Bob M

Rather than a third way, I see RJ as a second way, with both crime control and due process being actually only one way; i.e., adversarial justice.

But Gerry, in my mind, your point raises a new danger – the danger of failing to view RJ as an alternative, albeit non-exclusive one, to the dominant assumptions about justice. The second alternative doesn’t cancel out the first. (RJ is appropriate only for those offenders who accept responsibility, and if they aren’t responsible (or don’t take responsibility), the criminal justice system is appropriate.)

If we don’t name it as an alternative, we send confusing messages about what RJ is, adding to already pervasive confusion out there on the subject. We fail to clearly convey the power and essence of RJ: Not just another program, but a new (yet old) theory of justice that is paradigmatically distinct from the prevailing theory. I don’t think people can fully grasp what RJ is without recognizing it as a historic shift in the way we think about and do justice. Murkiness or soft-pedaling on this can also ultimately undermine the integrity of RJ practice it seems to me.

Howard, let us know how your New Zealand lecture goes.

I do think we need to be clear about the assumptions and nature of the existing justice process, and I think we need to find ways to make the process as restorative as possible. But I agree completely that restorative justice cannot disregard due process protections.

We do need a system for sorting things out when people are denying responsibility, when the actions have significant implications beyond the individuals involved, and when issues are especially complex. And we need careful protection of due process throughout. I’ve come to have great appreciation for a lawful society and for the orderly development of law.

Although it certainly has its faults, what New Zealand has in effect attempted with its youth justice system seems to suggest a model worth consideration. Instead of making the adversarial system the norm, use a variety of restorative processes as the “default” but with due process protections built in. (For example, by having appropriately trained attorneys part of the process, as in New Zealand, and by having the courts safeguard the system overall.)

When those identified as offending deny responsibility, when issues are especially complex or have great societal implications, use the courts – but then use restorative processes as much as possible for determining final outcomes.

In other words, let’s draw upon the strengths of the legal system but find ways to make its goals and processes more restorative.

I’m afraid I think that this way of presenting restorative justice is dangerous and counterproductive.

What is the restorative justice orientation an orientation towards? In the description Howard has provided, it is at least in part an orientation towards “an offender” who through “wrongdoing” has caused harm (even though there may be other causes behind their action), for which they should be encouraged to take responsibility and to be accountable. Moreover, security issues are important, so presumably there must be some assessment of whether the offender is likely to cause further harm and whether some incapacitative measures need to be put in place.

I think we need to build into this some answer to the question of what we do in circumstances whereby somebody accused of wrongdoing or identified as an offender denies the charges against them. They say ‘it wasn’t me’ or ‘you’re saying I deliberately did that, but I swear it was an accident’ or ‘I was justified in what I did’ (e.g. ‘when I shot and maimed the burglar I was acting in self-defence’), or ‘I have an excuse which diminishes my responsibility for the harm (I was hungry and stole out of necessity), etc.

Unless we think that such denials are never without substance, we need some process for resolving such issues, before any action designed to restore justice (whether this is punitive or ‘restorative’) can come into play. We need therefore to think about the principles which should inform the design of this process. As I understand it, the idea of due process is that the process should be governed by features such as: what constitutes wrongdoing should be clearly defined in advance; charges should be clearly defined (the accused needs to know precisely what it is that they are accused of); ‘a presumption of innocence’ (it is those making the charge that need to prove it; you cannot simply accuse somebody and say it is now for you to prove you are innocent); the determination to be made by a neutral, disinterested party (i.e. somebody should not be a judge in their own cause); etc.

Restorative justice cannot, therefore, be an alternative to due process – (rather, it comes into play at a different stage of a complex process of responding to harmful actions). We can be fervently committed to due process, and also adhere to the view that restorative justice provides an ethically superior and often more effective way of responding to somebody who has been determined to have committed an offence than subjecting them to state-administered penalties. If, on the other hand, restorative justice is presented as an alternative to a due process model, many people who regard due process as fundamentally important and hard won, will in turn oppose restorative justice.

Thank you Howard for your blog. It keeps the conversation about RJ very present and dynamic.
I believe your comments will be very helpful when I am trying to talk about RJ with people steeped in the crime control and due process orientations. What I have noticed is the disregard for the evidence that the fist two orientations have not worked and what we have is crime increasing, communities dismantling and a general sense that one cannot expect to experience justice for victims, offender accountability and community power. I think that RJ still has to figure out how to work out a system that will work to ensure the larger question of security for the masses, yet it has worked on the individual level that does contribute to the larger societal safety. It definitely pushes the button on taking the time when our culture is racing everyday. And RJ clearly demonstrates that taking the time does insure safety in the long run. We may have to consider shifting our perspective on how soon we expect to see results and adopt a longer term vision when we are in the midst of reducing crime an increasing safety.