Canterbury Law Review
Following a comprehensive review of the legislation governing criminal justice, the Sentencing Act 2002 and Parole Act 2002 were enacted on the 1st of July 2002 as replacements to the Criminal Justice Act 1985. In an attempt to avoid the lack of clarity, consistency and guidance in sentencing under the latter, the Sentencing Act establishes a number of purposes and principles to be taken into account. One such principle is that of restorative justice — a community-situated process of victim-offender mediation, with an emphasis on healing the effects of crime and reintegrating participants, through victim and community participation, offender accountability, and practical reparation. It is provided for in the Sentencing Act through the inclusion of its key elements — offender responsibility and acknowledgement of harm done, providing for the interests of the victim, supplying reparation, and assisting in the offender's rehabilitation and reintegration — as relevant purposes to be considered when sentencing or otherwise dealing with an offender. Correspondingly, the outcome of any restorative justice process must be taken into account when sentencing and determining reparation. Restorative justice is not a new concept in New Zealand. It existed in traditional Maori society, in the juvenile justice system since the late 1980s, on an ad hoc basis in the adult system since 1995, and through pilot programmes since 1998. However, its inclusion in the Sentencing Act is its first explicit statutory recognition. This paper examines restorative justice as a theory, comparing what it offers to key participants in the justice process with that proffered under the current criminal justice system. Itthen evaluates the claims of restorative justice, examining, with reference to other jurisdictions, whether it has improved the justice process. Finally this paper discusses four implementation issues: the need for due process, community definition, the form restorative justice should take, and the extent to which restorative justice is applicable to all offences. In conclusion this paper argues that restorative justice has the potential to improve the administration of justice. It addresses the issues arising under the current system, encouraging victim and community participation, culturally relevant implementation, and offender accountability and reintegration. However, greater research is needed to substantiate these claims and it would be premature to conclude that restorative justice is a comprehensive success. Similarly, issues such as due process and adequate community involvement also need to be addressed. However, even if these matters could be resolved, restorative justice in its present form, superimposed onto the current justice system, is unlikely to bring about comprehensive change. Its values, antithetical to the present system, and lacking necessary symbolic content, mean that it is doubtful whether it would be embraced by society and the justice system as a whole. Similarly, while restorative justice may work best when applied to all offences, lack of societal support, together with a current lack of research, mean this is unlikely to occur. In its present form, therefore, restorative justice will end up existing on the margins of justice, contributing to the present system but ultimately incapable of introducing wholesale change.
Restorative justice is founded on the idea that a crime is more than just an action against the state. While an offence is an act of lawbreaking, it will often also involve harm to an individual victim, the community, and the offender. For a victim, crime may expose him/her to emotional as well as physical and economic harm, through a loss of trust, privacy, control over life, feeling of safety and security, and self-esteem. Likewise, a community faces harm through the undermining of its unity, cohesion and stability, through the breakdown of social bonds that link individuals and communities. It also experiences the loss of security, the removal of one of its members (the offender) through separation and alienation, and the impact of the victim's losses on its well-being and strength. Finally, an offender is harmed through stigmatization, isolation, and loss of personal esteem.
Restorative justice aims to repair this harm by bringing the affected parties together in a community context, facilitating dialogue, encouraging offender accountability, and negotiating relevant reparation and sanctions. It does not focus on establishing blame for the past; rather it seeks solutions for the future, based on the view that justice should be used to heal, not merely to punish. Through such a process, it is hoped relationships and the social balance can be restored, and offenders, victims, and the community reintegrated.
The current criminal justice system is principally court-based and adversarial in approach. It focuses primarily on establishing dispassionately what law(s) was violated, by whom, whether the requisite criminal intent was present, and what punishment should be delivered in response. The system also concentrates almost exclusively on the offender and the state, the latter representing the victim and the community. It is designed to maintain security, public order, and social control, its sanctions being retributively focused, calculated to penalize, deter, incapacitate, and rehabilitate. Imprisonment, periodic detention, community service, community programmes, financial restitution, and, for youth, family group conferences are employed to achieve these aims.
As outlined earlier, crime may result in a number of harmful consequences for a victim — loss of trust, privacy, control over life, feeling of safety and security, and self-esteem. For some victims, personal involvement in the justice process may help them deal with these harms by restoring autonomy, understanding, and control. Recent studies also suggest that retribution may be desired less by victims than participation, support, recognition of harm, offender rehabilitation, compensation, and offender remorse. Given these needs, it is arguable that the present system is an inadequate forum of justice for many victims. The traditional system deals with offenders and victims generically, with little reference to individual characteristics and circumstances. It provides victims with minimal participation in the process, their perspective only being a source of evidence. It also gives them little control over the content or direction of the trial, and affords only a rare chance of receiving compensation or an apology for their injuries. Moreover, focus is primarily on the offender, rather than the victim, reducing opportunities to recognise and discuss harm inflicted on the victim, and address future needs arising from it. While the Victims of Offences Act was introduced in 1987 to address some of these concerns, namely lack of information and involvement, victims have continued to play a minor role in proceedings. This may partly be due to judicial conservatism and the permissive nature of the principles contained in the Act. As a consequence, the traditional system may continue to leave victims feeling powerless, vulnerable and unsatisfied, with little emotional closure and healing.
Restorative justice, on the other hand, acknowledges the various effects crime may have on a victim, recognising that healing may require personal involvement and discussion. It aims to facilitate this by giving victims an active role in the mediation process. This may involve them expressing opinions and feelings, asking questions, advising on restitution, and coming to terms with the offence overall. Restorative justice is said to not only empower the victim but also reduce fear through facing the offender and receiving information, and provide meaningful reparation. Reparation will vary depending on the concerns of the parties involved. It may include such things as an apology, physical contribution to the community, financial restitution, tangible forms of assistance to the victim, and drug treatment of the offender.
The traditional system may also prove inadequate for many offenders. Reconviction rates from 1995 to 1998 suggest that the present system is failing to deter and/or rehabilitate serious perpetrators. In that period, 70% of inmates had more than ten convictions prior to being imprisoned, and only 5% of all inmates had no previous convictions in an adult court. Correspondingly, imprisonment rates during that time suggest that jail alone is also failing to deter/rehabilitate, with 62% of all inmates having previously been imprisoned. Moreover, within six months of release from prison, 37% of inmates were reconvicted of some offence, and within five years, 86% were reconvicted. Similarly, within a year of release, a quarter of inmates were re-imprisoned, and within five years, the number rose to over half. Research also suggests that it is the perception of being caught, which influences an offender the most in deciding whether to offend, rather than the risk of imprisonment or the length of a jail term. Consequently, this may again suggest the inadequacy of imprisonment as a deterrent. One possible reason for this failure is the fact the imprisonment does not address the underlying causes of crime. Research suggests that the most significant correlates of crime are unemployment, drug addiction, family characteristics, and social environment, including education level, socio-economic class, and exposure to physical abuse. Imprisonment alone does not attend to these problems and may in fact exacerbate some. By removing the offender from the community, prison undermines an offender's opportunity for future employment through stigmatization, lack of skill development, and inadequate education. Correspondingly, it provides little opportunity for personal autonomy and decision-making, encouraging instead dependence on others for provision. On release, therefore, an offender is potentially not only financially worse off, thus increasing personal debt and need, but also lacking self-sufficiency and the ability to function in society. While prison aims to give some offenders access to work, education, and personal-development courses, increases in prison numbers have placed greater pressure on resources and have thus limited opportunities for these. Moreover, inmate programmes may be more effective when based in the community, rather than within an institution.
Prisons also continue to expose offenders to drug use. Random drug testing in New Zealand prisons between June 1998 and June 1999 found that around 26% to 35% of inmates tested positive for a variety of drugs. Moreover, by housing offenders together for an extended period of time, prisons provide them with further criminal connections and skills, and entrench attitudes through like-minded social interaction. As a consequence, imprisonment fails overall to break the cycle of crime, setting up a pattern of reoffending and reconviction.
By maintaining separation between the victim and offender, and limiting victim participation, the system may also fail to produce offender accountability. Because crime is presented factually, logically, and dispassionately in court, an offender can distance him/herself from the human repercussions of his/her actions. Similarly, by condemning the offender and imposing a generic punishment related to the offence, not the offender, the system potentially stigmatizes and isolates an offender. As a result, an offender may focus on the 'injustices' of the institution, rather than on his/her responsibility, leading to resentment displacing remorse and defensive excuse making.
While it might be suggested that, at this point, all offenders have the choice to avoid crime through the decisions they make, it is arguable that the present system is also falling short in this regard. By failing to equip offenders with the skills and opportunities necessary to function in society, nor bring about accountability and remorse, the system is unable to provide offenders with the 'out' or motivation necessary to step off the 'conveyor belt' of crime.
Finally, community-based sentences are also, in some respects, flawed. From 1983 to 1998, periodic detention and community service have almost tripled in use, following a decrease in the imposition of monetary penalties. As a result, having a previous community-based sentence has decreased the probability of receiving a financial penalty but increased the likelihood of a future prison sentence. This is due to the process of 'net-widening' whereby social control is increased over minor offenders who receive community sentences instead of diversion or monetary penalties. As a consequence, this results in a subsequent growth in imprisonment upon recidivism, as offenders are 'fast-tracked' up the sanctioning ladder.
Restorative justice emphasises effective communication of shame, expressing disapproval of actions but not people. While justice should encourage accountability and responsibility, it should not do so through discrediting the offender. Rather it should focus on the shame of the crime and providing an understanding of the suffering caused to others by an individual's actions. It must not stigmatize, which threatens a person's identity and esteem, increasing their defiance, rejection of society, and subsequent identification with criminal sub-cultures. Instead, justice should be respectful, forgiving, and reintegrative.
Consequently, restorative justice aims to restore and reintegrate the perpetrator into society, by communicating respect and forgiveness, rather than condemnation and rejection. It also seeks to foster a sense of belonging through community involvement. Such involvement maintains an offender's connection with society, rather than severing it, and assists in building relationships. As a result it is hoped that this will ameliorate an offender's negative perception of society, and provide resources and assistance to overcome problems such as substance abuse. Likewise, reintegration in the community provides offenders with positive behavioural modelling, reinforced by increased community acceptance and support. It enhances vocational, educational, interpersonal and decision-making competencies through greater exposure to social roles and opportunities. Restorative justice also encourages offender accountability through face-to-face meeting(s) with the victim and personal reparation. By meeting the victim(s), the offender is confronted with the human consequences of the crime and the damage done to a 'real' victim. As a consequence, it is more difficult for the perpetrator to distance him/herself from the negative effects of the offence, or create defensive excuse making. Similarly, the possibility of the offender viewing the victim in stereotypical, distant terms is reduced. The offender must also communicate responsibility and regret in a concrete way, through some form of personal restitution to the victim and/or community. It is hoped that, through this process, an offender may express genuine guilt and remorse, develop greater empathy, and receive community respect and support. As a result, this may lead to rehabilitation and a lowered chance of re-offending.
The traditional system is also seemingly failing to address the imprisonment bias towards Maori. In 1995, Maori inmates constituted 45% of the male prison population, a decrease of only 3% since 1987. This is despite the fact that in 1995 Maori continued to make up only 10% of the male population of New Zealand aged 15 and over. While data was not available for female inmates in 1987, Maori women made up 49% of female inmates in 1995. Further underlying this failure is the fact that Maori offenders convicted in 1995 possessed more extensive offending histories than European and Pacific offenders. Maori offenders were more likely to be reconvicted within two years than European offenders and Pacific peoples. They also had faster reconviction rates than non-Maori within the first ten months of release from prison.
Arguably, one reason why the traditional justice system is unable to deal with Maori needs is because of its Eurocentric development and focus. Maori have traditionally resolved conflict communally and consensually on the marae, through group accountability, rather than individual retribution. As a consequence, the European, court-based, offender-focused justice system may have less relevance and meaning for Maori. Because it attempts conformity through law and force, rather than through desire produced by participation, understanding and ownership, Maori offenders may be less inclined to respect the justice system and its norms. Consequently, together with the unaddressed effects of social circumstances, this suggests anegative outlook forthe reduction of Maori offending and conviction.
As briefly outlined earlier, the traditional system has tended to focus on offenders in isolation from victims and communities. As a result, the system addresses crime separate from the circumstances in which it arose. Such circumstances include fragmented relationships, group discord, institutional and community practices, and lack of legitimate identity. Even in the case of rehabilitation the traditional system fails, by decontextualising the offence, to capitalise on naturally occurring support structures, such as families, schools, and workplaces, which enhance constructive associations with the community. Moreover, from the offender's perspective, successful outcomes arising out of treatment may be seen as only occurring in that context. As a result this limits positive adjustment to the regime employed. The traditional system has therefore tended to exclude the community from the justice process, failing to fully recognise its possible relationship with offenders and crime, and failing to utilise its abilities and resources.
By incorporating community representatives in the mediation process, restorative justice recognises the wider social context of crime. Research suggests that community norms are important mediators of harmful behaviour, reinforcing law-abiding behaviour and restraining criminal actions. The more connected a community is, the greater its collective sense of caring, respect for diverse values, individual sense of belonging, participation, and power to express disapproval over crime.
Consequently, by allowing community participation in the justice process, restorative justice places crime resolution in a community context. It therefore utilises and reinforces the community's ability and resources to sanction crime, reintegrate offenders, repair harm to victims, and promote public safety. Maori, in particular, embrace this involvement, believing that it restores whanau and hapu authority, and responsibility for its members. By promoting collective solutions, rather than individual action, social order, the victim, the victim's family and the offender's family's mana are restored, and kinship relationships and group authority endorsed. Moreover, community involvement is important because an offender is more likely to react to the norms of his/her culture and the people he/she respects. Lastly, by transferring responsibility to the Maori community, justice becomes aprocess, which belongs to them, rather than an imposed Eurocentric practice. Such ownership may arguably promote greater adherence through increased meaning and relevancy, and therefore respect.
During the period 1996 to 1997, close to $300 million was spent on administering custodial sentences, in comparison with approximately $60 million for community-based sentences. More specifically, on average $45,000 a year was used to maintain each remand inmate, in comparison with just under $2,000 on average to administer a community-based sentence.
Proponents of restorative justice suggest that, as with other community based sentences, restorative justice should lead to financial savings by placing fewer demands on the court system. By diverting offenders, using custodial sanctions less frequently, and reducing offending rates, fewer courts and judges and court staff should be needed to oversee the criminal justice system, and less money expended on imprisonment.
Restorative justice processes in New Zealand operate both separately from and together with the formal criminal justice system. Whether parallel or integrated, participation will usually only be encouraged where all parties voluntarily accede to it. When parallel, restorative justice occurs independently of sentencing, without reference to the criminal justice system. Parallel programmes include community mediation initiatives and education projects in schools and communities. These programmes are designed to improve the community's ability to address conflict and crime, meet the needs of victims and offenders, and encourage reconciliation and healing for key participants. Participant referral will usually come from victim support agencies, church organisations, and sometimes police, judges, probation officers, and other correction staff.
Where integrated into the formal justice system, as with juvenile family group conferences, programmes coincide with conviction and sentencing and may occur prior to conviction, after conviction but before sentence, or post-sentence. Integrated programmes are either located within the community or government agencies. These programmes predominantly seek to meet victim and offender requirements within the criminal justice system, reduce imprisonment and reoffending, and influence the focus of the present system. Referrals will usually arise from courts and probation services, and, in the case of pre-conviction participation, are dependent on an offender's admission of guilt.
Prior to the introduction of the Sentencing Act 2002, restorative justice existed in New Zealand through family group conferences, on an ad hoc basis in the adult system, and through a series of pilot programmes running since 1998. Given that the movement is relatively new in New Zealand, it is not surprising that evaluative research is lacking. While a comprehensive study of the pilot programmes is currently being carried out, results are not expected until the end of 2004. Despite the scarcity of New Zealand literature, research critiquing restorative justice initiatives in Australia, Canada and the United States can provide some assistance in evaluating restorative justice in practice.
As described earlier, restorative justice claims to empower the victim, reduce fear, promote understanding, and provide reparation through increased participation. In a limited number of studies evaluating victim satisfaction with restorative justice processes, mixed results have been found. In New Zealand, research appraising juvenile family group conferences found that while victim and offenders reached a restitution agreement in 95% of cases, only half of all victims were satisfied with the process, and one third, in fact, felt worse afterwards. Similarly, in one Canadian study, only 30% of victims found mediation a positive experience. Such dissatisfaction may possibly be explained by the failure of mediation to fulfil high expectations, lack of genuine remorse or compensation on the part of the offender, or lack of completion of agreements.
On the other hand, two studies conducted in Orange County, California and Southeast Queensland, Australia, found 60% and 90%, respectively, of victims believed the juvenile conference they attended was fair. Moreover, agreement on reparation was reached in 98% of cases in the former, with 97% of agreements being subsequently completed. Likewise, participation was rated as helping to reduce fear and anxiety. This has been supported in an overview of studies evaluating mediation in Australia generally, with agreement being reached in over 90% of cases, with similar rates for compliance.
However, given this divergence in results, limitation of studies, and the potential difference in experimental methods and measures used to ascertain victim satisfaction, it is difficult to draw any definite conclusions. It would also appear more meaningful to evaluate whether victim-offender mediation assists victims to a greater extent than the court-based system, by comparing victim experience in each, rather than merely evaluating the former in isolation. A limited number of studies have done this, finding that victims are more likely to receive an apology through mediation than in a criminal court, and that the offenders agree to practical, personal reparation. Moreover, preliminary findings from research assessing juvenile victim-offender mediation in the United States found significantly more offenders were likely to complete restitution following mediation than those ordered to by the court. Lastly, involvement in mediation significantly increased victim's satisfaction with how their case was handled by the justice system in comparison with victims who did not participate. Given lack of research, however, it would be beneficial for future research to examine results across a wide range of uniform studies, involving a significant number of victims, and both adult and juvenile offenders. It would also be useful to compare victim satisfaction, victim well-being, and the likelihood of receiving an apology under the traditional system, with that under victim-offender mediation. As a result, future studies may be more helpful in determining the success of restorative justice in assisting victims, and engender greater confidence in its ability to rectify defects in the current system.
As has been described, restorative justice aims to promote offender accountability and empathy by presenting the offender with the human consequences of the crime. It also aims to encourage the offender to communicate responsibility and regret in a concrete way, through personal restitution to the victim and/or community. Similarly, restorative justice attempts to reduce recidivism, not only by encouraging accountability, but through community reintegration.
As with evaluations of victim satisfaction, comprehensive research examining outcomes for offenders and recidivism rates is limited. However, measuring offender satisfaction and perception of fairness is important because, if high, it suggests an offender will be more likely to comply with agreements, and less likely to reoffend. An offender who perceives minimal benefit and relevance from a conference will be unlikely to be deterred from further offending. Certainly Maxwell and Morris found in a study of young offenders who had attended family-group conferences, that those who did not reoffend were more likely to agree with the conference outcome and to perceive the process as supporting and fair. In one New Zealand study evaluating the success of two semi-restorative justice pilots, reconviction rate at six months and one year was significantly lower for offenders who had undergone a program, than for those who had not. In fact, recidivism was reduced by 17% to 26%, in comparison with imprisonment. Moreover, offences committed by re-offenders in the control group were almost three times higher in seriousness than those committed by re-offenders in the pilot program. However, such results must be interpreted with caution given that both pilot studies employed rehabilitative services in addition to restorative justice processes. It is therefore not clear whether reduced offending was due to restorative justice or was confounded by additional processes. Furthermore, such results contrast with seventeen studies conducted in North America, where a mere 1 % reduction in recidivism was found. This is also supported by a further American study, which established no significant overall reduction in recidivism although offenders, who had undergone victim-offender reconciliation, were slower to re-engage in criminal involvement than those who had not.
A limited number of studies have also examined offender satisfaction with, and perception of fairness in, mediated conferences. One study carried out in Southeast Queensland found that 98% of young-offenders felt the conference was fair, and 99% were satisfied with the agreement reached between the victim and them. Moreover, 100% felt the conference meant they could 'make a fresh start' . A similar study carried out in the United States established that 83% of offenders were satisfied with the experience and would participate in the process again if given the chance. Again, given scarcity of research, small population sizes, lack of randomisation, and differences in measurements and methods employed, it is difficult to draw any definite conclusions. As with measuring victim satisfaction, it would be beneficial for future studies to evaluate recidivism rates and offender satisfaction over an extended period of time, involving a wide-range and sample size of randomly selected offenders. It would also be useful to compare results with those found under the traditional system. It is arguable that this would provide greater generality and confidence in research findings.
However, it is also arguable that research may continue to provide mixed findings regarding recidivism. This is because studies evaluating the factors underlying successful rehabilitation programs suggest that restorative justice may lack the requisite features. These include: (1) matching offenders with services, which accord with the degree of risk they pose; (2) addressing individual causes of crime, such as anti-social attitudes, substance abuse, anti-social peer association; (3) employing behavioural or cognitive-behavioural models of treatment, such as learned-behaviour modelling and positive reinforcement, which introduce and internalise improved attitudes; (4) lasting for a significant length of time - at least 23 weeks - and occupy a significant amount of high-risk offender's time; and (5) employing experienced practitioners and supervisors, who use relapse prevention techniques to monitor and anticipate problem situations. An evaluation of programs employing these features has shown a 50% reduction in recidivism.
Restorative justice has a short duration (usually one conference of one to two hours) and may lack behavioural-frameworks and relapse-prevention techniques. It also links offenders with sanctions based on the nature and extent of the harm caused by the crime, rather than the offender's characteristics, and may fail to address the causes of crime, other than lack of empathy and anti-social values. It is therefore arguable that restorative justice is unlikely to ultimately change offender conduct.
However, proponents of restorative justice argue that if implemented comprehensively, with an emphasis and outlook beyond the initial conference, restorative justice will establish long-term change. By facilitating community involvement, altering public conceptions of criminals, and bringing about institutional reform, restorative justice has the ability to address both individual and general societal causes underlying crime. These include weakened community bonds, resulting in non-adherence to community norms, isolation, stigma, and withdrawal. Moreover, by enhancing long-term connections with the community, beginning with small 'communities of concern', resources and support are provided to help overcome problems such as substance abuse. Likewise, as outlined earlier, reintegration in the community provides offenders with positive behavioural modelling, reinforced by increased community acceptance and support. It also increases vocational, educational, interpersonal and decision-making competencies through greater exposure to social roles. Finally, through 'relational rehabilitation', an offender's negative perception of mainstream society is ameliorated, leading to a lessened need to maintain anti-social attitudes and identify with criminal sub-groups.
Proponents also suggest that recidivism should only be one factor to consider in measuring the success of restorative justice. A criminal justice system should inspire societal confidence through its ability to rehabilitate and deter. However, advocates of restorative justice argue that producing positive changes in victims and communities should be given equal weight in assessing the success of a justice alternative. Consequently, even if restorative justice is inadequate at reducing recidivism, it may prove to be a better alternative to the current system if it results in more satisfied victims, involves more citizens in the justice process, and reduces fear of crime and violence.
However, if a justice process fails to deter offenders it is arguable that in the long run this will impinge on victim satisfaction. A victim may perceive the process as futile; may believe that the offender is insincere; and may lack confidence that the system is approaching the offence seriously. Similarly, citizens will arguably be less likely to involve themselves in the justice process if they see it as ineffectual and pointless. Moreover, failure to reduce recidivism also suggests a failure to reunite and strengthen the community, further undermining the likelihood of community involvement. Finally, a system which does not deter is unlikely to lessen fear of crime and violence due to a continuing threat of both. Consequently, such arguments underscore the need to establish sound data establishing the ability of restorative justice to rehabilitate offenders. At a minimum, research should establish that rates of reoffending are no worse than those under other forms of intervention.
By reducing the use of courts, diverting offenders, employing alternatives to custodial sanctions, and decreasing offending rates, restorative justice may cut criminal justice costs. Presently no comprehensive study comparing restorative justice costs with traditional system costs has been implemented. However, one New Zealand study comparing costs accrued in implementing two semi-restorative justice pilot projects with costs arising from cases dealt with by the courts found that an estimated $85,000 was saved under one pilot programme, and an estimated $193,000 in the other. However, again such results must be interpreted cautiously given that neither study employed a pure form of restorative justice.
Furthermore, while family group conferences have existed in the New Zealand youth court system since 1989, direct savings have not been realised through court closures or fewer judges. While conferences may have resulted in fewer youth court referrals, any reduction in costs appears to have been negated by the increased availability of judges and courtrooms for other court business. Moreover, in operating family group conferences, the government accrued costs additional to those already spent on criminal justice, over $30 million being spent on family group conferences in 1993/ 1994. Consequently, restorative justice is unlikely to greatly reduce costs if any increase in court resources arising from diversion and reduced re-offending is reinvested in additional workloads. Likewise, because additional funding is required to implement it, it is arguable that restorative justice will in fact result in increased expenditure.
A variety of issues arise in implementing restorative justice: for example, timing, cultural sensitivity, adequate resources, sufficient time, in-depth planning, and the need for experienced facilitators. However, given constraints on length, this paper will only address four main concerns: due process, defining the community, the relationship of restorative justice to the current criminal system, and the extent to which restorative justice is applicable to all offences.
Under the criminal justice system, the state is the predominant administrator in responding to crime and implementing justice. In order to ensure justice is implemented fairly and impartiality, state power is balanced against certain procedures and conventions, which assist in providing the offender with a fair hearing and judicial outcome. These procedures and conventions include maintaining an independent and impartial tribunal, ensuring sentences are proportionate to offences, attempting to treat offenders and offences alike, and providing an offender with representation.
Restorative justice, however, may fail to provide these safeguards. Because the victim maintains a key role in the proceedings, particularly in determining the outcome of mediation, restorative justice potentially lacks independence and impartiality. Due to a vested interest in the outcome, a victim may attempt to control proceedings to the disadvantage of the offender or decide on sanctions disproportionate to the offence. Correspondingly, this imbalance of power may be exacerbated by lack of representation, counsel being discouraged from participating in mediation in order to facilitate an informal, personal process. As a result, it may be difficult for an offender to express his/her viewpoint, particularly if inarticulate, and avoid self-incrimination through lack of knowledge and understanding of the system. Self-incrimination will be particularly important if the parties cannot reach agreement during mediation, since information presented at a conference may later be used at a formal trial. Similarly, an offender may feel pressurised to accept sanctions imposed, particularly if they will be taken into account in sentencing.
Because restorative justice does not apply a system of graded offences and sentencing guidelines, it is also possible that similar cases will result in different outcomes. Varying standards may also occur since, as noted above, sentences may be influenced by the preferences of a particular victim. As a result, some offenders may be treated too severely, while others not seriously enough.
The presence of a trained facilitator may help to address some of these concerns by directing discussion and mediating the victim's influence. Moreover, given that restorative justice generally only proceeds once guilt has been admitted, it is unlikely that content raised in mediation will significant affect a trial outcome. However, guidelines as to appropriate forms of restitution would assist in ensuring greater fairness and consistency. Nonetheless, these would need to be flexible enough to allow individual victim's needs and concerns to be considered, since this is one of the strengths of restorative justice.
Arguably, community participation is the 'cornerstone' of restorative justice. As outlined earlier, community involvement allows crime to be addressed in its social context and for collective solutions to be developed. It recognises that justice in isolation from community may prove inadequate, and even harmful, at rehabilitating and deterring offenders. Community participation and resources are also necessary to sanction and reintegrate offenders, and to restore and heal victims post-mediation. Lastly, strong, integrated communities discourage crime by building relationships, connectedness, and co-operation.
However, given increased urbanisation, mobility, size and complexity of society, and individualism, it is arguable that a united, interdependent and stable community has been undermined. Communities based on geography, such as neighbourhoods, suburbs and parishes, have largely been replaced by communities of association - friends, work contacts, and clubs, with flexible membership. Similarly, community in New Zealand may take many forms given New Zealand's multi-cultural constitution. Even where cultural communities could exist, members may choose to identify less with their culture and more with other relevant groups. As a result, the type of community implied by restorative justice - highly involved, integrated, defineable, and willing - might not in fact exist today. Given such fragmentation, it may be difficult to find a sample representative of the community. Arguably community could be limited to a certain geographical area or a group of people with a particular relationship to the offender and victim. However, limiting participation to a self-selecting group, rather than a cross-section of the community, means that community involvement becomes merely theoretical. In turn, this undermines the development of unity and co-operation and the success of reintegrating the offender into the community as a whole. Similarly, if community only involves those in a relationship with an offender, it may be possible for an offender's supporters to protect them from responsibility. As a result, this undermines the legitimacy of community sanctions and the success of restorative justice in producing accountability.
Even if an independent sample of the community could be established, it is not clear whether this would represent general 'community values'. Certain values may only be those of the powerful and influential class, such as the middle-class, or the norms of the dominant culture in the area. As a consequence, it may be difficult to develop integrated and collective solutions to individual and community problems.
Given the difficulty in establishing connected and committed networks, it is also conceivable that community groups may lack the long-term commitment and resources necessary to meet the goals of restorative justice. This may particularly be so where communities themselves contribute to the offending problem, where crime and fear undermine a sense of unity, exacerbating already present economic inequalities. It is doubtful, therefore, whether a community today has the appealing power and resources to unite citizens behind a common-view and approach, arguably necessary to ensure the legitimacy and success of restorative justice.
As set out earlier, restorative justice processes can be implemented alongside the present criminal justice system or integrated with it. One further option not already discussed is a complete overhaul and reorientation of the present system, predominantly replacing it with a restorative justice framework.
One advantage of a parallel system is that its independence allows the focus to be primarily on the parties involved, rather than the needs of the criminal justice system. Similarly, by staying impartial, parallel restorative justice systems retain their integrity with police, lawyers and judges. Such independence also allows restorative justice objectives to be promoted and implemented fully, rather than be subverted to the contrary goals of the criminal justice system. Moreover, by working at a grass-roots level within the community and schools, parallel programmes are arguably better at effecting change early and more comprehensively, than processes superimposed onto the present system. Lastly, parallel systems possess greater operating flexibility, since conference timing is not determined by the concerns of the criminal justice system. This means victims, in particular, can address matters through mediation when they feel most prepared and comfortable.
On the other hand, parallel programmes may prove less attractive overall to victims and offenders since their independence means they cannot influence the court process. Where a parallel programme precedes the disposition of a case in the formal justice system, an offender may perceive that he/she will be penalized more than once for the same offence. Similarly, where it follows acquittal or conviction in the court system, offenders may see it as unnecessary since the issue is arguably 'resolved'. Moreover, having to participate in a conference, which is not taken into account in a later trial, may prove emotionally draining, time-consuming and frustrating for a victim.
Because integrated programmes can influence sentencing decisions, in this respect they may prove more effective than parallel programmes for victims and offenders. Through their ability to influence, integrated programmes may also shape the traditional focus of the criminal justice system, moving it away from a retributive philosophy to a restorative one. Lastly, as outlined earlier, integrated programmes also possess the ability to lessen the effects of the criminal justice system on victims and offenders. However, arguably the values of restorative justice — forgiveness, reconciliation and healing - are antithetical to those of the traditional system.
Using restorative justice simply to enhance the present system may inevitably result in its principles being undermined by the entrenched structure and ideology of the criminal justice system. Because restorative justice contrasts so greatly with the present system, imposing it in a 'piecemeal' fashion, addressing only the structure or process of a system, rather than context and content, will conceivably fail to bring about systematic change. Similarly, unless there is judicial commitment to promoting restorative justice, it is plausible that it will be consigned to the margins of the justice system, undermining its effectiveness and transformative abilities.
For restorative justice to be implemented effectively, therefore, a complete overhaul of the present system may be needed. This idea is founded on an incremental approach, gradually replacing the present system with a restorative one. It would begin with a parallel juvenile restorative justice system, moving to address adult offences arising out of close relationships, and finally applying generally. Justice practitioners would be educated in a restorative philosophy overtime and increasingly encouraged to implement restorative justice principles. However, traditional system goals would not be removed altogether. Where offenders are unwilling to participate in conferences, are repeat offenders, deny responsibility, or where an offence is very grave, the need to deter/incapacitate remains. Nonetheless, the priority given to system goals would change, with punishment for its own sake being given the lowest priority.
To successfully implement such a comprehensive change, a fundamental shift in thinking will be required. Not only must perspectives change amongst justice practitioners, but also within society, where restorative justice principles will first be developed and implemented. Relevant parties must recognise the ills of the present system and view crime prevention as a societal, not just a state, responsibility. They must also embrace reconciliation, healing and reintegration over punishment and deterrence. This paradigm shift will also involve relinquishing power previously possessed under the criminal justice system, to victims and the community. It is comparably a more difficult road, since delivering punishment is easier than producing responsibility, imprisoning offenders simpler than promoting genuine public safety through empowering communities, and rehabilitation programmes more straight-forward than reintegrating offenders. Such a shift in thinking will be difficult to produce. While forgiveness and reconciliation may be the choice of an individual, requiring this of society and of the justice system is arguably unrealistic. In a world accustomed to disharmony, blame, revenge, and 'just desserts', forgiveness and reconciliation are the exceptions rather than the rule. As such they are choices and cannot be imposed on individuals or a system. Similarly, imprisonment currently serves society's need to feel safe and secure and to perceive justice as being meted out. It is a powerful and explicit symbol of just desserts', retribution and security. Because restorative justice takes place privately, promoting values largely antithetical to the current criminal climate, it is unlikely to serve the symbolic function that imprisonment does. As a result, it is less likely to engender public support. Moreover, serious crimes invariably attract calls from the public as a whole for harsher sentences and tougher measures. Unless society willingly embraces a less retributive approach in relation to crime, restorative justice is unlikely to be applied generally.
Whether restorative justice is relevant for all offences generally is also applicable to the question of how best to implement it. On one hand, restorative justice could be employed extensively, applying to serious offences such as murder, rape and physical assault, as well as non-imprisonable offences. This would proceed on the basis that all participants were willing. On the other, it could be limited to less serious offenders and offences by considering such things as the age of the offender, offence type, the seriousness of the offence, and an offender's criminal history. Restorative justice has most often been applied to minor offences, such as property crimes and disorderly conduct. However, through its potential to heal, reintegrate and restore, restorative justice conceivably offers something to all offenders and offences. Its ability to address the 'heart' of crime means it may be most useful in the context of offences involving deep hurt, fear, pain and disharmony. By restricting restorative justice to certain offences, the justice system may also limit its acceptance by, and integration into, society. Applying it only to minor offences restricts reconciliation, healing, and reintegration to a limited group of crimes, thus diminishing its scope and impact on justice in general. Correspondingly, it reinforces societal belief that the only way to deal with serious crimes and convey appropriate disapproval is through imprisonment. Finally, such a limitation may also result in net-widening, as outlined earlier, as minor offenders enter the justice system earlier rather than receive diversion. On the other hand, until research comprehensively suggests restorative justice has a similar or greater ability than the present system to restrict re-offending, its widespread application is injudicious. Currently, the success of restorative justice in rehabilitating offenders stands on community involvement and the genuine acceptance of responsibility and remorse by the offender. However, community involvement is difficult to establish, as outlined earlier, and an offender's feelings uncertain to ascertain. Consequently applying restorative justice to crimes such as rape and murder, without research to support this, is a high-risk exercise. Moreover, a well-publicised failure stands to undermine the credibility and long-term prospects of restorative justice generally.
Restorative justice, in the absence of rules concerning who can speak, when, and what about, may also prove inadequate for crimes such as rape or domestic abuse. Where power is unevenly balanced between an offender and victim, as may be the case in these circumstances, an offender may be able to exploit the situation, revictimising and intimidating the victim. Lastly, even if research did establish positive findings, it is still arguably unlikely that restorative justice would be applied to all offences. As described earlier, imprisonment helps society to feel safe and secure and to perceive justice as being delivered adequately. Similarly, serious crimes usually lead to calls for harsher sentences and tougher measures. Unless restorative justice can meet these needs symbolically, its widespread application is unlikely to be accepted by society.
In theory, restorative justice can enhance New Zealand's approach to criminal justice. The current system, court-based and retributive in approach, has failed to address crime contextually, being unable to resolve its underlying causes. Its emphasis on penalising, deterring and incapacitating has proved inadequate at producing accountability, rehabilitation and reduced recidivism. It has also been unable to address the imprisonment bias towards Maori. Similarly, the present system ignores the diverse needs of victims, discouraging participation unless relevant. Restorative justice, emphasising forgiveness and reconciliation, recognises these inadequacies and suggests solutions to them. Through community-based, victim-offender mediation, restorative justice manages crime in a relevant context. It recognises the role of community in deterring crime, healing victims, and rehabilitating offenders. It also encourages accountability in offenders by bringing participants together and requiring relevant, personal reparation. Restorative justice promotes victim restoration through enhanced involvement in the justice process. Likewise, it may reduce costs by reducing court use, diverting offenders, and decreasing offending rates.
Notwithstanding these claims, research from New Zealand and other jurisdictions has so far failed to conclusively support them. While positive findings have been suggested in some studies, their reliability has been undermined by lack of research, randomization of participations, and comparison with control subjects. The release, therefore, in 2004 of the Ministry of Justice's findings on New Zealand's pilot projects will greatly assist in assessing restorative justice's value to New Zealand. Its success will also depend on its ability to implement a fair process for offenders and define community. Skilled mediators will assist in ensuring due process, as will relevant guidelines. However, what will prove more difficult is incorporating community representation, which is willing, definable and integrated, given the fragmentation and diversity of society today. Because community involvement is so important, failing to resolve this issue will undermine the success of restorative justice.
More importantly, however, is the need for a successful paradigm shift amongst justice practitioners and society. Restorative justice's values contrast greatly with those of the present system. Superimposing it on top of the latter will fail to bring about wholesale change due to the criminal justice system's entrenched structure and philosophy. Restorative justice will therefore work best if implemented in place of the current system. This will require a fundamental shift in thought, moving away from a retributive philosophy to a restorative one. However, given the retributive outlook of society as a whole, and its need symbolically for a punishment-focused system, restorative values are unlikely to be embraced. Similarly, while restorative justice may work best when applied to all offences, lack of societal support, along with a current lack of research, is unlikely to see this occurring. In conclusion, therefore, in its present form restorative justice is likely to be consigned to the margins of justice, enhancing the present system but ultimately unable to bring about comprehensive change.
[*] The author is a solicitor practising in Christchurch. This paper was written as part of the undergraduate Honours programme.
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 Sentencing Act 2002 (NZ) s 7(1)(b).
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 Bowen et al, above n 1, 20-3.
 Ibid 17.
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 Umbreit and Coates, above n 1, 44.
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 Lerman, above n 12, 20.
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 Umbreit, above n 13, 53. M Wright, 'Victim-Offender Mediation as a Step Towards a Restorative System' in H Messmer and H U Otto (eds), Restorative Justice on Trial (1992) 525; G Bazemore, 'Restorative Justice and Earned Redemption: Communities, Victims and Offender Reintegration' (1998) 41 American Behavioural Scientist 768, 785.
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 Delgado, above n 21, 756. 26 Ibid.
 A Ballin, 'Victims Task Force: A Valedictory Message to the Profession' (1993) 389 Law Talk 10.
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 Ibid 287.
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 Bazemore, above n 22, 792.
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 Ministry of Justice, Restorative Justice: A Discussion Paper, above n 17, 49.
 Palk, Hayes, and Prenzler, above n 31, 140.
 Ministry of Justice, Restorative Justice: A Discussion Paper, above n 17.
 Roach, above n 15, 267; Palk, Hayes, and Prenzler, above n 31, 140.
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 Ministry of Justice New Zealand, Restorative Justice: A Discussion Paper, above n 17, 18.
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 There is no clear translation of 'mana' but it implies a concept similar to 'status'.
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 Ibid 79.
 Ibid 74.
 For example, in Hawke's Bay; Auckland; Waitakere; Hamilton and Dunedin.
 T Clarke, 'Restorative Justice - Is it Working?' (2002) 583 Law Talk 28.
 R Delgado, 'Goodbye to Hammurabi: Analysing the Atavistic Appeal of Restorative Justice' (2000) 52 Saskatchewan Law Review 751, 757-8.
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 Levrant et al, above n 51, 19.
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 Ashworth, above n 137, 365.
 Ibid 363.
 Roach, above n 15, 255.
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 Van Ness, above n 9, 264.
 Bazemore, above n 22, 803.
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 Ministry of Justice, Restorative Justice: A Discussion Paper, above n 17, 21.
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 Prairie, above n 18, 68.
 Ministry of Justice, Restorative Justice: A Discussion Paper, above n 17, 52.
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 Restorative Justice Services (2002) 1 Quarterly Bulletin.
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 Van Ness, above n 9, 271-2.
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 S Sarnoff, 'Restoring Justice to the Community: A Realistic Goal?' (2001) 65 Federal Probation 33, 34.
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