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Restorative justice and offenders' respect for the law

Lawrence W Sherman and Geoffrey C Barnes
ISSN 1328-3006 ; ISBN 0 7315 2802 6
Australian National University, Canberra
RISE Working Papers, no. 3
April 1997

Canberra's police may have found a way to increase offenders' respect for the law, which could prove to be an important step towards making them obey it. Preliminary results from Australian National University (ANU) interviews of 548 offenders in the ACT show noticeable improvements from an innovative police method for dealing with drink drivers and young property and violent offenders. Comparing offenders prosecuted in court to those handled by the new method shows that this innovation may work better because it is perceived as firm but fair. And that perception, as a growing body of research suggests, may increase their compliance with the law in the future.

The new method, called "diversionary conferencing" in the ACT, was introduced here in 1994 and has been under evaluation since mid-1995. It adopts principles of restorative justice - described in the work of Professor John Braithwaite of the ANU - and seeks to condemn the crime but not the criminal. Conferences work by diverting confessed offenders from court to a far more intense, personal (and lengthy) alternative. Influenced also by juvenile justice reforms in New Zealand, these conferences represent a radically new approach to community policing because they mobilise a community of concerned citizens around the offender, the victim, and the crime.

Instead of prosecuting a case in court, the police convene a conference attended by the people most affected by the crime: the victim, the offender, and their families and friends. The conference provides much more time than court proceedings for discussing the offence and the harm it has caused. Conferencing also places greater emphasis than court on finding ways for the offender to repair the harm, in order to achieve the aims of restorative justice and not just retribution. Unlike court, conferences always require active involvement and expression of views by all participants, including the offender. This involvement is carefully guided by a trained police officer, who keeps the discussion focused on obtaining a signed agreement between the offender and the other conference participants which sets out how the offender will make up for the harm - both to the victim and the community - that he or she has caused.

The ANU evaluation

Using the same controlled methods as medical trials, the evaluation being conducted by the ANU's Research School of Social Sciences compares two groups of offenders who are the same in virtually all respects except one: whether their cases were handled in court or in a conference. These comparisons are made possible by the Canberra police deciding which method to use - either court or a diversionary conference - based upon an ANU recommendation in each case. The recommendation is blind to the characteristics of the offender, and based solely on a mathematical formula that gives all eligible offenders an equal chance to go to court or conference.

Funded by the Commonwealth Department of Health and Family Services and the Criminology Research Council, staff at the ANU Research School of Social Sciences have gathered two kinds of data. One kind is observations of what happens when drink driving or young offender cases go to court, and also when such cases are handled by a police-led conference. These observations measure the amount and kind of shame expressed during the proceedings, as well as other factors such as the emotional intensity of the participants. Observations have been completed of drink drivers appearing at 270 court cases and 237 conferences, and of young offenders appearing at 70 court cases and 63 conferences.

The other kind of information collected so far involves interviews with both offenders and victims in the study. These interviews measure how the participants felt while, and immediately after, their case was being dealt with by court or conference. Preliminary results have recently been compiled from the first 548 offenders interviewed in these experiments (111 young offenders and 437 drink drivers, representing around three-quarters of all those eligible for interview). The young offenders include juveniles apprehended for property offences ranging from shoplifting to car theft, and offenders up to the age of 29 involved in violent crimes (excluding sexual assault and domestic violence).

Still to be collected is information from the offenders' criminal records, which will show how many offences they were charged with in the two years after they went to court or conference. This information, to which ANU has tightly controlled access under a formal agreement with the AFP and approved by the Privacy Commissioner, will provide the ultimate test of whether this new approach to justice is more effective than court proceedings in preventing repeat offending.

All the results reported here are statistically significant at the five per cent level, which means that there is a less than five per cent probability that the finding is due to chance. While the results could change when we finish collecting data on over 1 000 criminal cases, the findings so far show strong evidence for two conclusions. One is that diversionary conferences offer more of the procedural fairness that seems to matter to offenders. This conclusion may then explain the second: that diversionary conferences leave offenders feeling more respect for the police and the law.

Preventing Crime With Fair Procedures

The differences between conferences and standard court proceedings reflect a new theory of crime prevention called "procedural justice". The more offenders feel they have been treated fairly, the more likely they will be to obey the law in the future - even if they believe the actual punishment is unjust. Growing evidence in the US and Australia shows that offenders are less likely to re-offend when they feel that the last time they were caught, the legal system.

  1. took the time to listen to them,
  2. gave them a chance to correct any factual errors in their case,
  3. explained and protected their rights,
  4. treated them with equal rights to anyone else, and
  5. regarded them with respect and courtesy.

On all five of these measures, the preliminary offender interviews show conferences do better than court.

Time to Listen. For drink drivers, the average court case in the study takes 6 minutes - the average diversionary conference takes 88 minutes. For young offenders, the average court case in the study takes 13 minutes - the average conference takes 71 minutes. Conferences are especially designed to get the offenders to talk in an informal way about what they have done, and to give them a full opportunity to explain all the circumstances. It is therefore not surprising that offenders are more likely to say they felt they had an opportunity to express their views about the case in the conferences than in the court appearances. There was a clear difference for all offenders. For the young offenders, 77 per cent said they felt they could express their views in conferences, compared to 54 per cent who were sent to court. For the drink driving offenders, the difference was 93 per cent of those who went to conferences and 73 per cent of those who went to court.

Correcting Errors of Fact. Offenders were also asked if they felt they could have corrected any errors of fact during the course of the proceedings. Among drink drivers, 79 per cent of those sent to a conference answered yes, compared to 54 per cent of court offenders. For juveniles this difference was less pronounced (and not statistically significant), but young offenders dealt with by conferencing remained more likely to feel this way than those who were sent to court.

Explaining and Protecting Rights. Conferences made offenders feel they understood the proceedings somewhat better than court. Among drink drivers, 98 per cent of those who went to a conference said they understood what was going on in the process compared with 74 per cent of those sent to court; for juveniles it was 95 per cent compared with 80 per cent. There was also a big difference among drink drivers, although not so big among young offenders, in how much they agreed with the statement that the proceedings "respected your rights": 63 per cent of the conference case offenders said their rights were respected "a lot" compared with 38 per cent of the court case offenders.

Equal Rights. Whatever the reality may be, court case offenders were more likely to feel that they were disadvantaged in the proceedings due to "age, income, sex, race or some other reason." The biggest difference was for drink drivers, among whom 22 per cent of the court offenders claimed disadvantage compared to only 4 per cent of conference case offenders. For young offenders, the figures were 24 per cent for court and 16 per cent for conferences. Very few of those who felt disadvantaged linked the reason to gender or race; most of the reasons given were age or income levels.

Respect and Courtesy. There is good evidence that offenders perceive both Canberra courts and the conference alternatives as polite and respectful processes, with very high approval ratings in the offender interviews. The question on politeness showed no discernible difference between them, with both courts and conferences earning 80 per cent approval scores. When drink drivers were asked if they were treated "with respect", however, 85 per cent of those who attended a conference answered yes compared to 63 per cent of those who went to court. Among young offenders, the scores were 75 per cent for conferences and 62 per cent for court.

Shaping Attitudes Toward the Law

These differences matter, and they are clearly linked to differences in how much respect offenders have for the law in the future. Offenders are much more likely to say that they have gained increased respect for the police after attending a conference than after a court appearance. Sixty per cent of drink drivers said their respect for the police had increased after attending conferences, compared to only 25 per cent of those who attended court. For young offenders, the difference is 47 per cent for conferences and 18 per cent for court. This is accompanied by a big difference in offenders saying the police were fair to them during the proceedings. For drink drivers, 94 per cent of the conference cases compared to 57 per cent of the court cases said this; for young offenders it was 82 per cent for conference cases and 52 per cent for court.

Similar differences are seen in offender attitudes towards the justice system as a whole. Increased respect for the justice system was reported by 65 per cent of the drink drivers after conferences but only 20 per cent after court; for young offenders it was 42 per cent for conferences and 26 per cent for court. The differences are similar in attitudes towards the law. Increased respect was reported by 56 per cent of the drink drivers after conferences and 20 per cent after court; for young offenders the difference was 51 per cent for conference and 38 per cent for court.

The dark side of respect for law is the anger and bitterness some offenders feel after their case is closed. While the two groups of young offenders showed little difference on this point, the drink drivers were over three times more likely to be angry and bitter after court than after conference. While only 7 per cent of the offenders said they were angry or bitter following a diversionary conference, 24 per cent of the drink drivers dealt with by the courts said they were angry or bitter about the way they were treated. Such strong negative feelings do not bode well for future compliance with the law, an issue we will be studying closely over the next two years.

Preventing crime

Whether these differences in procedures and attitudes will translate into less repeat offending is the big question. Because of the need to follow up on the effects of these proceedings, the ANU evaluation is still at least two years away from learning the answer to the crime prevention question. These preliminary results offer good reason to believe that conferences could reduce crime; at the very least, there are clear differences in how offenders are talking about their reactions in the first weeks after the case is closed. Whether that talk will translate into action is a question well worth investigating.

Professor Lawrence W Sherman is an Adjunct Professor of Law at the Research School of Social Sciences, ANU and Scientific Director of the Reintegrative Shaming Experiments (RISE). Geoffrey C Barnes is a doctoral student at the University of Maryland and Data Supervisor for RISE at the Research School of Social Sciences.