Feature

Less Law, More Order

April 1, 2009 - Eleanor Clitheroe

When a crime is committed, the intuitive sense that someone must pay is powerful. The problem is that in the criminal justice system we do not ask, “What is owed?” and “To whom is it owed?” carefully enough. If we ask these questions, our focus shifts to include the victim and the affected community, not just the offender. Our concern then includes repairing the harm that the victim and the community have suffered and doing what we can to prevent that damage from happening again. 

Restitution is not necessarily a bad thing. It acknowledges that a debt is owed to the victim and the community. Accountability and consequences are important aspects of acknowledging that a debt is owed. The problem with our intuitive sense that someone must pay is that it is generally tainted by our own sense of indignation and feelings of vengeance. We demand retribution instead of reparation, and in ways that are destructive to the offender, whether or not they contribute to repairing the damage done or prevent future harm to the victim or the community.

Dan Van Ness at the Center for Restorative Justice, Prison Fellowship International gives the following example.

“If I have stolen $100 from you, we can reflect together on what my debt is by considering what your loss has been. Of course, you are out $100. But you may also have suffered other harm depending on your circumstances. At the very least, your trust level in humanity has been affected.

If I am required to pay back the $100, and after you and I meet I offer a heartfelt apology that meets your needs, we can say that there has been retribution. In fact, we can say that there has been eye for eye, tooth for tooth, etc. Some people suggest that the provision for multiple restitution in the Old Testament is compensatory rather than punitive. These were rules of thumb: if someone is robbed of a sheep, the owner loses the profit from selling wool, the lambs that it might have produced, etc. Rather than calculate every time, the formula of fourfold restitution was established.

Sometimes I’ve illustrated this with Christian audiences by magining that Zaccheus’ meeting with Jesus happened today. He would be charged with corruption and spend a fortune on lawyers. Jesus would be called to testify against him and there would be legal arguments over whether the priest-penitent privilege extended to the Messiah. Zaccheus would be sentenced to a lengthy prison sentence that cost taxpayers as much as if we had sent him to Harvard. On his release he would return broke, divorced and largely unemployable. Meanwhile, the victims of his corruption would have received nothing or at most pennies on the dollar.

Which example offers a better example of paying the price for his crimes?”

Chuck Colson often says that there are two kinds of criminals: those that get caught and the rest of us. I used the statistic in my paper “Less Law, More Order” that 25% of Canadians have committed crimes. Many have responded saying that they are amazed at how law-abiding Canadians are. Their guess would be that everyone has done something that could be considered a crime under the law. For instance, they may have sped in the same place where another speeder hit a person who darted out from the curb.

On an average day in Canada, where the population is nearly 40 million, we incarcerate about 35,000 people. Our recidivism rate ranges from 40 - 90 %, depending on the crime, gender, and even province. The Canadian crime rate is not on the rise, so we are apparently satisfied that we continue to catch and incarcerate the right people.

We are spending our taxpayer dollars on the same people–the offenders–throughout their lifetime, and we know that as criminal behavior is role modeled, children of offenders are more at risk of spending time in jail themselves than those children born outside the “offending” population.

As I noted in my last paper, we also know that there are many more factors than poor role models in the home that may lead to offending behavior: learning disabilities, childhood abuse, poverty, and drug and alcohol addiction.

“What is owed?” and “To whom?” With these questions in mind, let us turn to the ideas behind restorative justice–an alternative to imprisonment–and, if I may, as an alternative even when people are incarcerated. The term “restorative justice” is generally meant to include actions that are not part of the prison system, but I expand the idea to include the need to focus on what goes on inside the prison and find alternatives in the prisons themselves as well as within the overall system.

 

COMPARING RESTORATIVE JUSTICE TO CRIMINAL JUSTICE

In my last paper I argued that there were alternatives to the costly, seemingly ineffective criminal justice system, and knowing what we as the public want is the first step: safety, even-handedness, fairness and so on.

I argued that restorative justice practices incorporated into the criminal justice system can not only reduce the cost of prosecuting criminal activity (from policing and prosecution to incarceration and parole), but also reduce recidivism. There is evidence for this assertion.

Lawrence Sherman and Heather Strang, in their research comparing restorative justice and criminal justice across 36 countries, found that restorative justice

  • Substantially reduced repeat offending for some offenders, but not all
  • Doubled (or more) the offences brought to justice through diversion from criminal justice
  • Reduced the costs of criminal justice, when used as diversion from criminal justice
  • Reduced crime victims’ post-traumatic stress symptoms and related costs
  • Provided both victims and offenders with more satisfaction with justice than criminal justice
  • Reduced crime victims’ desire for violent revenge against their offenders
  • Reduced recidivism more than prison (adults) or as well as prison (youth).1

 

"BLEEDING HEART" OR "TOUGH LOVE"

What does it mean to incorporate restorative justice practices into our justice system? Most feel that there are two approaches to crime and sentencing. Longer sentencing, serving out the full sentence without parole, and zero tolerance are considered “tough”–costly, but worth it. Alternative sentencing, education, work, and value- or faith-based are “soft”–perhaps less costly, but dangerous and not in the interest of public safety.

The evidence speaks to the contrary. Longer sentencing does not decrease recidivism, serving to full term does not increase social integration on release, and zero tolerance does not act as a deterrent to committing crime.

The types of restorative justice that have proven to be most effective are face-to-face meetings among all the parties involved (which can include family and friends as well as the victim and the offender) and court-ordered financial restitution in crimes of violence and theft. The meetings can be held both as an alternative to prosecution and within the system in pre-sentencing, alongside community service, prerelease from long-term incarceration, and last warnings to young offenders. Significantly, restorative justice seems to work more effectively in some areas than others. Perhaps counter intuitively, restorative justice is more effective in personal rather than the so-called “victimless” crimes, violent rather than property crimes, more serious rather than less serious crimes.

Rather than suggest restorative justice is the wholesale answer as an alternative to the criminal justice system, we now know enough to use the techniques effectively and selectively within the system. The choice is to use experience to design a system that does not view punishment as the end objective, but rather transformation, which will provide the safer option for both the victim and the community.

Restorative justice typically refers only to restorative justice practices (victim-offender mediation, conferencing, circles, victim assistance, ex-offender assistance, restitution, community service) as an alternative to prison.

There is evidence that education and value-based prisons, and, in many cases, faith-based prisons, are also effective in reducing recidivism. The cost of the criminal justice system is not necessarily reduced up front if the traditional incarceration route is followed, even if it is a prison school or faith-based prison, but recidivism is reduced, increasing the safety of the community and reducing the future costs of escalating criminal behavior. The evidence can be collected from prisons in different parts of the world, showing recidivism dropping in these types of prisons or prison units, sometimes to single digits.

Of course, there is no reason that meetings among the affected parties, as well as restitution, cannot be combined with a restorative justice-based prison term to enable restitution as best possible for the victim. 

Van Ness and Strong (In Restoring Justice, Anderson Publishing, 2006, pp. 144-145) suggest four strategies to improve our existing criminal justice system.

1. Give every victim and offender the opportunity to participate in an encounter program.
2. Expect offenders to pay restitution and make it possible for them to do so.
3. Let victims be parties in criminal cases, if they wish, in order to pursue restitution.
4. Provide every victim and offender the help they need to reintegrate as whole and productive members of the community.

I would add a fifth goal.

5. Introduce restorative justice prisons or prison wings and halfway houses. These may be value based or faith based. The First Nations community has already taken a lead with the federal government in introducing these types of prisons to our criminal justice landscape. We should extend their lead to others.

 

RESTORATIVE JUSTICE IN CANADA

Restorative justice in Canada is a complicated mixture of shared jurisdiction between federal and provincial and territorial governments, with responsibility for the implementation of initiatives shared among government departments and faith-based or community-based organizations. Although restorative justice initiatives have been offered by non-governmental organizations since the early 1970s, the government only embarked on strategic policy directions during the 1990s. Since that time, the federal government has enacted legislative changes and funded restorative initiatives that complement the traditional criminal justice system in Canada

In Canada, restorative justice has its foundation within the Aboriginal community, faith communities and non-government organizations. The restorative justice approach is based on the indigenous understanding that criminal behaviour is a result of an individual’s alienation from its community. It is everyone’s responsibility to help to heal the relationship.2 

Faith communities and non-governmental organizations have been leading the way in restorative justice initiatives since 1974, when the Mennonite Central Committee introduced victim-offender mediation into the court system in Kitchener-Waterloo in Ontario.3 Restorative principles have moved beyond their Aboriginal and faith-based roots to become part of Canada’s traditional justice system.

According to Correctional Service of Canada, restorative justice is:

“…a non-adversarial, non-retributive approach to justice that emphasizes healing in victims, meaningful accountability of offenders, and the involvement of citizens in creating healthier, safer communities.

Crime is a violation of people and their relationships. Restorative justice works to repair the damage and promote healing the growth–important tools in finding more peaceful and collaborative ways of resolving conflicts in our society.

It strives to provide support and opportunities for voluntary participation and communication between those affected –victims, offenders, and community to encourage accountability, reparation, and movement towards understanding, feelings of satisfaction, healing and closure.”4


Although the principles of restorative justice are being integrated throughout the mainstream criminal justice system, restorative justice processes are still a complementary feature to that system. The primary focus of the criminal justice system is the imposition of punitive measures by the state towards offenders. Restorative justice does not replace the retributive or rehabilitative aspects of the mainstream system. An offender’s participation in a restorative justice program/process will not mitigate punishment or incarceration. However, an offender’s or victim’s participation will likely enhance their experience of the criminal justice system and quite possibly provide healing.

The restorative justice approach in Canada has three focal points: the offender, the victim, and the community. These foci are woven into a multi-layered approach characterized by shared jurisdiction and shared responsibility between levels of government. The first layer is the legislative framework that guides the inclusion of the restorative justice approach into the criminal justice system. This includes both offender and victim aspects. The second layer is the government agencies that are responsible for setting the policy framework that guides the implementation of the legislation. The third layer is the community organizations that provide the restorative justice programming.

Since there is no legislative mandate to fund restorative justice initiatives, funding of such programs remains a policy decision of the federal, provincial and territorial governments. Governments decide which programs to fund on a year-to-year basis. However, the Criminal Code does require the imposition of victim surcharges that are then used by provincial and territorial government to fund victim service programs.5

Overall, there has been very little research on the impact of restorative justice initiatives in Canada. In addition, it is difficult to compare programs because of the variety that exists in the goals and the structures of the available programs. However, some programs have been evaluated. The summary results are listed below.

Youth Criminal Justice Act

The Department of Justice’s 2005 Annual Statement6 contains the results of a review of the effect of YCJA on the youth justice system. Some of its findings include:

  • The charge rate for youth for 2003 decreased by 16% from the year 2002.
  • There has been an increase in the use of extrajudicial measures by police. It appears that a full range of measures have been used.
  • Judges do not appear to be making extensive use of conferences at the time of sentencing.

Collaborative Justice Project

The Collaborative Justice Project is a demonstration project that uses a restorative justice approach for serious crime. A formal evaluation of the program was completed in 2005. Some of the results of that evaluation are as follows.7

In general, victims and offenders had different motivations for participating in the program:

The Victims:

  • 26.7% wanted to meet the offender in order to understand them and the reason for the crime.
  • 20% wanted to explain to the offender the impact of the crime on them.
  • 16.7% wanted an apology from the offender.
  • 16.7% wanted to participate in order to help prevent recidivism and ensure the offender received treatment.

The Offenders:

  • 36.4% wanted to apologize to the victim.
  • 27.3% wanted to provide restitution/attempt to repair the harm/reach an agreement.
  • 27.3% wanted to feel a sense of closure.
  • 22.7% wanted to provide an explanation.
  • 13.6% wanted to hear the victim’s experience.
  • 13.6% wanted to get to know the victim.

Other findings:

  • In 53.8% of cases reparation plans were made.
  • The Crown supported the reparation plans in 85.4% of the cases. In 78.9% of these cases, the court endorsed the reparation plan at the time of sentencing. However, the court made modifications to 68.4% of these cases.
  • 95% of offenders felt that justice had been served.
  • 78.7% of victims felt that justice had been served.
  • 87.8% of offenders and 86.3% of victims stated that they would choose a restorative justice approach over the traditional justice approach should they become involved in the criminal justice system again.

Restorative Resolution8

The John Howard Society of Manitoba offers the Restorative Resolution program, which aims to provide community-based alternative sentencing plans for the court. These plans include input from the victims of the offender. An evaluation of the program showed that:

  • Victim-offender meetings occurred in only 10% of the cases.
  • Provide every victim and offender the help they need to reintegrate as whole and productive members of the community.
  • In 24% of the cases, written apologies were submitted.
  • In 56% of the cases restitution plans were developed.
  • In 79% of cases victim impact statements were prepared.
  • In 96% community service arrangement were developed.

Restorative justice initiatives have become a part of the Canadian criminal justice system. While restorative principles are not the foundation of the system, they are providing a new focus that, in time, will provide more opportunities for offenders, victims, and the community to heal.

 

CONCLUSION

Our dissatisfaction with the results of our criminal justice system is not caused by failed delivery of correct technique, but a failure of purpose. The hindrance is not in our programming but in our thinking. 

We should learn from worldwide experience rather than depend on slogans. Our policy makers have access to this experience and in many cases are experts in restorative justice principles themselves. Canada used to be considered to be a leader in restorative justice–but we have lost sight of our purpose.

 

NOTES:

1. Lawrence W Sherman and Heather Strang, Restorative Justice: The Evidence, The Smith Institute, 2007.

2. Melanie Achtenberg, “Understanding Restorative Justice Practice within the Aboriginal Context,” FORUM on Corrections Research, Vol. 12, No. 1. (Ottawa: Correctional Service of Canada)
www.csc-scc.gc.ca/text/pblct/forum/e121/e121j-eng.shtml. Accessed May 20th, 2008.

3. Robert B. Cormier, “Restorative Justice: Directions and Principles-Developments in Canada,” (Ottawa: Public Works and Government Services Canada, 2002) ww2.ps-sp.gc.ca/publications/corrections/200202_e.asp. Accessed May 20th, 2008.

4. “Restorative Justice,” (Ottawa: Correctional Service Canada), www.csc-scc.gc.ca/text/rj/bckgrndr-eng.shtml. Accessed May 16th, 2008.

5. For a more detailed description of surcharges by jurisdiction see: www.justice.gc.ca/eng/pi/pcvi-cpcv/pub/01/01.html#Heading587.

6. “Youth Criminal Justice Act 2005 Annual Statement: Executive Summary,” (Ottawa: Department of Justice Canada) www.justice.gc.ca/eng/pi/yj-jj/ycja-lsjpa/stat-declar/sum-som.html. Accessed April 30th, 2008.

7. Tanya Ruge, James Bonta and Suzanne Wallace-Capretta, “Evaluation of the Collaborative Justice Project: A Restorative Justice Program for Serious Crime,” (Ottawa: Public Safety and Emergency Preparedness Canada, 2005) ww2.ps-sp.gc.ca/publications/Corrections/cjp/cjp_toc_e.asp. Accessed May 4th, 2008.

8. Cormier, “Restorative Justice: Directions and Principles –Developments in Canada.”

Posted in Justice.

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  1. April 2009: Less Law, More Order
    CPIP - Less Law, More Order

    In this issue of CPiP we look at the task of a correctional system in a just society. Where does a society draw the balance between restoration and retribution, and how do we fund and sustain these decisions?

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