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7. Restoration (Restorative Justice) ( 28 slides)

John Clark

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Restorative Practice or Restorative Justice? Practice is a pro-active model of restoration,

building relationships in order to reduce the likelihood of harm

Justice is re-active, repairing relationships following harm being caused

John Clark 2010

A range of restorative practices Proactive and Reactive Circles

Restorative language

Restorative questions & conversations

Restorative Conferences including mediation & FGC’s

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Truth, right & wrong

Retributive system & the truth Evidence & proof beyond all reasonable doubt

Rehabilitative system and the truth Establishing antecedents & developing treatment

Restoration and truths The Six Blind Men & the Elephant. John Godfrey Saxe (1816-1887)

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A BRIEF SUMMARY & BACKGROUND TORESTORATIVE JUSTICE

A brief summary & background to Restorative Justice Western legal tradition since the 11th century has increasingly viewed crime as an offence

against the public at large and against society rather than against the individual victim. The obvious response resulting from this is state prosecution, punishment and the

development of a system of justice, which is both retributive and adversarial. One of the results being that the individual victim is marginalised in the process.

A number of western cultures prior to the eleventh century and many non-western cultures today view an offence as a violation of social bonds and respond to it through a process of negotiation, restitution and reconciliation.

In the UK recently rediscovered restorative practices among Quaker and Mennonite communities and indigenous communities in North America / Canada, New Zealand, Australia and South Africa have been incorporated into the Youth Justice System

The law becomes a mediating process designed to reconcile not a process to allocate blame and punishment.

Developing practices include Victim Offender Mediation, Restorative Conferences, Family Group Conferences, Scottish Hearing Panels and Referral Order Panels. These and other interventions have come to be known as Restorative Justice and or Restorative Approaches.

Restorative approaches are also used outside the justice systems to resolve conflicts in schools, in the community, neighbour conflicts, in the workplace and also in family disputes.

John Clark 2010

Theory

While there is a body of theory which describes restorative behaviours, there is not a single Restorative Practice “theory”.

Instead it is a WAY OF BEING … it describes ways of communicating, developing relationships and resolving difficulties.

Restorative Practice draws on many theories

RestorativeRestorative PracticePractice

A WAY OF A WAY OF BEINGBEING

Resilience

Conversations

Family Group Conferencing

Solution Focussed Therapy

Restorative Justice

Cognitive Behavioural

Therapy

Transactional Analysis

Neuro Linguistic

Programming

Some characteristics of Restorative Practice Being explicit in your practice

Working with people

Ensuring the process is fair

Applying the above to your language & behaviours

John Clark 2013

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Restorative system In Restorative Justice the process through which

decisions are made and the future planned is essential.

A restorative processA restorative process seeks to include all the people effected by an incident

It encourages and facilitates opportunities for communication

RJ Seeks to agree mutually acceptable outcomes It is respectful and attempts to strengthen all

participants John Clark 2010

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Restorative Justice is: An inclusive process for those who are victims and those

who have offended Provides an expanded role for victims to be able to

regain personal power, speak about feelings and to be involved and make decisions about how their needs can be met.

The person who has offended is enabled to take personal responsibility for their actions, actively work to repair harm caused to victims, learn about personal harm caused to victims and work to make amends to the victim and to the community

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RJ is inclusive and should always includes those who have been harmed (victims) People who have been victims of crime or of

harmful behaviours can display a variety of needs

Providers of services or interventions need to be aware of those needs in order to ensure inclusion and avoid re-victimising

John Clark 2009

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“Traditional”

“What happened?”,“Who’s to blame?”“What rule has been broken”?“What punishment is appropriate to the rule that has been broken?”

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Restorative

“What happened?”,“What harm has resulted?”“Who has been affected”?“What needs to happen next?”

What support do you need for this to happen?

What will it look like when it improves?13

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Victims & loss, common reactions4 Stage Model

1) Initial Reaction – Shock / Denial

4) Adjustment

3) ReconstructionAcceptance

2) Disorganisation Depression

ESTEEM TIME

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Reactions to CrimePSYCHOLOGICAL

PHYSIOLOGICAL

BEHAVIOURAL

o Fearo Angero Upseto Shocko Guilt

o Nauseao Tearfulnesso Trembling

o Social withdrawalo Increased drinking / smoking

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Factors Affecting Recoveryo Having been a previous victim of crime

o Recent Bereavement

o Lack of Support

o Nature of the crime

o Psychiatric history

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Ripple effect of crimeIt is important to remember that others who surround the Direct victim of crime may also be affected e.g. family Members, children, friends, witnesses. They may experienceConcern for the victim, fear, guilt that they couldn’t help, or increased vulnerability.You may find yourself coming into contact with some of these people and supportingMore people than the victim

Secondary victimisationThis is the term given to victimisation which occurs through the responses of institutions And individuals to the victim. Not only is the victim trying to recover from the crime itself, They may also experience great distress from the way they are dealt with by hospital Personnel, criminal justice agencies or victim compensation schemes. Additionally, family, Friends and colleagues may not take a supportive attitude but instead may want to distance Themselves from the crime by blaming the victim or urging them to ‘put it behind them’. Your support is particularly needed in such situations as such reactions can make recovery harder

Post traumatic stress disorderWhilst a great majority of victims of crime will recover from their experience, a smallNumber will become ‘stuck’ in the recovery process and may develop PTSD (posttraumatic stress disorder). This is a specific medical diagnosis which only applies in rare cases. If after three months a victim is unable to deal with normal life – constantly re-experiencing the event – and early symptoms of shock are not alleviated they may beSuffering PTSD and should immediately be referred to their GP or a Stress Clinic forprofessional help

Effect of this work on youThe ripple effect may also spread out past the victim’s family and friends to you, as a supporter.When you are closely involved with victims, you may find yourself becoming overwhelmed with Similar feelings to those that victims are expressing. If you find yourself becoming inexplicablyDepressed, feeling helpless, fearful or tired, you should talk this through with your co-ordinator.

Cha

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NotNot ForFor

Adapted from: Wachtel T & McCold P in Strang H & Braithwaite J (eds), (2001), Restorative Justice and Civil Society, Cambridge University Press, Cambridge

SupportSupport

Four ways…

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SOCIAL DISCIPLINE WINDOW

LOW HIGH

HIGH

Care / support (Encouragement, nurture)

Cha

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cont

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limit

setti

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isci

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NOTneglectful

WITHrestorative

FORpermissive

Adapted from IIRP 2011

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Engaging participants in the process

Explaining & building a shared understanding

Building a clarity of expectation and vision for change

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Fairness of process

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Applying restorative principles to questioning in response to an incident

Questions would be neutral, non-judgmental, about the behaviour and its effect upon others

Open questions which require an answer rather than a yes/no response

They would take everyone from the past to the future (repairing harm) & actually allow people to tell their story

They would require people to reflect on who has been affected and help the wrongdoer develop empathy

They would seek to build understanding rather than blame

The person asking is likely to be seen as objective and respectful and are more likely to promote responsibility

They would be fair and able to be applied in every situation

They would be thinking questions, but more likely to get 'feeling‘ responses.

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What happened? What were you thinking about at the time? What have your thoughts been since? Who has been affected by what you did? In what way have they been affected? What do you think needs to happen next?

Thames Valley Police 2000

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Restorative Questions

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What happened? What were your thoughts at the time? What have your thoughts been since? How has this affected you and others? What has been the hardest thing for you? What do you think needs to happen next?

Thames Valley Police 2000

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Restorative Questions

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SOME UNDERLYING PRINCIPLES FORRESTORATIVE INTERVENTIONS Restoration rather than retribution as a method of resolving conflict

Voluntarism so that participation is not the result of duress

Self-determination so that participants resolve their own conflict

Openness regarding feelings and opinions

Collaboration so that people work with rather than against each other

Flexibility in seeking creative solutions

Equality& inclusion in terms of access and power ensuring that the particular needs of different interests are properly addressed to avoid oppressive practices

John Clark 2008

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SCALE OF INTERVENTION

LEAST INTERVENTIONIST Avoidance Negotiation Mediation Arbitration Litigation Aggression MOST INTERVENTIONIST

John clark 2008

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DEFINITIONS NEGOTIATION is a general term for the process of disputants working

out an agreement between themselves.

MEDIATION is a process by which an impartial third party helps two or more disputants work out how to resolve a conflict. The disputants, not the mediators, decide the terms of any agreement reached.Mediation usually focuses on future rather than past behaviour.

ARBITRATION is a process in which an impartial third party (after hearing from both sides) makes a final, usually binding decision.The discussion and decision, while structured, may not be as regulated as formal procedures and rules of evidence as is courtroom procedure.

LITIGATION is the process of settling a dispute in court according to legal statutes, with advocates presenting evidence on behalf of the parties. Litigation is an adversarial process, in which a judge (or jury) adjudicates in favour of one party after hearing both sides

John Clark 2008

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Skills Being able to allow uninterrupted time To be encouraging & prompting without

dominating the process Listening skills, hearing as well as listening Making use of silence Being able to sum up Knowing when to take time out Taking cognisance of safety of participants Ensuring that (in a Conference) the script follows

the process rather than the process following the script

John Clark 2010

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Restorative Justice interventions

Mediation A process in which an impartial third party helps two (or more)

disputants to reach an agreement. The disputants, not the mediator, work out the terms of the agreement.

Victim-offender mediation In which an impartial third party helps the victim(s) and offender(s) to

communicate either directly or indirectly. The process can lead to a greater understanding for both parties and sometimes to reparation

Reparation Action taken by the offender (or person causing harm) to put right the

harm caused (in response to victim’s wishes. JC/08

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RJ interventions 2

Restorative Conferencing Similar in principle to V/O mediation but follows a script and can include

family members. Focus on outcome

Family Group Conference Similar to above but includes private time for the ‘offenders’ family to

come up with a viable plan for repairing harm & for the future. Also used in welfare/child protection

Referral Order Panel Youth Court Order which mandates a panel including victim, offender,

volunteers and staff to agree a contract of work to repair harmJC.08

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The Woolf Within

Circles

Circles can build equality, trust & responsibility 

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Navajo restorative justice: the law of equality & justice - peacemaking

Navajo justice has a healing component State justice appoints judges on the basis of education to

hear facts, apply the law and make decisions The above is alien to Navajo concepts of freedom &

individuality, where one person cannot impose a decision on another

Navajos are their own judges in an egalitarian process A wronged person demands that of the perpetrator that

things be put right, a demand to readjust the relationship that the proper thing be done

Relatives can act on the wronged persons behalf

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Cree justice as healing

“………………in the non-Indian community, a crime seems to mean that the individual is a bad person and therefore must be punished……………..”

“The Indian communities view a wrongdoing as a misbehaviour which requires teaching or an illness which requires healing”

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Maori restorative tradition Lost or parallel system Maori justice – healing for all Set up to meet the victims needs, not about

humiliating the offender Recognition that it is an individual who is

hurt not society Hearing and helping the victim, helping &

healing the perpetrator, healing the families/community and restoring balance

Types of circle Sequential Specific question Done in order Participation expected  Non Sequential, can be: Structured Loosely Structured No order Participation voluntary Fishbowl Sequential or non-sequential Empty chair Feedback  35

Uses for circles Go around Check in /check outs  Problem solving Dealing with conflict  Teaching and learning Staff meetings Decision making Staff handovers Just about anything!

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Canadian & European RJ

VORP. Victim offender reconciliation programme in Kitchener, Ontario

(1974) Spread to other parts of Canada & North America England in1985 Home office projects set up in Cumbria, West

Midlands (2), West Yorkshire Austria 1989 Juvenile Justice legislation provides for referral to

mediation Mediation used in Balkan wars and incorporated as domestic

practice in Croatia European Union encourages RJ as a recommended form of

Justice

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Case study - Tracy Offence of violence Sec 47 assault

Tracy is 13yrs old and lives in a Residential Children’s Home.

After an upsetting phone conversation with her mother she is very angry and causes some damage in her room kicking and damaging doors, breaking a window and tearing some of her clothes. A worker confronts T as she leaves her room and T pushes past her in an attempt to leave. The worker sustains minor bruising from the door post & scratches from a ring Tracy was wearing. The Police are called.

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Case study - Tracy

What do you think would happen to Tracy employing the following processes?

1. Retributive justice process

2. Rehabilitative or welfare system

3. Restorative approach to justice

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Resolving serious harm in the international arena Rwanda Bosnia South Africa The Truth & Reconciliation Committee.

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Measuring results How do we evaluate conventional methods

of justice administration? British Crime Survey Police & Home Office statistics & reports Public opinion as reflected by politicians Media reports Letters/opinion from public as selected &

reported by the press Complaints to criminal justice agencies

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Measuring results 2

Measuring restorative approaches to justice Home Office/Youth Justice Board measures Professional organisations Academic research International studies Customer satisfaction surveys

John Clark/RJ/07

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Behaving in ways which are consistent with what you say

If you are not modeling what you are teaching, then you are teaching something different

Restorative behaviours

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If you always do what you’ve always done then you’ll always get what you’ve always got

Change require energy-

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Some Restorative Justice research findings Government research: A Gov’t Crime Reduction Programme – What

works in reducing crime Four reports: RJ: the views of victims & offenders (2007)http://www.justice.gov.uk/docs/Restorative-Justice.pdf Restorative Justice in Practice, Findings from the second phase of

the 3 scheme evaluation (2006)http://www.homeoffice.gov.uk/rds/pdfs06/r274.pdf Implementing RJ schemes, a report on the first year(2004)http://www.homeoffice.gov.uk/rds/pdfs04/rdsolr3204.pdf Restorative Justice: The Evidence 2007 Lawrence W Sherman and Heather Stranghttp:/www.smith-institute.org.uk

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Restorative Justice: The EvidenceLawrence W Sherman & Heather StrangRCTs = randomised controlled trialsCJ = conventional criminal justice. RJ = restorative justice Violent crimes reduced recidivism after adult & youth violence

Property crimes reduced recidivism in adult & youth cases

Victim benefits1. RCTs show a reduction in post traumatic stress;2. RCTs RJ reduces desire for violent revenge;3. RCTs victims prefer RJ RJ v Prison In America & Canada restitution the same or better & re-conviction

down Offences brought to justice RTCs in America & Australia show that

RJ as diversion from the CJS produced rates of between 100 & 400% higher acceptance of responsibility

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Further reading An Exploratory Evaluation of Restorative Justice Schemes. Ed. Barry Webb. Home Office 2001 A Restorative Justice Reader, Texts, sources, context. Ed Gerry Johnstone. Willan Publishing 2003. Restorative Justice (How it Works), Marian Liebmann. Jessica

Kingsley Publishers 2007 Restorative Justice. Ideas, values & debates. Gerry Johnstone. Willan Publishing 2002 Youth Offending and Restorative Justice. Adam Crawford & Tim Newburn. Willan Publishing 2003 40 Cases, Restorative Justice and Victim-Offender Mediation. Ed. Paul Crosland & Marian Liebmann. Mediation UK 2003. Just Schools, a Whole School Approach to Restorative Justice,

Belinda Hopkins. Jessica Kingsley Publishers 2006