«Restorative Justice Empowerment* Charles Barton** *Acknowledgements Versions of this paper have previously appeared in print as detailed below. The ...»
Restorative Justice Empowerment*
Versions of this paper have previously appeared in print as detailed below. The author
acknowledges and thanks the relevant Editors for their permission to re-produce the article on
the VOMA Web-Page:
1. The Australian Journal of Professional and Applied Ethics, vol. 2, no. 2, 2000.
2. Just Peace?: Peace Making and Peace Building for the New Millennium. (Proceedings
of a Conference held 24 – 28 April 2000, at Massey University, Albany, Aotearoa/New Zealand) Edited by Warwick Tie. Massey University Centre for Justice and Peace Development. (pp. 50 – 62).
**Biographical Note Charles Barton is a professional philosopher and conflict resolution specialist who lectures and trains in Law and Morality, Professional and Applied Ethics, and Restorative Justice. He is a Lecturer in the School of Policing Studies, and a Research Fellow in the ARC Special Research Centre for Applied Philosophy and Public Ethics, at Charles Sturt University, Australia. He is also a former Research Fellow of Massey University (NZ), and a current Visiting Fellow in the Key Centre in Ethics, Law, Justice and Governance at Griffith University, Queensland, Australia, and a Visiting Professor at the University of Colorado at Boulder, USA.
Charles Barton is the developer and author of the Empowerment Model of Restorative Justice, which is based on a unified and comprehensive philosophy and theory of conflict resolution that makes Empowerment the central and most critical feature of restorative justice responses and interventions. He may be contacted at the above institutions or by electronic mail: firstname.lastname@example.org, or email@example.com.
Restorative Justice Empowerment According to traditional wisdom, determining the just and fair (or the best and most appropriate) response to a criminal act is best left to trained and specialised criminal justice professionals. Restorative justice philosophy holds the opposite view, that such decisions are best made by the principal parties (victim and offender) themselves, and preferably in dialogue with one another in the presence of their respective communities of care and support (typically family and friends). Thus, the fundamental difference between conventional and restorative justice can be most usefully articulated by reference to this one concept: empowerment. That is, empowerment of the key stakeholders in the responses of the criminal justice system to wrongful and criminal acts so that the matter is resolved in ways that are meaningful and right for them.1 This is a complex idea. For one thing, empowerment of this sort cannot be total empowerment where anything goes. Rather, it must be circumscribed, or bounded. The relevant restorative processes and outcomes must be consistent with society’s shared and most important standards, norms, and values, not to mention the law. For another, restorative justice philosophy emphasises individual and community healing and the creation and re-establishment of social harmony and peace through the criminal justice response to the offence. Thus, the restorative justice empowerment of the primary stakeholders in the resolution of the dispute is, not only bounded, but also directed. The primary purpose of this paper is to articulate the meaning and application of this complex but critical idea in restorative justice. I start by contextualising the idea of directed empowerment as it presents itself in the restorative justice literature and in practice.
Three elements are fundamental to any restorative justice definition and practice. First, crime is viewed primarily as a conflict between individuals that results in injuries to victims, communities and the offenders themselves, and only secondarily as a violation against the state. Second, the aim of the criminal justice process should be to create peace in communities by reconciling the parties and repairing the injuries caused by the dispute. Third, the criminal justice process should facilitate active participation by victims, offenders, and their communities in order to find solutions to the conflict.2 There is an unstated assumption behind this description, that restorative justice processes rely critically for their effectiveness on the empowerment of the primary stakeholders in the dispute. Judge FWM McElrea’s account of restorative justice makes this critical component explicit, as well as emphasises the directed nature of restorative justice empowerment.
Thus we come at once to the heart of restorative justice, which I define as involving three radical changes
to the mainstream western model of justice:
1) The transfer of power (principally the courts’ power) from the State to the community;
2) The use of FGC [Family Group Conferences] or some other mechanism to produce a negotiated community response; and
3) The involvement of victims as key participants, thereby enabling a healing process to occur.3 While a necessity, the directed nature of restorative justice empowerment presents conceptual and practical challenges of its own.4 Stated briefly, this ideologically driven expectation and commitment to secure “restorative” solutions, and the corresponding working Galaway and Hudson 1996, p. 2.
McElrea 1996, p. 109.
The ideological and practical commitment towards healing and reconcilitation also comes through strongly in the restorative justice literature in the form of denunciations of punitiveness and retribution and corresponding exhaltations of restoration and reconciliation in response to wrongful and criminal acts. While such a conceptual framework in terms of the (false) retributive/restorative dichotomy is misleading (Barton 1999, 2000a,b), it highlights once again the emphasis placed on restorative justice interventions being helpful and constructive, as opposed to being counter-productive and destructive.
definition of success in terms of “restorative” outcomes, presents restorative justice practitioners with the unenviable task of securing restorative outcomes without manipulation or imposition of a restorative agenda on the parties. The parties often arrive at conciliatory agreements and outcomes without difficulty, but just as often they do not. Forgiveness and reconciliation are the last things on an angry victim’s mind, and the self-protective rationalisations of defensive, disengaged offenders are no lesser obstacles. Restorative justice ideology is one thing – reality often proves to be another. Restorative justice interventions and meetings are often messy, and the road to healing and reconciliation can be rocky, and the path to them, far from being obvious, sometimes may not even be there.
The challenge for the practitioner is to overcome such obstacles by taking the parties through an empowering process of consultation, discussion, venting, and negotiation that will bring them to the point where reconciliation and healing, if these are at all possible in the circumstances, can easily and naturally happen. Trying to manipulate or force participants into “restorative” outcomes and agreements, not only tends to be counter-productive, but violates people’s autonomy and right to think and decide for themselves and hold onto their emotions without fear of disapproval or pressure from outside from people with more power. Thus, in a relevant and very important sense of the word, good restorative justice practice, especially in the more complex and difficult cases, is an art. But, as much as it is an art, it is not a mystery. It
depends critically on two major factors:
1. Development and competent application in criminal justice contexts of appropriate skills and techniques of alternative conflict and dispute resolution.
2. Working knowledge of a sound restorative justice philosophy and of a conceptual framework that operationalises and translates that philosophy into practice.
The former of these falls outside the scope of this paper. My purpose here is to provide the reader with a conceptual framework for the latter by articulating in greater detail the most fundamental concepts and distinctions that give effect to the idea of directed empowerment in
restorative justice processes and meetings. Taken in turn, these concepts and distinctions are:
1. Deep versus surface approaches to problem solving
2. Moral versus legalistic problem framing
3. Primary versus secondary stakeholders
4. Individual and community empowerment
5. The principle of equal justice
6. The meaning and definition of success in restorative justice best practice
1. Deep and surface approaches to resolving problems The deep versus surface construct signifies fundamental philosophical and ideological differences that are readily recognisable in practice. Within each and every restorative justice program managers and practitioners have a critical choice between taking a deep approach or a surface approach to the way their processes and meetings are being run. A surface approach is characterised by the focus being on reaching tangible agreements and certain fairly specific material outcomes, such as restitution and compensation to victims, keeping the case out of court, and saving the offender from a criminal conviction and jail.
While such goals and outcomes are important, they do not exhaust, let alone do justice to, the idea of restorative justice in terms of reconciliation and healing. Best practice in restorative justice goes beyond the surface approach, beyond the kind of material externalities mentioned.
The fundamental aim and purpose in restorative justice is to bring about closure and healing of the effects of crime, especially the emotional harm, disconnectedness and social isolation experienced by those most seriously affected by the wrongdoing. Invariably, this includes not only the victim and those close to them, but also the offender and their family and friends.
Therefore, consistent with restorative justice ideology, best practice is strongly directed towards repairing the damage to individual lives and social bonds by reconciling the parties in conflict and securing a sense of closure for them through the intervention.
Such substantive aims and outcomes (substantive justice) require that practitioners take a deep approach in the way they respond to the occasioning criminal wrong, its causes, and its consequences. In terms of the process employed (procedural justice) the deep approach means that substantive resolutions and outcomes are achieved through processes that involve all the relevant stakeholders, that victims, for example, are not left out. It also means that all participants are empowered and encouraged to speak their minds truthfully and without fear.
Finally, it means that participants on both sides are helped and encouraged through appropriate preparation and the skillful use of prompts in their meeting to talk, not only about facts and figures, but also about their emotional experiences of disappointment, anger, devastation, and fear. Without dealing with these emotional dimensions of the wrongdoing, closure, reconciliation, and the satisfaction that the matter has been properly resolved and put to rest are unlikely to be achieved.
Indeed, unresolved emotional and moral psychological issues hinder, not only healing and lasting reconciliation between the parties, but also material agreements.5 This reason, however, weighty as it is, is not the main argument supporting the deep approach. Criminal justice interventions that make the most difference overall to the relevant stakeholders are not only fair and just to the offender in the traditional sense, and they are not merely compensating the victim in material terms, but are also, and principally, restorative in the deeper sense just explained.
Thus, a deep approach in restorative justice is not a boon, but essential. In turn, and in practice, the deep approach requires a certain kind of focus in the way the criminal justice problem at hand is framed and approached – which leads directly to the next point of discussion.
2. Moral versus legalistic approaches to framing problems
Program managers and Facilitators can choose to treat their cases as being primarily legal matters, or they can treat them as being primarily moral matters. In the former instance the problem or incident will be seen as a case where the law has been broken and the main purpose of the intervention is to determine the most appropriate response to the offence which is understood and treated primarily as a violation of the law. This kind of conceptualisation or interpretation of the offence leads more or less automatically to a surface approach in terms of both the process and the kind of resolution sought. This is because in legal framing the focus is on the law and formal requirements in terms of achieving material agreements and resolutions, rather than the moral violation of particular individuals and communities whose lives have been wrongfully disrupted by the wrongdoer and who, as a consequence, are likely to feel deeply violated, upset and angry. Such social and moral psychological considerations, and participants’ corresponding needs in terms of closure, conciliation, and emotional healing, are more naturally the domains of moral problem framing.
Retzinger and Scheff 1996.