The Third Millennium - Restorative Justice or More Crime
and Prisons?
Father Jim Consedine, NationalCo-Ordinator, Restorative Justice Network & Prison Chaplain
E
nga iwi, tena koutou. Nga mihi nui ki a koutou no reira tena koutou tena koutou
tena koutou katoa.
Introduction
In
1823 my great great grandfather, Thomas Sweeney of Tipperary, Ireland, was
sentenced to death for arson, by the English colonising power.
He, along with two friends, had burnt down a manor house in their
district. The actual charge under
the Whiteboy Act was ‘for felonious assault on a house, between the hours of
sunrise and sunset and. with having set said house on fire.’
In the same week he was sentenced, six others were sentenced to hang by
the same court. Others received
transportation for life, some were imprisoned and several, including some women
who stole food, were ordered to be ‘whipped through the town’.
Later that year, Thomas’s sentence was commuted to transportation for
life and he was shipped to New South Wales in Australia.
He was eventually pardoned after 12 years of hard labour.
I
mention this because he represents a harsh chapter of Irish history and partly
because he represents the oppression of the poor by a revengeful retributive
criminal justice system. While
public whippings, transportation and execution may have now gone from most
western jurisdictions, the philosophy of punishment and vengeance upon which
they were based is as alive as ever. The cry for vengeance is still heard the
length and breadth of this country, particularly when people’s fears have been
challenged by a particularly appalling crime.
In
following a retributive model of criminal justice based primarily on punishment
and vengeance, the western world in the past two centuries has created a monster
whose pernicious effects are impacting everywhere.
As social decay has taken on a more marked appearance in recent years and
the number of poor has grown, imprisonment and harsher penalties have taken on a
fresh urgency in the minds of politicians and with parts of the wider public. Yet
of all social policies, surely this is the most failed. Never has any social system been so expensive and failed so
consistently as has the system of criminal justice and imprisonment we adhere to
so slavishly. Where has it ever worked? Never
has any tax dollar been less scrutinised for its fruitfulness than the criminal
justice dollar.
With
the advent of the global economy and the developing of private prisons, the
prison - industrial complex has emerged worldwide as a major development in the
past 20 years. This is a frightening development because it constitutes a set of
bureaucratic economic interests that encourages increased spending on
imprisonment, regardless of actual need. Crime rates may often be falling and
positive alternatives available, but prison construction continues unabated. The
prison industrial complex is built on a lure of big money and guaranteed jobs.
Its raw material is the same everywhere: the poor, homeless, the mentally ill,
drug addicts, alcoholics and a wide range of socially dysfunctional and
sometimes violent people.
The
problem of how to deal with crime in our modern age, is one that plagues nations
throughout the world. People
genuinely do get worried about their safety and quickly adopt the suggestion
that life now is less safe than before and we need to do something about it.
The sixty four million dollar question of course is, what?
That current measures regarding law and order are failing dismally, seems
to be implicit in the assessment that most make of the current state of things.
And yet, incredibly, the public often seems to want more of the very
policies that are failing them now, and have failed them so dismally in the
past.
In
no other field of human endeavour do we apply this type of warped thinking.
If medicine prescribed for a particular sickness, say meningitis, failed
and in fact spread that disease further, we’d be up in arms, united in a
demand that something that worked be provided.
Or if the All Black coach went through successive winters of losing every
test match, we’d have his head on a block and be demanding, a new coach with
fresh ideas who could direct us onto a successful path.
The
Failure of Prisons
Why
don’t we do the same with crime and criminal behaviour?
We know that the current system, focused as it is primarily on
punishment, doesn’t work. It has
been a dismal failure for more than 100 years.
Yet sentences keep getting longer and more and more people keep getting
sent to jail. We also know that
prisons are called “universities of crime” for good reason.
They are just that. Yet they
keep expanding. We have doubled our
prison population in just 12 years. and plans are afoot to add that number again
in another seven years . By the year 2010 it is estimated that -we will have
8000 in prison, making the prisons/industrial complex one of the biggest
industries in New Zealand. We
should be ashamed of ourselves. The
type of thinking that allows this to happen is warped yet few are prepared to
face that fact. The truth is that
imprisonment has proved to be a dismal failure.
They
fail for several reasons. One is
that people are placed in an either/or situation from the moment they are
arrested. Guilty or not.
There is little flexibility. Yet
we show flexibility in other areas of human offending.
If a child is caught misbehaving, discussion follows as to the
circumstances, the degree of wilfulness, the options for repairing the damage
done by the bad behaviour. These
will almost inevitably include the opportunity for apology and reparation.
The situation takes into account the social setting of the child and
recognises that regardless of what has happened, the child remains a member of
that family and that community and will continue to live there.
So we don’t flog them or chop off their arms.
We don’t lock them in their bedrooms for a month, and we don’t put
them in with a whole lot of other naughty children.
We get them to face the consequences and start repairing the damage they
have done. We may also impose some
sanction if this seems appropriate. This is a philosophy of restorative justice
applied right through schools and the Youth Justice system.
Generally speaking it works and people grow in responsibility as a
result. Of course it doesn’t work
all the time. Some times it has to
be tried many times. But it seeks
to repair the damage done to victims and the wider community, and not just to
punish.
But
we don’t apply that philosophy to the adult world. There we give offenders little chance of apology or the
opportunity to repair the damage done. We
send them away to live in little concrete rooms for months and years on end, and
we lock them up with lots of other similar people who simply re-enforce all
their bad traits. It is an
absolutely crazy system that creates more problems than it solves as every
statistic shows.
Prisons are the
dinosaurs of the modern age. In no
other area of human life and development do we allow 19th century
philosophy and practice to dominate. In
health, in education, in accounting and banking, in sport, in family life, in
business management, evolving philosophies have seen changing patterns of social
organisation more in keeping with modern thought.
But not so when it comes to prisons.
There we remain stuck in the 19th century.
And the results show it.
Prisons are a
proven failure all over the world on practically every front.
They fail to rehabilitate. In
fact, eighty percent of inmates re-offend again within a short time.
At $50,000 per head, they are extremely expensive.
As a British Government white paper said in 1990, ‘they are an
expensive way of making bad people worse’.
·
They smash family life and
leave children minus a parent.
·
They help create more crime by
bonding similarly-minded, rejected members of society.
·
They up-skill their graduates
in further anti-social techniques, which makes prisons the most successful
tertiary institutions in the country.
·
They breed violence and are
the principal recruitment locations for gangs.
·
They guarantee continued high
rates of re-offending.
·
They punish the innocent,
especially partners and children
·
They fail in practically every
positive human indicator scale.
As a 1993
Time magazine front cover boldly said, “Each year we take large numbers of
hopeless people and turn them into bitter hopeless people”.
Yet we keep building
more prisons. Nowhere in the social
system is an area less examined for productivity and positive results than in
the area of prisons. Nowhere is
tax-payer money more wasted and less scrutinised than that spent on prisons.
In terms of community usefulness, they are a systemic failure.
There are unquestionably a ‘dangerous few’ who need to be kept out of
circulation for the safety of both themselves and the community.
These may well number a few hundred at any given time.
But they should be kept in humane containment and encouraged to make
constructive use of their time. Otherwise,
imprisonment should be the very last line of resort in the sentencing process.
Why
So Warped?
There are several
important reasons why this state of affairs continues, and I will focus on the
two most important. The first is that in, punishing people, we attempt to
appease the fearful side of our human nature.
The second is that vested interests keep this very unsuccessful system
going. It is a multi-billion dollar
business, with huge profits to be made by vested interest groups.
Let us examine each in turn
Recently, I was
robbed, by a street kid, who pinched my wallet.
When I spun round and realised what had happened, I was furious.
If I could have got hold of him, I probably would have tried to string
him up from the nearest lamp post. An
hour later after a cup of coffee, I was much calmer and ready to look at other
options, including the notion that he probably needed my money more than I did.
I would still like to have met him.
But my initial anger was real and fierce.
That is a very
normal reaction to crime. Anger,
resentment, fear, even bitterness. The
dark side of our human nature cries out for vengeance and a chance to hit back.
We remain frightened the same thing might happen again.
I remember after the first time I was burgled during the night, I kept
waking up at nights for weeks after, wondering whether there was someone in my
room. It took some months for
peaceful sleep to return. The
fearful side of my nature remained close to the surface.
That’s the side the ‘longer sentences’ and ‘hang them’ brigade
appeal to. It is also a side we
need to keep in check. Unhindered
it can produce unwarranted fearfulness, suspicion, even paranoia.
When it comes to
vested interests, there are many groups who have a self-interest in the
maintenance of the status quo when it comes to prisons. In no particular order I will nominate ten such groups.
Let me say clearly and emphatically that within each group there is a
minority who hold opposing views and are much more open and positive in
approach. The vast majority of prison officers, judges, police and criminal
lawyers do not want to know about alternatives.
The culture within each of these groupings often seems to preclude much
genuine dialogue and discussion about the outcomes of the very work they are
employed in doing. As I say, there
are exceptions.
Private
prison contractors and the new breed of the corporate elite running prisons also
have a vested interest in their maintenance, indeed their expansion.
That is the way the corporate world runs. For them high profits for
private prison operators on the one hand, and an ideology of market efficiency
run by the corporate elite on the other, replace social justice and the
development of the common good as the guiding principles and primary motivation.
The media have a
vested interest. Despite millions
of words of rhetoric to the contrary, the media generally and the tabloid media
in particular keep alive all the old stereotypes by the way they report crime,
court cases and criminal offending, often out of all proportion to other news.
Where would the tabloids be without a regular front page crime story? -
and television ! One night a while
back, TV One news ran nine out of its first ten stories on issues relating to
crime, here and overseas.
The construction
and ancillary industries have a vested interest in an expanding prison network
and are happy to see a high crime-rate continue.
Warehousing the poor in prisons is now a world wide trend in many
industrialized countries with the United States and Britain leading the way.
With huge profits being made through constructing, expanding and
providing for new prisons and old, the corporate culture has readily taken up
the challenge that crime offers to make a profit out of human misery.
While private prisons are the most lucrative, state controlled ones are
also high on the corporate agenda providing guaranteed payment and regular
income.
Many academics in
the fields of law, criminology and sociology have a vested interest. Too many
sit in ivory towers teaching outmoded theories, denying students opportunities
to develop creative responses to the social problems caused by crime.
Finally, strange as it may seem, politicians also have a vested interest
in not seeing creative options to crime and prisons researched, trialed and
reviewed. Generally they believe it
is perceived to be soft to be advocating alternatives.
The reality is the exact opposite. Most
alternative programmes are a lot tougher. They demand accountability, with
offenders having to take responsibility for what they have done.
Most
politicians steadfastly refuse to face the really tough questions that law and
order issues raise nowadays. In
particular they refuse to see the overwhelming evidence of how counter-
productive imprisonment has been. They
have settled for perpetuating the myth that longer, tougher punishment will
somehow make inmates change their ways. It
never has. It never will.
Restorative Justice - How does it work?
Restorative
justice is a philosophy that embraces a wide range of human emotions including
healing, mediation, compassion, forgiveness, mercy and reconciliation, as well
as sanction when appropriate. It
also recognises a world view that says we are all interconnected and that what
we do (be it for good or evil) impacts on others.
Restorative justice offers the process whereby those affected by criminal
behaviour (be they victims, offenders, the families involved or the wider
community,) all need to have a part in resolving the issues which flow from the
offending. This provides a
recognition to a degree at least that all things are interconnected.
Under
restorative justice, victims and offenders assume central roles and the state
takes a back seat. The process does
not focus on vengeance and punishment but seeks to heal both the community and
the individuals involved. This is
done by a process that puts the notion of reparation, in its widest sense, at
the centre. The goal of restorative
justice is to heal the wounds of every person affected by an offence.
It obviously requires the co-operation of all parties.
The offender, to be involved in any useful way, must acknowledge
responsibility for the crime committed and express honest regret.
More than that, the full implications of the offence need to be spelt out
and confronted as the offender deals with the causes of offending, where
possible making restitution, and giving concrete evidence of more appropriate
future behaviour.
The
victims, to become part of restorative justice, examine their feelings and take
advantage of any support network which will facilitate healing.
Victims are helped to see that their own victimisation is only
intensified by feelings of retributive action against the offender.
Where appropriate they become involved in the process of restorative
justice with the offender and the community.
The community’s role is to create the conditions most favourable to the
restoration of both offender and victim. It
aids the healing process by providing mediators, judges and the like.
Provided there is co-operation, the parties reach agreement about
repairing the damage where possible. Obviously
in some cases like murder or rape it is not, although healing, forgiveness and
reconciliation are still possible after a period.
Besides whatever reparation is possible, the offenders may be required to
work in the local community for a set period, perform periodic detention or even
go to prison. The important thing is that no-one gets shut out of the
process.
All
those involved get a chance to put a human face on the crime.
They get a chance to begin a process of healing.
They become empowered again. The
offenders get to take responsibility for their criminal behaviour.
Each of these processes provide an added dividend for family life and the
wider community. There will be less
alienation, stronger bonding among family members, a greater degree of personal
and social empowerment.
It
is important to note that not all victims are going to welcome a community group
conference. Many will be very wary.
This will be true especially for many child and female victims of
violence and/or sexual attacks. At all costs, such conferences must seek to prevent victims
from becoming doubly victimised. At
issue here is the power imbalance between victim and
offender, which should not be under-estimated. Such cases underline the need for skilful, well-trained
facilitators. Note though, that
secondary victims - family and friends - may participate fruitfully in such a
conference without the primary victim’s presence. Given the effect of such crimes and the amount of grief and
pain they cause, it can be argued that community-group conferences are more
needed in these instances than for many other crimes.
By any standards
of human progress, the retributive criminal justice system and its prison
component have been one of the truly great failures of recent times.
In practically every sphere - social, religious, economic - they have
been an abject disaster. There are
many reasons for this, but one stands out.
This failure is principally due to the fact that the primary question
asked ‘how do we punish this offender?’ is the wrong question.
In contrast, restorative justice asks, ‘how do we repair the damage
done by this offending?’ Thus retributive justice and restorative
justice have distinctly different philosophical starting points which produce
quite contrasting results.
This modern system
of restorative justice reflects a philosophy practised by indigenous peoples for
thousands of years. It is not
suggested that we should return to all the actual processes of the past, valid
as many of them may still be. What
is important to recognise is that retributive justice is failing in practically
every way, and in order to build a more positive system of criminal justice
today, the philosophy of these traditional systems should be recovered to
underpin appropriate modern processes.
I wish to make it
quite clear that developing restorative justice processes should not be confused
or equated with the development of a separate Maori justice system, even though
Maori may well be part of restorative justice programmes.
Under Article 2 of the Treaty of Waitangi which speaks of tino
rangitirtitanga, Maori are entitled to develop their own criminal justice
processes to express their law, in the same way that they should be enabled to
decide in other major areas of life. There
has never been “one law for all” in Aotearoa.
There were always two treaty partners, and the treaty recognises Maori
law and Maori law processes.
Maori had
restorative processes in practise for centuries prior to being colonised by the
British in the 19th century. Traditional
Maori law was not an isolated set of rules, but grew out of and was inextricably
linked into the religious and hence everyday framework of Maori life.
Law reflected the relationship of the people to their gods and with their
ancestors. Maori lived with the
law, not under it.
Because
individuals were linked by whakapapa
or genealogy with their whanau or
family and their iwi or tribe, so were their actions the unavoidable
responsibility of the wider group. An
offender could not be isolated as being solely responsible for wrongdoing.
A victim could not be isolated as bearing alone the pain of an offence.
There was collective rather than individual responsibility, a sense of
indirect as well as direct liability.
The
differences between Maori and European law were many and varied.
In two areas there was a fundamental difference in terms of redress. Utu,
or compensation or satisfaction, was an important concept at the very heart
of Maori justice. It found no
comparable expression in English law. And
muru, a formalised concept of compensation often enforced by a raiding
party welcomed by the offender’s family, was a feature central to Maori but
alien to English law. The closest
English law would come to this concept is in court ordered confiscation of an
offender’s property.
Some
processes were carried out on marae
or in meeting houses. Redress
was usually sought for the victims, who, along with their family, were central
to the process. A hearing involving
an acknowledgement of guilt, appropriate apology, speeches which shamed the
defendant and his family, and the decision on compensation and redress.
This would come about after consultation between the parties as to a
suitable way of dealing with the matter, so as to heal any hurts and restore
things to ‘normal’ again. Things
stolen would have to be recovered or compensation paid. Damage done would have to be repaired. This process was followed by reconciliation, and concluded
the essential parts of the hui
or, meeting.
What
then are some real alternatives for our country poised on entry into a new
millennium? There are three that
readily come to mind which, if expanded and properly resourced. would reduce
re-offending, produce better, more healing results for victims and be much more
affordable.
The
first is diversion. While the
police run and controlled diversion scheme has been a reasonable success, I
believe it needs to be expanded and would be better run by another division of
Government. Ideally this would be
an Office of the Public Prosecutor. In
Japan, two thirds of all arrested people are diverted.
They never come to court. Other
options involving an apology and restitution are taken.
It is too much to expect the police to make the most helpful decisions
about prosecution when they have done all the detailed leg work requiring an
arrest. The two jobs should be
separated. The police role should
be to provide the evidence for prosecution.
We
have one of the highest rates in the world of people under state supervision of
one form or another. And the
percentages are increasing. The
price of criminalising so many is something we need to look at seriously.
That is the community’s job performed in conjunction with the
Government. Even when people have
broken the law, why do they always have to be prosecuted and criminalised?
What positive purpose does it serve?
What are we trying to do with such an approach when there are other ways
that could have more positive results for all concerned?
Police resources would be better used in front-line policing, including
an expanding role in investigating corporate fraud.
This would free police up and allow prosecutions to be handled by an
office like that of Public Prosecutor.
The second is the
promotion of habilitation centres. We
need to expand and loosen up the development of these centres and resource them
better, so a much better comparison can be made of their effectiveness in
relation to traditional prisons. The
legislation needs amending. As
Roper recommended, offenders should become eligible for placement in an
habilitation centre shortly after sentencing, if they are suitable and wish to
go. To leave them, as we do now,
until they are nearly ready to leave prison is ridiculous.
It demands of them a greater desire to change than we demand of
practically any other single grouping in society. Most of them rightly say, ‘I’ve done my time- to blazes
with another institution’. It is
a view I have much sympathy with. There
needs to be a carrot for change. I
need an incentive to change. Everyone
does. Given the horrific background
of most prison inmates, there needs to be a proper incentive to encourage them
to change their life-long habits of drugs, violence, whatever.
It is currently not there.
The third is
restorative justice for adults, We know it is a good scheme for young people.
The secret of its success with them lies in the ‘carrot and stick’
approach which forms part of restorative philosophy.
The key to this is the fact that all participants work out a recommended
conference plan to which all parties must agree, if at all possible.
This is the incentive, the carrot, which encourages offenders to front up
and take responsibility for what they have done. They get the chance to participate in a reparative outcome.
We all need incentives to encourage us to change.
Given their backgrounds, how much more do the majority of offenders need
them.
The principle
incentive for victims lies in a recognition and acknowledgement of the pain they
have undergone. They get to hear an
apology and to hear answers to basic questions like ‘why me?’ and ‘will it
happen again?’ Under the current retributive system, victims get virtually
nothing.
The key to successful
conferences and change involves participation and encounter between the parties.
It is the dynamics of the group which provide the energy for the whole
process. Anything which impedes this basic movement reduces the chance
of real responsibility being taken by offenders, which in turn inhibits the
possibilities for real change and future accountability.
Within the actual conference dynamics lie the greatest potential for real
change and growth. This is why professionals, other than the facilitator, need
to take a back seat.
Now we need to
pilot some official schemes for adults. From
within the community, things have been moving in New Zealand towards restorative
justice for adults for some years, and facilitation groups have been established
in many parts of the country. In
Timaru, for example, Project Turnaround, an official Government pilot programme,
has been operating very successfully for two years having dealt with more than
200 cases. More than 90 percent of
contracts agreed to at restorative
conferences are completed, and the offender stays out of court.
Both imprisonment and re-offending rates have dropped dramatically in
that time. In 1993 under the old regime, 116 people went to prison from South
Canterbury. In 1997, only 30 were
jailed. Crime has gone down in the region in practically every year since this
form of sentencing was introduced. For
example, in 1997 crime levels dropped 7% regionally while the national crime
level continued to rise.
In
Auckland more than 70 cases of adult restorative justice were held in 1998
involving Community Group Conferences. Nearly
all contracts were accepted by the court and completed by the offenders.
One or two high profile ones were not.
We
also need to monitor the results in relation to similar offending treated in the
traditional way. I believe
restorative justice adult conferences will work better for adults than for
youth, since adults are generally more mature and less prone to peer pressure.
We desperately need a system that gives a better deal to victims, that
promotes apology, healing, understanding, accountability, personal and
collective responsibility, forgiveness, even reconciliation.
We need to re-learn how to practise compassion and mercy in our dealings
with one another. We need a system
that reduces imprisonment and only uses it as a final resort when everything
else has been tried. Restorative
justice processes provide opportunities for these to happen.
The current criminal justice system does not.
The
soul of this nation desperately needs these fine qualities promoted in its
social structures so that better forms of criminal justice might be practised in
the century that lies ahead. From
such change, the common good of all can only be enhanced and better social
justice delivered.