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.


 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.


Maori Justice

 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.


A Shift In Focus – The Restorative Option

 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.