimization” is suggested to be a first step in helping them to empathize with persons they may have victimized (Van Wormer, K, 2002). There will obviously be difficulties for young women who do not want to discuss their personal circumstances and background – Alder further points out that women are justifiably cautious about who they will talk to and what they will talk to them about – further, it has been found that some girls refuse to access services if they have to ‘tell their story’. So young women may find it difficult to be “forthright and honest” amoung strangers, and may be reluctant to get involved in the restorative justice process at all (Alder, 2000). This could easily be taken to mean they are not sorry or are unwilling to cooperate.
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A further aspect of restorative justice is that where the offender is made to appreciate the ‘inconvenience and pain’ caused to the victim. In doing this, it may be overlooked that the young female offender may also be a victim, already experiencing pain of their own. US statistics indicate that 8 million girls, or 1 out of every 4, are sexually abused before the age of 18. Statistics relating to the occurrence of physical and sexual abuse and/or exploitation occurring in the backgrounds of young female offenders vary from 40 to 73 percent but generally, girls are much more likely than boys to be victims of sexual abuse, especially family-related abuse. Such abuse is also one of the main causes cited for running away from home; a status offence which can often be a young female’s first involvement with the criminal justice system. Further studies have indicated that sexually abused female runaways are more likely to engage in activities such as drug abuse, theft, and prostitution than young females without abusive backgrounds or male runaways. Chesney-Lind concludes that when seeking help, most girls seek help for the consequences rather than the causes of the abuse (Chesney-Lind, 1982). Further studies carried have again confirmed that children who have been abused are likely to be involved in delinquent and violent behaviour in the future (Widom, 1992; Thornberry, 1994). Alder states, restorative justice processes which practice victim awareness strategies become questionable when so many young women are themselves victims. As victims, they are more than ready to blame themselves for the harm caused and as discussed, this can lead to self guilt and self harm (Alder 2000, p.122). Further, whilst restorative justice seeks to reintegrate offenders back into “the community”, young women offenders may have a different experience of ‘community’ than others. As victims, it may be their ‘community’ – parents, teachers and care workers, that have harmed them in the first place, and to try and integrate them back into this ideal may do more damage than good. “Community” should not therefore be, ‘the’ community – a single community of shared values – but is ‘their’ community, the circle of people who provide their ‘protection, shelter, conversation and advice’ (Hagan & McCarthy, p.123).
Amidst these criticisms, there are claims that restorative justice could have positive benefits for young women. Such services need to be promoted to facilitate and enable young women to lead ‘safe, secure and independent lives’ (Alder, 2000), to help them to achieve economic independence and secure long term accommodation, and to give them educational options with a view to a career. Alder describes this as giving young women ‘ligitimate identities, to attain a meaningful role in the community and to have some choice about direction and form of their lives’ (Alder, 2000). This means recognizing that young women offenders have different experiences and reactions to men, and making changes to practices which have in effect excluded them from much needed support up till now (Department of Community Services, Victoria, 1992). In formulating restorative justice policies, it must be appreciated that young female offenders need access to a “continuum of options in which their safety can be ensured” while they are helped to address the issues that brought them into contact with the criminal justice system and provided with the services they will need to leave it (Co-ordination Group on Women, 1998).
The current justice system is daunting, impersonal and inflexible, both for victims and for offenders. The victim rarely gets to speak about their loss and where there is a limited chance to speak (for example, in giving evidence) it is channeled and scripted according to procedure as the professionals take over and define the harm in terms of rules broken and fixed penalities. The “battle” is fought between those professionals and the outcome may come down to technicalities in law or individual lawyer’s liability, without bearing on the victim’s pain and suffering. The process is in turn cold and remote for young offenders and rarely are their full circumstances taken into account.
Restorative justice is being sold as a promising way forward in the fight against crime, selling itself as a solution to rebuild public confidence in the criminal justice system, reduce reoffending rates, increase victim satisfaction and confidence, and modernize (or completely abolish) the criminal justice system (McLaughlin3, p.22). But is there evidence that it actually works? Hill highlights how difficult this is to assess. Reoffending rates do not present a complete picture and probably never will as an offender may be arrested in a different county or may not even be caught the next time round (Hill, Audio CD 3). In terms of victim satisfaction, studies are small and results vague – in one study, of 146 conferences assessed, only 51% of the victims actually attended, and 25% of those who attended said they ‘felt worse’ afterwards (Maxwell & Morris, 1993). Surely this means that 75% of victims who did attend felt much better, perhaps much better than they would have under the current justice system, where they would have had no involvement in the outcome? In that same study, it was found that 85 – 90% of the conferences reviewed resulted in agreed outcomes, and of those, 80% of the young people completed their agreements (Daily, p.206). Further, “a very high number” of persons involved felt procedural justice was achieved – the process was “fair” – in other words, justice was seen to be done (Daly, p.206). The problem with assessing whether it “works” would seem to be the lack of data and Hill suggests we proceed with caution. Where restorative justice has been ‘done well’ there have been positive results – where it has been ‘done badly’ there have been negative results. Maxwell and Morris agree that monitoring is poor, follows ups are poor and it would seem much of the negative feedback comes from poor practice, not any defect in the theory itself (Maxwell & Morris, p.206). Independent rigorous research is required that does not have a vested interest in the process working (Hill, Audio CD 3).
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Both Daly and Hill are quick to stress that advocates of the movement are good at self promotion and current practice guidelines are far from complete (Daly, pp. 208-209; Hill, Audio CD 3). Indeed, Harris says it would be a mistake to substitute a care/response approach for a rights/justice one like this, in the present system of things as we cannot trust that the interests of the “less powerful” would be protected in the absence of rules (Harris, p.34). Resorative justice is not, therefore, practically able to replace our current system at this time but presents a way forward in the challenge to find a more complete vision of justice (Harris, p.35). With further research and careful consideration into the issues that affect women’s experiences of the justice system, it also offers a potentially more constructive and meaningful solution for young women offenders and one that could not come too soon. 2003 saw a record number of women commit suicide in prison, many of whom were “young women, non violent, drug takers and primary carers of children and those known vulnerable to suicide”. Without doubt, the present system has failed them and key figures are now acknowledging that such problems could be better dealt with – in the community (McCarthy, 2004).
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Hagan & McCarthy (1997) Mean Streets: Youth Crime & Homelessness New York, Cambridge University Press cited in Alder, C. (2000) Young Women Offenders and the Challenge for Restorative Justice in Strang, H & Braithwaite, J (eds) (2000) Restorative Justice: Philosophy to Practice, Dartmouth, Ashgate, Chapter 7 pp.105-20 in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues p.123 The Open University, Sage Publications, London
Harris, M. K. (1991) Moving into the New Millennium: Towards a Feminist Theory of Justice in Pepinsky, H. E. & Quinney, R. (eds) (1991) Criminology as Peacemaking, Bloomington, Indiana University Press, pp.83-97, in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues pp.31-39, The Open University, Sage Publications, London
Hudson, B. (1984) Femininity and Adolescence cited in Alder, C. (2000) Young Women Offenders and the Challenge for Restorative Justice in Strang, H & Braithwaite, J (eds) (2000) Restorative Justice: Philosophy to Practice, Dartmouth, Ashgate, Chapter 7 pp.105-20 in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues pp.117-126 The Open University, Sage Publications, London
Kitcher, J. in Baines, M (1996) Viewpoint on Young Women and Family Group Conferences in Alder C & Baines, M, And When Was She Bad? Working with Women in Juvenile Justice and Related Areas, Hobart, National Clearing House for Youth Studies pp.41-7 cited in Alder, C. (2000) Young Women Offenders and the Challenge for Restorative Justice in Strang, H & Braithwaite, J (eds) (2000) Restorative Justice: Philosophy to Practice, Dartmouth, Ashgate, Chapter 7 pp.105-20 in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues pp.117-126 The Open University, Sage Publications, London
Law Enforcement Assistance Administration (1975). The Report of the LEAA Task Force on Women, p. 9. Washington, DC: U.S. Department of Justice.
http://www.ojp.usdoj.gov/reports/98Guides/wcjs98/chap2.htm
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McCarthy, C (2004) cited in Women Prison Suicides Hit Record 6 January 2004 – BBC News (no author is credited with this article)
http://news.bbc.co.uk/2/hi/uk_news/politics/3363641.stm
McLaughlin1, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues The Open University, Sage Publications, London
McLaughlin2, E., Muncie, J and Hughes, G (2003) Criminological Perspectives – Essential Readings (2nd Edition) Sage, London
McLaughlin3, Fergusson, R, Hughes, G and Westmarland, L (2003) Course Guide 2 – D315 Crime, Order and Social Control, The Open University Course Team
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Maxwell, G & Morris, A (1993) Family Victims and Culture: Youth Justice in New Zealand, Wellington, Social Policy Agenda and the Institute of Criminology, Victoria University of Wellington in Daly, K. (2002) Punishment and Society in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues (Chapter 16) The Open University, Sage Publications, London
Sandor, in Baines, M (1996) Viewpoint on Young Women and Family Group Conferences p.45, in Alder C & Baines, M, And When Was She Bad? Working with Women in Juvenile Justice and Related Areas, Hobart, National Clearing House for Youth Studies pp.41-7 cited in Alder, C. (2000) Young Women Offenders and the Challenge for Restorative Justice in Strang, H & Braithwaite, J (eds) (2000) Restorative Justice: Philosophy to Practice, Dartmouth, Ashgate, Chapter 7 pp.105-20 in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues pp.117-126 The Open University, Sage Publications, London
Tauri, J & Morris, A (1997)Re-forming Justice – The Potential of Maori Processes in Australian and New Zealand Journal of Criminology Vol.30 no. 2 pp.149-67 in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues (Chapter 4, pp. 44-53) The Open University, Sage Publications, London
Thornberry, Terence P. (1994). Violent Families and Youth Violence. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. http://www.ojp.usdoj.gov/reports/98Guides/wcjs98/chap2.htm
Van Wormer, K. (2002) Restorative Justice and Social Work in Social Work Today, January 7 2002 Vol 2 No.1
http://www.restorativejustice.org/rj3/Full-text/vanwormer/restorative1.htm
Widom, Cathy Spatz. (1992). The Cycle of Violence. NCJ 136607. Washington, DC: National Institute of Justice
http://www.ojp.usdoj.gov/reports/98Guides/wcjs98/chap2.htm
Zehr, H. & Mika, M. (1997) Fundamental Concepts of Restorative Justice Contemporary Justice Review, vol.1 pp47-56 in McLaughlin, E, Fergusson, R, Hughes, G & Westmarland, L (2003) Restorative Justice – Critical Issues Chapter 3 pp.40-43 The Open University, Sage Publications, London
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