What restorative justice loses
Encouraging offenders to make amends to their victims is a step back to pre-modern law.
UK home secretary David Blunkett has launched a consultation document on restorative justice – which brings together offender, victim and community to discuss the impact of a crime, and to decide how to make amends (1).
Restorative justice has been criticised for being ‘soft’ on criminals, because it would allow some offenders to avoid the courts if they agreed to meet and apologise to their victim. But the policy should make uncomfortable reading for potential defendants, victims and communities alike.
At base, restorative justice goes against important norms of the criminal justice system that are worth defending – norms that protect defendants’ rights, and help to make the system objective and fair.
Of course, the criminal justice system is far from being a temple of universal reason and justice. It developed historically in part to protect established interests of class, property and power. The principle of formal equality before the law, which meant that the bundle of possessions owned by a pauper was protected in the same way as the factories of an industrialist, masked relationships of real inequality.
But restorative justice is a step backwards even from this. It introduces emotion and arbitrariness into what should be a clinical and objective procedure. In so doing, it reneges on the aspiration for universal justice, and removes procedures that ensure formal equality, if only within the limited terms of the law.
The consultation document says that the aim is to put ‘victims’ needs’ at the centre of justice. This means giving victims a say in the punishment that the offenders should have to carry out, perhaps paying a certain amount of money, or taking part in a particular ‘local reparative project’ such as cleaning graffiti. Two identical individuals who committed exactly the same crime could end up with different punishments, simply because their victims felt differently about the incident.
The focus of restorative justice is on making amends to the victim and the community – to ‘repair relationships and trust that have been broken by the crime’. One of the reasons for bringing an offender together with the victim, says Blunkett, is to provide the victim with an explanation for the crime, and enable them to ‘move on and carry on with their lives’ (2).
This redefines criminal law, which is founded on the idea of society as a whole calling an individual to account for their actions. Criminal cases are not brought by the victim; the victim is called only as a witness for the prosecution. It is precisely because the defendant has transgressed society’s norms – committed a ‘crime’ – that they can be called up by a court of law.
Committing a crime is different to wronging or hurting another individual: all of us commit wrongs, and we generally make amends for them by apologising or making up for it in some way. A crime is dealt with by the state on behalf of society.
Putting sentencing decisions into the hands of the citizens affected by an incident sounds very democratic. But it essentially means encouraging individuals to participate in an emotional, and purely personal, way. The tone here is therapeutic – the consultation document talks of the victims’ psychological ‘needs’, and their need to ‘recover’ and ‘heal’. What a victim wants, the document suggests, is to feel better about the incident, no longer to feel angry or scared.
This is a degraded form of participation. It stands in marked contrast to the role played by members of a jury, who make a judgement on behalf of society, on the basis of a rational evaluation of the evidence. Jury members are not trying to get revenge for something that happened to them – they are trying to ensure that justice is done. It is telling that the same Criminal Justice Bill that is purportedly empowering victims to express their emotions in restorative justice is also restricting the role of juries in cases that are seen as ‘too complicated’.
Restorative justice means reverting back to some aspects of tribal law, with all its irrationality and arbitrariness. As one anthropologist explained, the aim of tribal law is to ‘repair strained relations’, to restore the balance in the community, rather than to punish a crime (3). In some cases, the family of a murdered man can decide whether his murderer lives or dies, depending on what is necessary to satisfy them. People caught stealing may have to pay back those from whom they stole – or endure vengeful punishments.
Restorative justice takes a cavalier approach to dealing with defendants. There is some indifference as to whether the individual is guilty or not – Blunkett claimed that the scheme could deliver a ‘faster, more cost-effective justice’, as if the only thing that mattered was getting people through the system.
The consultation document recommends restorative justice as a ‘diversion from prosecution’, meaning that more people will be undergoing punishment without ever seeing the inside of a court. There is an obvious risk here of encouraging individuals to plead guilty to crimes they didn’t commit – if this just means saying sorry and doing a few hours of community service, rather than enduring a lengthy trial and risking imprisonment.
Defendants are discussed more as naughty children than as individuals who are responsible for their actions. One of the aims of restorative justice is to make offenders ‘face up to what they’ve done’, to confront them with the results of their crime. So as well as coming face-to-face with their victim and hearing of the harm that their action has caused, offenders who committed assault, for example, may be taken to a hospital and shown people with head injuries. ‘Look at what you’ve done!’, a parent might exclaim to a child, showing him his crying sister or the broken vase.
But the whole premise of the criminal justice system is that adults are aware of the consequences of their actions. They know that hitting somebody with a brick will cause them physical and emotional harm; if they did not, then they couldn’t very well be punished for it. To have a system of punishment that aims to ‘teach responsibility’ turns things on their head.
The consultation document insists that punishment should be ‘visible’ – that people should be seen around the community cleaning up litter, so that justice can be seen to be done. But while it is important that trials occur in the full glare of public opinion, making an exhibition out of punishment looks like a return to the humiliations of the stocks and the chain gangs. This is degrading, both for the individual concerned and for the rest of society.
Restorative justice has little sense of the autonomy of the offender, the victim or the community. It involves the state becoming involved in something like group therapy sessions. The consultation document suggests the use of ‘restorative conferencing’, when ‘victims, offenders, their supporters and other citizens come together to deal with the aftermath of a crime’. Restorative conferencing, it says, is ‘local people working together, facilitated by the state, to solve local problems’. The criminal justice system here is presented as simply a structure that brings those affected by the crime to sort out an effective solution.
The policy means engaging victims at their most emotional and vulnerable, trying to understand and compensate for their personal fears and sense of hurt. Not all victims would welcome this intrusion – and may even find that the focus on the damage caused by the crime makes it more difficult to get on with their lives.
And it means not just punishing offenders, but telling them how they should feel and express remorse. Rather than considering his actions in a private reckoning, an offender is encouraged to go through expressive rituals saying how sorry he is, or explaining what was going through his head at the time of the offence. So an offender is judged, not only in a dispassionate way for what he has done, but in an emotional way for how he feels.
Whatever inadequacies the criminal justice system has at present, these will not be improved by reaching for restorative justice. Blunkett’s topsy-turvy world takes emotion into the courtroom and the courtroom into the home. It teaches people responsibility while punishing them for a crime. And it brings back tribal justice and the chain gang.
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