Limitations to Restorative Justice

Are there cases or situations in which restorative justice cannot be used, or should be used only with great care?

. Debating restorative justice.

In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative jsutice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system. (publisher's description).

. Gendered violence and restorative justice: the views of New Zealand Opinion Leaders.

Although New Zealand has been a pioneer in the development and expansion of restorative justice in the adult and youth criminal justice systems, it has taken a more cautious approach to using restorative justice in adult cases of gendered violence. We present interviews of 19 New Zealand Opinion Leaders on the appropriateness of restorative justice for partner, family, and sexual violence, and child sexual abuse (CSA). We found that three groups, rather than two, better describe the range of positions: these are the Supporters, Skeptics, and Contingent Thinkers. All viewed child sexual assault as least suitable for restorative justice, with relatively more support in cases of partner, family, and sexual violence. The Opinion Leaders' positions were shaped by their experiences with restorative justice, professional position, racial and ethnic identities, and views of the criminal justice system. The participants' views were complex and varied, and not easily contained in a simple `for' or `against' dichotomy. (author's abstract)

. Restorative justice in prisons

Restorative Justice (RJ) has found significant utility outside the prison setting. For many reasons, it has not received the same level of consideration inside the institution...Although RJ has the potential to have a positive impact on the work of prisons and the experience of imprisonment, it has not found wide acceptance and is currently limited to a relatively small number of prisons and then often only delivered in partial platforms. We believe that RJ has a realistic future in prison settings and that the contradictions that may be identified are not debilitating. (Excerpt)

10 ways to live restoratively

from Howard Zehr's article on Restorative Justice Blog: 1. Take relationships seriously, envisioning yourself in an interconnected web of people, institutions and the environment. 2. Try to be aware of the impact - potential as well as actual - of your actions on others and the environment. 3. When your actions negatively impact others, take responsibility by acknowledging and seeking to repair the harm - even when you could probably get away with avoiding or denying it. (To craft a letter of apology, see the Apology Letter website developed by Loreen Walker and Ben Furman.) 4. Treat everyone respectfully, even those you don’t expect to encounter again, even those you feel don’t deserve it, even those who have harmed or offended you or others. 5. Involve those affected by a decision, as much as possible, in the decision-making process.

A challenge

from the entry on Restore: I’m listening this morning to the slew of financial statistics–housing starts, unemployment rate, bank closings, those without health care, bankruptcies, houses in foreclosure…. It seems to me that restorative justice needs to come up with an index of its own: one that marks the measure of social justice. Are we moving closer or further away from our goal of less reliance on prisons, improving social relationships in our communities, looking at how well or how poorly alternatives to incarceration are funded? What is the ratio between expenditures on prisons vs. what we spend on schools? What is the ratio of crime to poverty? Number of dispute resolution programs to police officers?

Arrigo, Bruce A. Identity, International Terrorism, and Negotiating Peace: Hamas and Ethics-Based Considerations from Critical Restorative Justice.

This paper conceptually examines one specifi c case of international terrorism, including the emergence and maintenance of membership-allegiance in its militant extremist group. This is the case of the Islamic Resistance Movement (or Hamas) and the manifestation of its corresponding Palestinian identity. Although the social person is constituted by symbols and objects, acts and social acts, meanings, and role-taking and role-making, questions persist about how best to promote peaceful coexistence, advance the interests of non-violence and ensure the protection of basic human rights. These practices constitute an ethic grounded in Aristotelian virtue. The delineation of key principles emanating from critical restorative justice helps to specify this brand of moral reasoning. The integration of these principles with the proposed symbolic interactionist framework demonstrates how extremist violence can be mediated. Suggestive examples of the same involving Hamas and those with whom it struggles (Palestine, Israel and the United States) are used to guide the analysis. The proposed conceptual framework is then briefl y assessed for its overall explanatory capabilities, especially in relation to furthering terrorism studies. (author's abstract)

Book Review: The Machinery of Criminal Justice

from the review by Andrew Taslitz on Jotwell: ....Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press....Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.

Building restorative cultures

by Dan Van Ness Yesterday I wrote about the media treatment of a paper delivered by Dr. Hillary Cremin warning that restorative justice programmes alone are not enough to address bullying if there is not also a culture change at the school. One newspaper reported that this meant that "trendy" restorative justice doesn't work to stop bullying. My entry yesterday considered the difficulty of working with media to present a nuanced argument when they are looking for soundbites to sell papers. Today I want to consider another issue, one that Dr. Cremin raised in our correspondence:

Cameron, Angela. Sentencing Circles and Intimate Violence: A Canadian feminist Perspective.

Advocates of restorative justice claim that these models can benefit offenders, victims, and communities and also address historical injustices perpetrated against Aboriginal peoples. These claims extend to cases of intimate violence. In the case of judicially convened sentencing circles in cases of intimate violence in Canada, these claims have not been born out. In fact, by measuring the outcomes in these cases against recent studies of bettered women's needs, these models, as they are currently constituted, have inadequately addressed social injustice and inequality experienced by women within Canadian Aboriginal communities, and in some instances, have revictimized survivors of intimate violence. (author's abstract)

Can restorative processes serve people with limitations?

from Sylvia Clute's entry on Genuine Justice: When those who have a mental illness or a behavioral problem become involved in a dispute, what processes are available to help them resolve the conflict? What about children, ten or eleven years old, who break the law? How can their disputes be effectively addressed and involve them in a meaningful way? In the past, the court system has been the principle process offered when people cannot resolve their disputes. As the legal system is a highly technical environment, it presents obstacles for people with limited ability. In a recent blog, We Must Do Better Justice, I wrote about Daudi Beverly who was sentenced to serve a long sentence, despite years of mental illness and seven hospitalizations for emotional problems prior to his conviction.

Cossins, Annie. Restorative Justice and Child Sex Offences: The Theory and the Practice.

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm. This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial. It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice. (author's abstract)

Coster, Sarah. The Pitcairn Island criminal trials - How has restorative justice featured?

The amassed circumstances surrounding the trials involving 13 men charged with sexual offending on Pitcairn Island (a British Overseas Territory in the Pacific with a population of 47) make them some of the most extraordinary trials in criminal history. The situation has already raised many fascinating questions of law and justice. Quite apart from the issues within the individual trials themselves, this case has involved pre-trial applications questioning the status of Pitcairn law and challenging the jurisdiction of the Pitcairn courts. Consideration of whether to run the trials on the small, isolated island also raised fundamental issues of justice, while the practical outworking of doing so has highlighted tensions existing within the community. Restorative Justice has featured in the mix of issues to date, having been variously mooted by some Pitcairn Islanders, Restorative Justice advocates, and other observers, as a potential means of dealing with the situation. Some have proposed restorative justice as a substitute for the trials, others as an aspect of sentencing, and others as an adjunct to the existing criminal process. This presentation will note the various forms of restorative justice that have been suggested in relation to the trial, and will identify some issues to be considered surrounding those proposals from a theoretical perspective. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

Daly, Erin. Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition.

Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may not be effective in promoting the goals attributed to them. The article does not argue that transitional governments should not pursue the truth, but it does urge governments to use caution and careful planning when they do so. (author's abstract)

Daly, Kathleen . Setting the Record Straight and A Call for Radical Change: A Reply to Annie Cossins on ‘Restorative Justice and Child Sex Offences’.

This paper responds to Annie Cossins' article in the British Journal of Criminology 48(3), which draws on my research to argue that the case for using restorative justice in response to sexual assault is not well founded. She proposes instead that further legal reform should be pursued. I discuss the reasons for a paucity of evidence, present findings from my research, and correct and challenge several misrepresentations and assumptions in her article. I argue that the way forward should not be limited to legal reform, but should include restorative justice, and more broadly, alternative justice practices.(author's abstract)

Daly, Kathleen and Stubbs, Julie. Feminist engagement with restorative justice

Feminist engagement with the idea of restorative justice (RJ) takes several forms, and this article maps five areas of theory, research, and politics. They are: theories of justice; the role of retribution in criminal justice; studies of gender in RJ processes; the appropriateness of RJ for partner, sexual, or family violence; and the politics of race and gender in making justice claims. There is overlap among the five, and some analysts or arguments may work across them. However, each has a particular set of concerns and a different kind of engagement with the idea of RJ. (excerpt)

Daly, Kathleen. The limits of Restorative Justice

This chapter addresses a selected set of limits of RJ, those concerning its scope and its practices. My discussion is selective and limited. I do not consider the discursive limits of liberal legality as these are viewed through a postmodern lens, not do I consider related problems when nation states or communities cannot imagine particular offences or understand ‘ultra-Others’. My focus instead is on the limits of current RJ practices, when applied to youth justice cases in common law jurisdictions. There are other contexts where RJ can be applied, including adult criminal cases; non-criminal contexts (school disputes and conflicts; workplace disputes and conflicts; and child welfare); and responding to broader political conflict as a form of transitional justice practice, among other potential sites. I focus on RJ in youth justice cases because it currently has a large body of empirical evidence. However, as RJ is increasingly being applied in adult cases and in different contexts (pre- or post-sentence advice, for example, as is now the case in England and New Zealand) we might expect to see different kings of limits emerging. (excerpt)

Dangers of the big tent

In making the case for restorative justice, Erik Luna invokes the familiar narrative of a pathological American criminal justice system—political demagogues pushing ever tougher sentencing policies on an uninformed public, resulting in wildly escalating prisons populations and fiscal burdens—and asserts that restorative justice cannot possibly do any worse. Indeed, he suggests, restorative justice may bring about a change in heart among the demagogues: the theory and principles of restorative justice may force policymakers “to reevaluate their own intellectual commitments and the merits of their chosen sentencing methodologies.

Durmortier, Els. Neglecting due process for minors: A possible dark side of the restorative justice implementation?

Expressing skepticism about what he perceives to be the optimistic nature of restorative justice perspectives, Dumortier scrutinizes the language of restorative justice discourse and the issue of due process for minors in the implementation of restorative justice procedures. With respect to discourse, he pays particular attention to community service and victim-offender mediation as two prototypes of restorative justice. Then he asks whether restorative justice in action equals restorative justice as described and touted in the discourse on it. Specific issues related to restorative justice in relation to juvenile justice are addressed in some detail.

Eze, Emmanuel Chukwudi. Transition and the Reasons of Memory

In this essay, Emmanuel Chukwudi Eze delves into questions pertaining to forgiveness in the aftermath of human rights abuses under apartheid in South Africa. For example, what motivates victims of abuses to forgive? What does it mean for victims to forgive the past? What kind of morality should govern questions about processes connected with forgiveness such as offering or not offering forgiveness, accepting or not accepting forgiveness, and so on? In a similar vein, what are the ethics of forgiveness in relation to the necessary requirements of justice and the memory of past acts of state-sanctioned crimes? Eze reflects on these and other questions to shed light on reasons for forgiveness and the ethical and political uses of public memories of gross, systemic, state-sanctioned human rights violations.

Falck, Sturla. Restorative justice - a giant leap or just another tool for the criminal justice system?

I will start by taking a look back at the origins of some of the main ideas of restorative justice, both in Norway and elsewhere. After that I will take a look at developments from an outsider's perspective. Since I am from Norway my main examples will be drawn from that country, although I draw on international trends to some extent. Ultimately the outcome could point in two directions, either towards restorative justice as a new tool for the criminal justice sector, or towards restorative justice as offering the possibility of gradual transition towards a new understanding of conflict resolution. (excerpt)