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Challenges faced in the implementation and application of restorative justice

Previous issues in implementing restorative justice

In her 2001 review of restorative justice in Australia, Strang (2001) identified a range of issues affecting the implementation of restorative justice, including upscaling following pilot programs, caseflow problems (including net-widening), safeguarding rights and whether it is appropriate and effective in Indigenous and ethnic communities.

Upscaling following pilot programs

Strang (2001) noted that in 2001 a common problem was found in successful pilot programs for which recommendations to implement more widely were not enacted. The reasons can relate to cost, responsibility or concern ‘about the value of the program and a kind of cultural resistance to the restorative approach’ (Strang 2001: 35). Since this time, many pilot programs have successfully been adopted and expanded, for example the Community Conferencing for Young Adults Pilot in New South Wales, which is now available to all offenders as Forum Sentencing. However, there remains some difficulty in upscaling pilot programs. For example, despite the positive results found in a pilot study of conferencing of adult males in Perth and Fremantle in 2005, adult conferencing has not been introduced in Western Australia. Similarly, small-scale evaluations of the South Australian Adult Restorative Justice Conferencing Pilot which operated between mid-2004 and June 2005, and the Victorian Young Adult Restorative Justice Group Conferencing Program found some encouraging signs of effectiveness; however, the programs were not continued. It is difficult to draw conclusions regarding the continuing problems relating to upscaling of pilot programs as the reasons are not articulated clearly in the available literature; however, it is likely that cost is a key factor.

Another factor likely to affect the upscaling of restorative justice pilot programs relates to the ongoing perception of restorative justice as being a ‘soft’ option and as such, one that sits uncomfortably alongside many ‘tough on crime’ approaches. Where governments and policymakers take a strong view in support of punitive rather than therapeutic approaches to criminal justice, restorative justice programs are less likely to be supported. In the Australian context, the Queensland Government has cut funding for a range of restorative justice options such as youth conferencing despite the program being considered a ‘success’, with 95 percent of conferences reaching an agreement and 98 percent of participants reporting satisfaction with the outcomes (Queensland Government 2010).

Caseflow problems

Strang (2001) also reported problems relating to limited eligibility criteria and low referrals but noted that these particular issues may be resolved as restorative justice programs evolve over time and key stakeholders (such as, police and courts) come to better understand the goals of restorative justice and become more willing to refer offenders to programs. This was supported in a subsequent study in Queensland which examined the impact of police officers’ understanding of, and attitude towards, youth justice conferencing in response to concerns over low rates of referral (Stewart & Smith 2004).The study found that exposure to conferencing through training and attendance increased understanding of, and confidence in conferencing and were required to increase police referrals (Stewart & Smith 2004).

Generally, it appears that since Strang’s 2001 report, there has been a greater willingness to refer offenders as programs have become more widespread and more information has become available regarding their effectiveness. The Queensland Department of Communities reported that over 14,500 referrals have been made to the Youth Justice Conferencing Program (with 11,500 being conferenced) between 1997 and October 2008 (Queensland Government 2010). Although the impact of the recent changes to the Youth Justice Act 1992, which removes the ability of courts (as well as police) to refer young offenders to conference, is yet to be seen, court referrals to conference had accounted for 58 percent of all referrals in 2011–12 youth justice. Regardless, low referral rates remain a challenge for current programs, particularly in the early stages of implementation. For example, Hart and Pirc (2012: 77) listed

achieving sufficient and appropriate referrals, maintaining high rate of victim participation, improving recruitment, training and monitoring to ensure quality of facilitation, offender completion of the intervention plan, needs to be flexible and innovative to meet future challenges

as some of the challenges facing the NSW Conferencing for young adult offenders program. Similarly, an evaluation of the Young Adult Restorative Justice Group Conferencing Program, which was piloted between 2008 and 2010 in Victoria, noted a low number of referrals during the set-up phase of the program (Keating & Barrow 2010).

Few Australian researchers have considered the potential for restorative justice practices to lead to net widening since Strang’s 2001 report. In a longitudinal analysis of Tasmanian youth who had contact with the criminal justice system between 1991 and 2002, Prichard (2010) found no evidence of net-widening as a result of diversion (of which conferencing is a key feature). Similarly, as cited earlier in this report, a recent study by BOCSAR assessing the impact of the NSW YOA on the likelihood of young offender’s receiving a custodial order, reported that conferencing (as part of the YOA, which also includes cautions) has had an impact on reducing the number of Indigenous and non-Indigenous young offenders who enter custody (Wan, Moore & Moffatt 2013). Conversely, in an evaluation of the NSW Community Conferencing for Young Adults pilot, People and Trimboli (2007) reported evidence of a net-widening effect; that is, the proportion of offenders sentenced to imprisonment in the two pilot sites did not decrease after the program commenced.

Safeguarding rights

The impact of restorative justice on the rights of both offenders and victims has been questioned since its introduction, but more particularly, since the widespread uptake of such programs. In 2001, concerns relating to offender rights centred around

the potential for the violation of due process protections of offenders…include[ing] admitting to offences in the belief that they will receive more lenient outcomes through conferencing, the potential at least theoretically for police intimidation and the lack of appeal mechanisms regarding outcome severity (Strang 2001: 35).

The primary issue of concern regarding victims was cited as the potential for re-victimisation as a result of participation in restorative justice programs (Strang 2001) and that too much focus is placed on the offender to the detriment of the victim. To date, there has been a tendency among advocates for victims and offenders to characterise any benefit for, or enhancement in the rights of, one party as ‘any enhancement in the rights or interests of one…[as occurring]…at the expense of the other’ (Strang & Sherman 2003: 36). In contradiction to this zero-sum approach, whereby ‘a win for offenders will always mean a loss for victims’ (Strang 2002: 156), proponents of restorative justice note that ‘the theoretical position of restorative justice is that win/lose can be avoided and transformed to win/win’ (Strang & Sherman 2003: 36). Importantly, this position has found support in research of the outcomes of restorative justice for both victims and offenders For example, the ACT Reintegrative Shaming Experiments found that positive outcomes for victims and offenders were most common for those involved in restorative justice and negative outcomes more common for both victims and offenders in traditional court processes (Strang & Sherman 2003).

As reported in the previous section, research examining the impact of restorative justice has been relatively consistent in reporting satisfaction with outcomes among victims, in particular that victims report feeling they have been treated fairly and with respect (Hayes 2005). While the concern relating to safeguarding victims’ rights, particularly the potential for re-victimisation through participation in restorative justice processes, is legitimate, victims themselves report more ‘just’ outcomes from these processes than the court system (Strang & Sherman 2003). Similarly, offender satisfaction and compliance with restitution among those involved in restorative justice processes compared with traditional court processes (Latimer, Dowden & Muise 2005; Sherman & Strang 2007) are indicative of positive experiences for many offenders. Further, research has failed to show that offenders’ rights are violated through participation in such processes (for a fuller discussion of these issues see Strang & Sherman 2003).

Appropriateness and effectiveness in Indigenous and ethnic communities

Specific criticisms that have been raised regarding the appropriateness and effectiveness of restorative justice programs include failure to consult with Indigenous communities when establishing programs, that access was a matter for police discretion, too little attention was paid to cultural differences and the programs were seen to undermine self-determination (Cuneen cited in Strang 2001). Once implemented, such programs in Indigenous communities (Strang cited experiences in New South Wales and South Australia as examples) encountered a range of issues—low referral rates, few Indigenous conference convenors, high number of youths failing to appear for conferences and a lack of awareness among the Indigenous community of the potential benefits of restorative justice (Strang 2001).

To some extent, many of these issues are still faced by restorative justice programs across Australia. A review of diversionary options available to Indigenous youth for whom drug use was linked to their offending noted several barriers to referral and acceptance onto diversion programs (including restorative justice processes such as conferencing) and low completion rates among Indigenous youth (Joudo 2008). In order to counter these barriers, efforts have been made to increase the cultural relevance of restorative justice programs. For example, respected community members (including Indigenous elders) can be called upon to attend conferences involving offenders and victims from Indigenous or ethnic communities. In the Australian Capital Territory, the Restorative Justice Unit has an Indigenous Guidance Partner position which was developed to provide guidance and support to young Aboriginal and Torres Strait Islander offenders and their families who are referred to restorative justice. The position is dedicated to raising the profile of restorative justice with the Aboriginal and Torres Strait Islander community, improving engagement with and outcomes for young Aboriginal and Torres Strait Islander people referred to restorative justice through the provision of outreach services, guidance and support.The primary role of this position is to provide assistance to young Aboriginal and Torres Strait Islander offenders and their families throughout the whole process from the assessment and preparation stage to the conference and agreement phases. The position provides aid with transport to and from appointments and transport and support for community-based placements undertaken by Aboriginal and Torres Strait Islander young people as part of their agreements.

Further, some programs, such as the Port Lincoln adult conference pilot combine Indigenous sentencing practice with adult conferencing in order to provide a more culturally legitimate process for Indigenous offenders, victims and communities. In addition, the widely used Circle Sentencing process is based upon the traditional practices of Indigenous communities in Canada and the success of such processes in Australia (Potas et al. 2003) is an indication that they are also relevant for Australian Indigenous communities (see also Marchetti 2012 for a discussion of culturally relevant sentencing processes for Indigenous Australians).

At present, few conclusions can be drawn regarding the effectiveness of restorative justice for racial and ethnic minority groups and further research in this area would be of value (Strang 2010).

Future challenges

Extending restorative justice to adult offenders

Restorative justice processes have primarily been used as a response to youth offending in the belief that it ‘gives juveniles a chance to turn their lives around before it is too late’ (Rossner 2012: 218); by extension, that it is too late for adult offenders. While a greater number of programs are now available in Australia, Daly (2012: 120) suggests that ‘the introduction and popularity of Indigenous sentencing courts in Australia may have displaced government interest to resource other justice forms for adults such as conferencing’.

A growing number of studies have examined the impact of restorative justice with adult offenders, largely due to the more recent and limited use of restorative justice for this demographic. The evidence that has emerged has been somewhat mixed. In New Zealand, where restorative justice has been available to adult offenders since 1994 (Bowen, Boyack & Calder-Watson 2012), research suggests that that these processes have produced benefits for victims and offenders (Morris & Maxwell 2003). An evaluation of the New Zealand Court-Referred Restorative Justice Pilot program reported no significant impact among adult offenders although high levels of satisfaction among victims and offenders were found (Trigg 2005). A subsequent evaluation found that participation in a restorative justice conference reduced both the likelihood and frequency of reoffending (NZ Ministry of Justice 2011). Other international research has found a significant impact on the likelihood and frequency of reoffending (Shapland et al. 2008), positive attitudinal change among adult offenders and a commitment to help the victim to heal (Rossner 2012).

Australian research on the impact of Circle Sentencing in New South Wales has reported both reductions in reoffending (Potas et al. 2003), or in a more recent analysis, no effect on the frequency, seriousness or time taken to reoffend (Fitzgerald 2008). An examination of the impact of NSW’s Forum Sentencing reported similar findings; that is, there was no evidence that participation in forum sentencing had an impact on the likelihood, frequency and seriousness of reoffending, nor on the time taken to reoffend among adult offenders (Jones 2009). It is difficult to draw conclusions when the methodology of studies lacks the appropriate level of rigour (see section two for a brief discussion of the limitations of both studies).

In an evaluation of the South Australian Adult Conferencing Pilot, Goldsmith, Halsey and Bamford (2005) reported high levels of victim satisfaction and among offenders, ready acceptance of, and the making of apologies for their behaviour. Participants who also had some experience of youth conferences felt that adult offenders were better able to express remorse than were youths. Rossner (2012) cites recent research that supports a neurological explanation for the differences in adult and youth behaviour. Further, as emotional engagement is central to restorative justice processes and adults are considered better able (ie mature enough) to understand the impact of their offending that lends to a genuine desire to make amends (Rossner 2012), it follows that restorative justice processes are just as, if not more, likely to lead to positive outcomes for adults than for young offenders.

Extending restorative justice to serious offences

Restorative justice processes are increasingly being used to respond to more serious offending and there is growing evidence of positive outcomes in this sphere. Sherman and Strang (2007) found that restorative justice was more effective with more serious offences and for crimes involving personal victims. They also reported lower reoffending occurred more consistently with violent rather than property crimes. For example, a large proportion of cases dealt with by the NSW Department of Corrective Services Restorative Justice Unit (described in detail in section two of this report) are at the most serious end; that is, murder or manslaughter, armed robbery, dangerous driving causing death and serious assaults. Milner (2012: 97) notes that the application of restorative justice to date has been limited and that a growing body of evidence show that restorative justice may have most impact where ‘the trauma experienced by victim is greatest’. One area where the use of restorative justice remains particularly controversial is that of cases involving gendered violence (Stubbs 2012). In a review of the evidence to date, Stubbs (2012: 206) emphasised the need to more carefully consider the conduct of restorative justice in these cases in order to ensure that it is ‘safe and effective for victims’ given the significant complexities involved in facilitating victim–offender contact where the relationships are intimate in nature. Restorative justice for domestic violence may be particularly fraught due to the ‘power differentials between the parties’ (Stubbs 2012: 99) and the constraints this may place on the choices and contributions made by victims during the process.

A recent report of conferences for sexual assault and family violence cases involving youth offenders in South Australia detailed the process and outcomes in nine cases based on police reports and interviews of victim/victim representatives and conference coordinators (Daly & Wade 2012). Many of the cases, which included sibling sexual assault, other sexual assault and child–parent assault, resulted in some positive outcomes, including that victims were empowered through their involvement, that the agreements and process were fair to offenders and that offenders took responsibility for their actions. In further analysis of three cases of youth violence towards parents from the same program, Daly and Nancarrow (2010) reported a detrimental impact for the victim if the offender did not accept responsibility.

An earlier study by Daly and Curtis-Fawley (2006: 234), which reported on archival analysis of 385 sexual offences committed by young offenders and finalised between 1995 to 2001, suggested that it was better for victims if cases were dealt with via a conference rather than in court due primarily because a conference guaranteed that ‘something happened’. The authors also noted that offenders with conferences were more likely than those dealt with through the courts to apologise to their victim, undertake community service and appropriate counselling programs. The authors noted that they ‘came away from the study with a degree of confidence that conferences have the potential to offer victims a greater degree of justice than court’ (Daly & Curtis-Fawley 2006: 235). Importantly, Richards (2009) notes that the demand for greater participation in the criminal justice process has come from victims of serious, personal crime rather than victims of minor or property offences, and cites research showing that many victims of less serious crimes choose not to become more involved in the process because they are too busy or the offence is too trivial, among other reasons.

Evidence from research and practice provides support for the application of restorative justice in even the most serious offences, however, caution should be exercised in cases involving partner and family violence for which a ‘sophisticated understanding of the dynamic’ (Daly & Nancarrow 2010: 171) is required. In order to better protect victims of partner or family violence during restorative justice, such processes may need to go beyond apologies and other forms of reparation, and provide access to support and services, in order for restorative justice to achieve its goals (Stubbs 2012). Similarly, given that restorative justice ‘was never designed to reduce the risk factors known to be associated with involvement in crime’ (Weatherburn & Macadam 2013: 14), it is important to better integrate processes by which referrals can be made to treatment or professional support for offenders.

Achieving ‘restorativeness’

‘Restorativeness’ is said to be achieved ‘through the provision of explanations, the offer and acceptance of apologies, and offers and acceptance of forms of compensation or reparation’ (Goldsmith, Halsey & Bamford 2005: 3). Importantly, as Daly (2006: 11) has noted, ‘restorative justice is limited by the abilities and interests of offenders and victims to think and act in ways we may define as restorative’. That is, victims and offenders differ greatly in their willingness to engage in restorative justice processes, to listen and work to repair the harm (Daly 2003) and in doing so, determine the extent to which a process can achieve ‘restorativeness’. Given the highly conversational nature of restorative justice processes, recent research has highlighted the need to consider the oral language abilities of offenders, alongside other key competencies, given the suggestion that oral language deficits among young offenders may have an adverse impact on conference outcomes (Hayes & Snow 2013), thereby hampering efforts to achieve ‘restorativeness’.

A key question for restorative justice is whether restorativeness has translated into programs the way it was intended to. There is no simple response; given that there are so many variations in what is considered ‘restorative’ and many differences in the way programs are implemented. In essence, it is about repairing the harm done to victims and communities, and taken together with the variation in victim and offender approaches that were outlined by Daly (2006, 2001), it follows that this ‘restorativeness’ would be achieved in different ways for different individuals and communities across countries and cultures.

Among the challenges for restorative justice is that the theory is developing alongside the practice and it is worth remembering that ‘just as restorative justice is a process rather than a particular program model…so the development of restorative justice theory and practice is also a process’ (Umbreit, Coates & Vos 2004: 82), and some degree of disconnect is expected as one catches up with the other. For example, while many positive outcomes have been reported for victims, there remains much room for improving the sensitivity towards victims. A recent US study of VOM (Choi, Gilbert & Green 2013) reported a substantial disconnect between the principles of restorative justice and practice. In particular, victim needs were not appropriately met as they were often not prepared for the process, pressured on occasion ‘by mediators to behave in certain ways’ and also occasionally intimidated by the offender or their family (or both; Choi, Gilbert & Green 2013: 128). The authors highlighted the need for future studies to consider the extent of training for practitioners and monitoring systems to ensure that restorative justice processes are consistent with restorative justice theory and values (Choi, Gilbert & Green 2013).