One driver is the idea that criminal justice should be more civil. The civil law is what gets invoked when you take someone to court. A civil court case doesn't end with anyone being found guilty and punished; generally, they end with someone being found to be in the wrong, and ordered to pay back what they owe or to pay the other person compensation ("damages"). Criminal law is backward-looking (you did X, therefore we'll punish you); civil law is forward-looking (you did X, so you need to put it right by doing Y and Z). Most importantly, the civil law doesn't inflict pain and hardship on the people it finds to be in the wrong; it treats them as a responsible individual and asks them to put things right. Restorative justice can work the same way, and reduce the number of offenders who are treated harshly - and, perhaps, reduce the number who reoffend.
Another idea, closely related to the first one, is that criminal justice should be more moral. The argument is that the punishments handed down by criminal law don't work because they're harsh - if anything, they work (when they do work) in spite of their harshness. What works - what makes offenders think twice and decide not to reoffend - is a form of punishment which treats offenders as people who have a conscience and would prefer to do the right thing. Some offenders come to the realisation that they've been doing bad things - and decide not to do them any more - in the course of a prison sentence; some don't. What if the moral message could be communicated without the harsh punishment - perhaps, even, instead of the harsh punishment? Restorative justice can do this, too: the victim can really get through to the offender, in a way that judges and social workers often can't. (If you're sceptical about this, have a look at the "Woolf Within" video on Moodle.)
Then there's the idea that criminal justice should be more communitarian: instead of handing over crimes to criminal justice professionals, we should find ways to mobilise the community as a whole to deal with the conflict represented by the crime that's been committed. This argument was put forward most eloquently in Nils Christie's paper "Conflicts as property". If crime represents a breach in a community, perhaps criminal justice only makes matters worse - it introduces another level of separation, between the community and the convicted criminal (who ceases to be a member of the community and starts to look like an "Ideal Offender"). Restorative justice can work to mobilise communities, enabling them to condemn crimes while treating the offender with forgiveness and reintegration.
This summary raises a couple of questions. Firstly, these are three quite different things: can a single process achieve all three of them? If not, is there a single thing identifiable as 'restorative justice', or are there several different things which have that name?
Secondly, what about the victim? None of these theoretical models really focuses on the victim. However, I argued in the lecture that the victim of crime has become more central to restorative justice. The victim plays a key role in all these models - even if their role is to help the offender or the community - and I think the centrality of the victim has become more obvious since people started putting RJ into practice. The way that people think about RJ is starting to shift as well; we'll have more about that in later lectures.
If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).
Ask the offender:
• “What happened?”
• “What were you thinking about at the time?”
• “What have you thought about since the incident?”
• “Who do you think has been affected by your actions?”
• “How have they been affected?”
Ask each parent/caregiver: “This has been difficult for you, hasn’t it? Would you like to tell us about it?”
Have each respond to all of the following questions.
• “What did you think when you heard about the incident?”
• “How do you feel about what happened?”
• “What has been the hardest thing for you?”
• “What do you think are the main issues?”
Ask the offender: “Is there anything you want to say at this time?”
Picture yourself sitting around a table, after a crime has been committed, and answering questions like these - as the victim, as the offender, as an offender's 'supporters' (very often parents). How do you think they would make you feel? Do you think the victim would find the process useful or satisfactory?
One final thought: what would it be like to go into a restorative justice process if you weren't actually guilty but had admitted guilt for tactical reasons, e.g. because you believed you'd be treated more harshly if you went to court? Would your innocence be found out?
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