To what extent has the theory of restorative Justice been integrated into Youth Justice practice in England and Wales? Has this gone far enough? The perception by many involved in the Justice system in general, and youth Justice in particular, is that the present model of punitive retributive Justice, often involving incarceration does not work. Indeed, it may be compounding an already huge social problem. This realization has lead many to look for alternative systems.
At present there is a considerable momentum building that advocates the use of a restorative justice model. Marshall has defined restorative Justice as a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and it’s implications for the future (Marshall, 1999). Many different commentators have differing emphasis on the expected and desired outcomes of restorative practices, in general most will emphasis the need for healing of the victim and the reintegration of the offender.
In a philosophical sense this sees offending as primarily a breakdown in relationship between individuals, and only secondarily as a elation of the law. In this way it tries to address the needs of both victim and offender by recognizing that all parties need to be involved if there is to be the progression from inclusion, to participation, to transformation. For this to be successful all parties must be there on a voluntary basis. (Galway, 1996) However, restorative Justice is a complicated process involving much more than the meeting of victim and offender.
In many ways the restorative approaches are revolutionary. It sees that there should be a change in emphasis from punishment to problem solving. In the conventional ethos where a crime is committed it is perceived to be against the state, not against the person, it is responded to by punishment not constructive engagement, this is adversarial and not about bringing people together, and it involves a system that is imposed upon the victim and offender. (Clothier, 2008).
The theoretical basis behind restorative Justice is largely philosophical and ethical. It is deeply rooted in the underpinnings of the major world religions, all of which have as a central tenant concern for ones fellow man, and a principle of aerating others with fairness and compassion. Therefore it is hardly surprising given this cultural background that restorative movements would seem intuitive. In this way it can be seen as a set of ethical values about how we should relate to other human beings and especially those who cause us trouble.
Christie has recognized the need for inclusion in conflict resolution, he recognizes that the conflict is ‘owned’ by the participants and the involvement of the state can distort the process so that the parties involved can respond in an unhelpful way that has little chance of a successful outcome. The victim feels that the state has robbed him of the wrong he has suffered and the offender can rail against the faceless state and convince himself that he is a victim not an offender (Christie, 1977).
Breathiest sees the problem in Restorative Justice: A New Paradigm or a Complementary Model By Similarities domination that is so obvious in the traditional criminal Justice system, and emphasizes the rights and indeed, desirability for all stakeholders to have a voice in the restorative process (Breathiest, 2002). It can be seen as a fundamental change n the top down imposition of state power, to a locally based, culturally appropriate and democratically based resolution of differences in a community empowered environment.
He also emphasizes how the traditional system enforces separation and disengagement from the community by creating the isolation of incarceration that has the effect of preventing reintegration of the offender. To this end he has advanced his re-integrative shaming theory, which acknowledges that the offender should be ashamed for the offence, but seeks to use this feeling constructively and acclimate a wish from the offender and the community for re-integration to take place. Re-integration not segregation might be said to be the moral centre of restorative justice.
Daly and others see it, as at least in part, a feminist issue, with the role of the state being a dominating masculine presence, which is in essence aggressive to both victim and offender, and a change in this dynamic must occur to allow inclusiveness (Daly,2008). To this end conventional youth Justice practice has been significantly challenged. Where restorative practices have been introduced there has been a inconsiderable departure from the long established roles within the system.
The interactive dynamic between young person and practitioner is fundamentally different in this process. Consequently, there needs to be considerable training provided for practitioners to be effective in this new approach. The centrality of the victim -offender interaction requires skilful facilitation. The professionals may have difficulty in letting go of their need to control and appear to ‘know best’ what the solutions are. It is important to recognize that a facilitator allows others to reach conclusions and action plans.
To be restorative is to adjust ones sense of purpose over identity as a professional, and over belief systems, not Just intellectually, but in how you act in relation to others and this can only be learned from experience. Establishing the centrality of the restorative approach in youth Justice can certainly be seen as a considerable divergence from the long established punitive model of justice much loved by the popular press, and often its readers. Mahoney,2008) The Youth Justice Board oversees the Youth Justice system in England and Wales; it has promoted restorative Justice since 2001. It has stated that it wishes to broaden deepen and extend the practice of restorative Justice within the youth Justice system so that the system is – more victim based, – more young people who offend are held to account, – more young people learn about the consequences of their actions and make reparations, – more young people choose not to re-offend.
This, it believes, will also lead to continued improvement of restorative practices, improve referral orders and youth panels, promote restorative Justice in the secure estate and develop a coherent long-term restorative Justice policy. YES, 2006) There have been 11 pilot areas chosen to roll out restorative practices within England and Wales. Some, such as The Thames Valley have been in existence for a substantial quite ambitious stated aims such as Hull, which has the desire to be a ‘Restorative City. Faulkner, 2009). One other area within the I-J does deserve a special mention, Northern Ireland. It has made the process of restorative Justice central to the process of societal change for what is hoped to be a post-conflict dynamic. It is obvious that many of these changes come from the desire for wider conflict resolution, nonetheless the early feedback is very encouraging in terms of efficacy of practice and it is an area that should yield much useful information that the rest of the UK can use as a resource. Campbell, 2005) There are many types of restorative approaches that can be used depending on the nature of the offence and the local circumstances. -Victim -offender mediation where there is direct communication between the victim and offender facilitated by a trained mediator. -Restorative conferencing where in addition to the victim and offender other people connected to the victim and offender also participate. Family group conferencing where members of the wider family participate and there is a particular onus on the family to provide an acceptable solution. Youth offender panels where trained community volunteers work alongside members of the Youth Offender team to talk to young people their parents and where possible the victim to agree a tailor made contract aimed at addressing the offending behavior. It is important to realism that restorative Justice is not the soft option and many offenders find it difficult to face up to the impact of their crime. The youth Justice And Criminal evidence act 1999 introduced referral orders, given to cost 10-17 year olds who plead guilty to a first offence, unless the charge is serious enough to warrant custody.
After a court appearance there is a referral to a Youth Offender Panel (HOP), which consists of three trained volunteers assisted by a HOT worker. It is their role to determine the best course of action. The victim can be invited to put their views to the panel meeting but the offender and his/her parents must attend. A contract is then agreed with the offender and this might include some form of reparation for the victim. At present examples of good practice and attendance rates vary widely from area to area. YES 2008).
There are many opportunities for the successful introduction of effective youth restorative practices. It has reflected the zeitgeist of the nation and has been given a sympathetic hearing by the media, who present it as a constructive advance. It is attractive to politicians and policy makers, not least because of the perception that it can create community capital, especially improvement in the public confidence in the criminal Justice system and other agencies with responsibility for delivering a response to anti-social behavior.
This has then to be delivered in a practical way, the final shape of which ill ultimately be determined by the practitioners. This will be through a process of implementation, appraisal and re-examination to determine best practice, which will need to have a local interpretation. The success of the restorative approach will depend on it being an individually tailored solution involving interaction between offender, victim and the community ( Hughes, 2002).
There is also considerable good will amongst professionals working with young people to move to a more restorative There are also many obstacles that may come from the same sources as the opportunities. These may be structural, political or cultural. This triad has combined in a way that has strained the ability of the Youth Offender Team organization to succeed and created a poor atmosphere for restorative practices. (Stallions, 2008). At the heart of the restorative process there can be a conflict, as intrinsic in the concept, is the reduction of the power of the state.
Restorative practices empower citizens with powers that once lay in the hands of the state. (Breathiest, 2002). The desire for the government to find a one size fits all solution has the risk of undermining the estimative process. On paper referral orders provide a perfect setting for initiating restorative practices in reality there are some barriers. It can be difficult to get young people to take responsibility for their actions and therefore the admission of guilt, which is so central, can be problematic.
The question of appropriate sentencing is vital. It is frequently asserted that restorative Justice is most effective with more serious offences, where there is a definite victim (Sherman, 2007). Where a restorative approach is used by way of a referral order for low level crimes especially where the cacti is hard to identify such as traffic or insurance related offences the outcomes are less good, and indeed it can be very difficult to have an appropriate restorative contract for these offences.
Therefore the courts and others should consider carefully when the restorative approach is likely to be effective. The length of sentence can have an impact on effectiveness in restorative Justice, in particular 3 month orders do not allow enough time to work with young people and in particular there may not be sufficient time to take up suitable placements. Many of the young people sentenced o referral orders have complex personal and social problems that will require a multi-agency approach, all of which takes time.
The court may make a compensation order in addition this may not sit well with reparation as it can be perceived as a double punishment. On a practical level compensation orders run for 2. 5 years and are not spent on completion like referral orders. This has the problem of a discoverable record that may be a barrier to employability. For reparation to be successful there have to be places on meaningful projects, these are often limited in umber, there are little controls over availability and may be seasonal so appropriate allocation can be fraught.
These are classic policy- practice conflicts. The government and policy makers are keen to promote a restorative approach and bring it to the heart of the youth Justice system however there is an underestimation as to what is actually required in terms of organization, training, communication and resources. The government appears to assume that the restorative approach will ultimately prove cost effective but will not necessarily be receptive to feedback on the true cost of restoration well done. It is intensive and expensive.
Improved communication is vital as misconceptions abound. Restorative Justice and reparation are frequently confused, as are reparations and interventions and clearer definitions are required. There can be a lack of confidence from practitioners and the public about what restorative Justice may be expected to achieve. And among young people it is important to recognize that, for some, the perception is that the restorative process was there to embarrass them, and that the process of reparation was perceived as a victim central and to reduce crime.
However, in practice, if this is to be so, the time Ramee needs to change. The referral officer needs to meet the offender within 5 days, leaving 15 days to compile an impact assessment and report, as the initial panel meeting must be within 20 days, this is often impractical. There must be a degree of preparation of those who will be involved. There must be preparation of family members for the potential for high expression of emotion, and the disclosure of confidential information that may arise.
Therefore it can be seen that while putting policy in place can easily be done there are many barriers for this to be translated into effective practice. To do restorative practice well, may by necessity, be expensive and resource intensive. Theory is relatively simple to formulate, policy is also relatively straightforward, but it is the finessing of these into an effective practice that is so difficult. The early advocates of restorative Justice point to a past in which civilizations from the time of the Babylonian Hamburg have made free use of restorative practices.
In the post-modern context it represents a search for a world with less crime and more Justice. There is growing realization that endlessly increasing the prison population is unlikely to achieve this goal. In restorative practices many see the potential for a system that can bring more offenders to justice, perhaps reduce the cost of Justice while reducing the personal cost of crime to the victim. There has been a large body of research carried out on restorative justice. This has shown more positive results than for most innovations in criminal justice.
This evidence should support a roll out of restorative practices on a ‘learn as you go’ basis. Some have suggested that a “Restorative Justice Board”, which would be smaller than, but based on the YES, could support this approach. This could monitor reactive, design new tests of strategies and where necessary recommend change. In the traditional notion of adversarial retributive Justice, there will be, almost by definition, a loser. The restorative approach while not guaranteeing two winners, may at least give the possibility that there will not be two losers.
The integration into policy and practice has been surprisingly rapid. As to the question, whether this has gone far enough? I would say that because of the difficulties, and the policy practice conflicts, the long-term effects of restorative Justice should be evaluated before it is shushed out as a universal approach and highly regulated by government. If this happens too quickly without local adaptation and continual reassessment, which is culturally sensitive, it is possible that a very promising approach will go the way of all fashions and become rapidly obsolete and reviled.