Samenvatting Restorative Justice

1


RESTORATIVE JUSTICE SAMENVATTING
WEEK 1: INTRODUCING AND DISCOVERING RESTORATIVE JUSTICE

RESEARCH ON VICTIMS AND SOCIETY

 Narrative victimology
 Cultural victimology
 Victims in justice processes/ ethics of victimology
 Political violence, terrorism and international crimes
 Connection between academia and practice: past history with victim support

RESERACH ON HUMAN RESPONSES TO INJUSTICE

 Participant perspectives on restorative justice
 Governance and organisation of restorative justice
 Culture and restorative justice

INTRODUCING RJ

 What, if anything, do you know about restorative justice?
o What does restorative justice mean for you?
o What makes it interesting or relevant?
o Is restorative justice available in your country?
 Think about the last time you became really angry
o What did you want or need?
o To what extent do you think the criminal justice system will meet your needs?
 What, if anything, do you know about restorative justice?
o What do you think is central to the idea of restorative justice?
o What do you expect from this course on RJ?
o What subjects would you like to learn about?
o Would you consider participating
 …as a victim?
 …as an offender?

A WIDELY ACCEPTED DEFINITION

 ‘Restorative justice is a problem-solving approach to crime which involves the parties
themselves, and the community generally, in an active relationship with statutory agencies. It is
not a particular practice, but a set of principles which may orientate the general practice of any
agency or group in relation to crime.’
 ‘Restorative justice is a process, whereby parties with a stake in a specific offence collectively
resolve how to deal with the aftermath of the offence and its implication for the future’
 ‘Restorative justice is every action that is primarily oriented toward doing justice by repairing
the harm that has been caused by a crime’

,2

DIFFERENT DEFINITIONS

 Centred on three basic conceptions (Johnstone and Van Ness, 2007):
o Encounter conception →process
o Reparative conception → outcome
o Transformation conception → transform our understanding of aspects of social life and
ourselves
 Purist and maximalist interpretations (Walgrave)

4 FOUNDING FATHERS

 Louk Hulsman
o ‘Civilizing criminal justice’
 Two main points of criticism of criminal justice
- Focus on punishment in criminal justice
 Prison is an expensive way of making people worse
 The process is the punishment: stigmatisation
 Search for more ‘constructive’ alternatives
- The social construction of crime: Hulsman denies that crime is an
‘ontological’ category of human behaviour
 Abolitionism
- Connected to Elias – the civilizing process (making the reaction to crime
more civilized
- Civilization of criminal justice (first meaning)
 The abolition of slavery
 The abolition of the death penalty
 The abolition of prison
 The abolition of criminal justice
- Civilization of criminal justice (second meaning)
 Removal of barriers to civil (tort) law
o The social construction of crime – Hulsman emphasizes the social construction of crime
 Changing perspectives on crime over time: see homosexuality, domestic violence
or paedophilia
 Uneven criminalisation of vice: see changing and varied perspectives on drugs,
gambling, prostitution
 Different treatment of white-collar crime: large damage of white collar crime, but
is more likely to be treated as a tort
 Certain non-criminal acts are far more damaging than criminal acts: argument
from “zemiology”
 According to Hulsmna, this means that crime is an inconsistent and uneven
category  no reason to seperatie it – in law – from other harmful behaviour
o Restorative justice
 Substantial grey area in what is and what is not considered to be crime
 This applies even more so to the use and disuse of involving criminal justice: see
also the notion of criminal law as ‘ultima ratio’
 Approaches that are successful in dealing with (non-criminal) conflicts and
wrongdoing, can also be useful in the reaction to crime
 Nils Christie: ‘Conflicts as Property’
o Who “owns” the conflict?
 From the past to the present reaction to crime
- In the past: Germanic/ Scandinavian systems of Wergeld a reaction to
crime that involved a variety of modalities of compensation and revenge
between those directly involved
- Today: “retributive justice”: reaction to crime a matter for the state versus
the suspect/ offender

,3




o Retrieving conflicts
 Crime is a conflict between people rather than a breach of an abstract order of
law
- “Conflict” rather than “crime”
- Conflicts are people’s valuable possessions, from which they may learn,
grow etc.
 Important of active involvement of:
- Victim and offender
- Community
- Laypersons
 Reduction of role played by
- Professionals, prominently lawyers, but also social workers, psychologists
etc.
- The state
- Preference for informal means of conflict resolution
 Inspired by ADR mechanisms in Arusha, Tanzania
o Critique of the state and the state’s actors
 In Christie’s view state involvement is problematic
- State’s retributive focus has obscured people’s natural restorative
tendencies
- Retributive punishment (as a part of the state’s monopoly on violence) as
a tool to exert the state’s power
- Points to a different time/ place without retributive punishment
o Restorative justice
 Christie emphasizes the role of the people with the greatest stake in an offence in
its resolution
 Conflict and crime can be extremely damaging, but can –in cases- offer the
potential for learning and insight
 Criminal justice is influenced by power – of the state as well as powerful interests
within the states- conflict can challenge power
 Howard Zehr: ‘Changing Lenses’
o How we look at crime
o How we react to crime
o 3 problems with retributive justice
 The ‘blame game’:
- Criminal justice seems focus on establishing guilt and assigning blame for
what happened
- The massive stigma of being called a criminal- associated with this blame
game, means that offenders have a very strong incentive to deny their
involvement
 The ‘pain game’:
- After blame comes the punishment: the rationalised infliction of pain on
the offender
- Leads to further damage and hardship, but also reinforces the legitimacy
of using violence as a means to an end; similar to the reason why the
crime was committed in the first place
 The focus on the blame game and the pain game obscures meeting the needs of
those most directly harmed
o Contrast between retributive and restorative justice
 The focus on the blame and pain games means that insufficient or even no
attention is paid to those suffering the most from the crime: its victims
- This not only fails to meet their needs, but adds to their injury the focus on
the blame and the pain game lead to ‘secondary victimisation’

, 4

 Therefore Zehr proposes restorative justice as an alternative paradigm, that starts
from the needs of the victims for repairs, and foregoes the blame and pain games




 John Braithwaite: ‘A better future’
o What shouldn’t we take for granted?
o Interacting with the offender in the reaction to crime
 Criminal justice leads to (permanent) stigmatisation
- Destructive shaming
- Rejection of the offender as a person, rather than the offender’s actions
- The offender is removed (often literally) from society
 Talking about the offender, rather than with the offender
 No possibility for the offender to take responsibility and make amends
 Instead: positive, reintegrative shaming
- Hate the sin, not the sinner
- Communication to help the offender see the errors of his ways
- Opportunities for the offender to make amends
 Reintegrative shaming experiments (RISE)
- Again: informal means of conflict resolution
- Inspired by original inhabitants of Australia
o Restorative justice
 Braithwaite’s critique of the impact of the criminal trial and punishment on the
offender:
- The trial and punishment mostly have only adverse effects on the extent to
which the offender experiences remorse
 His approach offers young offenders the opportunity to escape (unwarranted)
stigmatization that will carry over into their adult life
o Hegemonic notions?
 Braithwaite emphasizes the hegemonic spread of the following ideas
- The idea of crime itself and that criminal law should be codified;
- The idea that crimes are committed against the state;
- Central state control of criminal justice;
- The idea of having a professionalized police who are granted a monopoly
over the use of force in domestic conflicts;
- The idea of moving away from compensation as the dominant way of
dealing with crime by building a state prisons system to systematically
segregate the good from the bad;
- The idea that fundamental human rights should be protected during the
criminal process.
o Possibility to question these assumptions
 Braithwaite emphasizes:
- The cultural situatedness of these assumptions
- The genealogical/ historical development of these assumptions
- The problematic consequences of these notions
 Key message: do not take them for granted
- Against the self-evidence of hegemonic notions
 Founding fathers primarily target crime and criminal justice
o But each also allude to the transformation conception
o A different way of thinking about people
 For instance: a rejection of the assumption that we live in a hierarchical order with
other people