Understanding Restorative Justice in Criminal Law: Overview, Development, and International Framework

1. Restorative Justice in the Context of Criminal Law

2. Structure of the Module • The Criminal Justice System and Legal Justice • Exploring Justice Needs • What is Restorative Justice (RJ)? • Origin and Development of RJ • International Framework & Safeguarding Principles • Findings from Research • Overview of RJ Models • Use in Criminal Justice Systems • Issues in Implementing RJ

3. The Criminal Justice System and Legal Justice • Exercise 1: What is the meaning of justice? • Focus of criminal justice systems: • Punishment, deterrence, denunciation, retribution, community safety, rehabilitation • Response to crime on behalf of society as a whole • Introduction of measures to strengthen victims’ rights – however partial & limited in scope • UK Victim and Witness Satisfaction Survey – one fifth of victims felt dissatisfied with being informed during criminal process, only 35% gave personal statement to the court (Wood et al., 2015)

4. Exploring Justice Needs • Complexity of justice needs of those involved in crime • Victims • Psychological, emotional, physical & material needs • Arising from fear, anxiety, anger, physical & material losses • Limited role of the victim in the criminal justice process • Need offenders to receive answers to their questions • Being reassured of their safety • Exercise 2: “Who wants to meet me?”/ • Exercise 3: Reflection about a victim impact statement

5. Exploring Justice Needs • Offenders • Fair trial & due process • Need to be held accountable • Opportunity to make amends • Also: to be acknowledged and accepted back into community • Need victims to hear their remorse and receive their apology • Further stakeholders, e.g. families, friends, community members

6. What is Restorative Justice? • Restorative Outcomes • Restorative Processes • Restorative Values • Definitions: • “Restorative process” means any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. “Restorative Outcome” means an agreement reached as a result of a restorative process. (Basic Principles, 2002) • Restorative justice involves a voluntary process whereby those with a personal stake in an offence or conflict or injustice come together, in a safe and respectful environment, with trained facilitators, to speak truthfully about what happened and its impact on their lives, clarify accountability for the harms that have occurred, and resolve together how best to promote repair and bring about positive changes for all involved. (Marshall, 2012)

7. What is Restorative Justice? • RJ asks three basic questions: • What happened? • Who has been affected? • How can things be made right again? • Core values of restorative justice • Respect, accountability, voluntariness, safety, reparation • Exercise 4: Comparing characteristics of restorative justice and retributive justice

8. Origin and Development of RJ • Modern RJ development: • 1970s Victim-Offender Reconciliation Programs in North America • Abolitionist thinking of Nils Christie (“Conflicts as Property”, 1977) and other scholars • Influence of victims’ rights movement • Increasing importance of diversionary and rehabilitative approaches, in particular in juvenile justice systems • Relevance of feminist relational theory

9. Further Areas of Application • Educational settings (in particular schools, increasingly universities) • Child protection • Workplace disputes • Family conflicts • Environmental issues • Elder harm • Large-scale violent conflicts

10. International Framework • UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (2002) • Reflection of principles in further UN documents (e.g., ‘Beijing Rules’ 1985; CRC 1989; ‘Riyadh Guidelines’ 1990; ‘Tokyo Rules’ 1990; ‘Bangkok Rules’ 2010; Doha Declaration 2015) • Lima Declaration on Restorative Juvenile Justice (2009) • Council of Europe Recommendation (2018) concerning restorative justice in criminal matters • EU Victims’ Rights Directive (2012) • Council of Europe Recommendations relating to children in conflict with the law (e.g., R (2003) 20 concerning new ways of dealing with juvenile offenders and the role of juvenile justice)

11. Safeguarding Principles • UN Basic Principles: • Restorative processes based on free & voluntary consent (Basic Principle 7) • Fully informed of rights, process & possible consequences (Basic Principle 13) • Outcomes of restorative processes – judicially supervised or incorporated into judicial decisions/judgements (Basic Principle 15) • Impartiality of facilitator, dignity of parties, awareness of local matters (Basic Principles 18 & 19) • Guidelines and standards on the use of RJ to be developed (Basic Principle 12) • Referral conditions, handling of cases, skills of facilitators, administration of RJ

12. Research: Participant Satisfaction • Numerous studies revealed high satisfaction rates of victims and offenders (e.g., Shapland et al., 2007; Umbreit et al., 2008; Strang et al., 2013; Bolivar et al., 2015; Doak/O’Mahony, 2018; Hansen/Umbreit, 2018) • Evaluation of three RJ schemes in UK (Shapland et al., 2007): • 85% of victims & 80% of offenders – very or quite satisfied with RJ processes • High levels of satisfaction with outcomes • 90% of victims received an apology

13. Research: Participant Satisfaction • New Zealand Victim Satisfaction Survey (2016): • 84% of victims satisfied with RJ conference • Higher rates in family violence cases (87%) vs. non-FV cases (82%) • 91% of victims felt safe at conference • Sherman et al., 2015: • Lower levels of fear and post-traumatic stress symptoms among victims • Lower desire for revenge after restorative process

14. Research: Impact on Recidivism • Evidence suggests that RJ (has potential to) contributed to reducing recidivism (e.g., Sherman/Strang, 2007; Bonta et al., 2008; Shapland et al., 2008; Sherman et al., 2013; Sherman et al., 2015) • Shapland et al., 2008: • Significantly fewer offences in following two years than control group • Realisation of the harm, active engagement & communication with victims • NZ Ministry of Justice, 2016 (Reoffending Analysis for Restorative Justice Cases 2008-2013): • Reoffending rate 15% lower over following 12 months, 7.5% lower over 3 y. • Reduced reoffending across various types of offences

15. RJ Models - VOM • RJ continuum, ranging from “fully restorative” to “partly restorative” • Victim-offender mediation (VOM) or victim-offender dialogue/conferencing • Among the most widely used models • Meeting between victim and offender facilitated by trained third party • Agreements often include apologies, compensation for material or immaterial harm, restitution, services to the victim Source: McCold/Wachtel 2001

16. RJ Models - Conferencing • Conferencing • Circle of participants: offender, victim, family members, friends, community representatives Stages of the conferencing process and the corresponding standards: Source: Ministry of Justice New Zealand (2017): Restorative Justice Best Practice Framework

17. RJ Models - Conferencing • Example: Family Group Conferencing (FGC) in New Zealand • Developed in 1989 in area of youth justice and child welfare • Aims: involving families in decision-making, giving young people a say and victims a role in resolution process • Youth Justice FGC includes young offender & family, police, victim and support people (victims invited to attend - in practice levels of victim participation not very high) • Central decision-making process for diverting young people from courts or custody

18. RJ Models - Circles • Circle process (mostly known as peacemaking, healing or sentencing circles) • Drawing on circle processes used in Native American communities in Canada and USA – alternatives to court proceedings, reducing overrepresentation of Indigenous offenders in justice systems • Circle symbolises equality of participants • Key values such as respect, honesty, trust and equality – participants agree on values & norms to guide process • Wide range of participants: victim, offender, their supporters, community members and justice professionals

19. Circle Process Source: Longmont Community Justice Partnership

20. RJ Models • Models based on restorative elements: • Victim-surrogate programmes • Victim’s perspective introduced by “surrogate” victim to reflect needs • Example: Sycamore Tree Project • 5-8 week in-prison programme • Meetings between offenders and unrelated victims to share experiences and understand impact of crime • Dialogue about responsibility, restoration, reparation and healing

21. RJ Models • Models based on restorative elements: • Community panels or boards • Holding young or low-level offenders accountable to a group pf community members • Aims: reparative outcomes, based on community participation • Truth and Reconciliation Commissions • Dealing with large-scale violent conflicts • E.g., TRC in South Africa to address crimes of apartheid era

22. RJ in the Criminal Justice System • RJ may be used at any stage of the criminal justice system (Basic Principle 6): • Pre-charge (police), pre-trial (prosecution), sentencing (court), and post-sentencing stages • In practice: most often as diversion from prosecution • Outside of or integrated into the criminal justice system? • Administration of RJ services • e.g. community-, police- or court-based • Facilitation by professionals or trained volunteers? • Application to serious crimes?

23. RJ and Gender-based Violence • Concerns over use of RJ in situations of gender-based violence (GBV): • Power imbalances between victim-survivor and offender • Victim’s safety & risks of re-victimisation • Need for safeguards & specially trained facilitators in context of GBV • Prerequisites essential to ensure safe application of RJ • Committee on the Elimination of Discrimination against Women (General Recommendation 33 & 35) • Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) • UNODC “Implementation Plan for Criminal Justice Systems to Prevent and Respond to Violence against Women” (2014)

24. RJ and Gender-based Violence • Empirical research on RJ in intimate partner violence (IPV) cases – promising results: • Allowing victims to have a voice & be heard, harm acknowledged, experiencing a sense of justice (e.g., Kingi et al., 2008; Juelich/Landon, 2013, Ministry of Justice New Zealand, 2016) • Research on efficacy of VOM (Pelikan, 2010) – potential for empowerment of women • 83% of women: no further violence 1.5 – 2 y. after VOM • 80% of women believed that VOM prevented further acts of violence • Research on recidivism: 89% of offenders participating in VOM had not reoffended 2.5-3.5 y. after VOM in IPV cases (Hofinger/Neumann, 2008)

25. Cost Effectiveness • Potential of RJ to (significantly) reduce costs relating to criminal justice (Sherman/Strang, 2007; Shapland et al., 2008) • Replacing more costly court process • Wider frame: costs relating to health & social welfare systems – substantial long-term savings (Angel et al., 2014; Sherman/Strang, 2007) – less demand on general practitioners, social workers, counsellors, etc. • House of Commons Justice Committee (UK), 2016: • “…clear evidence that restorative justice can provide value for money by both reducing reoffending rates and providing tangible benefits to victims.”

26. Issues in Implementation • RJ and misconception of being “Soft on Crime” • Legislation – preconditions that restrict eligible cases? (serious crime, GBV) • Use at all stages of criminal proceedings? Sentencing & Post-Sentencing? • Quality control & practice standards • Awareness raising & access • Relationship to Indigenous communities and ‘intercultural’ aspects

27. References • Angel, C. M., L.W. Sherman, H. Strang, B. Ariel, S. Bennett, N. Inkpen, A. Keane, and T.S. Richmond (2014). “Short-Term Effects of Restorative Justice Conferences on Post-Traumatic Stress Symptoms among Robbery and Burglary Victims: A Randomized Controlled Trial.” Journal of Experimental Criminology 10, pp. 291-307. • Bonta, J., R. Jesseman, T. Rugge, and R. Cornier (2008). “Restorative Justice and Recidivism: Promises made, promises kept?” In: Sullivan, D. and L. Taft (eds.): Handbook of Restorative Justice. Milton Park: Routledge, pp. 108-120. • Bolívar, D., I. Aertsen, and I. Vanfraechem (eds.) (2015). “Victims and Restorative Justice: An Empirical Study of Needs, Experience and Position of the Victim within Restorative Justice Practices. Country Reports.” Leuven: European Forum for Restorative Justice. • Doak, J. and D. O‘Mahony (2018). “Evaluating the success of restorative justice conferencing.“ In: Gavrielides, T. (ed.): Routledge International Handbook of Restorative Justice. New York: Routledge, pp. 211-223. • Hansen, T. and M. Umbreit (2018). “Four decades of victim-offender mediation research and practice: The evidence.“ Conflict Resolution Quarterly. • Hofinger, V. and A. Neumann (2008). “Legalbiografien von NeuStart Klienten. Legalbewährung nach Außergerichtlichem Tatausgleich, Gemeinnütziger Leistung und Bewährungshilfe.“ Wien: Institut für Rechts- und Kriminalsoziologie.

28. References • House of Commons, Justice Committee (2016). “Restorative Justice: Fourth Report of Session 2016-17 HC164.” London: House of Commons. • Juelich, S. and F. Landon (2013). “Achieving Outcomes for Participants of Project Restore’s Restorative Processes: The Persepectives of Participants.” Auckland: Project Restore. • Kingi, V., J. Paulin, and L. Porima (2008). “Review of the Delivery of Restorative Justice in Family Violence Cases by Providers funded by the Ministry of Justice.” Wellington: Victoria University of Wellington. • Marshall, C.D. (2012). “Compassionate Justice. An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice.” Eugene, Oregon: Cascade Books. • Ministry of Justice (2016). “Reoffending Analysis for Restorative Justice Cases 2008-2013.” Wellington, New Zealand: Ministry of Justice. • Ministry of Justice (2016). “Restorative Justice Victim Satisfaction Survey: Research Report.” Wellington, New Zealand: Ministry of Justice. • Ministry of Justice (2017): “Restorative Justice Best Practice Framework.” Wellington, New Zealand: Ministry of Justice.

29. References • Pelikan, C. (2010). “On the Efficacy of Victim-Offender-Mediation in Cases of Partnership Violence, or: Men Don’t Get Better, But Women Get Stronger: Is it Still True? Outcomes of an Empirical Study.” European Journal on Crime Policy and Research 16, pp. 49-67. • Shapland, J., A. Atkinson, H. Atkinson, B. Chapman, J. Dignan, M. Howes, J. Johnstone, G. Robinson, and A. Sorsby (2007). “Restorative Justice: the views of victims and offenders.“ London: Ministry of Justice. • Shapland, J., A. Atkinson, H. Atkinson, J. Dignan, L. Edwards, J. Hibbert, M. Howes, J. Johnstone, G. Robinson, and A. Sorsby (2008). “Does restorative justice affect reconviction?” London: Ministry of Justice. • Sherman, L.W. and H. Strang (2007). “Restorative Justice: the Evidence.” London: The Smith Institute. • Sherman, L.W., H. Strang, G. Barnes, D.J. Woods, S. Bennett, N. Inkpen, D. Newbury-Birch, M. Rossner, C. Angel, M. Mearns, and M. Slothower (2015). “Twelve Experiments in Restorative Justice: The Jerry Lee Program of Randomized Trials of restorative Justice Conferences.” Journal of Experimental Criminology, vol. 11(4), pp. 501-540. • Umbreit, M.S., R.B. Coates, and B. Vos. (2008). “Victim-Offender Mediation: an evolving evidence-based practice.“ In: Sullivan, D. and L. Taft (eds.): Handbook of Restorative Justice. Milton Park: Routledge, pp. 52-62. • Wood, M., K. Lepanjuuri, C. Paskell, J. Thomson, L. Adams, S. Coburn (2015). “Victim and Witness Satisfaction Survey.” London: Crown Prosecution Service (CPS).

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