Restorative justice—does it work?

Jonathan Doak, Associate Dean for Research at Nottingham Law School, weighs in on what restorative justice can offer us.

  • Last updated Jan 28, 2019 11:56:12 AM
  • Jonathan Doak
Placeholder

The expansion of restorative justice in recent years has been nothing short of remarkable; it is often promoted as being more meaningful, humane and cost-effective than traditional criminal justice. While the conventional criminal justice system has tended to conceptualise crime as the violation of the law by an individual, restorative justice seeks to resolve broader conflicts by addressing the wider needs of victims, offenders and the community. In this sense it represents a significant point of departure from the established penal systems in most western countries, which gravitate around the classic penal philosophies of retribution, incapacitation, deterrence and just deserts. The concept of “making amends” through dialogue is somewhat alien to an adversarial system of justice in which the victim and offender have no formal channel of communication with each other.

There is no single prototypical format that encompasses the diverse range of practices that adopt the “restorative” label. Ordinarily, the process entails some form of face-to-face encounter between the victim and the offender in the presence of a trained mediator or conference facilitator. Both parties must consent to the process and offenders should also accept responsibility for their actions before a process is triggered. Family, friends, community members and various professionals such as police officers, teachers, social workers or probation officers may also attend, depending on the form of intervention that is used. The aim of the restorative intervention is the formulation of an agreement on how to move forward from the offence. This will usually entail an apology and some other form of reparation to the victim or wider community, as well as measures to desist from future offending.

Until relatively recently, restorative justice schemes have tended to be associated with diversionary tools for low-risk or juvenile offenders, who had committed relatively minor offences. However, recent years have witnessed a discernible growth in programmes that use restorative mechanisms to address more serious offending both pre and post-sentence. In Northern Ireland and New Zealand, the courts are under a statutory obligation to refer the vast majority of young offenders to restorative conferencing, even for very serious crimes. Fewer programmes target adult offenders at the “deep end” of the criminal justice system, though these too have expanded to cover particularly difficult cases involving sexual or domestic violence. The application of restorative justice here has proved particularly contentious.

On the one hand, some argue that since many such cases are never prosecuted because victims are unwilling to provide evidence, the option of restorative process as an alternative to prosecution is preferable rather than simply letting them fall through the net altogether. Indeed, there is some research evidence from Australia and North America indicating that restorative interventions can break cycles of abuse since they offer a better prospect of the offender recognising the nature of his or her wrongdoing and the need to seek effective treatment. On the other hand, these types of offences often arise through the exercise of power by a stronger person over a weaker one, and there is a risk that the state may be perceived as ‘trivialising’ serious forms of crime by seeking to address such behaviour through non-conventional penal sanction mechanisms. Where restorative processes are adopted, rigorous preparation and risk-assessment are required in order to minimise the risk of any further violence or abusive/coercive behaviour.

As change continues apace in modern criminal justice, the continuing momentum behind restorative justice is likely to exert a strong influence in shaping criminal justice policy and practice in the years to come. Despite the growing evidence base that restorative justice ‘works’ (at least better than conventional justice), there is not yet sufficient political will to see it broadly adopted as a mainstream response to serious crime.

More like this

  • Financial Markets: Staying AfloatShermaine Wiliams

    For the first time, law firms are being floated on the London Stock Exchange, which prompts the questions of why and how they benefit from taking this step. We look at what law firms can hope to achieve from this process.

  • Mergers and acquisitions: an anatomy Becky Kells

    One of the biggest processes a client can go through is a merger or acquisition—in fact, there’s an entire area of practice devoted to it. Here’s a brisk run through the basics, so you’ll be able to keep up the next time you read about one!

  • Brexit: what legal impact can we expect? Becky Kells, Editor, AllAboutLaw

    As Brexit continues to plough ahead, we examine some of the key legal changes that will stem from it.

  • The growth of e-discovery Jan Hill

    The massive growth of electronically-stored information (ESI) has increased the cost and complexity of the discovery process, coined a new term (electronic discovery) and resulted in the emergence of new roles in litigation support and trial technology.

  • The Viagogo effect Jan Hill

    It has long been the case that tickets for sold-out events re-enter the marketplace on ticket resale sites. One such site, Viagogo, has attracted significant legal criticism.