Restorative justice with serious crimes

Based on Lode Walgrave (2008), Restorative Justice, Self-

interest and Responsible Citizenship, Cullompton (UK): Willan Publishing

Introduction

RJ is implemented mostly for benign offences

1) serious crimes, more than other, must be responded by a punitive sanction

2) most rj processes only deal with the “private” dimension of the crime

Experience and research do not exclude RJ for serious offenders Rj meetings can happen after serious crimes Victims are better off Better results regarding reoffending

Why not for serious cases? (1)

1. Ineffective to influence offenders?2. Retribution?- From vengeful emotions to retributivist theoriesBut emotions are faded away and only public dimension

of offence is dealt withPublic dimension is important, which does not include

the necessity for punishment- A moral obligation?Norm transgression must be censured (but not

necessarily through infliction of pain)An intuitive moral balance must be restored (which can

be done by seeing RJ as inversed constructive retributivism)

Why not for serious cases?(2)

3. Victims’ need for punishment?Most research and experience show great willingness to participate

in RJ programmesVictims want- public recognition that injustice has been done to them, - the opportunity to express fully their emotions about that- reasonable emotional, social and material reparation.4. Some offenders are too dangerousRJ philosophy can be limited by concern for securityIncapacitation or punishment?The difficulty with incapacitationTowards a kind of “actuarial” punishment?

Provisional conclusion

There is no principled reason to reject the applicability of RJ processes in cases of serious crime.

On the contrary, the more serious the crime, the more need there is for thorough reparation

Concern for security can overrule the priority for restorative responses

RJ for serious juvenile crimesTwo examples New Zealand (CYPFA 1989)

Police- cautioning

- FGC (YJC) -Execution

-Youth court

- Youth Court – FGC – Youth Court

Youth Court cannot impose any measure or sanction without FGC being tried.

All offences (except manslaughter and murder) including multirecidivists

Results

1987 1990 2001

Arrests 8000 2000 3000

Court (N/10.000) 400 200 240

Convictions 1318 269 234

Custody (adults court) 295 104 73

Family Group Conferences spread over the world as “restorative conferences”, “diversionary conferences” and other…

Mostly as diversion, but not in NZ In NZ- Located in the heart of the procedure- Police presence in proper role of

representative of public order- Lawyers are present

Hergo in Flanders (Belgium)

FGC according to NZ model Intensive research follow up January 2002-

October 2003. Less intensive follow up till December 2005.

Research methods (dossier analysis, questionnaires with facilitators, observation of conferences, structured interviews with participants, open interviews with professionals)

FGC in Belgian procedure?

Referred by court Provisional Order that “potentials of FGC must be

tried out” Outcome is “Declaration of intention” Submitted to court, confirmed by formal judgement Execution begins after judgement New judgement to close dossier

Well accepted and used. Endorsed by court of appeal

Feasible in Belgian context?

Till october 2003 (+ period 2004/2005)- 98 referrals by 9 judges (+ 53 referrals)- 53 conferences for 58 juveniles (+ 39 for 51 juveniles)- Average 16 yrs old, all male, serious offences- Victims in 26 meetings, represented in 10 other (+ 32

and 2 representations)- All end in DI, all confirmed by judgement- Professionals express their contentmentSince then: - More FGC’s, confirmation of potentials - inserted in New Law

Rights respected?

Judicial confirmation Juvenile’s lawyers in all but 3 conferences.

They find that they can play their role Victims’ lawyers attended seldomly. Victims did not feel this as a disadvantage Participants felt that their rights were

respected (one exception) Participants feel high rates of “procedural

justice” (Tyler)

Positive answers on Procedural justice questions (%)

Vict. Off.

N=39 N=48

Did you find the FGC honest? 77 83

Did you understand what happened? 95 90

Could you say what you had to say? 95 69

Have you been treated with respect? 100 91

Satisfaction?

Vast majority expresses satisfaction with information received, with support during the process and found that the FGC responded to their needs.

85% of juveniles, 89% of victims and 89% of parents would participate again.

77% of juveniles and 66% of victims think that FGC should be offered in all cases.11 of the 17 interviewed non-participating victims think that as well.

One victim and one offender expressed overall very negative feelings (not the same session)

Positive answers about Declaration of Intention (DI)(%)

Off. Vict. Par.

(N=48) (N=39) (N= 44)

Did you understand the DI? 97 97 97Did you agree? 89 78 90Do you find it just? 75 75 80Is it hard for you? 37Has the harm been repaired? 55Are you satisfied with the DI? 77 84

Reoffending?

No adequate control group Comparing conferenced juveniles with those refused

for conferencing Registered reoffending 6 trough 18 months after

conference Conferenced: 22% new registrations

Refused: 58% new registrations But no conclusion possible In general not be naive.

CONCLUSION

the reach of restorative justice goes beyond benign youth offending.

Its main advantage is the confronting and responsibilizing approach, in a secure, respectful and supportive climate.

More experience is needed. Potentials are partly dependent on local characteristics

Some general conclusions

Seriousness of crime is not a reason to exclude victims and offenders from restorative potentials.

Threat to public safety is a reason to limit the restorative caliber of an intervention .

There is a tendency to overestimate the threat to public safety. Too many young people are locked in too long; too many victims and offenders are excluded from rj potentials.

Also in very serious crimes, rj processes can yield constructive outcomes which are beneficial for the victims, peacemaking in community and reintegrative for the offender.

Not all restorative justice processes have the same potentials to deal with serious offenders. The more serious the offence, the more there is need for a clear community and state involvement.