Public lecture transcript: restorative justice
New Zealand Institute for Dispute Resolution
Victoria University of Wellington Faculty of Law
Wednesday, July 5, 2000 at 5:30 p.m.
Reason and Emotion in Restorative Justice
Associate Professor, University of Utah College of Law
Senior Fulbright Scholar and Lecturer, Victoria University Faculty of Law
Thank you all for coming here today. I would like to begin by acknowledging those who have provided me this opportunity to speak today and who are responsible for my visit to Wellington. First and foremost, I would like to thank Professor Ian MacDuff, his administrator Denise Blackett, and the New Zealand Institute for Dispute Resolution for facilitating this lecture and providing an excellent forum for new ideas. I would also like to express my deep gratitude to Dean Virginia Grainer and Victoria University’s Faculty of Law for hosting my stay here in Wellington. It has truly been an honor to work alongside some of the best and brightest academics in New Zealand, individuals who are at the very cutting edge of both legal scholarship and education.
I would also like to thank Warren Young, Vivienne Morrell and the Ministry of Justice for their important contributions to my visit. Warren not only played a critical role in my opportunity to come here but, through his brilliant scholarship, has also inspired my interest in restorative justice. Likewise, Vivienne has facilitated my survey of New Zealand’s criminal justice system and has provided terrific opportunities to meet and speak with her colleagues.
Finally, I would like to express my greatest thanks to the individuals who are the very reason I am, to use the local phrase, absolutely, positively in Wellington: Ms. Jenny Gill and her staff at the New Zealand Fulbright Program. They bestowed upon me an unparalleled honor by my selection as a Fulbright Scholar to New Zealand and have provided me the means to achieve a greater understanding of local culture, law, and politics as well as an opportunity to share my thoughts with New Zealand scholars and experts. It is this mutual exchange of ideas and knowledge between nations that is the hallmark of the Fulbright Program. And it is the hard work and dedication of Jenny and her staff that has made the New Zealand Fulbright Program one of the most respected platforms for international dialogue and academic development.
As an American in New Zealand, it is only with some trepidation that I speak on the topic of today’s lecture. Restorative justice can be generally described as an approach to crime that includes all stakeholders in a particular offense in a process of group decisionmaking on how to handle the effects of the crime and its consequences for the future. Although there are discrete programs in a few American communities, the United States has yet to undertake any large scale restorative model of criminal justice and instead remains largely wedded to the idea of retribution and what has been described as “constitutionalized revenge.” In contrast, for more than a decade New Zealand has had an operational model of restorative justice in its approach to juvenile offenders and continues to debate the expansion of this approach to the adult criminal justice system. So with my thoughts and ideas come the necessary caveats of an outsider.
As demonstrated in recent media accounts, restorative justice is an emotionally charged subject here in New Zealand. In announcing a $4.9 million pilot program for adult offenders, Courts Minister Matt Robson described restorative justice as “our best chance at changing criminal behavior.” Although welcomed by the Green Party, the Restorative Justice Network, and Victim Support, the proposal was subject to an impassioned attack by Opposition leaders. Law-and-order campaigner Norm Withers argued that the scheme was a “bloody insult” and one academic described the entire restorative justice movement as a “fad.” Adversaries of restorative justice invariably point to last year’s omnibus referendum on crime, where 92 percent of voters called for harsher penalties for violent offenders. The emotional nature of opposition to the program was probably best illustrated by this political cartoon. A reporter asks, “Mr. Robson, Do you believe home detention and restorative justice can change hardened or brutal crims?,” to which Robson replies, “Yes! And my friends Santa and the Tooth Fairy would agree.”
My discussions with both legal experts and lay citizens only confirm that restorative justice is a highly emotional topic. Many of those who hold positions on the subject tend to be extreme and rather emotional in their attitudes toward restorative justice. This is not altogether surprising, as crimes are often acts of passion and always have emotional consequences for those involved. Likewise, individuals who violate the criminal law or widely held social norms are subject to visceral contempt by the public. It is only natural, then, that emotions are intrinsic to the process of sanctioning criminals.
But the fact that punishing offenders is embedded with passion does not mean that the sanctioning process and the emotions involved cannot be evaluated with human reason. What is lacking, I believe, is a rational framework for the process and emotions involved in a successful sanctioning scheme. Over the next 30 minutes or so, I would like to do precisely that—sketch out the theory of restorative justice as well as the prerequisites and stages in a successful restorative approach to criminal punishment. I will then apply the resulting standard to the traditional models of juvenile justice and a recently developed approach to youthful offenders, best exemplified by the family group conference pioneered here in New Zealand. My hope is that a rational sanctioning theory and framework will offer insight into the advantages of restorative justice and its treatment of the emotions evoked by crime.
So let me begin with a brief overview of punishment philosophy. Theories of the criminal sanction are, for the most part, founded on two presumptions: factual or legal guilt, and a predefined measure of success in sanctioning. By the time an individual reaches the formal punishment stage in the criminal process, he has either admitted guilt or been found guilty by a trier of fact, evolving in the eyes of the law from the “accused” to the “convicted.” The question, then, is not whether the man in the dock committed the crime but instead the sanction that must be levied for his offense.
The second presumption imagines an agreeable gauge of success contemplated by the sanctioning theory. In other words, sanctioning models are inevitably ends-oriented; rather than gratuitous infliction of punishment, there is some goal served by sanctioning the criminal for his offense. This does not mean that the goal itself is tangible or measurable instead of metaphysical. A retributive theory of criminal sanction, for example, argues for punishment as “just deserts,” that penalties are inflicted on the offender solely because he deserves it. This conception of justice punishes not in service of some greater societal goal but in proportion to the criminal’s moral blameworthiness and the harm caused by his offense. As such, retribution is inherently backward-looking in focus, concerned with past acts and mental states rather than future conduct.
Nonetheless, traditional sanctioning theories usually incorporate instrumental values as the direct aim or a tangential but important benefit of punishment. Succinctly stated, sanctioning might serve the utilitarian ends of deterring future crime by the particular offender and the general population; rehabilitating the offender as a law-abiding citizen for his own good and that of society at large; and incapacitating the offender by limiting his ability to commit crimes. But whatever goal is espoused, instrumental sanctioning is always forward-looking—seeking to reduce the intensity and gravity of crime in society.
Some contemporary scholars have begun to question the narrow focus of criminal punishment as state-versus-offender, outside of its social context, and exclusive of other interested parties such as victims, families, and community members. Traditional sanctioning theories largely neglect the needs of those directly injured by crime and the resulting damage done to social life within an interconnected community. At best, the duel between prosecutor and defendant can only tangentially serve a broader conception of justice in sanctioning. These theories also ignore the inescapable reality that criminals are made not born, that criminality is often a symptom of much deeper problems within the offender, his family, and the community. And finally, criminal justice systems guided by traditional sanctioning theories often fail at their theoretical goals. Systems that seek to deter crime or rehabilitate offenders frequently do neither and instead exacerbate the root causes of criminal behavior.
In contrast, the restorative justice approach recognizes that a successful criminal sanction must be both backward-looking—condemning the offense and seeking to uncover its causes—and forward-looking—making amends to the victims and the general community while actively facilitating moral development and prosocial behavior in the offender. Restorative sanctioning, then, expands punishment theory along two dimensions: the timeline of offending and the stakeholders concerned with crime. It seeks the involvement of all affected parties, not merely the state and the offender, to address what has happened and what should happen. And, metaphorically, it views crime as a point in the middle of a motion picture, with action both before and after the criminal event, rather than a singular snapshot without the context of the past or a vision for the future.
Restorative justice incorporates three basic principles in its approach to sanctioning. First, crime is not just an act against the state but against particular victims and the community in general. Offending, then, is primarily a breach of human relationships and only secondarily a violation of the law. As such, the community, family members, and supporters, rather than the state and its justice machinery, are considered the locus of crime control. Toward these ends, the restorative model seeks the active participation of victims, families, and community representatives to address the causes and consequences of offending.
Second, the primary aim of this approach is making amends for the offending, particularly the harm caused to the victim, rather than inflicting pain upon the offender. Accountability is defined as recognizing the wrongfulness of one’s conduct, expressing remorse for any resulting injury, and taking actions to repair the damage done by the offending. Crime creates positive obligations, this approach argues, that require affirmative action on the part of the offender.
Finally, restorative justice envisions a collaborative sanctioning process involving all stakeholders concerned with the offender and the offense. The central feature is largely uninhibited dialogue among the parties, allowing all present to express their emotions and ideas in an open forum. Through discussion and deliberation, restorative sanctioning contemplates mutual agreement on the steps that must be taken to heal the victim and the community, as well as a plan to confront the factors contributing to the offender’s conduct and to facilitate his development as a law-abiding citizen.
What is needed, however, is a procedural framework for evaluating specific approaches to sanctioning. It’s not enough to point to the outcomes of punishment schemes as indicia of their success or failure at restorative sanctioning. A procedural standard is also necessary to assess the design of criminal punishment, suggesting why a particular sanctioning model does or does not meet the more holistic objectives.
Successful restorative sanctioning begins with a single principle that structures the entire process: respect. As used here, respect is a sense of dignity, worth, and recognition accorded oneself, another individual, a physical object, or an abstract concept. Crime and the criminal lifestyle are driven, to a large extent, by the pursuit of respect by the offender and a lack of respect for those affected by the offense. From the viewpoint of the victim, crime is an ultimate statement of disrespect for her privacy, autonomy, property, security, and general well-being. For the community and its members, offending is also a sign of disrespect—disrespect of law and authority, the concept of civility, the benefits of organized society, and so on. The human tendency is toward reciprocity, to meet disrespect with disrespect, leading victims and community members to reject the offender as being worthy of dignity.
In a study of former offenders, a New Zealand researcher found that the primary persuader for abandoning the criminal lifestyle was a sense of self-respect and personal worth. In contrast, individuals who feel unjustly devalued and lacking respect by society are likely to harbor disrespect for the values and laws of the community and will actively seek out respect from an alternate subculture. This is best illustrated by the “code of the streets” in the American inner-city. As detailed by sociologist Elijah Anderson, poor minority youth are barraged by images of material success and status but are deprived of legitimate means to achieve these goals, such as jobs, education, and support networks. So they turn to the deviant culture of the urban gang, where “juice”—the street-word for respect—is acquired by rejecting law-abiding values and creating an identity of violence and criminality. Respect in this alter-world is achieved by showing disrespect for others and, in particular, law-abiding society and its members.
Punishment schemes will achieve the goals of restorative sanctioning, then, only to the extent that they allow respect for all parties involved. A process that creates respect for the victim and community representatives but not the offender, or vice versa, will inevitably neglect one or more of its admittedly ambitious goals—failing to rectify the harm to the victim, for instance, or further alienating the offender from the legitimate community and its values. At a minimum, five sub-principles are part of an atmosphere that fosters mutual respect.
The first is inclusion. Physical inclusion in the sanctioning process is, in itself, a sign of respect. It reaffirms that a party has an important interest affected by the crime and the criminal sanction. Exclusion from the process, in contrast, signals that a party’s concerns are minor or unworthy of consideration and constitutes an undeniable statement of disrespect for those whose interests are, in fact, at stake.
Related to the idea of inclusion is voluntariness—that a party is involved in the sanctioning process of his own freewill. An individual is granted respect by providing him the power of choice, giving him the autonomy to participate in a decisionmaking process and the freedom to accept or reject a particular decision. The converse, mandatory involvement and forced outcomes, can demonstrate a lack of respect for those most intimately affected by the process and ultimate resolution.
The third sub-principle recognizes that the respect of voluntary involvement rings hollow for participants who feel alone in the process, lacking the encouragement of respected and respectful supporters. Allowing the most fragile parties—most notably, victims and offenders—to be surrounded by their supporters buttresses the voluntariness of their involvement while ensuring a preliminary baseline of respect for all participants.
Within broad boundaries of due process, the fourth sub-principle argues that some control over the sanctioning procedures can empower the participants and demonstrate respect for their ability to craft a just approach to decision-making. Process control offers a sense of “ownership” in the means and ends of punishment and may engender respect not only for the outcome but also for their fellow parties who worked together toward a resolution.
The final sub-principle might be the most important for successful restorative sanctioning: freedom of discourse among all participants. Allowing parties a voice in the process provides a gesture of respect, that their concerns and ideas are important to the discussion. Likewise, uninhibited conversation ensures a level of ownership in the process and outcome, while demonstrating respect for other participants by openly communicating ideas and forging an agreeable resolution. The very act of undominated dialogue, in fact, is likely to lead parties to a consensus on the wrongfulness of a crime and an appropriate sanction.
Assuming the presence of these prerequisites, it is possible to imagine a variety of specific strategies that might serve the goals of restorative sanctioning. A successful process might use Socratic dialogue or a sequence of party monologues; it might include moments of prayer or silence; the offense and the offender might be addressed first or the victim’s story might begin the process. As just suggested, the opportunity to control the sanctioning procedures empowers the participants and invests them in the process and its outcome. But despite the lack of a clear formula, successful restorative sanctioning will almost always involve five crucial stages: censure, remorse, acceptance, planning, and facilitation.
Denouncing the offense is vital for all parties in a restorative sanctioning process. First and foremost, censuring the crime affirms the victim’s right not to be victimized. It is not uncommon for victims to feel that they are somehow to blame for the offense, that if they had done something differently the crime would never have occurred. A clear condemnation of the crime removes blame and begins the process of healing any damage done to the victim. Censuring the crime also confirms the values of a community and the limits of individual behavior. The condemnation of crime, as Emile Durkheim suggested, reaffirms the bonds of solidarity within a society.
Appropriate censuring can also be educational or constructive for the offender. By an expression of the harm to the victim, the pain experienced by family members of both the victim and the offender, and the decline in the sense of security among community members, the censuring process hopes to engage the offender in a rational dialogue on the wrongfulness of his conduct. The presence of the victim and the description of her injury prevents the offender from denying or neutralizing the harmfulness of his crime, while the attendance of the offender’s supporters is likely to add credence to the censuring process.
But constructive censuring must be distinguished from destructive censuring—or, in Australian criminologist John Braithwaite’s terms, “disintegrative shaming.” Destructive censuring condemns the offender, rather than just the crime, as bad or evil. This type of denouncement stigmatizes the offender as unworthy of respect and designates him as an outcaste of society. Self-categorization or labeling theory predicts that destructive censuring will only further entrench the offender’s identity as a deviant. Not surprisingly, condemnation of the offender often proves to be a self-fulfilling prophesy.
The second stage in successful restorative sanctioning is an expression of genuine remorse by the offender. Genuine remorse is the pain of recognizing the wrongfulness of one’s conduct and the harm that it has caused; superficial remorse, in contrast, is regret only for having been caught or a feigned expression of sorrow without any internal belief in the immorality of the offense. The former is vital to repairing the damage done to the victim and community and beginning the moral development of the offender, while the latter largely forecloses the possibility of a successful outcome. In addition, genuine remorse must be felt not imposed, occurring as a result of moral reasoning rather than brute force. “An intention to shame is not respectful,” one commentator argues. “An intention to help a person understand the harm they caused and to support them in taking full responsibility for that harm is respectful.”
An expression of genuine remorse initiates healing in all participants. By accepting responsibility for the offense and acknowledging the harm he has caused, the offender shows respect for the victim and her right not to be victimized. As such, it may revive feelings of self-worth in the victim and can be the most powerful form of reparation. Often times the victim seeks an apology rather than monetary compensation, an affirmation of her respect and dignity by the individual who misappropriated it through his crime. Genuine remorse also signals the offender’s affirmation of the legal norms of a community and his desire to be part of legitimate society. It thereby provides the first step towards incorporating the offender into the community.
Finally, genuine remorse is a prerequisite to the moral development of the offender. Without understanding the wrongfulness of his conduct, he will retain his deviant identity and connection to an antisocial subculture. In contrast, an offender who recognizes the immorality of his behavior and feels sorrow for having violated both the legal norm and the victim is, as an empirical matter, less likely to recidivate.
The desired response of participants to an offender’s remorse is their acceptance of that expression as genuine and meaningful. It is, in fact, the typical reply when an individual demonstrates a state of “perfect defenselessness” by admitting their wrongdoing and communicating true, sorrowful regret. The acceptance of his genuine remorse demonstrates respect for the offender by validating his emotions and recognizing him as an individual capable of taking responsibility for his actions. But accepting his expression is not done solely for the benefit of the offender but also for the victim’s emotional well-being. It empowers the victim by placing her in a position of control, even for a split-second, and allows her to release some of the pent-up anger and pain resulting from the crime.
After the “core sequence” of remorse and acceptance, participants in successful restorative sanctioning will forge a plan that makes amends to the victim, meets the community’s desire for security and value affirmation, and addresses the factors that contributed to the crime and the obstacles the offender will face in becoming a law-abiding citizen. When achieved through open input and group deliberation, the planning stage gives the participants an ownership interest in the end result.
To the extent that offenders feel that they participated in the process and that the outcome was just, they are more likely to follow through with the plan. And to the extent that victims believe that the level of compensation redresses their injury and constitutes a just outcome, the more likely they will walk away from the process feeling better about themselves, the offender, and the sanctioning process. In sum, then, an appropriate sanctioning plan will be respected by all participants.
The final stage of a restorative sanctioning process holds the key to attaining its goals. Success at all previous stages will be for not unless the offender receives the necessary support to fulfill the charted plan. Most offenders will lack the means to achieve the goals without the assistance of family members, supporters, and welfare professionals. If a contributing factor to the criminal behavior was a dysfunctional family life, psychological disorders, or substance abuse, the offender will need relevant treatment and counseling. If the core issue is a lack of self-worth or job opportunities, the offender will require skills training and gainful employment. And to the extent that deviant conduct is related to peer pressure or insufficient role modeling, the offender will need positive mentoring and opportunities to become involved with prosocial peer groups. In addition to providing the means to achieve the sanctioning plan, a successful facilitation requires supporters to follow-up on the offender’s progress and to help in overcoming unforeseen obstacles.
The standard for successful restorative sanctioning is just that—a standard or measure. It is not a detailed program ready-made for legislative adoption nor a comprehensive blueprint for a better criminal justice system. Instead, the standard provides a means of assessing an operational punishment model. In particular, it offers a gauge for restorative sanctioning goals and criteria for diagnosing a scheme’s successes or failures.
Punishment schemes for juvenile offenders provide fertile grounds for applying the restorative sanctioning standard. As products of the American Progressive Movement at the turn of the previous century, specialized youth courts and juvenile treatment facilities were intended to meet the unique needs of youthful offenders and to confront those factors that contributed to their offending. Since that time, juvenile justice schemes have vacillated between two sanctioning models—what I will call the “treatment” model and the “punishment” model.
Neither approach, however, has proven effective at addressing juvenile crime. The public is continuously bombarded with media accounts of youthful offending and recidivism, leading many to believe that the juvenile justice system has miserably failed at its objectives. Likewise, some juvenile justice experts have adopted the dour criticism previously leveled against adult criminal justice: “nothing works.” But a new model has brought a sense of hope to juvenile justice experts, youth court judges, and concerned practitioners. This approach, rooted in the restorative justice movement, seeks participation, dialogue, and healing for all parties affected by juvenile offending. The “conferencing” model, as I will call it, incorporates restorative goals largely ignored by traditional approaches to youth crime.
What I would like to do, then, is briefly detail the traditional models for sanctioning juvenile offenders and apply the restorative sanctioning standard to these models in an attempt to understand the general disillusionment with contemporary juvenile justice. I will then consider the conferencing model’s most heralded manifestation, the family group conference, to assess its potential under the standard for successful restorative sanctioning.
The first approach to youthful offenders, the treatment model, is firmly grounded in the medical treatment conception of justice, viewing the juvenile delinquent as being “sick” or disturbed and therefore requiring treatment and health services. Under this model, the offender is not held accountable for his actions. Instead, his sickness, rather than conscious choice, is considered the precipitating cause of the juvenile’s offending.
Under its paternalistic authority, the state takes possession of the child for his own good and seeks to rehabilitate him into a law-abiding member of society. This typically involves involuntary counseling and medical care and, in some circumstances, institutionalization in a residential treatment facility. In sum, then, the treatment model argues that: (1) the juvenile offender suffers from a medical and/or psychological disorder; (2) he is not responsible for the offense because it is a symptom of the disorder; (3) the state must take possession of the offender for his best interests; (4) and the juvenile offender must be subjected to medical and/or psychological treatment to cure his disorder.
Using the standard of successful restorative sanctioning, the problems inherent in the treatment model of juvenile justice become fairly obvious. It is singularly focused on the young offender and is concerned solely with his rehabilitation. Victims and community members are necessarily excluded from the process, as their interests are irrelevant to the treatment of the offender. The direct victim is denied reparation, either symbolic or material, for any harm caused by the crime. She is, in other words, persona non grata in the treatment model. Equally significant is the exclusion of the juvenile’s family and supporters. The important bonds of respect that are vital to the offender’s moral development are severed through the isolation of concentrated treatment. As such, all responsibility for the juvenile’s care is appropriated by the state and its medical professionals.
The treatment model does not envision open dialogue with the individuals most concerned with the offender or his offending; victims, family members, and community representatives play no part in crafting a plan for the juvenile. Instead, the process and outcome are solely controlled by juvenile justice and health care officials. Nor does the offender have a say in the matter, as treatment is imposed rather than negotiated. And because the juvenile is deemed unaccountable for his deeds, he is not censured for the offense. The treatment model therefore provides no opportunity for the reaffirmation of community values and norms, for an expression of genuine remorse on the part the offender, and for the cathartic acceptance of that remorse by the victim or other concerned parties. What is worse, the entire treatment process facilitates the labeling of the offender as disordered, thereby further entrenching his deviant identity. It confirms—and even provides a medical basis—for his position as a social outcaste.
In response to the perceived failures of the treatment model, many American jurisdictions shifted to a youth court system grounded in the “just deserts” theory of justice. The punishment model of juvenile justice is, in large part, a miniaturized version of the traditional adult court system. The primary focus is on the procedures for determining guilt and then punishing the offender for his moral blameworthiness. The central actors are legal professionals—judges and attorneys—and the process involves an adversarial contest between the state and the juvenile defendant.
Once guilt is established through legalistic rules and formal deliberation, the court imposes punishment in proportion to the gravity of the crime. Concerns such as treatment or moral education are, at best, secondary considerations. Instead, the primary aim is to inflict an equivalent amount of suffering on the juvenile offender as that caused by his offense. Neither the community nor the victim are included in the process, except to the extent that they are needed as witnesses or their interests are tangentially met by punishing the juvenile. Offender accountability is meted out and measured solely by the juvenile serving his sentence.
As with the treatment approach, the punishment model of juvenile justice appears to fail the standard of successful restorative sanctioning. The adversarial nature of the punishment model creates a hostile environment where concern for mutual respect is replaced with the desire for victory in a pure winner-take-all scenario. There are only two cognizable parties in this court-centered form of criminal justice: the state and the juvenile defendant. In this binary system, the victim, community representatives, various supporters and family members are excluded from the process.
For the most part, the concept of voluntariness is foreign to the punishment model; there is no choice but to participate as directed by the court. Likewise, the process is predefined by statutes and judge-made rules and are not subject to modification even by party agreement. Although the juvenile offender may have a formal right to address the court, he is typically advised to remain silent while his counsel ostensibly speaks on his behalf. Even then, dialogue is strictly limited in its form and format and laced with a type of legal-ease that tends to be incomprehensible to all but trained attorneys. The juvenile’s participation in the process is, by and large, nominal.
More often than not, the post-adjudication censure received by the juvenile is destructive and stigmatizing; the offense and the offender are denounced as being wrongful and immoral, confirming the offender’s label as a delinquent. A typical sanction under the punishment model, custodial sentence to a juvenile facility, has the potential to solidify his deviant identity by placing him in an environment filled with other youthful offenders. Juvenile detention centers are frequently little more than colleges for criminals.
The punishment model largely precludes the possibility of the offender expressing genuine remorse to the victim and others he has injured by his crime; prior to the adjudication of guilt, in fact, he will be advised not to admit anything, let alone convey a sense of personal sorrow. Without a statement of remorse, there can be no acceptance of heartfelt regret. And because reparation is either non-existent or highly formalized, the victim must suffice with the offender’s conviction as a means of healing her injuries. In the end, the punishment model of juvenile justice proves disrespectful to the needs of those intimately affected by crime.
So although they are posed as opposite ends of the sanctioning spectrum, the treatment and punishment models of juvenile justice have much in common —their fundamental inconsistencies with the standard of successful restorative sanctioning. Both models exclude parties with important interests in the sanctioning process; reject the concept of voluntary participation; deprive the juvenile of important supporters; place process control solely within the ambit of professionals; prevent free dialogue among stakeholders; and thwart the pivotal sanctioning stages of constructive censure, genuine remorse, and stakeholder acceptance. It is no wonder, then, that offenders, victims, families, supporters, and community members are largely dissatisfied with the traditional approaches to juvenile justice.
Hope, nonetheless, spring eternal. In response to the perceived deficiencies in the traditional approaches to youth offending, a third vision of juvenile justice has emerged from theoretical scholarship, ethnographic studies of non-Western cultures, and the sheer tenacity of thoughtful jurists and practitioners. This conferencing model is best illustrated by its most concrete and celebrated form: New Zealand’s Family Group Conference, or FGC for short. The FGC is at the heart of a revolutionary piece of legislation, the Children, Young Persons and Their Families Act of 1989. This statute was a response to a number of serious complaints about the treatment of juvenile offenders in the New Zealand justice system. As a general matter, experts, politicians, and the public had become disillusioned with six decades of paternalistic welfare legislation that was seen as both costly and largely ineffective at preventing youth crime.
There was also a widely held notion that state paternalism had done more harm than good for the families and support networks that are vital to the moral development of children. In particular, the heavy emphasis on institutionalizing juvenile offenders had two negative effects: removing children from their families and the accompanying affective bonds, and exacerbating juvenile crime by placing offenders in a custodial setting conducive to the criminogenic influences of delinquent peer pressure. In addition, the process largely excluded involvement or input from the victims of youth crime and community members concerned with the offending. And there were mounting complaints from the Maori community that the existing approach was wholly foreign to its traditional values and destructive of the kinship networks essential to Maori society.
The 1989 Act attempted to address these concerns by creating a new vision and approach to youth justice. Although it is an intricate piece of legislation, including both general principles and specific rules, the Act’s core component is the FGC. Except for informal police warning or diversion, an acquittal by court hearing, or charges of certain serious crimes such as murder and manslaughter, the family group conference is the prescribed means of addressing youth crime in New Zealand.
The chief organizer and facilitator of the FGC is the youth justice co-ordinator. He is responsible for consulting with the juvenile, his family, the victim, police, and other relevant stakeholders to determine the desirability of a family group conference, who should be invited to the FGC, whether the parties and invitees plan to attend, and a suitable time and place to hold the conference. It is also incumbent on the co-ordinator to ensure that all parties are adequately informed about the necessary background of the offense, how the FGC is likely to proceed, and other information relevant to both voluntary attendance and informed participation.
Although the FGC is an inherently flexible process that can be adjusted to the needs of the parties, they tend to follow a fairly standard pattern. Two leading experts on family group conferencing, Gabrielle Maxwell and Allison Morris, suggest that the process generally involves the following:
introductions of the parties and participants
an explanation of the procedure by the youth justice co-ordinator
the presentation of the summary of facts of the offense by the police
an opportunity for the offender to comment on the accuracy of the police statement
an opportunity for the victim or her representative to present her view if the offender admits the offense
a general discussion of possible outcomes
a discussion of options among the offender’s family
the formulation of a plan, response or outcome by the offender’s family
general negotiation among the parties and participants
agreement from the enforcement agency and victim
and recording the agreed plan and closure of the meeting
This general FGC process is necessarily subject to variation and, as noted by various researchers and youth justice co-ordinators, no two conferences are alike. Nonetheless, there are two mandatory ingredients to the successful completion of a conference: the juvenile must not deny responsibility for the offense, and all parties must consent to the FGC plan. If either of these conditions are not met, the juvenile’s case will typically be referred to the youth court. Although not a statutory requirement, the success of a conference agreement is also dependent on the youth justice coordinator’s follow-up, ensuring that the necessary services are provided the juvenile, that the agreed restitution is being made, and that all other details in the plan are being met.
Using the restorative sanctioning standard, it becomes clear why family group conferences are, at least in theory, better able to satisfy the needs of offenders, victims, families, and community members than the traditional approaches to juvenile justice. The basic structure of the FGC provides an environment of respect for the parties and stakeholders. It is an inclusive process, offering victims and community members a forum to express the harms caused by the crime, the concerns they have with the offender, and their ideas for an appropriate resolution. Likewise, the process allows the participation of family members and supporters of the most vulnerable parties—the juvenile offender and the victim. More importantly, the participation of all parties is strictly voluntary; even the offender has the option of refusing to attend the FGC. Although offenders invariably do attend their conferences and, conversely, FGC’s are rarely held without the juvenile, the mere fact that the option exists is a sign of respect toward the offender.
Unlike the procedural rigidity of the traditional approaches to juvenile crime, the FGC vests substantial latitude in the participants to shape the process into a form most amenable to their needs and the problem at hand. The FGC need not occur in a government facility, for instance, or during business hours; instead, the conference can be held in a private home, on a marae or church, and at a time and date most convenient to all parties involved. Process control is also vested in the key participants—the victim and the offender—by allowing them to choose supporters to join them during the FGC. Likewise, the FGC is premised on the free discourse among the participants, allowing them an opportunity to air their thoughts and emotions. Through the flow of undominated dialogue, the participants tend to gain a sense of respect and understanding for one another, a sense of ownership in the process, and are more likely to reach a satisfactory outcome for the offender, the victim, their supporters, and the community.
In addition to the basic prerequisites, the FGC is more likely to incorporate the pivotal stages of a successful restorative sanctioning process. The inclusive, informal, and dialogic nature of the FGC tends to produce constructive censuring of the offense rather than destructive condemnation or disintegrative shaming of the offender. The focus of censure is the wrongfulness of the crime and the harm to the victim and community. Like the Native American healing circles, it is the offense—not the offender—that is placed in the symbolic center of discussion. The presence of the juvenile’s family and supporters gives the process credence while ensuring that his positive identities—as a son, a brother, a rugby player, or a student—are reinforced by the words and presence of those who care most about the young person.
But the inclusive, dialogic aspect of constructive censuring also provides benefits to the other participants as well. Family members can air their concerns and the painful emotions that have accompanied the juvenile’s conduct, express their hopes and fears for the young person’s future, and convey the empathy and sorrow they feel for the victim. Community members and law enforcement can openly discuss the larger effects of the offense and the rationale for its criminalization, thereby validating both the moral values of the community and the limits of individual behavior. Most importantly, the constructive censuring of the FGC reaffirms the victim’s right not to be victimized. An unambiguous denouncement of the offense coupled with the opportunity to voice the pain she has suffered tends to be a cathartic experience for the victim and a major step toward healing the damage caused by the crime.
Given the emphasis on constructive rather than destructive censuring, the FGC tends to generate genuine remorse on the part of the juvenile offender and, as a result, acceptance by the participants of that heartfelt expression. Two key factors contribute to the young offender’s feelings of genuine remorse. First, the presence of the victim and her articulation of the harm she has suffered frustrate an offender’s attempt to neutralize his offense. The juvenile cannot, in other words, rationalize his crime as being minor or harmless when a real person stands in front of him describing the physical and emotional pain directly flowing from his behavior.
Second, the presence of the young person’s family members, their personal condemnation of the offense, and the visible signs of anguish felt by family members confronted by the harm caused by their own kin all provide exceptionally powerful signals to the juvenile on the wrongfulness of his conduct. And once the young offender communicates genuine remorse, it is only natural that participants accept that expression as sincere and meaningful. The completion of the “core sequence” of remorse and acceptance creates an environment of respect in the FGC—an offender’s respect for the victim by his genuine statement of remorse and validation of her right not to be victimized, and a victim’s respect for the offender as an individual capable of feeling true emotions and taking responsibility for his actions.
The final stages in successful restorative sanctioning, planning and facilitation, are also incorporated into the family group conference. The discussion of the possible outcomes among the participants empowers the offender, the victim, the families, and supporters by giving them a voice in the planning stage, while the process of negotiation aims at forging a satisfactory resolution through rational discourse. When participants feel that their opinions and ideas were recognized and respected, they become vested with an ownership interest in the outcome and its fulfillment. If the victim believes that the planned reparation compensates for her injury while the totality of the sanction offers a just resolution, she will leave the FGC feeling better about herself, the juvenile, his family, and the agreement reached with her consent. And to the extent that the young offender feels that he participated in the discussion and that the resulting plan was fair, the more likely he will perform the reparations and complete his obligations under the agreement.
The follow-up after the FGC, of course, is vital to the plan’s success. The conference itself offers the first step towards facilitating the agreement. The same individuals that surround the juvenile in an ethic of care during the FGC—his family and supporters—also offer the best parties to ensure that the youthful offender follows through with his responsibilities while helping him to overcome unforseen obstacles along the way. The youth justice co-ordinator, community members, and sometimes even the victim can provide means of completing reparation, acquiring necessary skills and psychological treatment, and assisting the juvenile in reaching personal goals. The only limit, of course, is the public’s willingness to finance both the family group conference process and the accompanying social services.
In closing, then, it seems to me that the conferencing model provides an approach to juvenile crime and, quite possibly, adult offending that better meets the needs of victims, offenders, families, and communities than the traditional models guided by either rehabilitation or retribution. But what I have suggested here is a theoretical framework, not empirical support. The jury is still out as to whether the conferencing model does, in fact, work as measured by restorative sanctioning goals or even traditional measures of criminal punishment. In the coming years, we can expect experts such as John Braithwaite, Lawrence Sherman, and Victoria University’s own Gabrielle Maxwell and Allison Morris to provide answers to the empirical questions posed by restorative justice.
In the meantime, communities and their leaders should continue to challenge the underlying principles and consequences of traditional sanctioning schemes: Does stigmatizing offenders under current punishment regimes cause more harm than good? Does the exclusion of victims, families, and community members from the criminal justice system serve any real sanctioning goal or merely cause alienation and more damage? And are the needs of crime victims met by inflicting pain on the offender or labeling him as disordered?
What I have found so appealing about New Zealand, its people, and its culture is a willingness to question the seemingly unquestionable and to embark on noble programs grounded in reason despite emotional appeals and belligerent opposition. And it is this willingness to think outside of the box, to challenge the dominant paradigm, that I will endeavor to take back with me to the United States.
Kia ora. Thank you.