Criminal Punishment and Restorative Justice : Past, Present and Future Perspectives [1 ed.] 9781906534103, 9781904380207

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Criminal Punishment and Restorative Justice PAST, PRESENT AND FUTURE PERSPECTIVES David J CornweIl was educated at Christ's Hospital School, Horsham, UK, the Royal Military Academy, Sandhurst, and the University of York. After more than 20 years military service he became a prison governor, leaving HM Prison Service in 1997 to take up a post in the private sector with Group 4 Prison and Court Services. More recently, he has been consultant operations adviser to Global Solutions' Mangaung Correctional Centre in Bloemfontein, Republic of South Africa - during the building, commissioning and initial operation of its 3,000 bed maximum security facility in the Free State Province. He was for several years a tutor at Her Majesty's Prison Service College, Wakefield, Yorkshire, has published various articles and papers and is an active member of the International Corrections and Prisons Association (ICPA). Throughout his career, David Cornwell has maintained an interest in criminological research - his MA and D. Phil research programmes each focusing on punishment issues relating to young offenders and the criminally dangerous - and he continues to act as a consultant criminologist. He lives with his wife and family in Worcestershire.

Criminal Punishment and Restorative Justice PAST, PRESENT AND FUTURE PERSPECTIVES David J CornweIl was educated at Christ's Hospital School, Horsham, UK, the Royal Military Academy, Sandhurst, and the University of York. After more than 20 years military service he became a prison governor, leaving HM Prison Service in 1997 to take up a post in the private sector with Group 4 Prison and Court Services. More recently, he has been consultant operations adviser to Global Solutions' Mangaung Correctional Centre in Bloemfontein, Republic of South Africa - during the building, commissioning and initial operation of its 3,000 bed maximum security facility in the Free State Province. He was for several years a tutor at Her Majesty's Prison Service College, Wakefield, Yorkshire, has published various articles and papers and is an active member of the International Corrections and Prisons Association (ICPA). Throughout his career, David Cornwell has maintained an interest in criminological research - his MA and D. Phil research programmes each focusing on punishment issues relating to young offenders and the criminally dangerous - and he continues to act as a consultant criminologist. He lives with his wife and family in Worcestershire.

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Criminal Punishment and Restorative Justice PAST, PRESENT AND FUTURE PERSPECTIVES David JCornwell Published 2006 by

WATERSIDE PRESS DomumRoad Winchester S023 9NN United Kingdom

Telephone or Fax 01962 855567 UK Local-call 0845 2300 733 E-mail [email protected] Online catalogue and bookstore www.watersidepress.co.uk Copyright ©2006 David J. Cornwell. All rights reserved. No part of this book may be reproduced, stored in any retrieval system or transmitted in any form or by any means, including over the Internet, without prior permission. Chapters 9, 10 and 11 are the copyright of FWM (Fred) McElrea, John R Blad and Robert B Cormier respectively. ISBN 1 940 380 20 4 Catalogue-in-Publication Data A catalogue record for this book can be obtained from the British Library Printing and binding CPI Antony Rowe Ltd, Chippenham and Eastbourne Cover design ©2006 Waterside Press. Central front cover image of a circular prison taken from a design proposal for Ashford Prison by Jim Kessler AlA, Hellmuth, Obata and Kassebaum (HOK), Washington DC, USA. Sole North American distributors International Specialised Book Services (ISBS), 920 NE 58th Ave, Suite 300, Portland, Oregon, 97213-3786, USA Telephone 1 8009446190; Fax 1 503 280 8832; website: www.isbs.com; emai1: [email protected]

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Criminal Punishment and Restorative Justice PAST, PRESENT AND FUTURE PERSPECTIVES

David J Cornwell

With a Foreword by

Tony Cameron Contributions by

Fred McElrea, John R Blad and Robert B Cormier

WATERSIDE PRESS WINCHESTER

...# .......

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Acknowledgements There are a number of people and organizations that have contributed, knowingly or unknowingly, to the writing of this book. Professor Kathleen Jones and Dr Tony Fowles at the University of York originally made criminology a subject of enduring interest and challenge for me, and nurtured that interest over the subsequent years of doctoral study. I thank them most sincerely, and hope that this book will reflect some of the learning that they imparted. Her Majesty's Prison Service enabled me to pursue a second career as a member of its governor grades over a period of almost 20· years. This provided continuous exposure to the ways in which prisons operate, prisoners behave and prison staff carry out their very difficult task on behalf of society on a daily basis. A period of almost four years as a tutor at HM Prison Service College at Wakefield, Yorkshire also enabled many contacts to be made and maintained within the academic world, and provided opportunities for continued study and research. For this experience I have always remained extremely grateful. A further period of employment with Group 4 Prison Services provided, over some five subsequent years, an exposure to the world of privately managed custodial services both in the United Kingdom and, latterly, in the Republic of South Africa. I owe much to the friendship of the late Charles T. Erickson for this most enriching experience, and for the exciting opportunities that have continued to emerge from contacts within South Africa and the International Corrections and Prisons Association (ICPA). Indeed, without this experience, this book would not have had the impetus and encouragement that it has had. Particular thanks are due to Professor Sandra Joubert of the Department of Criminology at the University of South Africa (UNISA) and Dr Anni Hesselink-Luow formerly of the Department of Correctional Services in Pretoria and now of Global Solutions (SA) Property Ltd. Both have provided continuous support and encouragement for this work. I am also deeply grateful for the contributions made by Judge F.W.M. (Fred) McElrea from New Zealand, Professor John R. Blad from the Netherlands, and Dr Robert. B. Cormier from Canada to the international perspectives included in the latter part of this book. Without their generous devotion of time and scholarship, a balanced account of the potential of restorative justice would have been infinitely more difficult to achieve. Bryan Gibson and the editorial team at the Waterside Press have patiently dealt with the imperfections of the manuscript, and have provided much needed advice and suggestions in bringing this book into publication. My debt of gratitude to them is immense. There are a number of criminological sources of impeccable scholarship upon which I have relied implicitly in compiling this work. Foremost among these are A. Keith Bottomley's Criminology in·Focus (1969), Philip Bean's Punishment (1981), Barbara Hudson's Justice Through Punishment (1987), and Michael Cavadino and James Dignan's The Penal System: An Introduction (1997). To these authors I extend particular thanks for the clarity of their explanations that have made my task somewhat easier, and I trust that I have faithfully interpreted their intentions. Finally, to my wife, Belinda, and children, Letty and Joby, whose loving support and enthusiasm have been unstinting, I have dedicated this book with thanks and deep affection.

David J Cornwell

Criminal Punishment

and Restorative Justice CONTENTS Acknowledgements Foreword by Tony Cameron Preface Dedication Introduction

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Chapter 1 2 3 4 5 6 7 8 9 10

11

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Crime and Criminology: General Considerations The Classical Debate Retribution and Desert: Vengeance or Justice? Deterrence: Reality, Illusion or Deception? Reform and Rehabilitation: One Proposition or Two? Penology for Modern Times: Does Restorative Justice Provide a Synthesis of Punishment Theories? Criminal Punishment: Is There an Inclusive Theory? New Horizons: International Perspectives on Restorative Justice Restorative Justice: A New Zealand Perspective Judge F W M (Fred) McElrea The Seductiveness of Punishment and the Case for Restorative Justice: The Netherlands Dr John R Blad Where There's a Will There's a Way: A Canadian Perspective on Restorative Justice Robert B Cormier PhD Conclusions: Where from Here?

Bibliography Index

19 26 41 53 66 80 97 108 119 135

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163 178 187

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Foreword by Tony Cameron Restorative Justice: A Means of Re-invigorating Criminal Justice? In recent years, I count myself extremely fortunate to have spent time in the company of many experienced corrections professionals, people whose knowledge of corrections far exceeds my own. Some of the most interesting and lively discussions that I have had with them have centred on how we can regain the public's confidence in the operation of our respective criminal justice systems. I choose the word 'regain' carefully because I sense that in recent decades many jurisdictions, as in the United Kingdom, have experienced a loss of public confidence in how we deal with those who break the law. It seems to me that these conversations revolve around five common themes: reducing rates of incarceration, reducing re-offending, tackling anti-social behaviour, addressing fear of crime and, perhaps most importantly, engaging the victim in the process. Some of the most stimulating ideas that I have heard in this area have been from colleagues in the International Corrections and Prisons Association (Canada, New Zealand, Belgium, and, quite fascinatingly, some of the developing countries) and have revolved about the issue of closing the gap between victim and offender by the use of restorative justice-based principles. While we need to take action on each of these counts, the area where action is most required is to bring the victim back - centre stage - into the criminal justice arena and, in so doing, to make offenders more aware of the impact of their actions. Concerted action is required to help victims see that the apparatus of criminal justice is not working for its own ends but acting on behalf of the victim. I have no doubt that this is a tall order. Equally, I have no doubt that we will not achieve such a transformation overnight. Where then to start? While the restorative justice approach is not a panacea for every criminal act, there is sufficient evidence to suggest that it has much to offer the politician, practitioner and policy-maker in addressing the reforming of criminal justice. To say that there is a heated debate around restorative justice would be an understatement. It represents, for some, the most influential development in the criminal justice arena in the past decade; for others, however, it is seen to offer high ideals but little practical impact on the system. At a personal level, its potential is underscored not simply by what I have read around this debate but, as I alluded to earlier, by what I have gathered from esteemed colleagues whose correctional services are pioneering its application: from Canada and New Zealand in particular where, building on their Aboriginal roots, the operation of restorative justice has had a ripple effect across the various strands of the criminal justice system. The idea that the actors with a stake in a specific offence resolve collectively to deal with the aftermath of the offence and its implications for the future makes real sense. In The Netherlands too, its application has not simply been limited to the criminal justice system but has permeated areas such as prisons with the application of what has been termed 'restorative detention'. I shall leave it to others in the course of this volume to consider the objectives, goals and application of the restorative justice approach. It is sufficient for me to say that any approach which seeks to take a holistic view of dealing with crime rather than a fragmented and compartmentalised one is a more logical approach. Any approach which has at its core the need to address victims and seeks to meet fully all their needs, be they financial, material, social and/or emotional, and which equally seeks to have offenders take active responsibility for their actions so that the community can play its part in supporting the re-integration of the offender makes sense in the long-term.

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However, before we get carried away, we need to recognise that 'punishment' figures strongly in public discourse today. I have heard many an observer suggest that any move toward a criminal justice system that has a 'restorative' focus - and seeks a mediated solution as opposed to possible confinement - is a 'soft' option. I would disagree. Arguably, restorative justice is no soft option but adds a further relevant and stimulating dimension to the notion of punishment. If the aim of punishment is to increase offender awareness, understanding and empathy - and not simply to inflict pain - restorative approaches are more likely to have an impact. In this sense, restorative justice is very much an alternative punishment and not an alternative to punishment. We do need to be realistic about how the public views such possibilities. In a climate dominated by 'populist punitiveness', with ever increasing numbers being sent to prison it will be difficult for the restorative justice agenda to move from the periphery to the centre of the debate. The way to achieve that will be to evidence its effectiveness. In a world where practitioners and policy-makers seek evidence-led initiatives, only when we can show that restorative justice 'works' will the argument in its favour prevail fully. Restorative justice's strength is, to my mind, that it is practice-led. This gives it a dynamism and creativity. Restorative justice is no universal panacea (nor for that matter are cognitive behavioural approaches) but there is emerging evidence from different continents that it has much to offer. What is required is for it to be packaged in a format which the public, politicians and practitioners can find attractive in terms of meeting community concerns which, it should quickly be said, despite massive investment, the criminal justice system has not addressed. It was an honour to be asked to introduce this book, and greatly stimulating to consider the various ideas and evidence set out in this exciting volume by David Cornwell. Internationally, restorative justice is seen as much more visible and dominant than in any of the United Kingdom jurisdictions. What is important internationally is that restorative justice is at least a player in our ideas for recapturing the criminal justice system, and it is clear to me that in some jurisdictions it is undoubtedly a major player. My belief is that as more evidence becomes available over time this will increase further.

Tony Cameron President, International Corrections and Prisons Association January 2006

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Preface One of the core competencies of criminal justice professionals is to demonstrate an understanding of the place of the philosophy of criminal punishment within the science of criminology. To many observers of the subject, the concept of punishment seems in some senses anachronistic and abstruse, lacking an essential coherence, and confusingly circular in its arguments. This is, to some extent, understandable, because the contemporary penal policies of many developed nations display an eclectic and sometimes almost haphazard approach towards the manner in which punishment philosophies are given operational effect. Changes of emphasis in the determination of criminal justice policies over the past 50 years in particular have sent confused and conflicting messages to justice practitioners, offenders and the public alike. For many academics and students of criminology especially, these constantly changing approaches towards the purposes of criminal punishment have become little short of an intellectual nightmare. They have led, however, to what will be seen to have resulted in a quite deliberate process of penal'instrumentalism', or of using the processes of the law and punishment for political ends. Events since the demise of the rehabilitative ethic during the 1970s, and subsequently of the 'justice' model in the late 1980s have served to place retribution and deterrence at the forefront of the punishment agenda within most western democracies. This has transpired even though the latter command little intellectual support among academics and practitioners for reasons that will become clear. There are, however, signs of a significant initiative for change with the emergence of the concept of 'restorative justice' during the 1990s and early 2000s. This initiative represents a serious and thoughtful challenge to traditional approaches to punishment, and its increasing momentum is both hopeful and encouraging. My former professional career as a prison governor, coupled with a continuing research interest in criminology and penology which has spread over some 25 years, have both been lived out against this ever-changing background. The practical requirements of the former and the intellectual demands of the latter have proved to be a constant source of conflict and, sometimes, of complete frustration. That the two seemed incapable of reconciliation became one of the main reasons for this book being necessary. As a prison governor I had, on a number of occasions, to deal with extremely angry prisoners and their bewildered families who were directly affected by sudden changes in sentencing rules, parole criteria, release considerations and prison conditions, resulting from policy decisions made almost entirely from political considerations. At the same time as an academic I had to attempt to accommodate these changes within a moral philosophy that rejected, in an outright manner, the basis upon which the changes had been made. Worse, perhaps, having to watch and deal with the suffering that resulted for so many people stretched a sense of professionalism and integrity to its absolute limits. There are, however, other important reasons for writing this book. The first is that if criminal justice policies based on concepts of punishment are so inconsistent, it is unlikely that intelligent and able people will embark on careers within justice administration based upon the study of criminology. In every area of criminal justice there is a need for dedicated and capable professionals, academically well trained, and who want to make a substantive contribution within penal systems based on fairness, decency and humanity. Changing the

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way in which justice operates so frequently, and largely for reasons of ideology rather than of morality, seems altogether unlikely to attract true professionals. Secondly, if there is uncertainty about the aims of criminal punishment, or a lack of consistency in the way in which it is administered, punishment itself becomes essentially unjust and arbitrary because it deals with like offences unevenly. This makes justice an irrelevant issue to offenders who perceive it as a matter of chance, and pursue criminal lifestyles on a some win: some lose' basis. Recidivism statistics in many areas of the world reinforce this contention. The third reason is that as matters presently stand almost universally, victims of crime have almost no voice or substantive consideration within the processes of justice. This simply has to be wrong because it is the victims of crime who bear the real weight of the harm occasioned by criminal offending. The law, in its majesty, has traditionally chosen to disregard this situation on the structural pretext of administering two party justice (the state versus the offender), and has thus been largely absolved from considering the plight of victims in deciding upon appropriate modes of punishment. Change within this aspect of justice administration is widely considered to be long overdue. Each of these issues, and many more besides, concerns academics, professionals within criminal justice practice, and students of criminology. They also concern those discerning members of the public in whose name justice is administered, and those who become (actually or potentially) the victims of crime. All in all, it would seem that there are better ways of doing justice than those in which it is presently delivered. This book, therefore, represents an attempt to bridge the theoretical and practical gaps that presently exist between thinking about justice and actually doing justice. It is written to encourage the reader, whether student, academic, practitioner, policy developer, politician, or informed observer of criminal justice in action, to approach the administration of criminal justice in that manner. I

David J. Comwell Kersoe, Worcestershire, United Kingdom January 2006

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Dedication For Belinda, Letty and Joby Cornwell Also in loving and grateful memory of my parents Reginald and Eileen Cornwell

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Intraducti on Love of justice in most men is no more than the fear of suffering injustice. Duc de la Rochefoucauld, Les Maximes, 78

Crime, and the measures designed to control and reduce crime, provides a major challenge to national authorities within almost every country of the contemporary world. Delivery of criminal justice is also an expensive item on national economic balance sheets, and its cost within many countries increases year on year. Penal systems, both custodial and non-custodial, are resource intensive in human and material terms, but represent the means by which those who commit crime are punished for the commission of illegal acts. The manner and conditions in which offenders are punished are widely regarded as reflective of the state of civilisation within the countries concerned. The purpose of this book is to provide an overview of the debate concerning criminal punishment as it has developed over past centuries and into this current millennium. The debate is a complex one, having its origins within a wide range of academic disciplines, but it is, nevertheless, one with which professionals working within the various agencies of criminal justice are confronted inevitably and continuously. So, also, are politicians, and the members of the general public who elect them. Within every society, whether developed or developing, the process of punishing those of its members who break the law has been perceived to be as much a matter of social necessity as a one of fundamental justice. Laws are, for the most part, enacted to regulate the behaviour of citizens, promote their security, preserve the common interest in peaceful co-existence, and prohibit the commission of acts that cause harm or danger to others. Punishment of wrongdoing is normally considered necessary to encourage the observance of laws, indicate the extent of social disapprobation when laws are broken, and impose appropriate penalties on those who commit offences. Crime is usually defined as an act or omission that is proscribed by law, but this, in itself, can prove to be an elusive over-simplification. For while in a strictly legalistic sense such a definition may appear concise and satisfactory, it conceals a number of potential difficulties. To the majority of lawyers there is a necessary connection between unlawful actions, the intention and mental capacity of the offender, and the prescribed penalty (or extent of punishment) that should be imposed when the law is broken. However, in instances in which defective laws are enacted, or in which those who act illegally lack the capacity (due to being too young or mentally impaired) to act intentionally, serious difficulties can arise. There is a sense also in which definitions of crime become political in nature, since wrongful acts defined as crimes are identified and codified by individuals or groups with an interest in making such behaviours illegal within the criminal law, and the power to do so. In this manner, actions such as using certain drugs, committing adultery, or attempting suicide become criminal within some jurisdictions and non-criminal within others. Some would contend that the term 'criminal' is no more than an attributed qualitative description of behaviour that is only conceivable through the language of criminal justice. They would, therefore, question whether punishment as we presently understand and

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administer it (rather than other forms of state facilitated intervention) is the most appropriate response to actions that cause harm to others. Criminology is primarily concerned with the scientific study of crime, its specification, causes and effects, and of its prevention, or at least reduction. Penology, which is closely associated with criminology, is devoted to the study of punishment predominantly within the context of penal codes, the sentencing of offenders, and the implementation of legal sanctions. To a significant extent the two become inextricably intertwined, most notably in relation to the administration of criminal punishment that forms the main focus of this book. Insofar as professional practitioners within criminal justice administration are concerned, their work almost inevitably requires an understanding both of criminology and of penology, since operationally the two disciplines become largely inseparable. This book is designed to provide a source of background information and discussion within both of these areas of study in a manner that may meet the needs of academics and of practitioners. There is no doubt that criminology and penology confront both the academic and the practitioner alike with difficult questions that need to be resolved in theory and also in practice. As will become evident, choices ultimately have to be made in relation to a number of important issues, some of which are moral in nature, others ethical, and yet others entirely practical or operational. This necessity is frequently challenging, and sometimes even frustrating. Contemporary political rhetoric is frequently vociferous about national authorities being 'tough on the causes of crime', while at the same time being almost silent about changing the dysfunctional social conditions which might be considered to encourage crime in the first place. The deliberate use of criminal punishment as a means of deterring (or attempting to deter) those who might be tempted to commit crime has moral and operational implications which extend far beyond what might be considered to be immediately evident. The continuing practice in some countries of using the indeterminate (or indefinite) sentence for certain serious offences or as a means of social protection has similarly questionable morality, and presents a range of serious practical difficulties. If comparatively expensive rehabilitative regimes operated within custodial facilities appear to be largely ineffective in reducing subsequent recidivism (or the commission of further offences), is the case made for their abandonment in favour of less expensive and entirely incarcerative options? It is also necessary to question whether poor social conditions, limited access to medical care, inadequate educational provision, relative deprivation and poverty are the principal determinants of crime causation, or whether some persons are born with criminal tendencies which lead them inevitably towards criminal careers. Does this account satisfactorily for why some commit crime and others from similar backgrounds refrain from doing so? Even further, it might be proposed that those people who become the victims of crime have a natural right to participate in the legal process that leads to the conviction and sentencing of criminal offenders. If they have no such right, does justice become in any sense flawed or undemocratic? All of these important issues, and a considerable number of other similarly complex questions and dilemmas, have to be addressed within the scope of criminology and penology. The solutions to them are frequently far from simple, and require an understanding of the social and political structures and national environments within which they occur. These and many associated matters lie at the heart of the discussion within the chapters of this work, since they are

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essential to our understanding of the contemporary context within which criminal justice operates. Each of the chapters which follow is designed to contribute a piece of the jigsaw which, when completed, provides a picture of the contemporary world of criminology and penology. The central theme is the seemingly inescapable fact that crime and crime control are dominant pre-occupations for most national governments, and that criminal punishment as a response to crime is perceived as a moral and social necessity almost universally. Regrettable as this may appear, it is a situation that is unlikely to change in the foreseeable future. Intuitive logic informs us that crime is an avoidable phenomenon, and thus it should also be reducible. Experience informs us that crime is to some or another extent inevitable, and seems to be resistant to control and reduction. Pragmatism dictates that both crime control and reduction must depend upon a diminution of the causes of crime, however crime may be defined. Thus, the starting point for our inquiry must be how crime is defined, and identification of the causative factors that encourage its commission. Failure in many countries to achieve the aim of crime reduction, and in some countries to halt an overall increase in crime has led inevitably to considerable frustration with existing criminal justice policies and provisions. Sometimes it seems that policies based on each of the main and traditionally accepted justifications for punishment (retribution, deterrence, reform and rehabilitation), or certain combinations of these, have failed to deliver satisfactory results. This is an unfortunate development, but it also appears to be an almost universal phenomenon, and the reasons for it are examined in some detail. The history of criminal punishment during the previous century reveals very clearly how the pendulum has swung backwards and forwards between policies based on retribution and qeterrence towards and again away from those based on reform and rehabilitation. This lack of clarity of purpose within criminal punishment may, to a considerable extent, be an underlying reason why the pursuit of crime reduction has proved to be so elusive. Widespread disenchantment with the traditionally accepted justifications for, and modes of criminal punishment during the 1990s has led towards a similarly universal search for alternative methods of dealing with criminal offenders within a broader social context than that of mere incarceration or the existing range of non-custodial alternatives. In particular, the demise of the 'justice model' which had seemed to offer so much potential for sentencing reform, effectively fuelled and accelerated the necessity for a radical reappraisal of the crisis situation into which many criminal justice systems had fallen. The result of this reappraisal has become widely apparent in the emergence of the concept of restorative justice that has gained a foothold within every continent of the world in the new millennium. As will become evident in the later chapters of this work, the concept openly challenges existing assumptions about the delivery of criminal justice, the role of judiciaries and professionals, and the hitherto largely unacknowledged status of the victims of crime. There is little doubt that adoption of restorative justice principles has considerable potential for the advancement of an infinitely more democratic model of justice, particularly in the field of non-custodial corrections. It does, however, introduce a range of difficult problems and dilemmas in its application to more serious forms of offending, and specifically in relation to custodial punishment. In spite of these evident reservations, the impetus for reform provided by the notion of restorative justice is not only considerable, but it is also potentially durable and capable of widespread adaptation within different cultures and national situations. For these important reasons this survey concludes with a

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number of international perspectives on the development of restorative justice initiatives across the world. This is done in open acknowledgement that the concept of restorative justice may be seen to hold the key to a number of the previously unresolved dilemmas confronting criminal justice administration within many contemporary societies. If there has been a valid criticism of the academic science of criminology in the past, it is, perhaps, that it has tended to raise more questions than it has been able to answer satisfactorily. This book represents an attempt to provide some explanations, and to clarify some of the areas of apparent conflict and confusion in an essentially practical manner. Theory and practice are frequently indifferent bedfellows, but their supposed incompatibilities are far from incapable of wider resolution where there is a will to reconcile their many potential differences. Chapters 1 and 2 provide a background of the development of criminology over time, and of the study of crime as it has evolved from rather tentative beginnings into the modern era. Definitions of crime have, historically, tended to be elusive and to a considerable extent value-laden, being determined predominantly by the politically powerful in the pursuit of forms of social order reflective of their concepts of acceptable and unacceptable social actions. Thus it has been the case in the past that certain forms of behaviour have attracted moralistic censure as criminal acts, while other and equally harmful anti-social activities have remained at the periphery of such considerations. There is, therefore, a certain ambiguity about what has, and has not, constituted criminal behaviour, and this apparent lack of congruence is frequently the result of cultural and sub-cultural differences between and within societies world-wide. Criminology, as the study of crime in all its aspects, has had to accommodate consistently changing fashions of thinking about criminal behaviour, its causes, effects, and how those who commit crime should be dealt with. As will become evident, this process continues at the present time in which there is considerable debate concerning the apparent inappropriateness of traditionally accepted approaches to crime control and reduction. Indeed, it may be the case that uncritical adherence to these traditional models of justice administration may even have led to the general escalation of crime within many of the so-called developed modern societies of the world. The opening chapters of this book are therefore devoted to an overview of the emergence of criminology as an academic science, and of the principal influences that have affected its development. The idea of retribution, or 'paying back' offenders for the harm caused by their wrongful actions, has retained a prominent (sometimes even dominant) place in theories of criminal punishment throughout history. Many would argue that it still continues to do so. In Chapter 3, the reasons for this are examined in some detail, since these have an important bearing on the methods by which criminal punishment is given operational effect within penal policies. The emergence of the 'justice model' of punishment in North America and Europe during the late 1970s and 1980s is also discussed in relation to what might be termed the 'penological vacuum' that its demise has created within contemporary considerations relating to crime control and the sentencing of offenders. In Chapter 4, the concept of deterrence (in each of its main forms) becomes the focus of attention, in an attempt to identify its supposed and actual effects in the prevention of crime. In particular, the difficulties associated with the actual measurement or quantification of the deterrent effects of differing modes of punishment are discussed against the background of persistently high rates of recidivism within most modern societies. From this discussion it will become

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evident that over-reliance upon the effects of deterrence has significant and potentially unwelcome consequences for the determination of criminal justice policies, sentencing procedures, and consequently, the size of prison populations that are so expensive to sustain. The concepts of reform and rehabilitation of offenders through punishment are discussed in Chapter 5, with particular reference to the effects of the decline of belief in the 'rehabilitative model' of punishment that exerted so much influence during the 1960s and early 1970s throughout the developed world. This particular development, based on a 'nothing works' assessment of the effects of rehabilitative and therapeutic programmes in securing crime reduction, will be seen to have cast a long shadow over the subsequent strategies adopted by penal policymakers in the wake of its demise. It will also be seen to have a very considerable effect upon the willingness of many 'western' nations to examine alternative strategies for crime reduction, and in particular those strategies designed to make lesser use of imprisonment and sentencing indeterminacy. In Chapter 6, the concept of 'restorative justice' is explained and discussed with a view to discerning whether or not it provides a means of reducing reliance upon traditional methods of, and justifications for punishment in a contemporary context. The reasons for the increasing interest in restorative justice among academics and practitioners within criminal justice are explained with particular reference to changing ideas about the entire nature of the exercise of state power and the relationships between individuals and groups and the state within modern societies. Restorative justice to a considerable extent challenges many of the traditional assumptions about the role of the state within the delivery of justice, and particularly the appropriateness of retributive and deterrence-based concepts of criminal justice. On a similar basis it seeks also to place an entirely different emphasis on the processes of punishment, affording victims of crime what it perceives as a rightful and long-neglected place within the considerations that relate to conflict resolution, reconciliation, reparation and rehabilitation. Restorative justice further proposes significant changes to the way in which sentences of imprisonment might be implemented, though this development becomes more a matter of attention in later chapters. In view of the sometimes contradictory manner in which prevailing concepts of criminal punishment have heavily influenced the formulation of penal policies almost universally in the past, the discussion in Chapter 7 seeks to determine whether there has ever been, (or might even in the future be), an inclusive theory of criminal punishment. Such a theory, if it could be identified, might prove particularly useful in enabling the competing demands and justifications of punishment to be balanced more effectively, and lead eventually to a more consistent agenda for penal policy-making. In particular, this would involve a measure of reconciliation of the apparently conflicting retrospective and prospective aims of punishment in a manner that would make the entire process more understandable and effective to all those involved within it, and also deliver a better quality of justice. In this sense, Chapters 6 and 7 have to be viewed as being to a considerable extent complementary. For while in Chapter 6 an attempt is made to determine whether the concept of restorative justice provides a synthesis of punishment theories, the emphasis in Chapter 7 is somewhat different from a philosophical point of view. While it might be possible to arrive at a theory of punishment that broadly accommodated the traditionally accepted purposes of punishment, such a situation might leave matters very broadly where they rest at present, poised somewhat precariously between retrospective and prospective concepts of what punishment is expected to achieve. The purposes of crime reduction would be

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unlikely to be achieved in such circumstances for all the reasons previously discussed. On the other hand, an inclusive theory of punishment might accommodate principal and subsidiary purposes, ordered and prioritised to provide an identifiable and prospective rationale for the use of sanctions predominantly in pursuit of crime reduction rather than essentially for the requital of law. While restorative justice might be considered to have some potential to reconcile the conflicting purposes of punishment, it would seem to have much greater potential to provide an inclusive modality for both the imposition of sanctions and the reduction of crime. The following four chapters propose and elaborate upon the contention that restorative justice has the potential to define and give operational effect to a concept of justice which, while satisfying the need for offences to be confronted with sanctions, effectively does justice. Chapter 8 provides an overview of this innovative agenda for change, and introduces the authors of the three international perspectives that follow in Chapters 9, 10 and 11 respectively. Widely drawn perspectives provide evidence that the need for change is perceived as an important priority on a world-wide basis, and that the concept of restorative justice as a catalyst for change has gained a foothold and an impetus that is altogether undeniable. There is no doubt that restorative justice challenges existing notions of justice administration to a very considerable extent. Principally it does so by re-phrasing the questions about crime and its outcomes in a manner hitherto considered unthinkable, largely because we have become conditioned to consider such issues entirely in terms of offences, state law, and the necessity for punishment. Restorative justice invites a different perspective: who has been harmed, who should accept responsibility, and how can the harm best be put right? No longer need we be constrained to focus on the questions hitherto of dominant interest: what law has been broken, who did it, and what does he or she deserve? Chapter 9 provides a perspective from New Zealand written by Judge F.W.M. (Fred) McElrea whose experience extends to 12 years as a Youth Court judge, and a further 16 years as a District Court judge. He has also written and lectured internationally on the advantages to be gained from adopting restorative justice principles within mainstream criminal justice policies and practice. Judge McElrea, far from being a sentimental penal/dove', has an essentially pragmatic view of restorative justice as being very far from a/soft option' for offenders, and an infinitely better way of dealing with the legitimate (though hitherto largely unacknowledged) rights and expectations of victims of crime. His contribution will be found to be exceptional for its evident humanity, its concern for the outcomes of justice for victims, offenders and society alike, and a rare humility that perceives the role of a judge as that as a facilitator rather than, necessarily, as a dispenser of justice. McElrea's account is also an important one because it will be seen to have echoes in many respects within those that follow. It is particularly helpful in drawing attention to the values historically inherent in ancient Aboriginal cultures in relation to conflict resolution and reconciliation. This reinforces the view expressed earlier that restorative justice is neither a new construct nor one predominantly of western origin. His assertion that punishment should not be the overriding consideration in dealing with crime is a challenging one, and the reasoning he advances to support it is both refreshing and impeccable. In Chapter 10 we are provided with a perspective from the Netherlands, a country traditionally associated with the comparative leniency of its criminal justice policies, and a sparing approach to the use of imprisonment in response to

David J Cornwell xvii

offending. However, as Dr John Blad of the Law School at Erasmus University, Rotterdam, clarifies, appearances can be extremely deceptive. His analysis illuminates the manner in which Dutch penal policy was subjected to a significant shift of emphasis in the mid-1980s, away from its previously tolerant approach to most forms of offending and sparing use of imprisonment, and towards a far more punitive agenda. This agenda was backed by a major expansion of the Dutch penal estate, and a consequent escalation in the prison population that has been maintained to the present time. Blad maintains that continued use of punishment primarily for the purposes of retribution and deterrence serves no useful social pu~pose, and that we might conceive of an infinitely more helpful concept of justice oriented towards sanctions and reparation in its place. Such, he suggests, would enable the use of 'negative' sanctions to be largely discontinued, and make offenders positively accountable for their offences and for 'putting things right' in relation to the victims of crime. Like McElrea, however, Blad perceives no necessity for the concept of restorative justice not to imply punishment: rather he proposes that punishment should not be the primary objective in dealing with crime. His account is a penetrating one in a number of other respects. In making offenders accountable he suggests that it becomes more likely that they will take normative expectations seriously, and thus the likelihood of re-offending will diminish. Like McElrea also, he is sceptical of the role of deterrence, and for the same reasons. Ultimately, he suggests, the fact that we threaten with punishment makes it inevitable that we must actually punish for the sake of maintaining the credibility and integrity of the law. This, Blad maintains, is the essence of the seductiveness of punishment. Restorative justice, Blad believes, holds out the promise that its altogether different approach amounts to a more credible, compassionate and constructive way of doing justice in a contemporary sense. His perspective explains most eloquently how this might be achieved. The third of the international perspectives on restorative justice comes from Canada, and its author is a practitioner within criminal justice administration and research with experience spanning more than three decades. Dr Robert B. Cormier is a Senior Director of Research and Community Development, based in Ottawa, Ontario, and his account of developments in Canada is both positively encouraging and entirely pragmatic. While it contains many aspects of congruence with the perspectives of McElrea and Blad, Cormier's contribution clearly demonstrates the extent to which restorative justice principles have been adopted and given operational effect within Canadian criminal justice policies and legislation. Cormier provides a brief review of the general organization and operation of crim~nal justice in Canada as a backdrop to his main discussion of the manner in which restorative justice has entered mainstream justice considerations. Interestingly, he describes how, in complete contrast to the approach adopted in the Netherlands, Canada deliberately set out to reduce the use of imprisonment in the early 1990s because its social and fiscal costs were deemed to be unsustainable. He also ,notes that in the wake of the 'nothing works' situation that prevailed in the mid-1970s and onwards, the response in Canada was to increase efforts within research, programme development and evaluation, with subsequently beneficial results. The Canadian perspective bears remarkable similarities to that from New Zealand in relation to the extent to which the particular needs and culture of Aboriginal peoples have been afforded evident recognition within considerations of criminal justice. This has, to some extent, opened the door to wider application

xviii Criminal Punishment and Restorative Justice

of restorative principles within the mainstream debate and the determination of criminal justice policies and legislation. Cormier's perspective is also valuable for its account of how Canada responded in a positive and practical sense to the United Nations initiative to develop Basic Principles to safeguard the rights and interests of victims in the implementation of restorative justice programmes. He also indicates how these principles and values became a central feature within the development of Canadian criminal justice from the late 1990s onwards. Cormier was a member of the Canadian delegation to the United Nations Congresses on the Prevention of Crime and Treatment of Offenders on three occasions between 1990 and 2000, and his pragmatic account provides an excellent balance to those quite differently and perceptively advanced by McElrea and Blad. Viewed together, these three perspectives, although quite different in their approaches, combine to convey the same essential message. This message is that restorative justice deserves, and is achieving, a rightful place within the mainstream of criminological discourse. More than this perhaps, it offers the opportunity to abandon entirely punitive methods of dealing with those who break the law, to make offenders more accountable, and to give appropriate recognition to the legitimate needs of the victims of crime. In the final chapter (Chapter 12), the main strands of the discussion within the foregoing chapters are drawn together in an attempt to provide a conclusion to what has been a complex and often critical debate. The central question raised within this book is whether criminology and criminal punishment presently deliver true justice within modern societies. The inevitable conclusion is that as matters stand they do not, and that the reasons for this are not difficult to perceive. If however, we could be resolute and caring enough in our purpose to do better justice, then the restorative principles described herein provide an admirable and appropriate model for re-shaping contemporary criminal justice.

CHAPTER 1

Crime and Criminology: General Considerations Shift the object and change the scale. Define new tactics in order to reach a target that is now more subtle but also more widely spread in the social body. Find new techniques for adjusting punishment to it and for adapting its effects. Lay down new principles for regularising, refining, [and] universalizing the art of punishing ... Reduce its economic and political cost by increasing its effectiveness and by multiplying its circuits. In short, constitute a new economy and a new technology of the power to punish: these are no doubt the essential raisons d'etre of penal reform. Michel Foucault, Discipline and Punish, p.89.

It seems entirely appropriate that the opening chapters of a book with the title Criminal Punishment and Restorative Justice should deal with the evolution of a debate which has, for so long, occupied a central position in the development of criminology as an academic science. That it should do so is no accident since crime is a feature of every society, and the means by which nations deal with those who break the law is widely considered to reflect the prevailing state of civilisation within them. Foucault's commentary, quoted above, was descriptive of the penal situation that prevailed in France during the late eighteenth century. Many contemporary observers might, however, consider it to have a particular resonance for the criminal justice systems operated in a number of the developed nations of this world more than two hundred years later. It represented an analysis of the complex relationship that existed then, and still exists, between the power of the state, the judicial structure, and the individual citizen in relation to crime and its punishment. Criminology in its most fundamental sense is, as Mannheim defined it, 'simply the study of crime' (1965, p.3). However, in a broader sense, and as we have come to understand its modern application, it is 'the body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, and of reacting to the breaking of laws'. (Sutherland and Cressey, 1960, p.3.) This, as the latter authors remind us, embraces the principal components of the sociology of law, the study of crime causation, and penology which is concerned with the control and treatment of crime (see also Prins, 1982, p.l0).1 Criminal law is the principal means by which crime is defined and measures are set in place to deal with those who commit offences that violate the law. The nature and extent of these measures, and the means by which operational effect is given to them, form the core of the debate relating to criminal punishment. It is this particular debate, perhaps more than any other, which has occupied the attention of legal and moral philosophers, jurists, politicians, and scholars from a wide range of academic disciplines over the past five decades, and which continues to do so.

20

Criminal Punishment and Restorative Justice

The application of criminology as a scientific academic discipline absolutely relies upon its practitioners having a clear understanding of the impact of the philosophy of punishment on the design and structure of both social and criminal justice systems, and the way in which these operate in practice. It is also necessary, as Bottomley (1979, pp.4-10) and many others before and after him have argued, for there to exist some considerable consensus about what crime consists of. Though at first sight such an assertion might be considered needlessly self-evident, it has been the case that definitions of crime have varied considerably over time, and there has proved to be a singular absence of agreement in relation to the essential nature of criminal behaviour. 2 Without an understanding of the nature of crime and how it is defined (other than in a strictly legalistic sense), the study of criminal punishment as the response to crime becomes extremely difficult to approach in a constructive and objective manner. The following three quotations (cited in Bottomley, 1979, Ope cit., pp.S-9) make the point most succinctly: All of the theories of crime now put forth in criminology are theories of criminal behaviour. Criminologists need a theory of crime, a theory which explains the origin and development of criminal law in terms of the institutional structure of society. Jeffrey, 1959, p.534. Crime is a definition of behaviour that is conferred on some persons by others ... Persons and behaviours, therefore, become criminal because of the formulation and application of criminal definitions. Thus, crime is created. Quinney, 1970, p.15. [Italics in original]. Thus to ask, 'Why is it that some acts get defined as criminal while others do not?' is the starting point for all systematic study of crime and criminal behaviour. Nothing is inherently criminal, it is only the response that makes it so. If we are to explain crime, we must first explain the social forces that cause some acts to be defined as criminal while other acts are not. Chambliss, 1976, p.l02.

Practical examples of the difficulties of accepting an entirely legalistic definition of crime are visibly present in a number of developed societies. In some countries the possession and use of certain drugs (e.g. cannabis) constitutes a criminal offence, while in others it does not infringe any aspect of the legal code, and is, therefore, not punishable. Certain Islamic states make the commission of adultery a capital offence punishable by death, while in others it is in no sense a crime for which the state makes any legal provision. 3 Crime is, therefore, a matter of social as well as of legal definition, and the reasons for defining certain acts as crimes require careful scrutiny by the criminologist. Many would insist, and with some justification, that most definitions of crime are, to some or another extent, political in nature, made by powerful groups with an interest in preserving the forms of social order to which they subscribe. (See, for example, the work of Schwendinger and Schwendinger,

Crime and Criminology: General Considerations 21

1970, pp.123-57; Radzinowicz and King, 1977, pp.135-6; Prins, 1982, pp.I-15 and Hudson, 1987, pp.126-7.) The means by which adherence to laws making particular actions illegal is normally enforced is by making infractions punishable to a greater or lesser extent. Our contemporary experience indicates that the increasing complexity of modern life has led to a considerable expansion in the definition and proscription of crime. The Schwendingers (1970, Ope cit.) were influential in suggesting that certain harmful social phenomena (such as racism, sexism, pollution, political aggression, and the like) should be brought within the scope of the criminalrather than predominantly the civil-laws of prohibition. Much so-called 'whitecollar' and other forms of apparently 'victimless' crime (such as corporate fraud, deception, etc.) might also be considered for similar treatment, and the legitimate attention of criminologists. 4 Other writers, notably such as Hartjen (1972, pp.59-69) and much earlier Quinney (1964, pp.208-14) and Aubert (1952, pp.263-71) have opposed this view, insisting that what might be termed 'occupational' crime or deviance, although both objectionable and socially harmful, should not be considered criminal in a strict sense. Bottomley (1978) provides a penetrating summary of this debate in the following terms: What criminologists want to define as crime is affected not only by 'objective' considerations of the demands of their discipline as they see it, but perhaps to a greater extent by their subjective value judgements as to the moral or social harm of certain activities, and a desire to control or suppress them. Personal and social values have a central role in criminology, as in other social sciences, and it is important to acknowledge this openly, instead of striving to maintain a spurious front of scientific objectivity. The debate as to what should or should not be regarded as criminal must always be seen as part of criminology, but I see no reason either on moral or pragmatic grounds for being too eager to officially 'criminalize' everything that one disapproves of in society. Many kinds of moral, personal and social evaluations or labels are of more significance than that of the label of 'crime', both as expressions of disapproval and in terms of the possible effects on the individuals concerned. Bottomley, 1978, p.37.

Thus, however carefully or precisely we attempt to define crime, it appears almost inevitable that we will come face to face with a number of significant difficulties. Among these difficulties are those of whose definitions of criminal acts are adopted for legal purposes of prohibition, the reasons and motivations for adopting them, and the nature of the political (or other) power structures that enable their adoption and implementation. This should in no sense alarm us as criminologists, since the scope of our academic discipline extends beyond the framework of mere legal definition, and specifically includes the social dimension of human activities and inter-actions. S,6 Far more important, perhaps, is the need to understand the implications that flow from definitions of crime, its causative factors, and the range of responses that emerge in the form of criminal punishment of those who break the law. This has to be attempted from a universally accepted baseline of established

22 Criminal Punishment and Restorative Justice

principles that are not, in any sense, susceptible to political manipulation, and which stand firm in the moral, ethical and theoretical, as well as the practical dimensions of modern correctional practice. It is also essential to examine and evaluate very carefully the effect upon accepted principles that is exerted by trends and fashions within contemporary criminological thinking. Uncritical acceptance of these initiatives, however elegantly they are formulated and expressed, frequently results in regressive rather than progressive analysis and prescription. The recent development, particularly in Europe and North America, of the concept of restorative justice needs to be approached with the same critical caution that should have been applied to the formulation of the so-called 'justice model' of corrections in the late 1980s and early 1990s (see Bean, 1981, pp.172-4 and Hudson, 1987, in entirety). 7 The rhetoric of restorative justice is seductive to the extent that it suggests an attempt, within the sentencing and punishment processes, to achieve some form of actual or conceptual reconciliation between the offender, the victim(s) and society through actions of reparation on the part of the offender. This, it is suggested, enables the offender eventually to be re-integrated into society, the victim to feel that due weight has been given to the harm occasioned by the offence(s), and society to perceive that a measure of equilibrium has been reestablished. While such prescription may appear at first sight to be entirely reasonable and, indeed, desirable, it conceals a number of operational difficulties that need to be recognised. 8 Such is not to suggest that there is not some considerable merit in attempts such as that just described to re-define and re-structure the processes of criminal justice in a contemporary context. It is, however, to indicate that these initiatives need to be viewed in the totality of the effects that their uncritical adoption might have upon the processes of justice both in principle and in practice. Above all other considerations, it is essential to ensure that the fundamental principles of justice a~ministration (including those specifically relating to criminal punishment) are not jeopardised or abandoned in pursuit of uncertain goals, however apparently desirable such goals might appear to be. In the chapters that follow, we shall examine in some detail each of the traditionally accepted purposes, theories and concepts of criminal punishment (retribution and desert, deterrence, reform and rehabilitation). This analysis will be undertaken with a view to establishing the extent to which these approaches can be integrated into a rational model for the administration of justice in a contemporary developed society, or, indeed, the extent to which they may be mutuallyexclusive. 9 In so doing, it is important to recognise that many countries of the world presently stand at a crossroads in criminology and penology. Prison populations show few signs of decreasing in size, and most increase on an annual basis. This means that greater use is being made of imprisonment as a punishment almost everywhere, and the social costs of doing so have to be met at the expense of other competing demands within limited economic resources. Criminologists, perhaps more than any other professionals within the framework of judicial and correctional agencies, need to understand not only the

Crime and Criminology: General Considerations 23

theories that underpin the administration of criminal justice, but also the operational implications that flow from them in practice. For this reason alone, and for others that will become clear later, this becomes the essential starting point for those seeking to become criminal justice practitioners. With all this in mind, the first part of this book traces the debate relating to criminal punishment from its earliest formulation, through its subsequent development, and into its contemporary context. It will conclude with some reflections on the current trends in criminal justice philosophy that have been mentioned earlier, and in particular those of reparation and restorative justice which are, to a considerable extent, intertwined. It should be stressed, however, that the chapters that follow provide only an overview of this very complex and intriguing debate, and the text should be augmented, where possible, by wider reading of the reference material indicated. For this reason, notes and references follow each chapter to assist the reader in selection of additional reading, and a full bibliography is appended at the end of this work. Finally, brief explanation needs to be made about the way in which criminology has developed over the past hundred or so years. Though this book is concerned with criminology in a contemporary setting, many of the matters that will be debated have their origins in what has come to be known as the 'classical' era of the discipline dating back to the last half of the nineteenth century, and even earlier. The evolution of criminology over the intervening years has been significantly affected by parallel advances in a number of other academic disciplines such as ethics, moral and legal philosophy, psychology, psychiatry, medical science, theology, and later sociology. Modern criminology, therefore, did not emerge from an academic vacuum, but has been considerably enriched by the legacy of this very considerable range of studies and influences. Criminological principles derive from the intensive, and in many instances, the elegant debates that have occupied the minds of some of the most eminent scholars within these disciplines over the past decades. Many of these principles retain an essential validity, and do not necessarily become dated by the pace of social change in our contemporary world. Also, much of the wisdom expounded by those regarded as the founding fathers of criminology has a contemporary relevance that criminologists of the twenty-first century should seek to preserve and include within, rather than reject and discard from their deliberations. The classical debate concerning the nature of crime and criminology that is described next in some detail, is a vivid example of the way in which the discipline has evolved as our societies have become increasingly complex over time. If the overall reduction of crime is the professional purpose of criminologists, it becomes necessary to understand not only its legalistic definitions, social context, extent and effects, but also, and perhaps more importantly, how best to persuade people not to commit crime in the first instance.

24 Criminal Punishment and Restorative Justice

ENDNOTES for Chapter 1 1.

2.

3.

4.

5.

6. 7.

8. 9.

See here also Thorsten Sellin's analysis of the nature of criminology in his essay 'What is Criminology?' in D. DressIer (ed) (1964), Readings in Criminology, at pages 5-11. Emile Durkheim makes the profound observation that we should view crime as a normal phenomenon within any society, since there is no society that exists without its presence. He also points out that the manner in which crime is defined is a reflection of the extent to which collective public sentiment regards certain acts as reprehensible, and others, possibly equally harmful, as less so. See: E. Durkheim, (1895), Rules of Psychological Method, at pages 65-73. Note here Paul Tappan's commentary on the artificiality of many definitions of crime. He insists that criminologists should study all forms of anti-social behaviour, whether formally defined as crimes or not. This leads to a scientific evaluation of social 'conduct norms' which determine the extent of collective intolerance towards certain forms of behaviour. See: P. Tappan, (1947), 'Who is the Criminal?' in Alnerican Sociological Review, XII (February), at pages 96-102. The reader will note that this debate was of a continuous nature during the closing five decades of the twentieth century. 'White collar crime' has, however, increased significantly with the increasing industrialisation of modem societies, and the similar increase in individual wealth within these societies. See: Tappan, op. cit. (1947), at pages 100-102. Here see Marshall Clinard's approach in 'Research Frontiers in Criminology', re-printed in D. DressIer (ed), (1964), Readings in Crilninologtj and Penology, at pages 20-32, and in particular pages 25-6. See also Edwin Sutherland, (1949), White Collar Crime which represents the original authoritative work on this subject. Barbara Hudson's (1987) account entitled Justice Through Punishment is probably the most substantial and valuable commentary on, and critique of the origins and effects of the justice model of criminal punishment. She concludes that the outcomes of the justice model formulation are significantly 'unjust'. Also that the model was little more than a political attempt to divert attention towards the supposed need for increasing retributivism in criminal justice in the face of increasing volumes of violent and serious crime within the UK during the late 1970s and early 1980s. Here see the analysis of Michael Cavadino and James Dignan (1997a) in 'Reparation, Retribution and Rights' in International Review of Victimologtj, 4, at pages 233-53. For an example of this approach see Herbert Packer's (1969) work The Lilnits of the CriJninal Sanction at pages 62-70.

REFERENCES (in order within the text) Foucault, M. (1975), Discipline and Punish: The Birth of the Prison, [Tr. A. Sheridan], Harmondsworth: Penguin Books, p.89. Mannheim, H. (1965), C01nparative CriJninology, Volume 1, London: Routledge and Kegan Paul, p.3. Sutherland, E.H. and Cressey, D.R. (1960), Principles ofCrilninologtj, Sixth Edition, New York: J.P. Lippincott and Company, p.3. Prins, H. (1982), Crilninal Behaviour, London: Tavistock Publications, p.10. Sellin, T. (1964), 'What is Criminology?', D. DressIer (ed.) Readings in Crinlinology and Penologtj, Columbia: University Press, pp. 5-11. Bottomley, A.K. (1979), Crilninologtj in Focus, London: Martin Robertson, pp. 4-10. Durkheim, E. (1895), Rules of Psychological Method, Glencoe, Illinois: Free Press, [1958 Edition], pp. 6573. Bottomley, A.K. (1979), op. cit., pp. 4-10. Bottomley, A.K. (1979), op. cit., pp. 8-9. Jeffrey, C.R. (1959),' An Integrated Theory of Crime and Criminal Justice', Journal of Criminal Law, Cri1ninology and Police Science, vol. 49, p.534. Quinney, R. (1970), The Social Reality of Cri1ne, Boston: Little Brown, p.15. Chambliss, W.J. (1976), 'The State and Criminal Law', W.J. Chambliss and M. Mankoff (eds.), Whose Law? What Order? A Conflict Approach to Criminologtj, New York: John Wiley, p.102. Tappan, P. (1947), 'Who is the Criminal?', Alnerican Sociological Review, XII, (February), pp. 96-102.

Crime and Criminology: General Considerations 25 Schwendinger, H.and Schwendinger, J. (1970), 'Defenders of Order or Guardians of Human Rights?', Issues in CrilninologlJ, vol. I, pp. 123-57. Radzinowicz, Sir L. and King, J. (1977), The Growth ofCri1ne, Harmondsworth: Penguin Books, pp.135-6. Prins, H. (1982), Ope cit., pp. 1-15. Hudson, B. (1987), justice Through Punis/unent: A Critique of the justice Model of Corrections, Basingstoke: Macmillan Education, pp. 126-7. Tappan, P. (1947), Ope cit., pp. 100-02. Hartjen, C.A. (1972), 'Legalism and Humanism: A Reply to the Schwendingers', Issues in Crilninology, vol. 7, pp. 59-69. Quinney, R. (1964), 'The Study of White-Collar Crime: Toward a Reorientation in Theory and Research', journal ofCrilninal Law, Criminology and Police Science, vo!. 55, pp.208-14. Aubert, V. (1952), 'White-Collar Crime and Social Structure', A1nerican jounzal of Sociology, vo!. 58, pp. 263-71. Bottomley, A.K. (1978), Ope cit. p.37. Clinard, M. (1952), , Research Frontiers in Criminology' re-printed in D. DressIer (ed), (1964), Readings in CriminologlJ and Penology, New York and London: Columbia University Press, pp.20-32. Clinard, M. (1952), The Black Market: A Study in White Collar Cri1ne, New York: Rinehart and Company. Sutherland, E.H. (1949), White Collar Cri1ne, New York: Dryden Press. Bean, P. (1981), PunisJl1nent: A Philosophical and Criminological InquinJ, Oxford: Martin Robertson, pp.172-4. Hudson, B. (1987), Ope cit., in entirety. Cavadino, M. and Dignan, J. (1997a), 'Reparation, Retribution and Rights', International Review of Victimology, vol. 4, pp.233-53. Packer, H. (1969), The Lilnits of the Criminal Sanction, California: Stanford University Press, pp. 62-70.

CHAPTER 2

The Classical Debate The punishment of a criminal is an example to the rabble; but every decent man is concerned if an innocent person is condemned. Jean de la Bruyere - Les Characteres, 'Des Ouvrages de l'Esprit', p.20.

What has come to be known as the 'classical debate' in relation to the classification and punishment of criminal offences has a history that extends as far back as the biblical and koranic eras, if not even further. References abound within the writings of all the major religions of the world in relation to the punishment of wrongdoing, since this has been seen to be a social, if not a moral necessity for the regulation of human behaviour. Punishment of criminals within the ancient civilisations was predominantly arbitrary, immediate, brutal and exemplary, and frequently based on what is described as the jus talionis principle of 'an eye for an eye and a tooth for a tooth./} Its purpose was undoubtedly to secure compliance with social rules through the public and visible application of draconian penalties that would deter the offender from further crime, and the wider population from even contemplating it. This situation remained largely unchanged until the period of what has historically been described as the 'Enlightenment' of the eighteenth century in Europe and elsewhere, during which there developed a philosophical movement devoted to promoting the importance of reason, and a critical reappraisal of existing ideas and social institutions. 2 This same period saw the emergence of the earliest forms of modern penal philosophy, pioneered by moral philosophers and prison reformers such as Beccaria in Italy, Howard and Fielding in England, and Romilly in Europe. 3 Beccaria in particular, with a penological vision almost two hundred years in advance of his time, published a book critical of the uselessness of capital punishment, and repudiating the deterrent value of unnecessarily severe sentences. 4

POSITIVISM These pioneers were followed in the nineteenth century by others, predominantly in Europe, who are now regarded almost universally as the founders of modern criminology as we presently understand it. The 'Italian [or 'positivist'] School' as it later came to be known, attracted scholars such as Cesare Lombroso (1836-1909)/ Raffaele Garofalo (1852-1934) and Enrico Ferri (1856-1929) who followed an anthropological (or biological-positivist) approach to crime and its causation. This

The Classical Debate 27

involved detailed study of the individual offender and the reasons for his actions, including the external factors that influenced offending behaviour. Such an approach was at considerable variance with the studies of crime undertaken by what has been described as the 'Classical School' that preceded it, and whose adherents (Beccaria among them) were more concerned to promote administrative reform of the criminal law. They sought to do so by providing penalties supposedly proportionate to the social harm occasioned by offences, and were much less concerned with the motivations of those who committed crime. Positivism, on the other hand, was driven by the belief that it was possible (and moreover desirable) to devise a scientific method to study and explain criminal behaviour. This was pursued by methods of detailed anthropometric measurement and somato-typing5 in an attempt to establish that a distinctive criminal class could be identified and characterised by recognisable'stigmata' (or physical peculiarities or malformations) (Walsh and Poole, 1983, pp.55-6). This social class would, as proposed by Lombroso, subsume the 'born criminal', an atavistic and degenerate human sub-species (Lombroso, 1876). Though Lombroso later modified his views to some extent, his search for a scientific approach to the study of crime was influential and long lasting. His colleague, Ferri, while acknowledging the need for a scientific basis for explaining crime, concentrated his own attention upon crime as the product of an anti-social personality and behaviour which, he believed, was also susceptible of identification and classification (Ferri, 1917, p.79). Garofalo adopted an altogether different approach in his search for a scientific explanation of crime and its causation. He proposed that although it was difficult to identify common elements in every form of crime, crime was, nevertheless, a feature of every society in every age. Accordingly, he described this situation as one of natural crime, the effects of which upon society had a predictable and universal effect in terms of harm. His analysis may be summarised in the following extract from his work: We must lay aside t~e analysis of facts and undertake that of sentiments. Crime, in reality, is always a harmful action, but, at the same time, an action which wounds some one of the sentiments which, by common consent, are called the moral sense of human aggregation. Garofalo, 1914, p.6, quoted in Bottomley, 1979, p.4.

These three different approaches towards the formal study of crime indicate clearly the preoccupation of the early positivist criminologists with the creation of a methodological approach to their task. Each had its adherents, and remained to a greater or lesser extent influential until well into the twentieth century. It is also paradoxical that such approaches were inspired by the dissatisfaction of their proponents with the largely legalistic approaches to crime definition that prevailed in the 'classical school' of the early nineteenth century. Yet these were to be challenged and overturned by a similarly legalistic approach

28

Criminal Punishment and Restorative Justice

during the period preceding the outbreak of the Second World War. The work of Michael and Adler, published in America in 1933, insisted that the only reliable way in which crime might be classified and studied must be once it had been adjudicated as an illegal act by an authority competent to do so. Thus, once an action, prohibited by the criminal code had been committed, its perpetrator became criminal and, ipso facto a legitimate subject for criminological study (Michael and Adler, 1933, pp.1-2 and 92).6 This assertion was not without its critics, notably Sellin (1938), Sutherland (1940), and a number of others who advocated a wider definition of crime than a purely legalistic one. Sutherland, in particular, wanted to see what he termed 'white-collar' crime included within the definition of criminal conduct, entirely because of its harmful social effects. The approach adopted by what came to be described as the American 'Behavioural School' of sociologists and criminologists was to prove highly influential during the post-war period. It was led by writers such as Becker (1963 and 1964), Matza (1964 and 1969) and Lemert (1967), who proposed that definitions of crime based predominantly on legal definitions limited the advance of criminology as an academic science to an entirely unacceptable extent. It also seemed to them to be far more important to study the social circumstances that gave rise to the commission of crime, and thus the identification of criminal persons. Still other commentators, (such as Jeffrey (1959), Quinney (1964 and 1970) and Chambliss (1976)), suggested a compromise position which would take account not only of the nature of the law itself, but also the reasons for it being enacted in the first place. In other words, they proposed the study of law and society together. This effectively bridged the gap between the limitations of the former 'classical' and 'positivist' schools of the late eighteenth and nineteenth centuries, while acknowledging that neither, in isolation, provided an appropriate basis for the study of crime and its causes in the twentieth century. It might be tempting, at this stage, to suggest that this is where the'classical debate' could be regarded as having ended, but such would be to do criminology a considerable injustice. As noted in Chapter 1, four strands of criminological thought that developed during the closing three decades of the twentieth century, each of which was to leave an indelible mark on the development of the discipline as an academic science. These were, respectively, what might be termed the birth of a 'radical' or critical' approach to criminology, the emergence of a human rights perspective on crime, the articulation of the so-called 'justice model' of punishment, and, latterly, the concept of 'restorative justice'. Each of these initiatives deserves mention, albeit briefly, within this account, since they have, singly and to a certain extent in combination, contributed significantly to the contemporary state of criminological understanding.

The Classical Debate 29

CRITICAL CRIMINOLOGY It has been argued (for example, by Bottomley, 1979, pp.9-10) that the human rights approach to the definition of crime arose as a development of critical criminology, though the two were, to a considerable extent contemporaneous. In its outright rejection of 'positivism', critical criminology also rejected a legalistic approach to the identification of crime, in favour of an explanation for its occurrence in the form of deviant reactions to political, economic and social pressures within society. Briefly stated, this implies that all crime is essentially political in nature, since it transgresses the rules created by influential or powerful groups to control the undesirable behaviour of others.

Determinism Viewed entirely from a sociological perspective, such an explanation had considerable appeal in drawing attention to issues of differential power, conflict, and lesser eligibility within society in general, and criminal justice in particular. It did, however, contain a 'deterministic' message that struck at the heart of concepts of criminal punishment which regarded human beings as free-will actors with responsibility for their actions - whether good or evil. 7 Moreover, it did more to mitigate the wrongful nature of crime than to explain it, by claiming that the offender was, to a very considerable extent, constrained to behave illegally as a direct result of his or her social situation, or other pressures largely beyond individual control. What determinism significantly failed to account for was why - in the same circumstances - some individuals commit offences while others refrain from doing so. The determinist philosophy of crime perceived human actions (somewhat like physical events) as caused rather than chosen, predominantly because the individual is largely unable to explain the entire range of circumstances, influences and motivations that control behaviour. This was the central thrust of what came to be known as 'hard' determinism in the 1960s and 1970s, and provoked considerable resistance from lawyers and moral philosophers. The concept was subsequently modified by writers such as Matza (1964) to suggest that it might be possible to conceive of a form of determinism that enabled a freewill approach to crime to be combined with causative social explanations beyond the immediate control of the human individual. Matza termed this situation as one of 'drift' in which the offender makes a choice to break the law, though in a manner mitigated by the social processes affecting him or her. Thus the offender exists in a state of suspension between conventional behaviour and crime, responding in turn to the demands and pressures of each. 'Soft' determinism, as this account was named, was an attempt to provide a compromise between the notion of free will and responsibility on the one hand, and crime precipitated by social causes and constraints on the other.

30 Criminal Punishment and Restorative Justice

Critical criminology embraced deterministic explanations of crime, deviance and delinquency with considerable enthusiasm, since these enabled a direct assault to be made on the perceived inequalities in the distribution of power, wealth, status, eligibility and individual resources within post-war societies. The same explanations could be used to criticise the social organization of capitalist and totalitarian states with equal effect, and, at the same time, locate crime within the social structure as a direct product of dysfunctional forces and social injustice, rather than of individual pathology.

THE HUMAN RIGHTS PERSPECTIVE From this platform of what might be termed a 'social injustice' model of criminology, it was to be anticipated that the fast developing human rights movement of the 1970s would seek to extend the debate into the arena of other forms of perceived social discrimination. These, at the time, lay outside the boundaries of the criminal law. Influential writers such as the Schwendingers (1970) proposed that forms of discrimination based upon race, gender, religion, and the like, were in a moral as well as an operational sense, specifically and calculably injurious in the social harm that they caused. Such individual and collective antisocial conduct should, claimed the Schwendingers, enable criminologists 'to identify those forms of an individual's behaviour and social institutions which should be engaged in order to defend human rights' (Schwendinger and Schwendinger, 1970, p.146). The human rights movement's attempt to broaden the scope of identifiable criminal activity received considerable support from radical criminologists during the 1970s (see, for example, Platt, 1975; Quinney and Wildeman, 1977; and Bottomley, 1979). It also attracted a significant measure of criticism from the more traditional moral and legal philosophers of the era (such as Hartjen, 1972; Scheingold, 1974; Radzinowicz and King, 1977: 118-21; and, most notably, Dworkin, 1977 and 1985).8 The following quotations summarise the relative positions with admirable clarity: The transformation of behaviour into crime must be understood largely as a result of the moral world's active interpretation of that behaviour. It cannot usefully be discussed as if it were no more than a straightforward and rational response of a society to threatening acts. The emergence of law is founded on processes which mediate between behaviour, its construction as threatening by the powerful, and its translation into crime. Rock, 1974, p. 149 (Italics in original). I have no doubt that the study of racism and the like is humanistic. I do however question the necessity and the desirability of defining crime in terms of the conditions the Schwendingers suggest. Racism, sexism, imperialism and the like are all phenomena that are objectionable in their own right. It is not necessary to define them

The Classical Debate 31 as crime (or anything else for that matter) because they are phenomena that, as such, deserve the attention of sociology and criminology. Hartjen, 1972, p.66.

It has to be remembered that although all the various developments in criminological thinking previously described actually occurred in a protracted sequence over many decades, the practice of punishing criminal acts remained a continuous and evolutionary process. The move away from the 'classical' approach within criminal justice towards 'positivism' and, subsequently 'determinism', necessitated a similar shift away from predominantly retributive punishment towards belief in the rehabilitative value of criminal sanctions. This change of emphasis was necessary to accommodate the notion that criminality might be cured by appropriate 'treatment', in much the same way as an illness may be alleviated by medical intervention.

THE REHABILITATIVE MODEL Thus, by the logic applied by radical determinist criminology of the early second half of the twentieth century, those who committed serious criminal offences might be enabled, through therapeutic and rehabilitative programmes, to pursue law-abiding and useful lives on release from custody.9 Less serious offenders, it was also believed, might undergo similar behavioural change on the completion of non-custodial programmes, as appropriate in individual cases. Either way, on the continents of North America and Europe during the 1950s and 1960s, belief in what was termed the 'treatment and training model' of punishment was confidently expected to reduce crime in an overall sense by turning offenders into law-abiding citizens through sanctions based on rehabilitative principles. By the mid-1970s it had become very evident that the 'rehabilitative model' of criminal punishment seemed to be having little effect on rates of serious offending, or the long term behavioural change of those released from sentences of either a custodial or non-custodial nature. On both continents, increasing use was generally being made of imprisonment, and the duration of prison sentences was also showing an overall increase (Hudson, 1987, pp.32-3). The result was to be seen in significant escalations of prison populations almost universally, and no apparent reduction in rates of recorded criminal activity. Critically, rates of recidivism (or re-conviction within short periods following release from sentences) also showed marked increases, thus adding to the perception that the 'rehabilitative model' was largely failing to achieve its social purpose (see Greenberg, 1975, and Cohn, 1979). It should be noted that the trend towards rehabilitative sentencing led to increasing use of indeterminate sentences,lO and also to an overall increase in the length of determinate sentences ll in order to provide sufficient time for rehabilitative programmes to be completed. Each of these factors made a marked

32

Criminal Punishment and Restorative Justice

impact on the size of prison populations, even though, in addition, increasing use was also generally being made of custodial sanctions. By the mid-1970s, the prison systems of Europe and North America were undoubtedly in crisis. Most were overcrowded, housing excessive populations in outdated, cramped and degrading conditions, and totally unable to deliver rehabilitative regimes even if these had the potential to succeed in some individual cases. Prison riots became frequent occurrences, and excessive control measures were routinely used to prevent and deal with loss of control and disorder (see, for example, Fitzgerald and Sim, 1979; American Friends Service Committee, 1972; Evans, 1980; and Thomas and Pooley, 1980). By the closing years of the 1970s, the volume and extent of criticism of rehabilitative penal philosophy and operation had become a deafening clamour for change. Civil rights organizations targeted the degrading conditions in prisons as entirely unacceptable in civilised societies. Human rights activists cited the coercive nature of rehabilitative regimes (particularly those of an indeterminate type) as abusive. Increasingly frustrated 'law and order' lobbies called for a return to more punitive (effectively retributive) modes of criminal punishment. Politicians demanded drastic reductions in the costs of maintaining penal populations and the expansion of prison accommodation. Prisoners' rights organizations campaigned for less use of imprisonment, improved prison conditions, and an end to what was termed the 'coercive effects of indeterminacy' in sentencing. Prison staff, demoralised and frequently fearful for their safety, responded with increasing aggression to the violent and abusive behaviour of prison inmates. The situation was, in almost every respect, an untenable one, and change was inevitable. The outcome of this many-sided assault on rehabilitative penology was the emergence of a philosophical vacuum both within society and criminology generally, and within penology in particular. There seemed to be no approaches that had not already been tried, and had not subsequently been found to fail in the pursuit of crime control and reduction. Faith in the potential of the 'rehabilitative ideal' had been diminished, and the deterrent effects of imprisonment seemed to be entirely illusory in reducing crime or recidivism (see Hudson, 1987, pp.29-30, and particularly Martinson, 1975, pp.155-87).12 The resulting dilemma for penal philosophers, lawyers, politicians, criminologists and correctional practitioners alike was now of a critical nature, since in both a moral and an operational sense the entire basis for criminal punishment appeared to be in doubt and question. If rehabilitative punishment had been significantly discredited, crime rates saw no evident reduction, and the deterrent effect of sanctions seemed largely ineffective, a return to retributive justice became almost the only practicable solution.

The Classical Debate 33

THE JUSTICE MODEL Thus it was that the so-called 'justice model' of corrections emerged to fill the vacuum that resulted from the above, more as a strategy of appeasement than of clarity of vision. Its initial appeal undoubtedly lay in the fact that, as Hudson (1987) indicates, it promised all things to all people: To the liberal lawyers, it promises a restoration of the legitimacy and respect accorded to the legal system by reducing the perceived irrationality and unfairness of a system which facilitates - indeed logically depends upon - wide discretion and consequent disparity in sentencing, with like offences receiving very unlike sentences (e.g. Frankel, 1973; Fogel, 1975; and Wilkins, 1980); to the right-wing, law-and-order lobby it appears to guarantee 'swift and sure punishment', ending leniency and the softly, softly approach of giving criminals over to the care of social workers rather than into the control of the prison system (e.g. Wilson, 1977 and Morgan, 1978); to radical academics, social workers and campaigners against the excessive use of imprisonment, considering the offence means that the huge volume of petty, routine offending would be punished by conditional discharges, fines, etc. and imprisonment would become reserved only for the most serious, most socially or physically dangerous of criminals, and that people would cease to be imprisoned because of judicial prejudice against the unemployed, members of ethnic minority groups, the young and already socially disadvantaged (e.g. American Friends Service Committee, 1972, Schur, 1973, and Morris, 1978) Hudson, 1987, pp. 37-8.

The detailed manner in which the 'justice model' operated will become a focus for discussion in subsequent analysis of the role of retribution within punishment which is considered in Chapter 3. It is, h9wever, important to note that it was primarily based upon the notion of proportionality in sentencing to the gravity, or seriousness, of the offence, determinacy in sentencing, limitation of judicial discretion, the removal of disparity in punishing like offences, and the protection of rights through due process and safeguards. It is not, therefore, difficult to see why the model had such wide initial appeal in the late 1970s and early 1980s within North America and Europe. 13 If there was euphoria over the formulation of the 'justice model' of criminal punishment, it was comparatively short-lived. By the mid-1980s, there was a caucus of doubt about its effects in operation, both in the United States and in Britain. The principle of proportionality in sentencing placed the model at the mercy of an increasingly 'hawkish' right-wing political agenda which, while viewing crime in general with increasingly punitive intent, ~scalated the notion of 'just deserts' within sentencing in an almost draconian manner. The result of this, combined with a similar harshness in relation to parole considerations, was to achieve a general increase in the length of time offenders spent in prison custody (Cohen, 1985, and Hudson, 1987, pp.163-4). There was thus no particular

34 Criminal Punishment and Restorative Justice

easing in relation to the size of prison populations: merely a resort to the provision of more prison places. Significantly, over the same period, there arose a curious form of 'neoclassicism' that identified increasing volumes of recorded serious crime as the direct result of dysfunctional social forces (unemployment, poverty and inequality). This crime was then punished with increasing severity in an attempt to control thereby what governments were not prepared to address by social change. The 'war against crime' thus became a crusade to 'get tough on crime' without getting tough on the causes of crime. Worse still, as Hudson indicates (alluding to Cohen's 1985, p.151 assessment): The hidden agenda of neo-classicism is simply to punish harder; but it is more than that, its agenda assists the state in neutralising the disaffected by privileging crime as the social problem of our time, and assists in their emasculation further by predicating crime on individual wickedness rather than collective deprivation. Hudson, 1987, p.165.

As Hudson further points out in her penetrating analysis and critique of the 'justice model', it was its ultimate 'unjustness', quasi-liberal and hypocritical presentation in both America and Britain during the 1980s that was to prove its undoing. Social justice depends on the state itself honouring its obligations to its citizens in return for their compliance with the law. Where rewards are unevenly distributed, then obligations are unevenly due, and retributive punishment based on desert has no meaning (Hudson, 1987, p.169). By ignoring the nature and extent of social inequality in either country, the proponents of the 'justice model' successfully undermined any consensual authority it might have had, and, at the same time, exposed its fragility in claiming to give operational effect to the principle of desert within retributive punishment. As if these p.endulum swings in the world of criminal justice and, therefore, within the academic discipline of criminology were not sufficiently confusing during the closing decades of the twentieth century, the subsequent, and perhaps the most mystifying development may yet prove to eclipse them all. Reaction to the repressive unfairness of the 'justice model' provoked what might be seen as an inevitable 'backlash', and, predominantly for lack of immediately available alternatives, a re-visitation of the rehabilitative model of criminal justice. Some observers would claim that this 'revisionist' approach was fuelled by a genuine belief that the potential effectiveness of the rehabilitative ethic had been too hastily discarded. More than this, perhaps, that Martinson's 'nothing works' analysis (1975) had not only been misunderstood, but the misunderstanding had also been deliberately fostered as a means of enabling abandonment of some of the more obviously objectionable practical consequences of indeterminacy, therapeutic coercion, and the like. Others, possibly of a more visionary

The Classical Debate 35

persuasion, and nurturing a lingering belief in the potential goodness rather than the intrinsic fallibility of human nature, perceived the possibility of what might be described as a 'neo-expiation' approach to offender re-socialisation through criminal punishment.

RESTORATIVE JUSTICE Whatever the motivations, or due perhaps to the absence of morally acceptable alternatives, the contemporary trend towards social reconciliation through what is termed 'restorative justice' has gained an increasing foothold within the contemporary criminology of the late 1990s and the new millennium. However, as has been noted in Chapter 1, attempts to re-define the nature of crime and the purposes of its punishment need to be approached with caution. For while, on initial consideration, there might seem to be some considerable benefit to be gained from a form of justice that seeks to reconcile offenders and their victims, and, thereby, restore some hypothetical measure of social equilibrium, the notion has some potential disadvantages. The first of these is that the concept of restorative justice is based on a hybrid collation of 'human rights' theories, according both the perpetrator(s) and the victim(s) of crime at least notional if not substantive 'rights' as a matter of principle within the criminal punishment process. The second reason is that it is driven predominantly by a 'reductivist' agenda that seeks to make less use of custodial sanctions, not primarily because these may be unnecessary or socially undesirable, but more because of a desire to distance the model from considerations of retribution and desert. As a consequence, the concept veers towards a 'neo-reformist' model of criminal justice based on the idea of reintegration via reparation and reconciliation, but without a clear under-pinning punishment philosophy. A third difficulty with the concept of restorative justice lies in the apparent presumption that the offender will opt for the potential sentencing advantages (to him or herself) to be gained from compliance with a reparative mode of punishment. There is a singular lack of clarity about what outcomes might justifiably follow in circumstances of non-compliance or refusal by the offender to participate for whatever reason or reasons. In some variants of the concept as it is presently articulated, the victim is accorded the right of 'allocution', or an opportunity to become involved in the sentencing process, either directly, or by means of a 'victim ~mpact statement' submitted to the court post-conviction but prior to consideration of sentence (see Watson et al., 1989; Wright, 1991; Cavadino and Dignan, 1992 and 1997a; Ashworth, 1993a and b; and Dignan, 1994). Some proponents of the restorative justice model suggest that in certain circumstances it may be appropriate for the offender to be brought into contact with the victim with a view to a measure of reconciliation being undertaken

36 Criminal Punishment and Restorative Justice

between the two parties (either mutually or through counselling). While this might appear to be desirable, at least in theory, there must be some significant reservation in relation to the issue of consent, the possibility of further suffering on the part of the victim, and the potential for exploitation of the situation by unscrupulous or malicious offenders. This procedure, described somewhat grandiosely in the literature as 'victim re-empowerment', constitutes, in effect, a further assertion of the rights of victims to participate in the offence resolution process, at least on an extra-legal basis (see, for example, Dworkin, 1978, and Watson et al., 1989). It is not a matter of primary concern, at least for the purposes of the present analysis of the development of crime theory and punishment philosophy, to dwell at too great a length on the supposed strengths and weaknesses of restorative justice as a concept. More important is the fact that it has a widespread contemporary appeal, and also has the intellectual support of a number of respected criminologists. It is, however, necessary to question intelligently the reasons for the emergence of such a concept and its apparent acceptance within mainstream criminological thinking. Whether it emerged as part of a general dissatisfaction with the 'justice model' of corrections, or, as a 'last ditch' attempt to re-formulate a new 'rehabilitationist' philosophy of criminal justice, must remain a question for later consideration. In the search to understand and define the essential nature of crime and criminology, it is necessary to have a clear perception about how both have developed and changed as time has passed, and human societies have become more complex. It is relatively straightforward to assert that'all crime is wrong', but less easy to accept the further assertion that'all wrong is not crime'. Writing almost a quarter of a century ago, but addressing precisely the same situation, Bottomley summed up the situation in the following words at the conclusion of his work Criminology in Focus: We must never lose sight of first principles in our enthusiasm to combat the incidence of criminal behaviour. In the context of crime and criminology the very foundations of definitions and social action depend on value judgements, and the evidence of proven effectiveness' leaves little room for complacent optimism. Deviant behaviour that is proscribed by the criminal law, and that proportion of it which results in penal sanctions against individual offenders, encompasses only a small part of what is harmful to society or of what people consider to be morally wrong or undesirable. I

Bottomley, 1979, p.160.

In the course of this chapter, the development of criminological thinking has been traced over three or more centuries. As is the case in our contemporary world, with all its complexities and competing social priorities, fashions change and new ideas emerge to displace the concepts previously considered to hold essential validity. Crime is, has always been, and will continue to be a consistent and persistent feature of every society, but our approach to its limitation to within what

The Classical Debate 37

may be considered socially tolerable levels is a matter as much for morality as for politics. Equally important is the way in which criminal punishment is used to deal with those who break the law. As will become evident in the chapters that follow, the evolution of penology has been similarly changeable, and its results far from consistent or such as to inspire confidence. If this chapter has identified one cardinal dilemma with which every criminologist is inevitably confronted, it is that of ultimately deciding between the 'positivistic' and 'deterministic' explanations of criminal behaviour. There is, it would seem, no convenient 'halfway house' in which to shelter from this necessity, or in which to hide in the hope that it will go away and cease to cause criminology its most intractable and, hitherto, unresolved problems.

ENDNOTES for Chapter 2 1.

Reference to the jus talionis or lex talionis as it is frequently described has its origins in the Bible in the Book of Exodus Chapter 21 and Verse 24. This situation is described in Michael Ignatieff's (1978) excellent account of the growth of the penitentiary movement in England during the years of the Industrial Revolution 1750-1850 in A Just Measure of Pain' at Chapter 3, pages 45-79. Paul Walker (1972) provided a comprehensive explanation of this development in his work Punishment: An Illustrated History at pages 86-111. See Beccaria, C., (1764), On Crimes and Punishment, translated by H. Paolucci, and published in New York by Bobbs Merrill in 1963. Somato-typing was pioneered by W.H. Sheldon (1899-1977) and described in his work (with S.S. Stevens and W.B. Tucker, (1940) entitled The Varieties ofHuman Physique. The process sought to classify human body types into three main types - endomorphs (round bodied), mesomorphs, (hard bodied with wide shoulders), and ectomorphs (thin and delicate bodied). Individuals were rated on a seven point scale in respect of each dimension, the rating being known as the somatotype'. In his Varieties ofDelinquent Youth (1949), Sheldon concluded that mesomorphs were most commonly evident in the body-build of criminals. See: D. Walsh, and A. Poole, (1983), A Dictionary of Criminology, at page 211. Keith Bottomley (1979) provides a detailed account of the importance of the work of Michael and Adler (1933) in Criminology in Focus at pages 5-7. William Jordan (1983) describes determinism as suggesting that human actions are not chosen but caused (or determined). Thus, actions represent responses to external stimuli, and, therefore, the outcomes of such might have been predicted by scientific study of these influences on human beings, and the patterns of their previous behaviour. Determinism suggests that criminal acts are thus very frequently the responses of individuals to the social circumstances in which they live, or by which their lives are significantly affected (e.g. poverty, deprivation, poor health, lack of education, peer group criminality, etc.). See Walsh, D. and Poolet A., op. cit., at pages 67t

2.

3. 4. 5.

I

6. 7.

8.

8.

Two of the most influential writers on the moral and political development of the human rights movement have been Stuart Scheingold (1974) in his book The Politics of Rights: Lawyers, Public Policy and Political Change, and Ronald Dworkin (1977) Taking Rights Seriously, and (1985) A Matter of Principle. Both writers question the wisdom of extending the definition of the criminal law to include acts which, though harmful, are anti-social rather than necessarily criminal.

38 Criminal Punishment and Restorative Justice 9.

10.

11.

12.

13.

In England and Wales, within the Prison Rules (1952), it was specified (at Rule 1) that 'the purpose of the treatment and training of convicted prisoners should be such as to enable them to lead good and useful lives after release' . Here, see for example, Barbara Hudson's (1987) explanation in Justice Through Punishment at pages 23-6. Indeterminate sentences express no finite limit to the time to be spent in custody, most often taking the form of the 'life sentence' which is variable in length, depending upon the supposed fitness of the offender for release (whether under parole supervision or not). l1.The effect of rehabilitative sentencing was to make the term spent in custody generally longer to enable treatment or training to be undertaken once the behaviour and attitude of the offender had been assessed in prison. In addition to generally increasing the size of prison populations, both rehabilitative and indeterminate sentencing placed considerable power and discretion in the hands of prison and parole officials to decide on release dates and parole suitability. Radical prison reformers claimed that such sentencing was coercive insofar as it compelled the prisoner to consent to take part in programmes, and discriminatory against those who refused to do so. (See Barbara Hudson's (1987) account (op. cit.) at pages 65-73. Robert Martinson (1975) set out his conclusions relating to the rehabilitative potential of prison programmes in a number of published accounts. For a concise version of his argument, see his contribution entitled What Works? Questions and Answers About Prison Reform in I.A. Gardiner et al. (1975), at Chapter 14, pages 155-87. The full account of the research undertaken by D. Lipton, R. Martinson, and J. Wilks is to be found in their book The Effectiveness of Correctional Treatment, published in 1975. Barbara Hudson (1987) deals with this issue at some length in Justice Through Punishment, (op. cit.), at pages 163 et seq.

REFERENCES (in order within the text) Ignatieff, M. (1978), A Just Measure ofPain: The Penitentiary in the Industrial Revolution 1750-1850, New York: Pantheon Books, pp. 45-79. Walker, P. (1972), Punishment: An Illustrated History, Newton Abbot: David & Charles, pp. 86-111. Beccaria, C. (1764), On Crimes and Punishment, [tr. H. Paolucci], New York: Bobbs Merrill. Sheldon, W.H., Stevens, S.S. and Tucker, W.B. (1940), The Varieties ofHuman Physique, New York: Free . Press. Sheldon, W.H. and Stevens, S.S. (1942), Varieties ofDelinquent Youth, New York: Free Press. Walsh, D. and Poole, A. (1983), A Dictionary of Criminology, London: Routledge & Kegan Paul. Lombroso, C. (1876), L'Uomo Delinquente, [tr. Unknown], Boston: Little Brown. And see also: Lombroso, C. (1918), Crime: Its Causes and Remedies, Boston: Little Brown. Ferri, E. (1917), Criminal Sociology, Boston: Little Brown, p.79. Garofalo, R. (1914), Criminology, Boston: Little Brown, p.6. Bottomley, A.K. (1979), Criminology in Focus, Oxford: Martin Robertson, p.4. Michael, J. and Adler, M.I. (1933), Crime, Law and Social Science, New York: Harcourt, Brace & Co., pp.1-2 and 92. Bottomley, A.K. (1979), op. cit. pp. 5-7. Sellin, T. (1938), Culture Conflict and Crime, New York: Social Science Research Council. Sutherland, E.H. (1940), 'White Collar Criminality', American Sociological Review, vol. 5, pp. 1-12. Becker, H.S. (1963), Outsiders: Studies in the Sociology of Deviance, New York: Free Press. Becker, H.S. (1964), The Other Side, Glencoe: lllinois Free Press. Matza, D.M. (1964), Delinquency and Drift, New York: John Wiley. Matza, D.M. (1969), Becoming Deviant, Englewood Cliffs N.I.: Prentice Hall. Lemert, E.M. (1967), Human Deviance, Social Problems, and Social Control, Englewood Cliffs N.I.: Prentice- Hall. Jeffrey, C.R. (1959), 'An Integrated Theory of Crime and Criminal Behaviour', Journal of Criminal Law, Criminology and Police Science, vol. 49, pp. 533-52.

The Classical Debate 39 QUinney, R. (1964), 'Crime in Political Perspective', American Behavioural Scientist, vol. 8, pp.19-22. Quinney, R. (1970), The Social Reality of Crime, Boston: Little Brown. Chambliss, W.J. (1976), 'The State and Criminal Law', W.J. Chambliss and M. Mankoff (eds.), Whose Law? What Order? A Conflict Approach to Criminology, New York: John Wiley. Bottomley, A.K. (1979), op. cit., pp. 9-10. Jordan, W.J.O. (1983), 'Determinism', Walsh, D. and Poole, A. op. cit., pp. 67-8. Matza, D. M. (1964), op. cit. Schwendinger, H. and Schwendinger, J. (1970), 'Defenders of Order or Guardians of Human Rights?', Issues in Criminology, vol. 5, pp. 123-57. PlaU, A.M. (1975), 'Prospects for Radical Criminology in the USA', I. Taylor, P. Walton and J. Young (eds.), The New Criminology, London: Routledge & Kegan Paul, pp. 95-112. Quinney, R. and Wildeman, J. (1977), The Problem of Crime: A Critical Introduction to Criminology, [Second Edition], New York: Harper and Row. Bottomley, A.K. (1979), op. cit. Hartjen, C.A. (1972), 'Legalism and Humanism: A Reply to the Schwendingers', Issues in Criminology, vol. 7, pp. 59-69. Scheingold, S.A. (1974), The Politics of Rights: Lawyers, Public Policy and Political Change, London: Yale University Press. Radzinowicz, Sir L. and King, J. (1977), The Growth of Crime: The International Experience, Harmondsworth: Penguin Books, pp. 118-21. Dworkin, R. (1978), Taking Rights Seriously, London: Duckworth. Dworkin, R. (1986), A Matter of Principle, Oxford: Clarendon Press. Rock, P. (1974), 'The Sociology of Deviance and Conceptions of Moral Order', British Journal of Criminology, vol. 14, pp.139-49. Hartjen, C.A. (1972), op. cit., p. 66. Hudson, B. (1987), Justice Through Punishment: A Critique of the Justice Model of Corrections, Basingstoke: Macmillan Education, pp. 32-3. Greenberg, D.F. (1975), 'The Incapacitative Effect of Imprisonment: Some Estimates', Law and Society Review, vol. 9, pp. 541-80. Cohen, S. (1979), 'The Punitive City: Notes on the Dispersal of Social Control', Contemporary Crises, vol. 3, pp. 339-63. Hudson, B. (1987), op. cit., pp. 23-6. Hudson, B. (1987), op. cit., pp. 65-73. Fitzgerald, M. and Sim, J. (1979), British Prisons, Oxford: Basil Blackwell. American Friends Service Committee, (1972), Struggle For Justice, New York: Hill and Wang. Evans, P. (1980), Prison Crisis, London: George AlIen and Unwin. Thomas, J.E. and Pooley, R. (1980), The Exploding Prison, London: Junction Books. Hudson, B. (1987), op. cit, pp.29-30. Martinson, R. (1975), 'What Works? Questions and Answers About Prison Reform', J.A. Gardiner and M.A. Mulkey (eds.), Crime and Criminal Justice, Chapter 14, London and Lexington: D.C. Heath & Co. pp. 155-87. Lipton, D., Martinson, R. and Wilks, J. (1975), The Effectiveness of Correctional Treatment, London and New York: Praeger Publications. Frankel, M.E. (1973), Criminal Sentences, New York: Hill and Wang. Fogel, D. (1975), We are the Living Proof The Justice Model of Corrections, Cincinnati: Anderson. Wilkins, L.T. (1980), 'Sentencing Guidelines to Reduce Disparity', Criminal Law Review, April, pp. 2014.

Wilson, J. (1977), Thinking About Crime, New York: Vintage Press. Morgan, P. (1978), Delinquent Fantasies, London: Temple Smith. American Friends Service Committee, (1972), op. cit. Schur, E. (1973), Radical Non-Intervention: Rethinking the Delinquency Problem, Englewood Cliffs N.J.: Prentice-Hall. Morris, A. (1978), Ju'uenile Justice? London: Heinemann. Hudson, B. (1987), op. cit., pp. 37-8.

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Hudson, B. (1987), op. cit., pp. 163-70. Cohen, S. (1985), Visions of Social Control, London: Polity Press, p.151. Martinson, R. (1975), op. cit. Watson, D., Boucherat, J. and Davis, D. (1989), 'Reparation for Retributivists', M. Wright and B. Galway (eds.), Mediation and Criminal Justice: Offenders and Community, London: SAGE Publications. Wright, M. (1991), Justice for Victims and Offenders, Milton Keynes: Open University Press. Cavadino, M. and Dignan, J. (1997), The Penal System: An Introduction, [Second Edition]. London: SAGE Publications. Cavadino, M. and Dignan, J. (1997), 'Reparation, Retribution and Rights', International Review of Victimology, vo!. 4, pp.233-53. Ashworth, A. (1993a), 'Some Doubts About Restorative Justice', Criminal Law Forum, vo!. 4, pp. 27799. Ashworth, A. (1993b), 'Victim Impact Statements and Sentencing', Criminal Law Review, pp. 498-509. Dignan, J. (1994), 'Reintegration Through Reparation: A Way Forward for Restorative Justice?', A. Duff, S. Marshall, R.E. Dobash and R.P. Dobash (eds.), Penal Theory and Penal Practice: Tradition and Innovation in Criminal Justice, Manchester: Manchester University Press, pp. 231-414. Dworkin, R. (1978), op. cit. Watson, D. et al. (1989), op. cit. Bottomley, A.K. (1979), op. cit., p.160.

CHAPTER 3

Retribution and Desert: Vengeance or Justice? My object all sublime, I shall achieve in timeTo let the punishment fit the crime. Sir W.S. Gilbert, The Mikado, II.

Punishment of those who break the law involves the intentional infliction of unpleasantness or pain upon human beings by other human beings (Ewing, 1929, pp.13-14; Hart, 1968, pp.4-5). This, as Wasserstrom has pointed out, is an inescapable fact of life, and a problem that has to be recognised and confronted by all those who are concerned with morality. It is a problem because the infliction of pain, intentionally imposed, requires justification in order to be morally acceptable (Wasserstrom, 1977, p.173).l

RETRIBUTION The concept of retribution as an essential element within criminal punishment has deep roots within theology, moral philosophy and penology. Its adherents insist that it is essentially 'just', that crime deserves punishment, that those found guilty of crime should be punished if for no other reason than that it is deserved, and that not to punish them would be to fail to uphold the law (see, for example, Bradley, 1894, pp.269-84; Mabbott, 1961, pp.39-54). Its detractors claim that the idea of retribution is virtually inseparable from motivations of vengeance and vindictiveness, and that those who defend it derive pleasure or a sense of moral rectitude from seeing others suffer. Moreover, such objectors claim, it is backward looking, concentrating attention on the offence rather than the offender, and has no prospective purpose in terms of the future behaviour of persons punished (see Armstrong, 1969, pp.138-58; Packer, 1972, pp.102-7).2 Many attempts have been made to reconcile these polarised positions, the most significant of which lie in the works of Ewing (1929) and Hart (1961 and 1968). Most of these have proved relatively unsuccessful. Morever, as Bean (1981) points out: There is no single theory of retribution, although Kant and Bradley provide the clearest examples with Bradley being the fiercest retributionist of modern times. 'Punishment is punishment only where it is deserved. We pay the penalty because we owe it and for no other reason; and if punishment is inflicted for any other reason whatever than because it is merited by wrong, it is a gross immorality ... and not what it pretends to be.' (Bradley, 1927, pp. 26-7.) [Thus] Bradley insists that there is a necessary connection between punishment and guilt. No person is to be punished unless he deserves it, and he deserves punishment because he has been guilty of doing wrong. Bean, 1981, pp.12-13.

42

Criminal Punishment and Restorative Justice

Since the earliest writings about retribution, there seemed to be a general sense of agreement that penal sanctions should only be visited upon those found guilty of offences against the law, and that retributive punishment is thus/ effectively, an end in itself. Kant, however, going somewhat further, insisted that: Punishment can never be administered merely as the means of promoting another good, either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For a man ought never to be dealt with merely as a means subservient to the purpose of another. Kant, 1897, quoted in Bean, 1981, p.13.

This view placed those in favour of retribution as deserved and an end in itself at odds with others like Mill, Bentham and Hegel who wished to propose utilitarian views of punishment, albeit of entirely different kinds. In the passage quoted above, Kant was evidently attempting to forestall dilution of the idea of punishment entirely as deserved, by suggestion that it might, qua punishment, have other socially beneficial effects. As will be seen later in discussion of deterrence and reform, these were not ideals pursued by retributivists. 3 As Galligan explains in an elegant account of the renaissance of interest in retribution during the late 1970s and early 1980s, the primary motivation was provided by a deep dissatisfaction with the performance of penal systems generally over the preceding thirty years or so. This was combined with a renewed conviction of the truth of the principle, ancient in origin but eclipsed in recent history, that the central purpose of criminal justice is not to deter, to incapacitate or to reform, but to punish law-breakers' (Galligan, 1981/ p145). Retributivism insists that justice requires that the guilty be punished, that human beings (other than in the specifically excepted cases of infancy or insanity) are capable of responsibility for their actions, and therefore those who choose to act in violation of the law deserve to be punished. It is thus the freewill nature of crime that makes it culpable, and the extent of that culpability derives from the seriousness of the harm done by the offence. However, this argument is not without its own difficulties, for important reasons that deserve explanation. If Hart's definition of the standard case for punishment, as set out in his Prolegomenon to the Principles of Punishment/ 4 is to be accepted then it must be conceded that punishment should: involve unpleasantness; be for an offence against legal rules; and be of an actual or supposed offender for an offence. It must also be intentionally administered by human beings acting for an authority constituted by a legal system against which the offence was committed (Hart/ 1968: 4-5). This definitional arrangement hinges on the explanation of an offence that is normally described as a crime. Crime in turn is normally defined as an infraction of legal rules dealt with by the law through punishment. As Wasserstrom insists/ the circularity of this argument is immediately obvious and entirely unsatisfactory. We cannot rest a case for punishment on the definition of an offence/ which is only understandable as a crime/ which itself is dealt with through punishment (Wasserstrom/ 1977/ p.176). J

Retribution and Desert: Vengeance or Justice? 43

This is the point at which it might be said that the retributivist argument begins to break down, or at the least becomes as objectionable in theory as in practice. As Honderich has explained, the moral obligation to punish those who break the law is regarded by the retributivist as a categorical imperative: it does not, however provide a justification for punishment. This is so if for no other reason than because in the case of bad (or indifferent laws) any punishment would be completely unjustified (Honderich, 1976, p.24). If there is a moral obligation that amounts to a justification of punishment, it resides in the actual morality of the law, rather than the fact that the law merely exists.

DESERT This leads to a further difficulty which lies within the idea that punishment is deserved if the law is broken. The concept of desert requires absolutely that the extent or degree of punishment must be directly proportionate to the gravity of the offence, or the extent of harm occasioned by it. The problem here lies in determining the extent of the wickedness inherent in the wrongful act at the time it was committed, and thus the degree of irresponsibility and guilt involved. As Hart has pointed out most eloquently, 'like many features of punishment, the idea of a sentence "fitted" to a crime is susceptible of many different interpretations' (Hart, 1961, p.6). It most certainly produces a dilemma for those called upon to sentence guilty offenders, in posing the requirement to distinguish between instances of the same or similar offences and the extent of punishment which is appropriate to each. Feinberg (1970), by way of an alternative explanation, insisted that the process of punishment has an 'expressive' function that operates in a number of different directions at the same time. In one sense it indicates not only that the law has been broken, but also that society in general condemns the wrongful act because it harms the social order. In another sense, an~ perhaps in a rather more oblique interpretation, he proposed that the act of punishment, by the infliction of a penalty, relieves those who are innocent of suspicion and absolves them from blame. Quoting the instance of a young woman who was ostensibly the victim of rape, Feinberg suggested that the conviction of her aggressor for the offence served at the same time to restore her decent reputation. He summarised the position in these words: A philosophical theory of punishment that, through inadequate definition, leaves out the condemnatory function (of punishment) not only will disappoint the moralist and the traditional moral philosopher; it will seem offensively irrelevant as well to the constitutional lawyer, whose vital concern with punishment is both conceptual, and therefore genuinely philosophical, as well as practically urgent. Feinberg, 1970, p.l0S.

It is interesting to note that H. Hart Jr. (1958; re-printed 1972) provided a broadly similar analysis of the role of public condemnation of criminal offences through the criminal law, prior to that of Feinberg noted above. He was, however, concerned to identify the difference between crimes and 'civil wrongs', drawing the

44 Criminal Punishment and Restorative Justice

distinction that although both are morally unacceptable, societies (and legal systems) generally express a greater extent of condemnation of the former as opposed to the latter. This single fact may in part explain the reason for a general reluctance to embrace much of what is considered 'white collar' crime within the scope of the criminal law (Hart, 1972, pp.12-15). In an attempt to resolve some of these difficulties, Honderich sets out five principal conditions in which it might be said that an offender deserves punishment for an offence. These are that he behaved culpably; that the penalty imposed will provide satisfaction in some measure equivalent to the harmful nature of the offence; and that similar penalties have been, and will be imposed on similar offenders. Further, that the offender was responsible for his actions and was aware of the possible consequences, and that unlike non-offenders, he gained some advantage or satisfaction from committing the offence (Honderich, 1976, pp.33-4). What emerges from such an analysis is scarcely convincing in terms of a justification of retribution as an acceptable aim of punishment. The basis for punishment effectively becomes that of providing some measure of satisfaction to the victims of crimes (and others), and that the offender acted in a freewill sense in committing the offence(s). Such claims must be said to represent more an appeal to moral sentiment and vengeance than a rational basis for punishment. To say the least, they serve little purpose other than to indicate a willingness to punish entirely on the uncertain premise that a wrong done is only requited by imposition of a just measure of pain. For all the reasons discussed here, and significantly because of the entirely retrospective nature of retribution as a basis for criminal punishment, it must remain open to the criticism of failing to take adequate account of its own consequences. As Bean has suggested, to say that punishment is an end or a good in itself can only be established by intuition, or be seen as self-evident (Bean, 1981, p.29). It is, however, possible to draw together a number of useful observations about the nature of criminal punishment from the retributivist agenda. It does very forcefully link punishment to the concept of guilt, and demand that there be some extent of equivalence between the degree of punishment and the seriousness of the crime committed. Retribution insists that only the guilty should be punished, and creates a strong relationship with the notion of justice. Where it may be seen to have shortcomings, pure retributivism is vulnerable to criticism on the basis of its strictly limited view of the punishment process, being essentially in the description of Grotius: 'the infliction of an ill suffered for an ill done.'

THE NEO-RETRIBUTIVE MODEL No account of this nature would, however, be complete without some discussion of the emergence, during the late 1970s and early 1980s, of a 'neo-retributive' model of criminal justice in an attempt to address the perceived injustices involved in the 'treatment' (or 'rehabilitative' model) of the earlier two decades. The need for such a shift in penological thinking was provoked by Widespread disenchantment with two important aspects of criminal justice. These were the apparent failure of the

Retribution and Desert: Vengeance or Justice? 45

rehabilitative model to achieve the elusive grail of crime reduction on the one hand, and increasing concern about the extent of discretion exercised by justice system professionals in relation to sentencing (and sentencing outcomes) on the other. The latter concern was specifically related to indeterminacy in sentencing practice inherent in treatment-based disposals, and, to a lesser extent, the discretionary nature of parole release considerations. Both of these issues had, to some extent, been addressed in the controversial report of the American Friends Service Committee entitled Struggle for Justice, published in 1972.5 This report laid the foundations for what was later to become the formulation of a 'justice' model of punishment, particularly in its specification and recommendation of the 'presumptive sentence'. Such sentences were proposed in the form of a fixed penalty for certain' crimes, based predominantly on their seriousness. They did, however, provide the latitude for the judiciary to lower the sentence in the case of mitigating circumstances, or raise it according to the circumstances of its commission and the previous record of the offender (see Bean, 1981, pp.178-9 and von Hirsch, 1976, p.84). The nature and extent of the debate became evident in the United States with the publication of two important and quite different documents. The first of these was Martinson's heavily suppressed account of the outcomes of a research study into the effects of prison-based programmes designed to reform offenders and reduce recidivism. (Martinson, 1975, pp.155-87)6. The second document, published a year later, was the Report of the Committee for the Study of Incarceration under the title Doing Justice (Von Hirsch, 1976). Martinson's assertion, subsequently published in full rather than in essay form (see Lipton et al., 1975) was that there was little evidence to indicate that prison programmes had any marked effect upon reoffending. His conclusions were summarised in the following words: It is just possible that some of our treatment programmes are working to some extent, but that our research is so bad that it is incapable of telling. Having entered into this serious caveat, I am bound to say that these data, involving over two hundred studies and hundreds of thousands of individuals as they do, are the best available, and give us very little reason to hope that we have in fact found a sure way of reducing recidivism through rehabilitation. This is not to say that we found no instances of success or partial success; it is only to say that these instances have been isolated, producing no clear pattern to indicate the efficacy of any particular method of treatment. Martinson, 1975, p.179.

The report had been commissioned and funded by the New York State Governor's Special Committee on Criminal Offenders, based on the premise that offenders could be successfully rehabilitated, and that the prisons of the state were not making a serious enough effort at rehabilitation. Although the report was completed in 1971 following five years of research, by 1972 it had not been published, and Martinson had been refused permission to publish the findings privately. It was only released following a court case in which it was subpoenaed from the state as evidence before the Bronx Supreme Court.

46 Criminal Punishment and Restorative Justice

Doing Justice was an entirely different matter altogether. In effect it amounted to a full scale assault on the alleged cruelty and injustice of the rehabilitative model of criminal punishment, sentencing indeterminacy, the wide discretion exercised by professionals within the criminal justice system, and a number of other associated issues. The following passage from the Introduction illustrates the tenor of the report, and the sense of frustration felt by the committee members: If Progressive reformers shared a basic trust in the state, more eager to involve its power in the society than to limit it, we as a group shared a basic mistrust of the power of the state. At the least we suspected that discretion might cloak discrimination and arbitrariness ... Moreover, we had good reason to be wary of the goal of rehabilitation. In our day to day experience, and in our research findings, it seemed that rehabilitation was far less achieved than our predecessors would have believed ... The Committee insists that the potential benefit done to anyone offender under a system of massive discretion is more than offset by the harms done to the vast majority of persons under such a normless scheme, and hence advocates the abolition of the indeterminate sentence and the adoption of sentencing standards that limit judicial discretion ... Moreover, the rehabilitative model, despite its emphasis on understanding and concern, has been more cruel and punitive than a frankly punitive model would probably be ... And so we as a group, trained in humanistic traditions, have ironically embraced the seemingly harsh principle of just deserts. When punishment is expressed in these terms, it abandons its primary reliance upon a utilitarian rationale. As such, it is justified not as an effective crime prevention measure but because it is right- because it ought to be ... Certain things are simply wrong and ought to be punished. And this we do believe. In so stating our position, we then become free to set reasonable limits to the extent of punishment. When we honestly face the fact that our purpose is retributive, we may, with a re-found compassion and a renewed humanity, limit the degree of retribution we will exact. Von Hirsch, 1976, pp.xxxii-xxxix.

There is, with the benefit of hindsight, little doubt about the impact that these two documents and subsequently certain others had upon the course of penal history in Britain and North America. 4 This effect was summarised by Haley some seven years later in the following words: The concept of rehabilitation has been increasingly emphasised by the criminal justice system for the last 20-30 years. More recently the centrality of this idea in correctional and sentencing policy has been strongly criticised, not only for failing to meet its lofty aspirations ... but, perhaps more importantly, for the perceived injustices derived from its enthusiastic implementation. This rejection has resulted in the re-examination of sentencing policy with an accompanying re-emphasis on the more traditional models of retribution, general deterrence, denunciation, and incapacitation. Haley, 1984: 393.

Retribution and Desert: Vengeance or Justice? 47

To Haley's account we should clearly add the concept of" desert that has featured so prominently in the literature describing the 'neo-retributive' or 'justice' model of punishment since the mid-1980s. 8 The justice model There are a number of issues relating to retribution and desert that need to be noted in relation to the emergence of the 'justice model' of punishment. The demise of the rehabilitative ideal effectively created a temporary vacuum in penological thinking into which the 'justice model' was inserted for largely non-penological reasons - if reasons are an appropriate description of the events in question. Disenchantment with the failure to rehabilitate effectively was the cause, but escalating rates of violent and acquisitive crime combined with recidivism were the symptoms. It is often claimed that the rise of the 'justice model' emerged predominantly out of disenchantment with rehabilitation, but this may actually be a distortion of the truth. Political frustration with the inability to control crime in Britain, and probably also in North America during the 1980s, found curiously common cause with the emergent radical criminology which was strongly opposed to the positivistic ideas of the rehabilitative era and 'correctionally oriented' penology. To this unlikely combination of interests must be added the presence (at least in Britain) of a strong and vociferous 'law and order' lobby, and a declining confidence in the probation and social work services in their dealing with offenders. The 'justice model' was effectively articulated as a 'war on crime and criminals through swift and sure punishment' based largely on a desert and proportionality concept of sentencing. In the process, there was to be a curb on judicial and administrative discretion, an end to disparity in sentencing, and protection of rights through due process - all very reminiscent of the prescriptions within Doing Justice. In short, it promised all things to a wide spectrum of interests, and came at a time when its seductive acceptability was almost assured (see Hudson, 1987, pp.37-8). As the new millennium approached, there were increasing signs that the 'justice model' was losing its attraction, and that it had been hijacked by the 'tough on crime and the causes of crime' faction within politics. As Hudson put it very succinctly: 'the justice model may have been dreamed up by liberals, but it expresses a conservative consciousness' (Hudson, 1987, p.162). Put another way, as Cullen and Gilbert have suggested: Justice model proponents have strongly advocated short sentences and the proliferation of alternatives to imprisonment, whereas conservatives have been convinced that longer prison terms are integral to the reduction of the crime problem. In the end, one reality has thus become clear: the 'bare bones' of determinacy and desert are as easily adaptable to a program of 'getting tough on crime' as to one of ,doing justice'. CuIlen and Gilbert, 1982, p. 200.

The 'justice' model failed precisely because in operation it proved to be an unjust neo-classicist agenda for crime reduction that ignored the causes of crime. Its rhetoric enabled the criminal to be identified as the architect of socio-economic

48

Criminal Punishment and Restorative Justice

decline rather than the evident disparities in the distribution of wealth, power and opportunity in our modern societies. As Hudson further points out: It is not merely that the state does select the crimes of the disadvantaged as those to be taken seriously, it is that it must: in times of crisis, the street crimes of the poor are bound to be pinpointed as those which are a threat to the social order, for if the deteriorating conditions of urban working-class life can be shown to be a product of their own wickedness rather than government neglect, then the government can justify itself in doing nothing to alleviate problems of decline and decay. Hudson, 1987: 165.

As has been indicated earlier, however, it is evident that during the tenure of the 'justice model', annually increasing use has been made of imprisonment as a punishment in Britain. In some senses this is not surprising given the circumstances described in Hudson's critique, but it confirms a more sinister conviction that there is a decreasing concern within the population to live a law-abiding lifestyle, and that criminality carries with it very little social stigma.

THE DISTRIBUTIVE MODEL Running alongside the formulation of the 'justice model' during the late 1970s and early 1980s was a further exposition of the retribution and desert based justifications for punishment that deserves mention here.· Articulated by moral philosophers such as van den Haag (1975), Galligan (1981) and Sterba (1984), this account proposes that there is a benefit and burden calculus inherent within criminal justice that is disturbed or distorted by law-breaking offences. It is disturbed to the e~tent that the offender gains in some measure from offending, and the law abiding, by virtue of abstaining from offending, forgo such advantage. The advantage may take the form of material gain, satisfaction or position, but this is not its significance: neither is it significant that it is usually made at the expense of a victim. The significance of the gain is that it is obtained by wrongful means which are denied to the law-abiding, and therefore it is entirely unreasonable and unfair to the latter if the offender were to retain this advantage. Removal of the advantage thus becomes the purpose of punishment that is justified by the principle of fairness. Further, since the advantage was gained by the exercise of rational (or freewill) choice, it is not necessary to classify it in a moral sense other than by deciding on the extent of culpability involved in its commission according to some or another concept of responsibility. Although at first sight this 'distributive' concept of criminal justice appears to be somewhat abstruse, it does contain a seductive simplicity that is possibly helpful. In the first place it satisfies Hart's definitional rules for standard case punishment (Hart, 1968: supra), providing that the punishment were to be administered by a legal authority. In the second, it involves a much-simplified idea of justice to determine the extent of the harm done in relation to the benefit gained, and thus the extent of the action necessary to restore social equilibrium. And, third, the evident

Retribution and Desert: Vengeance or Justice? 49

punishment of the offender would be seen to accrue to the benefit of the victim(s), the legal system and the general public. It is, however, evident that such a model of justice is vulnerable to criticism in relation to how the harm: gain calculus is resolved, and with what degree of uniformity and consistency as between cases. There is also the question about how appropriate it would be to apply it in instances in which the offence was of an 'attempt' nature. Some of the proponents of the model insist that the same criteria of potential harm: potential gain might reasonably be used in deciding upon the nature and extent of punishment in such cases. The main purpose of the punishment remains, notwithstanding, removal or at least preventing perpetuation of the unfairness involved. It is interesting to note that the 'distributive' concept does bring to discussions of retribution and desert a utilitarian component that is significantly absent from the previous analyses. It may also be seen to have something useful to offer to the deliberations concerning deterrence which follow in Chapter 4. Within this chapter, however, an attempt has been made to provide an overview of the retributive model of criminal punishment as it has evolved up to the present time. The notion of desert within punishment considerations has also been discussed, particularly in its relationship to the gravity of offences and proportionality within punishment. In a more contemporary sense, an account has been given of the impact of the decline of the rehabilitative ideal during the 1970s, and the resulting development of a neo-classical model of retributive justice to take its place during the 1980s and 1990s. The main problem confronting criminology in the contemporary setting is that of deciding upon the extent to which the traditionally accepted explanations of crime and its punishment are applicable to modern, complex, and constantly evolving societies. It has also to be recognised that not every society is at the same stage of evolution, and therefore those who formulate penal policies and make laws may not do so from the same perspectives. Certain of the principles (of morals and ethics) that have guided criminological thinking in the past clearly have durability in the contemporary world. Others, perhaps even like those of the deterrent and reformative justifications of punishment, may need reconsideration or reformulation in the twenty-first century. Garland (2000) provides a very cogent summary of the situation: The modern institutions of punishment are especially prone to conflicts and tensions that tend to undermine their effectiveness and legitimacy as instruments of social policy. These conflicts - between condemnation and forgiveness, vengeance and mercy, the sanctity of law and the humanity of compassion, social defence and individual rights, the urge to exclude and the dream of rehabilitation - set up complex, ambivalent sentiments that colour the day-to-day experience of those caught up in penal relations ... The modern criminal justice state, developing in the wake of the Enlightenment as one of the pillars of the liberal democratic polity, established an ambitious set of expectations: not just 'doing justice', enforcing the law and punishing wrongdoers, but also reducing crime rates by reforming convicted offenders and deterring those others who might be tempted. The recurring failure to fulfil these expectatio,ns has ensured that, for most of the modern period, penal questions have periodically

50 Criminal Punishment and Restorative Justice troubled policy-makers, and, from time to time, have become a focus for public concern and involvement. Garland, 2000, p.S.

The concepts of retribution and desert within criminal punishment retain a contemporary relevance, but the difficulty resides in deciding the extent to which these should influence the process of punishing. Few would deny the essential 'rightness' that crime should be punished, or that the nature and degree of punishment should not be disproportionate to the seriousness of the offence (and thus the extent of the harm occasioned). Making punishment proportionate is ultimately a much more difficult matter, and, inevitably results in value judgements being made. . The entire literature dealing with retribution and desert is very considerable, and space in a work of this nature does not permit every aspect of this literature to be discussed in detail. The main purpose here is to provide a platform for understanding how punishment philosophy and practice has evolved over time, and continues to evolve. Armed with this understanding, it may be possible to evaluate later how effectively (or otherwise) prisons and other correctional initiatives translate the aims of punishment into penal practice within modem societies. Moreover, if the victims of crime have rights within the punishment process, then this alone makes the decision making task all the more difficult.

ENDNOTES for Chapter 3 1.

2.

3.

4. 5. 6.

H.L.A. Hart, in his important work Punishment and Responsibility (1968), provided criminology with the significant legacy of a clearly articulated definition of punishment. Drawing on his own previous (1961) work, and also notably on that of contemporaries such as Baier (1955), Flew (1954), Benn (1958), he set out in his 'Prolegomenon to the Principles of Punishment' five elements that he perceived as essential to what he termed the 'standard case' of punishment. He also indicated a further four constituent elements of sub-standard (or secondary) cases of punishment. These are discussed in some detail in his subsequent text, and, although they are liable to some criticism, they have remained a guiding influence for subsequent generations of criminologists and moral philosophers. H.B. Acton (1969), in the Introduction to his edited compilation The Philosophy ofPunishlnent: A Collection ofPapers, provides a most useful synthesis of the approaches of the leading moral philosophers towards definitions of punishment. This scholarly account provides a unique reconciliation of the views of a number of influential writers (such as Mabbott (1939); Quinton (1954); Rawls (1955); and Mundle (1968)) in a single volume, in parallel with the work of Hart (noted above). The reader should be aware of the 'utilitarian' approach to punishment, exemplified, albeit quite differently, by John Stuart Mill, Jeremy Bentham, John Rawls, and a number of others. This approach perceived punishment as necessary not only, or predominantly, for the improvement of the individual offender, but more for the greater good of the social order. Bean (1981) provides a very comprehensive account of the influence of these writers, particularly in relation to deterrence and reform within punishment and penology. Which is, in effect, almost identical to that set out by Flew (1954), augmented by Benn and Peters (1959), and thus preceding Hart's (1968) analysis by some few years. For a detailed analysis of the importance and implications of this report, see the accounts of Bean (1981) at pages 179-81, and of Bottomley (1979) at pages 127 et seq. Martinson provided a synopsis of the findings of this research in Gardiner et al. (1975) at Chapter 14 (pp. 155-87), though the fuller version is to be found in Lipton et al. (1975). It is important to note that the 'Nothing Works' assertion attributed to Martinson was widely misinterpreted at the time it was

Retribution and Desert: Vengeance or Justice? 51

7.

8.

made. What Martinson attempted to indicate was that on the face of the results obtained from his research (with Lipton and Wilks), no particular form of programme or treatment appeared to work any better than another in redUcing reddivism in prison inmates following release. There is little doubt that the publication of these reports signalled the end of the era in which rehabilitation was perceived as the main purpose of criminal punishment in general, and of imprisonment in particular. More importantly, perhaps, it also made almost inevitable a return to retributive modes of punishment, and th~s the emergence af the 'justice' model during the late 1960s and 1970s. Important examples of the neo-retributivist approach lie in the work ofWeiler (1974), Morris (1974), Fogel (1975), Gross (1979) and Haley (1984). It should also be remembered that this model of punishment was based on two main suppositions: first, that increasing punitiveness would lead to a decrease in crime; and second, that'swift and sure' punishment would also serve the purpose of general deterrence. As will be seen in Chapter 5, the conceptual linkage between these suppositions was to prove largely erroneous. See particularly the accounts of von Hirsch (1985) in Past or Future Crimes (at pages 31-46) and of Hudson (1987) in Justice TIlrollgh Punishlnent at pages 38-43.

REFERENCES (in order within the text) Ewing, A.C. (1929), TIle Moralih) ofPunisJunent, London: Kegan Paul, Trench and Trubner, pp. 13-14. Hart, H.L.A. (1968), PllnisJl1nent and Responsibility, Oxford: Clarendon Press, pp. 4-5. Wasserstrom, R. (1977), 'Some Problems With Theories of Punishment', J.B. Cederblom and W.L. Blizek (eds.), Justice and Punishment, Cambridge, Massachusetts: Ballinger Publishing Company O.P. Lippincott), p.173. Baier, K.E. (1955), 'Is Punishment Retributive?' Analysis, Oune). Flew, A. (1954), 'The Justification of Punishment', Philosophy, Oune). Benn, 5.1. (1958), 'An Approach to the Problems of Punishment', Philosophy. Also re-printed as Chapter 8, S.I Benn and R.s. Peters (1959), Social Principles ofthe Democratic State, London: George Allen and Unwin. (Also inJ. Feinberg and H.Gross (1975), pp. 63-73.) Acton, H.B. (ed.) (1969), The Philosophy ofPunishment: A Collection ofPapers, London: Macmillan. Bradley, F.H. (1894), 'Some Remarks on Punishment', International Journal ofEthics, vo!. 4, (April), pp.269284. Mabbott, J.D. (1961), 'Punishment', F.A. Olafson (ed.), Justice and Social PoliCl), Englewood Cliffs, NJ: Prentice-Hall Inc., pp. 39-54. (Also in Mind, (1939), Volume XLVII, Number 190, pp. 152-167.) Armstrong, K.G. (1969), 'The Retributivist Hits Back', H.B. Actan (ed.), The Philosophy ofPunishnlent, op. cil., pp. 138-58. (Also in Mind, (1961), (October). Packer, H.L. (1972), 'The Practical Limits of Deterrence', R.J. Gerber and P.D. McAnany (eds.), ContelnpOran) PunisJunent: Views, Explanations and Justifications, South Bend, Indiana: University of Notre Dame Press, pp. 102-7. Hart, H.L.A. (1961a), Punishment and the Elimination ofResponsibility, [L.T. Hobhouse Memorial Lecture], King's College London: Athlone Press. Bradley, F.H. (1927), Ethical Studies, Oxford: Oarendon Press, pp.26-7. Bean, P. (1981), Punishment, Oxford: Martin Robertson, pp. 12-13. Kant,l. (1897), Philosophy ofLaw, [tr. E.T. Hastie], London and New York: T. and T. Clark. Galligan, D.J. (1981), 'The Return to Retribution in Penal Theory', C.F.H. Tapper (ed.), Crime, Proofand Punishment, London: Butterworth, p.145. Hart, H.L.A. (1968), Punishment and Responsibility, Oxford: Oxford University Press, pp.4-5. Flew, A. (1954), 'The Justification of Punishment', Philosophy, vo!. 29, no.3, (October), pp.291-307. Benn, 5.1. and Peters, R.s. (1959), Social Principles and the Delnocratic State, London: George Allen & Unwin. Wasserstrom, R. (1977), op. dt., p.176. Honderich, T. (1976), Punishment: The Supposed Justifications, Harmondsworth: Penguin Books, p.24. Hart, H.L.A. (1961), op. dt., p.6. Feinberg, J. (1970), 'The Expressive Function of Punishment', Doing and Deserving, [Essays in the Theory of Responsibility], New Jersey: Princeton University Press, pp.95-118. Hart, H.M. Jr. (1972), "Criminal Punishment as Public Condemnation', R.J. Gerber and P.D. McAnany (eds.), Contemporan) Punishment, op. dt., pp.12-15. Honderich, T. (1976), op. dt., p.33-4. Bean, P. (1981), op. dt., p.29.

52 Criminal Punishment and Restorative Justice American Friends Service Committee, (1972), Strnggle for Justice, New York: Hill & Wang. Bean, P. (1981), op. cit., pp.178-9. VonHirsch, A. (1976), Doing Justice, New York: Hill & Wang, p.84. Martinson, R. (1975), 'What Works? Questions and Answers about Prison Reform', J.A. Gardiner and M.A. Mulkey (eds.), Cri,ne and Criminal Justice, London and Lexington: D.C. Heath & Co., pp.155-87. Lipton, D., Martinson, R. and Wilks, J. (1975), TIre Effectiveness ofCorrectional Treatment, New York: Praeger Publications. Von Hirsch, A. (1976), op. cit., pp.xxxii-xxxix. Weiler, P.C. (1974), 'The Reform of Punishment', Law Reform Commission of Canada, Studies in Sentendng, Ottowa: Information Canada. Morris, N. (1974), The Future ofImprisonment, Chicage: University of Chicago Press. Fogel, D. (1975), We Are the Living Proof: T11e Justice Model for Corrections, Cincinnati: Anderson. Gross, H. (1979), A TIreory ofCriminal Justice, Oxford: Oxford University Press. Haley, H.J. (1984), 'Retribution and the Definition of a Just Measure of Pain', D.J. Mueller, D.E. Blackman and A.J. Chapman (eds.), Psychologtj and Law, London and New York: John Wiley & Sons Ltd. Hudson, B. (1987), op. cit., pp.37-8. Hudson, B. (1987), op. cit., p.162. Cullen, F. and Gilbert, K. (1982), Reaffirming Rehabilitation, Cincinnati: Anderson, p.200. Hudson, B. (1987), op. cit., p.l65. Van den Haag, E. (1975), Punishing Criminals, New York: Basic Books, Ine. Galligan, D.J. (1981), op. cit. Sterba, J.P. (1984), 'Is there a Rationale for Punishment?', Alnerican Journal ofJurispnidence, vol. 29, pp. 2943. Hart, H.L.A. (1968), op. cit., pp.4-5. Garland, D. (1999), 'Punishment and Society Today', Punishlnent and Society, vo!. I, p.5.

CHAPTER 4

Deterrence: Reality, Illusion or Deception? The injustice done to an individual is sometimes of service to the public. (Junius, Letters, 'Dedication')

Within the considerable volume of academic literature devoted to criminal punishment, the notion of deterrence usually appears as the second - and possibly the most complex - of what might be described as the major theories or justifications. There is no doubt whatsoever that the idea of deterrence has a widespread appeal within the populist agendas for crime control, and in particular to adherents of the 'justice model' of punishment. There is, however, little, if any, reliable empirical evidence at all to substantiate the claims made as to its practical effectiveness. To make the claim that punishment of offences or offenders actually deters crime amounts to an appeal to the intuition that some persons are deterred from the same, similar, or other forms of offending (or re-offending) because of the actual or perceived consequences (or unpleasantness) of the punishment process. It is demonstrably evident from the most cursory study of criminal statistics within most developed societies, that in fact many offenders are not. As Gibbs, one of the most highly regarded writers on deterrence theory points out: whatever the theory, evidence that punishment deters crime is necessarily inferential ... (and) a definition of deterrence is difficult primarily because the term denotes an unobservable phenomenon. Gibbs, 1975, p.32.l

Moreover, as Bean has indicated in amplification of the difficulties inherent within deterrence theory: While at one level it is reasonably clear what deterrence is supposed to mean, at another it is not at all certain if deterrence is a psychological theory based on threats, or a sociological theory based on social control, or perhaps both. Bean, 1981, p.29.

This makes evaluation of deterrence as a functional aspect of punishment very difficult. Most of the contemporary formulations of criminal justice policy, particularly in Britain and America, are replete with references to the presumed or anticipated effects that proposed methods of punishment and crime reduction strategy will have in terms of deterrence. The authors of these prescriptions frequently neglect to identify how this success will be guaranteed, or even how it will be measured. Even worse, perhaps, there is no apparent clarity of thinking

54

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about what precise forms of deterrence are envisaged, or on what evidential basis of selection. This, it will be recalled, was one of the main reasons for the decline of the 'justice model' of punishment during the 1990s which was discussed earlier in Chapters 2 and 3. Of course, it might be argued that making forms of criminal punishment so evidently severe, immediate and public that it might deter potential offenders lies within the bounds of possibility. To do so would, however, entirely neglect the principle of proportionality insisted upon by Hart (1968) and others, and which has previously discussed in Chapter 3. We should also, perhaps, have some caution in accepting, without careful consideration, a notion of deterrence that might be perceived as amounting to a thinly disguised form of social control through intimidation. Thus, however we approach the concept of deterrence within criminal punishment, there are a number of theoretical and practical difficulties to be overcome. Historically, the eighteenth century penal philosophers Cesare Beccaria and Jeremy Bentham have been regarded as the founding contributors to the debate about deterrence within criminal punishment,2 although Ewing (1929) was possibly the first twentieth century writer to take up the commentary in a contemporary sense. More recently, the works of Andenaes (1968 and 1970), Zimring and Hawkins (1973), Beyleveld (1979a and b) and von Hirsch (1985) in addition to that of Gibbs (1975) have all been significant and valuable contributions. The principal difficulty with these accounts lies in the different terminology employed by the writers concerned to describe deterrence. Entirely due to this, the term general deterrence will be used to mean the supposed effects of punishment in deterring crime in the general population, and specific (or individual) deterrence to exemplify strategies aimed at preventing crime by measures taken against individuals. The latter term necessarily includes policies of incapacitation as an aim of penal policy. Gibbs (1975, pp.32-3) uses the term 'absolute' or 'restrictive' deterrence by way of differentiating between nonoffenders and potential offenders, and 'specific' deterrence in broadly the same context as has been proposed. Other writers (such as Andenaes, 1972; Packer, 1972, pp.102-7; and, to an extent, von Hirsch, 1985, pp.54-5) have used the term 'preventive' deterrence to describe policies directed towards incapacitation of individuals, or groups of persons. They did so on the basis of the supposedly beneficial effects that this might have on the conduct of those who might be tempted to act similarly. Discussion of deterrence theories (of whatever nature) is often, and still further, complicated as a result of considerable misunderstanding of the primary motivations from which they derive. This is the essential starting point of the discussion, since its origins lie within the positivist approach to punishment itself, and the influence of utilitarianism within the philosophy of punishment.

Deterrence: Reality, Illusion or Deception? 55

DETERRENCE THEORIES Utilitarianism Bentham, the founder of utilitarianism, was clear in his belief that the principal purpose of punishment was to impose a measure of control on actions that constitute, or might if carried out, constitute criminal offences (Bentham, 1962, p.383). His concept may thus be described as a crime reduction strategy. However, since in the utilitarian view both crime and its punishment represent moral evils, punishment might only be justified if its effects were socially more beneficial than those of refraining from punishing. Such a view contrasts vividly with that of retributivism which, as we have seen, perceives punishment as justified on the basis of desert. Indeed, the positivistic concept of freewill action insists that punishment is deserved precisely because the offender acted out of choice, and others might follow similar courses of action if they were not persuaded otherwise. 3 Determinism operates from the opposite perspective by denying the issue of choice in the assertion that human actions are not chosen, but are caused by a range of personal, social or environmental factors. Bentham, (and subsequently Hart), was also concerned to establish the circumstances in which punishment might be justified or not. In Bentham's view, it should not be inflicted when it was unnecessary, or would be ineffective, or would be unprofitable by causing more harm than if prevented. In any event" when punishment might prove justified and effective, the principle of utility (or usefulness) should be the deciding factor, strictly limiting the extent of punishment in some proportion to the harm occasioned by the offence. 4 However" as Bean (1981, p.32) very usefully points out in quoting Moberly (1968, p.SO), Bentham was far from sentimental about crime or criminals. For him, punishment must have the principal purpose of controlling actions, either of the offender or of others: that of the offender by its influence, on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement. For others it can influence their wills, in which case it is said to operate by way of example (Moberly, 1968, p.281). The central question that arises out of such an analysis is that of deciding whether, and to what extent, it is reasonable to use the punishment of the guilty for the deliberate purpose of deterring those who have not committed, or even might not commit offences. It is an inescapable fact that deterrence theory operates on the basis of a legal threat, and that to the utilitarian the use of such a threat is entirely reasonable if it results in dissuading criminals from further crime, or the general public from offending. The true retributivist would argue that the use of such a threat is unreasonable on a number of counts: first that it leads to punishment that is not based entirely on desert; and secondly that it is entirely uncertain how much punishment is necessary to achieve deterrence. In any event, the latter would further argue, the use of threats to secure compliance with the law lacks the same moral validity as the punishment of the non-guilty. There are, it must be stated, a number of other explanations of the operation of deterrence within criminal punishment that have attracted support, and thus deserve mention here. Andenaes (1966)" like a number of Scandinavian writers

56 Criminal Punishment and Restorative Justice

(such as Antilla, 1972), advanced a range of reasons why the potential effectiveness of general deterrence tended to be overlooked and under-valued in an erroneously inferential manner. These errors, he concluded, were commonplace among those who insisted upon measurable outcomes of deterrence, rather than accepting that the general effects of its operation were clearly obvious in relation to the behaviour of the majority of people in normal, everyday circumstances. Andenaes insisted that the fallacy of believing that our knowledge of criminals shows us that the criminal law has no deterrent effect is entirely misleading: The fallacy of this argument is obvious. If a man commits a crime, we can only conclude that general prevention has not worked in his case. If I interview a thousand prisoners, I collect information about a thousand men in whose cases general prevention has failed. But I cannot infer from this data that general prevention is ineffective in the cases of all those who have not committed crimes. General prevention is more concerned with the psychology of those obedient to the law than with the psychology of criminals. Andenaes, 1966, p.ll0.

Andenaes also questioned the validity of other criticisms of the operation of deterrence in practice. He particularly challenged those that suggested that deterrence depended upon rationalistic assessments of human behaviourS, that its effects were invariably overstated; and that the moral reinforcement effects of the threat of penalties were of marginal influence in deterring the commission of offences. While he conceded that these issues were not easily quantifiable, he contended that this did not mean that the effects of them were negligible in practice (Andenaes, 1966, pp.110-13). Box (1987) approached the problem of quantifying the effects of deterrence from a rather different direction. He suggested that there was a danger of confusing 'objective' factors (such as the number and effectiveness of the police, the proportion of those arrested sentenced to imprisonment, and the like, with subjective' factors such as the chances of evading arrest, or the award of lenient sentences if convicted. Thus: I

The idea that criminals can be deterred by increasing both the certainty of being apprehended and the severity of punishment mesmerises even those far removed from the 'Law and Order' brigad~ ... Given the cloak of magical immunity with which many contemplating crime shroud themselves, it is not likely that the objective' and 'subjective' views of deterrence will overlap considerably. Thus, even if the police were to become more efficient and increase the clear-up rate, many criminals would either not know this fact, or consider themselves sufficiently clever and smart to avoid the longer arm of even a more efficient police force. Box, 1987, pp.51-2. I

Box was also concerned to suggest, rather in the tradition of Matza (1964), Becker (1963 and 1964), Lemert (1967), and Wiles (1976), that certain social factors (such as unemployment, poverty, recession, and peer-group norms) might affect the

Deterrence: Reality, Illusion or Deception? 57

extent to which the perceived deterrent effect of potential sanctions would have quite uneven impact upon different socio-economic groups (Box, 1987, pp.136-7). As if these were not difficulties enough, there are other aspects of deterrence when it is viewed in a universal sense which, on closer examination appear to be at the least questionable, if not evidently unreasonable. The first of these concerns the effect of elevating the supposed deterrent component of punishment to a level that would seem appropriate to deter the individual from' further crime - specific deterrence. The second follows directly from this, and involves decisions on the extent to which it is morally reasonable, in the process of punishing, to use one individual as the means to the end of inhibiting the behaviour of others - general deterrence. The third concern is the possibility that deterrence via general prevention might come to be used as a justification for the practice of indefinite or predictive incapacitation (of individuals, or of groups of persons). Worse, perhaps, this might be done on some or another utilitarian pretext of pursuing the perceived social benefit of crime reduction - restrictive or preventive deterrence. It may prove useful to use these separate possibilities as a basis for discussion of general and specific (or individual) deterrence and incapacitation that were indicated earlier.

Specific deterrence Taking the 'deterrent component' concept of punishment first, it would seem that there are a number of important points that arise from any proposal to adopt such a practice. The most obvious objection must be that it would evidently breach the second and third definitional principles in Hart's standard case of punishment: that it must be for an offence against legal rules and be of an actual or supposed offender for his or her offence (Hart, 1968, pp.4-5). It would subsequently be objectionable on the basis that the punishment was not proportionate to the harm occasioned by the offence, but that it was decided on other extraneous considerations having no direct bearing on the offence itself. Moreover, and perhaps most important of all, such a practice would inevitably lead to a wide disparity in sentencing for the same (or similar) offences, thereby negating the principle of desert since the extent of the component would differ in each individual case. Specific deterrence is, therefore, vulnerable to criticism on each of these counts. Blom-Cooper and Drewry (1976) summarise the matter: As long as we persist in the unproved (and unprovable?) theory of deterrence, we face the dilemma which we can resolve only by an uneasy compromise. As Professor Hart has observed, penalties which we believe are required as a threat to maintain conformity to the law at its maximum may be too harsh a sanction arid tend to convert the offender into a committed professional criminal. The use of measures less severe than are believed necessary for law observance may lower the efficacy and example of punishment on others. This dilemma proceeds on the assumption that there is some way of measuring, with a degree of accuracy that is sadly lacking in such highly tentative social issues, the amount of punishment that will maximise the extent of conformity from the rest of us. At best, any punishment so motivated is a sop to public opprobrium; at worst, we deceive ourselves as to the efficacy of penal sanctions. Blom-Cooper and Drewry, 1976, pp.64-5.

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And even if it were possible to ensure some measure of consistency in such deliberations, it is evident that these practices fly in the face of the reasoned 'and constructive arguments so eloquently advanced in favour of limiting sentencing discretion within Struggle for Justice (American Friends Service Committee, 1971)/ and Doing Justice (von Hirsch, 1976). As von Hirsch has argued subsequently: A sensible view of crime control should begin with the hypothesis that sentencing policy cant at best, have limited impact on crime rates. Insofar as anything is known about the determinants of crime, levels of criminality seem influenced chiefly by demography and by economic and social factors ... These are not matters that can be altered by the state's criminal justice policies in general, or by its sentencing policies in particular. If changes in sentencing measures can enhance crime prevention at all, the impact is likely to be marginal compared to those larger influences. Von Hirsch, 1986, p. 173.

However, as von Hirsch subsequently assessed the situation, most European penologists, even when utilitarian in general outlook, have tended to recognise the limitations of deterrence as a guide to sentencing policy. They have preferred instead to stress the purpose of punishment as a means of enhancing the personal pre-dispositions of the public against crime (von Hirsch, 1986, p.33). In extreme cases of recidivist offending it WOllld seem altogether likely that the sentences passed would have to be entirely disproportionate in order to reflect the need for some supposed deterrent effect. This would amount to the selective incapacitation of offenders not on the basis of their offences, but in pursuit of the unquantifiable effect that such exemplary sentencing might (or might not) have upon others. As von Hirsch has further argued, a sentencing policy that relies heavily on selective incapacitation not only sacrifices justice to utility, but also involves drastic sacrifices of equity, and would be objectionable on these grounds alone (von Hirsch, 1986/ ibid.). General deterrence The second questionable aspect of the use of one man/ s punishment to encourage others to refrain from offending - general deterrence - represents an altogether more difficult argument. On the one hand it might be argued that punishment has no exemplary value unless it serves to reinforce law-abiding behaviour, and our secular intuition tends to support, or at least accommodate, such a contention. On the other hand, criminal punishment is not justified unless an offence has been committed. For it to act as a deterrent, it must (as Ewing points out): ... exceed the gain of the crime, and exceed it in so palpable a fashion as to impress the imagination of would-be criminals that if caught they will lose far more than they gained by the crime, and even than they would gain if not caught. Further considerations increase the amount of punishment required if it is to deter. Ewing, 1929, p.SO .

Deterrence: Reality, Illusion or Deception? 59

Our moral intuition insists that to act in such a manner is entirely umeasonable, since the punishment would presumably be manifestly excessive, or at least disproportionate to the harm done. The difficulty here is that the retributivist might be able to live with the first premise from what is ultimately, and paradoxically, a utilitarian motivation: that of the supposed beneficial effects for society of behaving in such a manner. The utilitarian would be unlikely to be able to live with the second premise because to act in such a manner would not be economical with the distress (or harm) it would cause, even though the outcome might have desirable social consequences. This is the point at which penal policies based on the supposed effectiveness of general deterrence within punishment begin to run into serious problems. 6 The paradoxical nature of this situation is heightened by two further and important considerations: the first concerns the difference between the extent and the certainty of punishment, and the second resides in what Beccaria described as the 'hardening' effect of adjustment to harsh or excessive punishment. As Ewing (and others subsequently) have pointed out in relation to the manner in which criminals assess risk in relation to their activities: Even those criminals who calculate probabilities carefully would not be nearly so much influenced by an increase in the severity of punishments as they would by the likelihood of them being inflicted. It is so easy for them to persuade themselves that they will escape detection. If they were purely intellectual beings, the extent to which they were deterred by punishment would indeed be in proportion to its severity; but then this is not what any of us feel in relation to threatened misfortunes. Our feelings are not exactly in proportion to what we think is the real magnitude of the disaster, and we must expect that the feelings of criminals would be still less likely to be conformable to reason in that way. As a class they are specially free from the liability to be affected in their conduct by the fear of consequences. Further, where the established system of punishments is a severe one, we must allow for the effect of custom in blunting the fear of them. Ewing, 1929, p.57.

Beccaria takes this argument one stage further: The more cruel punishments become, the more human minds harden, adjusting themselves, like fluids, to the level of objects around them; and the ever living force of the passions brings it about that, after a hundred years of cruel punishment, the wheel frightens men only just as much as at first did the punishment of prison.. Beccaria, 1764, Ch.12.

Though in terms of the deterrence debate we do not envisage the infliction of cruel punishments in the contemporary setting, we most certainly must anticipate increased severity in sentencing where penal policies are designed to deliver a markedly deterrent effect. In such circumstances, it is only right that we should question both the efficacy and morality of such practice, for to increase the penalty imposed on one offender in order to deter those who might only be

60 Criminal Punishment and Restorative Justice

tempted to offend might be dubious in the extreme. Better perhaps, to invest resources in improving the likelihood of detection, and the consequent certainty of appropriate punishment. Incapacitation The third difficulty with deterrence as a mode of criminal punishment lies in the belief, apparently held increasingly more widely in recent years, that extension of the use of general deterrence to achieve incapacitation is morally acceptable. Here it must be noted that the term 'incapacitation' effectively means prevention, and that it can be used on a selective or categorical basis of determinate or indeterminate sentencing. Let us briefly examine some of the implications. Almost every version of incapacitation involves the use of custodial facilities to remove the offender from wider society, and thereby limit his or her ability to commit crime (other than within the institution in which he or she is confined). Every sentence of imprisonment thus has an incapacitative effect, but what we are considering here is an extension of this idea.

Selective incapacitation Selective incapacitation identifies those individuals who, according to some or another set of predictive criteria, give indications of being undeterred from further offending as a result of penal sanctions, and seeks, by resort to further methods of restraint or isolation, to prevent these offences from taking place. However desirable the outcomes of such practices might seem to be, they involve considerable moral, ethical, conceptual and operational problems and dilemmas. The major conceptual difficulty is that of predicting with accuracy those who will actually re-offend, in what manner, and within what time-scale. The danger inherent in the process is that of using such measures to restrain or confine large numbers of 'false-positive' predictions, and the injustice that to do so would occasion. It matters not for the purpose of this part of the argument whether the method by which this confinement is achieved is of a determinate or indeterminate nature. An extended critique of this process has been provided in earlier work (Cornwell, 1989, pp.61-66), stimulated principally by the collected writings of Bottoms and others (see Bottoms, 1977; Bottoms and Brownsword, 1982 and 1983).7

Categorical incapacitation Categorical incapacitation consists in identifying certain forms of (normally prevalent) crime for exemplary sentencing or punishment in the belief that in so doing, the volume of that particular form of crime will be reduced. The main objection to such a practice lies in the fact that it ignores important aspects of the desert principle to the extent of being grossly unfair. Even if identical sentences were to be handed down for identical offences, the practice would be disproportionate in respect of more serious crimes, and would nullify (or at least disturb) the ordinal relationship between crimes of differing perceived seriousness (see, for example, von Hirsch, 1986, pp.154-9).8

Deterrence: Reality, Illusion or Deception? 61

The nature of the sentences imposed within the practices of both selective and categorical incapacitation is a matter of central importance. The dangerousness' debate of the late 1970s and early 1980s was heavily characterised by the belief that if predictive methods could be made reliable, the case for indeterminate sentencing of the dangerous offender could be justified in the interests of public protection. When it became evident that predictive assessments were, in fact, manifestly unreliable, the trend in determinate sentencing for serious offences (i.e. arson, aggravated robbery, rape, firearm-related offences, etc.) became increasingly more severe. It is difficult to believe that incapacitation and public protection were not primary motivations in this development. This belief is reinforced by the increased use made of the discretionary life sentence in England and Wales for certain of these offences during the same period. Deterrence through incapacitation (of whatever type and duration) might appear to hold some advantages in relation to dealing with truly criminally dangerous offenders from a strictly utilitarian viewpoint, and from that of social protection. Tllere neither is, nor has there been, consensus about what criminal dangerousness entails, other than in a general and unscientific sense, and thus resort to formal sentencing on that basis has been widely acknowledged as unsafe. 9 There are, however, some disturbing signs of a current renaissance of interest in sentencing measures ostensibly designed to reduce crime and increase social protection through incapacitation in the name of general deterrence. IQ Over the past this has proved to be a consistent and questionable development, since the received wisdom indicates that it is a prescription for failure (Cornwell, 1989/ pp.201-21; Baxter and Nuttall, 1978/ pp.221-6). The idea of deterrence is a difficult and complex area within the philosophy of criminal punishment which has attracted much attention conceptually, but which has proposed little of operational usefulness in terms of justice or morality. Intellectually it appeals to an intuitive belief that deterrent measures should have some beneficial effect upon crime commission, and enhance social protection through incapacitation. Operationally it is a fragile concept entirely because the supposed beneficial effects defy empirical evaluation, and human behaviour is not amenable to predictive accuracy. The title of this chapter posed the question of whether deterrence is a reality, an illusion or a deception. That evidence which is available, and there is not much of it that stands the test of empirical robustness, tends to indicate (through re-conviction and crime rate studies) that it can hardly be described as a reality. Unless and until empirical studies of a rigorous nature can be brought to bear upon the effects of deterrent measures, their success must remain questionable. Intuition and folk-wisdom inform us that some people are deterred by the actuality or the prospect of criminal punishment, but how many, and to what extent makes the expansive claims for its effects largely illusory. To rely upon the supposed effects of deterrence in the formulation of penal policies must be seen as condoning a deception, and this is a serious matter for concern because it calls into question the entire morality of the use of state power in punishing offenders. Much painstaking work has been done to highlight the fallibility of prediction methods and counsel against the use of unfettered discretion and indeterminacy in sentencing serious offenders. This has clearly had an impact in I

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academic circles, but there is strong contemporary evidence to indicate that it has not penetrated the political awareness to any marked extent. Until it does so, there will remain a danger that uncritical belief in the efficacy of deterrence within punishment will cause penal policies to founder on the rocks of retribution and incapacitation unless the case for rehabilitation can be effectively re-stated. In the chapter that follows, attention will turn to those purposes within criminal punishment that have generated a less complex but equally compelling debate: namely reform and rehabilitation. No better starting point for this debate can be provided than the penetrating analysis of Gibbs in the following quotation: The long debate over deterrence versus rehabilitation has diverted attention from other preventive mechanisms; and given compelling evidence that incapacitation rather than rehabilitation is the only preventive consequence of imprisonment ... There is an understandable reluctance to abandon attempts at rehabilitating even the most 'hardened' criminals in a prison setting, but once the primary function of imprisonment is taken to be incapacitation, rehabilitation programmes within prisons will receive even less support than is now the case. It is an illusion to suppose that the incapacitating effect of imprisonment can be taken as given. The effect may be very slight for, say, criminal homicide, but marked for larceny, burglary, robbery, and auto theft ... Generally, imprisonment reduces the incidence of a type of crime only to the extent that the type is characterised by a high repetitive rate. The relation[ship] becomes more complicated when considering the 'locus' of a reduction in crimes. For some crimes (e.g. sex offences), imprisonment may merely shift the location to a prison. Advocates of 'law and order' may not be bothered about relocating crime, but policy makers should confront the issue. Gibbs, 1975, p. 64. [Italics added.]

It is interesting that the concept of reform, particularly through imprisonment, is given relatively little attention within contemporary accounts of criminal punishment. In former times, and before the notion of deterrence was elaborated as we currently understand it in all its complexity, it must be supposed that the purposes of punishment envisaged some form of coterminous relationship between deterrence and reform. Certainly the nature of prison regimes was specifically designed to be demonstrably harsh, possibly (though coincidentally) in the belief that by their nature the individual would be specifically deterred from further offending, and the general public would be deterred through awareness of the punitive effects of imprisonment. Reform, however, implies some measure of improvement, and as will be discussed later, it is doubtful whether prisons ever delivered, or even now deliver, this purpose - other than in the negative sense indicated by Gibbs in the foregoing quotation.

Deterrence: Reality, Illusion or Deception? 63

ENDNOTES for Chapter 4 1.

For a detailed explanation of this approach see Jack Gibbs' (1975) account at Chapter 2, pages 29 et seq. Gibbs makes the important point (as does Andenaes (1972) indicated later) that those who do not contemplate or commit offences are not necessarily deterred by the threat of sanctions. See also Gibbs' quite distinctive definitions of'absolute', 'restrictive' and 'specific' deterrence, and the manner in which he perceived these as operating. Andrew Von Hirsch (1985) at pages 31-2 provides a very useful synopsis of the utilitarian 2 approach to deterrence adopted by Cesare Beccaria (1764 and translated in 1963), and Jeremy Bentham in J. Bowring, (ed.), (1962). A similar account also appears in J.H. Burns and H.L.A. Hart, (eds.), (1982). 3. A more comprehensive account of Bentham's concept of rules and morals is provided by Philip Bean (1981) at pages 30-35, and by Ted Honderich (1976) at pages 51-65. 4. For a detailed explanation of Bentham's approach to the limitation of punishment to the extent of harm, see Bean (1981) at page 41 et seq., and Honderich (1976) at page 51 et seq. 5. Jos Andenaes (1972) sets out an extensive rebuttal of contemporary criticisms of deterrence theory in his contribution to J. Gerber and P.D. McAnany, (eds.), ContelnporanJ Punishment, at pages 108-19. 6. See Bean (1981) at pages 31-2 for an explanation of the utilitarian position exemplified by Bentham in relation to the infliction of punishment for the purposes of prevention or deterrence. 7. The problem of 'false-positive' predictions in proposing incapacitative methods for the prevention of future crime is an important feature of studies into the prediction of dangerousness. This tendency and its dysfunctional effects are described by Tony Bottoms (1977), and are analysed in more detail in the work of Bottoms and Brownsword (1982 and 1983), Monahan (1978), Shah (1981), and a number of other authors. An extensive overview of the literature relating to criminal dangerousness and its punishment is provided in Cornwell (1989) at pages 1-56. 8. Andrew von Hirsch (1986) provides a critical analysis of the operation of what he terms ,categorical incapacitation' in relation to desert at pages 154-59. Deterrence through incapacitation represents a mechanical means of preventing crime, but not necessarily of crime reduction. Both the appropriateness and the legality of such measures have been seriously questioned from both a moral and operational perspective. See Hudson (1987) at pages 72-3 and 93-4, Bottomley (1979) at pages 131-7, Rutherford (1986) at pages 9-11, and Gibbs (1975) at pages 22 and 58-65. 9. See Cornwell (1989) at pages 202-4, and also the work of Cohen (1983) at pages 4-11. The particular objection in both accounts concerns the use of indeterminate sentences to incapacitate (or predictively restrain) those considered to be criminally dangerous. Failing a general agreement as to the criteria and variables to be used in the predictive process, the use of such sentences becomes not only unsafe, but also entirely unreasonable. See also the opinions advanced by Copas (1983) at page 134 et. seq., and Dershowitz (1970) at pages 24-7. 10. David Garland (1999) notes this tendency in his analysis at pages 5-8. See also the commentary provided by Morgan (2003) at pages 7-19, and in particular, pages 12-14.

REFERENCES (in order within the text) Gibbs, J.P. (1975), Crilne, Punishment and Deterrence, New York and Oxford: Elsevier, p.32. Andenaes, J. (1972), 'General Prevention: A Broader View of Deterrence', R.J. Gerber and P.D. McAnany (eds.), ContelnporanJ Punishment: Views, Explanations and Justifications, South Bend, Indiana: University of Notre Dame Press, pp.108-19. Bean, P. (1981), Punishment: A Philosophical and Critninological InquinJ, Oxford: Martin Robertson, p.29. Hart, H.L.A. (1968), Punishment and Responsibility, Oxford: Clarendon Press, pp. 4-5. Von Hirsch, A. (1985), Past or Future Crilnes: Deseroedness and Dangerousness in the Sentencing of Cri111inals, Manchester: University Press, pp.31-2. Beccaria, C. (1764), Of Crimes and Punishment, [tr. H. Paolucci 1963], Indianapolis: Bobbs-Merrill.

64 Criminal Punishment and Restorative Justice Bentham, J. (1962), Principles of Penal Law, [Part 2. The Rationale of Punishment], J. Bentham, Collected Works, J. Bowring (ed.), London: Russell and Russell. Also in J.H. Bums and H.L.A. Hart (eds.), (1982) An Introduction to the Principles ofMorals and Legislation, London: Methuen. Ewing, A.C. (1929), The Moralihj of Punishment, London: Kegan Paul, Trench & Trubner. Andenaes, J. (1968), 'Does Punishment Deter Crime?' Crilninal Law Quarterly, vol. 11, pp.76-93. Andenaes, J. (1970), 'The Morality of Deterrence', University of Chicago Law Review, vol. 37, (Summer), pp.649-64. Zimring, F.E. and Hawkins, G. (1971), Deterrence: The Legal Threat in Crime Control, Chicago: University of Chicago Press. Beyleveld, D. (1979a), 'Deterrence Research as a Basis for Deterrence Policies', Howard Journal of Crilninal Justice, vol. 18, pp.135-49. Beyleveld, D. (1979b), 'Identifying, Explaining and Predicting Deterrence', British Journal of Crilninology, vol. 19, pp.205-24. Van Hirsch, A. (1985), op. cit. Gibbs, J.P. (1975), op. cit.pp.32-3. Andenaes, J. (1972), op. cit. Packer, H.L. (1972), 'The Practical Limits of Deterrence', R.J.Gerber and P.D.McAnany (eds.), Contelnporary Punishment: Views, Explanations and Justifications, South Bend, Indiana: University of Notre Dame Press, pp.l02-7. Von Hirsch, A. (1985), op. cit., pp.54-5. Bentham, J. (1962), op. cit, p.383. Bean, P. (1981), op. cit., pp.30-35. Honderich, T. (1976), Punishment: The Supposed Justifications, Harmondsworth: Penguin Books, p.51 et seq. Bean, P. (1981), op. cit., pp.41 et seq. Honderich, T. (1976), op. cit., p.51 et seq. Bean, P. (1981), op. cit., p.32. Moberley, Sir W. (1968), The Ethics of Punishment, London: Faber and Faber, p.50. Moberley, Sir W. (1968), op. cit., p.281. Andenaes, J. (1972), op. cit., pp.l08-19. Hart, H.L.A. (1968), op. cit., pp.4-5. Blom-Cooper, L. and Drewry, G. (eds.), (1976), Law and Morality: A Reader, London: Duckworth, pp.64-5. American Friends Service Committee, (1971), Struggle for Justice, New York: Hill and Wang. Von Hirsch, A. (1976), Doing Justice, New York: Hill and Wang, p.173. Von Hirsch, A. (1985), op. cit., p.33. Ewing, A.C. (1929), op. cit. p.50. Bean, P. (1981), op. cit., pp.31-2. Ewing, A.C. (1929), op. cit., p.57. Beccaria, C. (1764), op. cit., Chapter 12. Comwell, D.J. (1989), Criminal Dangerousness and its Punisll1nent: Beyond the Phenornenological Illusion, D. Phil. Thesis, University of York, pp.1-56. Bottoms, A.E. (1977), 'Reflections on the Renaissance of Dangerousness', Howard Journal of Criminal Justice, vol. XVI, no.2, pp.70-97. Bottoms, A.E. and Brownsword, R. (1982), 'The Dangerousness Debate After The Floud Report', British Journal of Criminologtj, vol. 22, no.3, pp.229-54. Bottoms, A.E. and Brownsword, R. (1983), 'Dangerousness and Rights', J.W. Hinton (ed.), Dangerousness: Problems ofAssessment and Prediction, London: AlIen & Unwin, pp.233-7. Monahan, J. (1978), 'The Prediction of Violent Behaviour: A Methodological Critique and Prospectus', in A. Blumstein, et al. (eds.), Deterrence and Incapacitation: Estirnating the Effects of Crilninal Sanctions on Cri,ne Rates, Washington D.C.: National Academy of Sciences, pp. 244-69. Shah, S.A. (1981), 'Dangerousness: Conceptual, Prediction and Public Policy Issues', J.R. Hays et al. (eds.), Violence and the Violent Individual, Lancaster: MTP Press, pp.151-78. Von Hirsch, A. (1986), op. cit., pp.154-9. Hudson, B. (1987), Justice Through Punishment: A Critique of the Justice Model of Corrections, London: Macmillan Education, pp.72-3 and 93-4. Bottomley, A.K. (1979), Crilninologtj in Focus, Oxford: Martin Robertson and Company, pp.131-7. Rutherford, A. (1986), Prisons and the Process ofJustice, Oxford: Oxford University Press, pp. 9-11. Gibbs, J.P. (1975), op. cit., pp.22 and 58-65.

Deterrence: Reality, Illusion or Deception? 65 Comweli, D.J. (1989), op. cit., pp.202-4. Cohen, J. (1983), 'Incapacitation as a Strategy for Crime Control: Possibilities and Pitfalls', M. Tonry and N. Morris, (eds.), CriJne and Justice: An Annual Review of Research, Volume 5, Chicago: University of Chicago Press, pp.1-84. Copas, J. (1983), 'Some Statistical Questions in the Prediction of Dangerous Offending', J.W. Hinton, (ed.), Dangerousness Problems of AsseSSlnent and Prediction, London: George Alien & Unwin, pp.134 et seq. Dershowitz, A. (1970), 'The Law of Dangerousness: Some Fictions About Predictions', Journal of Legal Education, vo!. 23, pp.24-7. Garland, A. (1999), 'Punishment and Society Today', [Editorial], Punishment & Sociehj, vo!. 1, no.1, pp.5-8. Morgan, R. (2003), 'Thinking About the Demand for Probation Services', Probation Journal, vo!. 50, no.1, pp.12-14. Cornweli, D.J. (1989), op. cit., pp.210-21. Gibbs, J.P. (1975), op. cit., p.64.

CHAPTERS

Reform and Rehabilitation: One Proposition or Two? Men, said the Devil, are good to their brothers; They don't wish to mend their own ways, but each other's. Piet Hein, Collected Poems.

The notions of reform and rehabilitation within the main purposes off and justifications for criminal punishment have a long history, and have attracted considerable philosophical attention over the centuries. It is of interest to note, however, that during the past five decades since the Second World War, increasingly less space has been devoted to explanations of reform within the penological literature as the years have passed. Indeed, some accounts of criminal punishment make only passing reference to the concept of reform, evidently viewing it as an anachronistic idea, increasingly irrelevant in a modern social context. Rehabilitation, on the other hand, reached its zenith during the 1960s with the growth of belief that medical science and psychology somehow held the key to crime reduction, insofar as offenders might be 'cured' of their offending behaviour, however long might be necessary to achieve this effectively. As has been noted in earlier chapters, the deep misgivings that arose during the 1970s in relation to the apparent failure of rehabilitative programmes to reduce crime rates, led to the decline of the rehabilitative ideal. It also resulted in the creation of a penological vacuum that was quickly filled by a return to criminal punishment based essentially on the principles of retribution and desert. As Galligan (1981) points out/ however, writing at the time of the emergence of the 'justice model': The sources of the renewed interest in retribution are essentially twofold. First there is a deep dissatisfaction with the workings of penal systems over the past thirty years or so; Secondly, there is a renewed conviction of the truth of the principle, ancient in origin but eclipsed in recent history, that the central purpose of criminal justice is not to deter, to incapacitate or to reform, but to punish law-breakers. Galligan, 1981, p.145.

This observation goes to the heart of the contemporary problems surrounding the concepts of reform and rehabilitation in a most penetrating manner. Not only did it seem that the operation of entire penal systems (particularly- in Europe and America) was failing to reduce crime: but also, that the frustration which resulted from this perception prompted a search for more direct, lower cost/ immediate and visibly punitive strategies to combat what was termed the 'war on crime'.

Reform and Rehabilitation 67

The fact that entire penal systems were deemed to have failed was not solely due to the fact that rehabilitative initiatives or programmes could be claimed to have been totally ineffective. It was far more about the extent of judicial and professional discretion in legal and penal decision-making, sentencing, and parole arrangements, all of which became questionable within a framework of rehabilitative penology. It was also about the perceived injustices of sentencing indeterminacy, alleged coercion within 'treatment' initiatives, and confusion with 'medical' models of therapy and 'cure' that brought the rehabilitative. ethic into disrepute (see Allen, 1981/ pp.I-59; Hudson, 1987/ pp.2336; Cavadino and Dignan, 1997b, pp.233-253).l It is appropriate to challenge the assumption that reform is an outdated concept from two quite separate, and yet ultimately linked approaches. First, by explaining why it was premature to dismiss the idea of reform as having no contemporary relevance within penology; and secondly, by discussing briefly the implications of abandoning the concept, or failing to recognise its operational significance. Before doing so, however, it seems necessary to make some reference to the apparent relationship between reform and rehabilitation in a criminological context. The idea of reform implies change in a moral sense. Dictionary definitions of the word differ marginally, but display broad similarity in essence. For the sake of clarity, the following definitions are proposed: Reform vb. - To improve (an existing institution, law, practice, etc.) by alteration or correction of abuses. To give up or cause to give up a reprehensible habit or immoral way of life. Improvement of morals or behaviour, especially by giving up some vice.

Collins English Dictionary, 1983 Edition, p. 1227.

Rehabilitation, on the other hand, has an entirely different meaning: Rehabilitate vb. - To help (a person who is physically or mentally disabled or has just been released from prison) to readapt to society or a new job, as by vocational guidance, retraining or therapy. To restore the good reputation of..

Collins English Dictionary, Ope cit., p.1230.

These definitions are not appended in the interests of pedantry, but to indicate the essential and important differences between the two activities. Bean, in his account, proposes that the terms may be used interchangeably (1981/ p.46), while Hudson, in hers, insists that the words have entirely different meanings (1987/ p.3). These interpretations stem not so much from their linguistic usage, but far more from their origins and operational effect. Historically, there have been two mainstream accounts of the general concepts of reform and rehabilitation. For the purposes of description here, these are identified these as the Platonist and the Hegalian approaches respectively, though the former considerably pre-dates the latter. The Platonist approach identifies more closely with the 'classical' view of penology subsequently pioneered by Lombroso, Garofalo and, somewhat later, Ferri and others,2 but

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was questionably positivistic in nature. Though it focussed its attention on the criminal rather than the crime, its purpose was to identify and subsequently 'treat' the symptoms of 'moral sickness' in the offender. In this important respect it will be seen to coincide much more closely with the rehabilitative ideal within punishment than the reformative. In fact, what subsequently became known as the 'treatment' model of penology envisaged just this form of therapeutic approach, with all its attendant problems. It is perhaps worth noting at this stage that some variants of the 'treatment' model veered very close to a neo-determinism in attributing the causes of offending entirely to character defects or personality disorders rather than criminal actions. Such is to deny the freewill nature of offending on the basis that the offender, by virtue of his'condition', was constrained to act in an illegal manner. Hegel's concept of criminal punishment placed primary emphasis on the crime rather than the criminal in a positivistic sense that is not, (and here Bean may be right), retributive in nature (Hegel, 1967, para.100). He perceived the offender as a freewill actor who may be reformed as a result of (or through) punishment, and who therefore has some essential 'right' that such a possibility should be allowed to occur. 3 Thus, the proper outcome of punishment should be that the offender is enabled to understand the harm caused by, and the moral 'wrongness' of his crime, and accept this with a view to changed future behaviour (see here, for example, Ewing, 1929, p.84). The concept of reform through punishment raises a number of issues that should be noted in deciding upon its potential effectiveness. These are described briefly in the following paragraphs, though not in any assessed order of importance. It may be helpful to retain in the mind throughout this discussion that the principal aim of the endeavour is the reduction of crime in the longer term. 4 This should be attempted by means that are morally defensible, just and equitable (as between the persons dealt with in our prisons, or indeed elsewhere within criminal justice systems). The first issue, often amounting to an objection by those sceptical of reform, is whether it is intended that offenders should be reformed through punishment, or as a result of punishment. While the difference might at first sight appear semantic, the approach adopted will have significant importance for the way prisons might be designed and operated, and subsequently used to reduce the incidence of crime within modern societies. However punishment is defined, it is inescapable that it involves the infliction of unpleasantness. The question then becomes that of how much unpleasantness is necessary and justifiable. It has long been the custom to insist that offenders are sent to prison as punishment, rather than for punishment, and this view is concurred with here. The facts of being sent to prison, of losing liberty, of restriction of choice, of imposed compliance with routines, of the loss of immediate contact with family and friends, of inevitable association with undesirable and often predatory people, all amount to a severe penalty. The length of time for which these have to be endured indicates the extent of the punishment.

Reform and Rehabilitation 69

If one were to contend that reform should occur through punishment, there is the danger that it becomes permissible to add to this list of deprivations a range of other measures that turn punishment into a vindictive practice. One might insist upon silence, upon solitary confinement, upon labour without reward, upon denial of external contacts, or a variety of additional and draconian measures to increase the severity of the punishment, but these would serve only to provoke anger and bitterness because they are unreasonable and unnecessary. In such circumstances it would be altogether unlikely that offenders would contemplate adopting a law-abiding lifestyle on release. Changed behaviour of a law abiding nature as a result of imprisonment (or other sanctions) is a matter of choice for the offender, and cannot be compelled. If our legal and punitive processes work on the premise that all (other than the mentally impaired) persons are responsible beings capable of right choices, and punish them for wrong or criminal ones, then it becomes illogical to deal with them in prison as though they were irresponsible. Furthermore, if prison regimes reinforce responsible behaviour positively, and irresponsible behaviour is consistently challenged and negatively rewarded, then there is greater chance that law observance may become a preferred modus operandi thereafter. One of the main shortcomings of most contemporary accounts of reform as a purpose of punishment is that what might be termed the'ancient philosophical history' of the idea is rehearsed in great detail, and very little attention is devoted to its operational implications. Precisely because this work deals with punishment in a contemporary context, these historical developments, however interesting and elegantly presented, contribute very little to the need for enlightened penal policies in the future. One of the further issues raised implicitly by writers such as Honderich (1976), Bean (1981) and Hudson (1987) is the question of whether the notion of reform has a necessary or appropriate place within present and future concepts of criminal justice at all. s There are some who undoubtedly believe it to be no part of the remit of criminal justice to be concerned with the outcomes of criminal punishment beyond its crime reduction agenda. In other words, it matters not from what motivation (if any) offenders refrain from further crime as long as they do refrain. It would be tempting to assert that this view emerged as part of the 'radical criminology' of the 1970s, opposed as it was to positivistic (freewill) accounts of criminal behaviour, and preferring a deterministic explanation of deviance resulting from cultural and other external influences, social inequality and lesser eligibility (Box, 1987, pp.194-9). 6 But it is preferable, at least philosophically, to start from a basis of universal truth if these issues are to be . understood properly. The following hypothetical example might be considered by way of illustration. My teenage daughter (or perhaps yours) was walking back from high school late one afternoon when she was confronted and raped by an umecognised young adult male assailant. The crime was reported, and some months later an individual was charged with, and convicted of the rape offence. It transpired during the defence plea in mitigation of sentence that the accused person was 18, unemployed, came from a single parent and socially deprived background, and that his mother was a prostitute struggling alone to maintain a family of three

70 Criminal Punishment and Restorative Justice

children on the income gained from her profession. In addition, it was admitted that the accused young man had a drug addiction problem, and that the offence was committed while under the influence of drugs. This is a sad, though not entirely uncommon scenario in the general sense, but what are the questions that should be asked within the justice system in order to determine the appropriate punishment for what is normally regarded as a serious and reprehensible unprovoked offence? It might be suggested that the following might prove a useful starting point: • Was the accused person aware that the offence was a serious one - or even an offence at all (i.e. that it was wrong)? • Was the accused person aware of the harm and distress that the offence might cause - whether actual or psychological? • Does the accused person demonstrate any shame or remorse or concern about the harmful nature of the offence - beyond possibly being convicted of committing it? • Was the offence spontaneously opportunistic or pre-meditated? • Can it be allowed that the accused person's social background should be seen to mitigate the offence, and if so, to what extent? The purpose of the Inquiry is to ascertain the effect that the punishment necessarily imposed might have on the future behaviour of the offender: not whether it should or should not be imposed at all. In other words, is he likely to be reformed by the punishment, or merely (possibly) deterred by it from future offending of a similar nature? It might be held that the illustration raises a number of important issues for punishment in the general sense, and the concept of reform in particular. If the answer to any of the first three questions was I no', one might question the mental capacity of the person involved, and thus the extent to which he might be deemed responsible and therefore culpable. If the offence was spontaneously committed, this might reinforce some doubt in relation to mental capacity: if alternatively it was premeditated, then one might reasonably entertain doubt about a future recurrence of the offence, and thus the dangerousness of the person concerned. The answer to the final question depends upon a moral perception of crime as intrinsically wrong rather than merely anti-social, and this lies at the heart of the issues involved. Classical positivist criminology would insist that regardless of any extraneous considerations, the conduct within our illustration was, prima facie, both wrong and harmful, and on that basis alone it deserved punishment. The possibility of reform would depend almost entirely on the extent to which the offender might, in time, be able to understand and acknowledge both the wrongfulness of the offence, and the harm it occasioned to the victim in particular, and to society in general. The wrongful element of the offence is addressed by just and appropriate punishment; the harmful element can only be alleviated or ameliorated by changed future behaviour. If such behaviour is evidenced as a result of the sentence or punishment, there is moral advantage (and possibly more reliability) in its having been provoked by reform rather than

Reform and Rehabilitation 71

by specific deterrence (but here see also the counter-argument of Hart (1961, p.181).7 Radical criminology would view the matter in an altogether different way, and predominantly from a deterministic viewpoint. At the least it would propose extensive mitigation on the basis that the background circumstances of the offender were a significant causative factor, and that these were beyond his immediate control. Though the harmfulness of the offence might be accepted, its commission would be attributed more to normlessly deviant behaviour than to essential 'wrongness' or wickedness, thus considerably diluting the notion of guilt, culpability or desert. Paradoxically, it might amount to a plea to perceive the offender rather than the victim as the casualty of social circumstances, and thus the imposition of a substantial sentence as discriminatory (Radzinowicz and King, 1977, pp.84-7).8 The development and emergence of the 'justice model' of punishment with its emphasis on guilt and tariff may be viewed with hindsight as a deliberate attempt to supplant the prescriptions of radical criminology, particularly in relation to the sentencing of offenders. The model was, however, so heavily laced with considerations of retribution and deterrence (both specific and general) that it failed to take reasonable account of differences between offenders convicted of the same or similar offences. Its dominant flaw was undoubtedly that it pursued ideological rather than distributive justice, and, quite mistakenly, discarded the concept of rehabilitation within punishment in the process (Hazell, 1986, pp.2-8). Since neither radical criminology nor the 'justice model' was overtly concerned about reform other than as a tangential or incidental aspect of punishment, it quickly disappeared from the rhetoric of penology during the 1980s and 1990s. With astute political correctness, the Prison Service in England and Wales developed a 'mission statement'9 in the late-1980s that effectively drove the former Prison Rule 1 into desuetude. IQ Prison Rule 1 had emphasised specifically the role of 'treatment and training' in assisting prisoners to lead 'good and useful lives'. Since neither treatment nor training was a primary purpose of the 'justice model', retention of the ethos was evidently redundant. In the early part of this chapter, it was suggested that it was premature to dismiss the concept of reform as having no contemporary relevance, and that the implications of doing so are considerable and far-reaching. Part of what has already been said goes some way to explaining how reform might become an outcome of punishment, but this is far from a complete account. It was also asserted earlier that reform and rehabilitation as purposes of punishment have different meanings, and cannot, therefore, be used interchangeably. The two can, and, it might be proposed should, be viewed sequentially, and for reasons that will become apparent, true rehabilitation is entirely dependent upon a predisposition to reform, and is consequent upon that motivation. Abandonment of the rehabilitative ethic, or indifference about whether it is regarded as an essential element of punishment, or demotion of it to peripheral consideration after retribution and deterrence, serves to isolate and marginalise the essential role of reform. From a utilitarian viewpoint alone, if there is no desirable or socially useful outcome of the punishment process other than

72

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retribution and deterrence, then punishment becomes vindictive. It may be just: it may be deserved: but it wil1 still be vindictive. Now it may be part of the social usefulness of criminal punishment that the offender should be seen to have been punished, but beyond this the benefit is meagre. It may also be part of the social purpose of criminal punishment that some would-be offenders are deflected from crime out of fear of the consequences, but one cannot, as we have already discussed in Chapter 4, know how many or why. Once again the benefits are at the least uncertain. It certainly is a major part of the social usefulness of criminal punishment if a reduction in crime results from it. Both our intuition and our experience indicate very clearly that crime reduction does not result significantly from retribution and deterrence alone. The 'justice model' failure and its demise provide compelling evidence for this assertion. During the 1960s, it was believed by many of those who studied crime and criminals that there was a moral imperative within the concept of criminal punishment to do rather more than exact some or another extent of retribution for wrongdoing. Ferri had argued that the positivist approach to crime causation necessarily involved the study of criminal behaviour, and thus of the criminal, rather than merely the crime as had been the prevailing practice in classical criminology. The problem was, however, how to study the criminal scientifically, and thereby arrive at the situation in which a systematic account might be given of criminal behaviour (Ferri, 1929, p.vi). It was also believed that medical science could provide both a methodology and a rationale for analysing criminal behaviour on a basis not far removed from Plato's conceptualisation of criminals as 'socially' sick persons, suffering from some sort of mental defect or disease which might be 'cured'. Once the 'cure' had been effected, it was reasonable (according to the Platonic logic) to anticipate that the individual might be restored to his or her place in society as a 'normal' or rational human being. It was for this primary reason that the idea of rehabilitation through 'treatment' (another medical analogy) began to take a hold, accompanied (somewhat paradoxically) by a neo-utilitarian belief that the social benefits of acting in such a manner might outweigh - or at least counterbalance such a mode of punishment (Bean, 1981, pp.53-4). The main problems associated with ideas of 'treatment' and 'cure' will immediately be obvious. In the first place both require accurate diagnosis: in the second, it is necessary to allow sufficient time for the 'treatment' to take effect: and in the third place, the concept has a considerable attendant cost. Thus even if diagnostic practice could be made invariably reliable, and there were considerable practical difficulties in arriving at that situation, it necessarily followed that sentencing determinacy was not the vehicle upon which treatment philosophies could be based. Resort to indeterminate sentencing (and its associated problem of limiting professional discretion) would result in prisoners serving longer periods in custody, and thus lead to an overall increase in (and therefore cost of maintaining) the prison population. Even worse, perhaps, for the purposes of the present debate, sentencing indeterminacy could be seen to be essentially unjust, since it placed no limits on the extent of punishment (via imprisonment) necessary to achieve the 4

Reform and Rehabilitation 73

supposedly desired results of 'treatment', 'cure/ or rehabilitation. Bottoms sums up this paradoxical situation in the following words: In pure classicism, the State is entitled to no powers other than those specifically given up by the citizens as the least deprivation of liberty necessary to maintain order; so the general justifying aim of State punishment is utilitarian rather than retributive. It follows that, by comparison with traditionalism, there is in classicism a sharp shift towards the protection of the accused, and a marked reduction in the level of penalties. In particular, for present purposes, classicism upholds the secondary principle of 'limiting retribution' - that is, that the level of punishment is absolutely determined by the seriousness of the breach of the social contract. Bottoms, 1977,p.74.

Within the positivist tradition, however, over-riding concern with the maintenance of the social contract can effectively absolve the punisher from the requirement of equity within the punishment process. As Bottoms continues: Because the positivist is concerned only with the elimination of anti-social conduct, he is impatient of the principle of limiting retribution, which he sees as frustrating his legitimate desire to protect society by applying appropriate measures of social defence to the offender, even if these exceed the penalty based on the seriousness of harm which classicism would impose. The positivist also, unlike the classicist, sees no reason why society should not intervene compulsorily in the lives of potential offenders, even though they have as yet committed no anti-social act. Bottoms, 1977, op. cit., p.75.

For all these reasons, there were significant problems inherent in the rehabilitative approach to punishment. The situation worsened markedly in the mid-1970s with assessments such as that of Martinson (1975/ and see Chapter 1 supra) that no treatment programme seemed any more beneficial than another in reducing recidivism. It is therefore easy to perceive (with hindsight) why the 'justice model' had its appeal, particularly in an era in which the burgeoning costs of maintaining prisons and prisoners had such political impact during a period of almost universal economic decline, particularly in the United Kingdom and elsewhere in Europe. In strict fairness to those convinced of the moral purpose and social value of rehabilitation as a guiding principle of criminal punishment, there were some considerable inaccuracies in the generally accepted account of its apparent failure during the 1960s and 1970s. Some programmes were being developed that seemed to indicate limited success in dealing with certain forms of offending and some offenders. These programmes focussed mainly on violent crime and sexual offending in particular, but were never rigorously enough evaluated (See, for example, Palmer, 1975; AlIen, 1981).11 It is also possible that other, and more politically compelling factors, fuelled the demise of the rehabilitative ideal, particularly in the United States, and later in Britain. Among these were issues much more related to the changing nature of both democratic societies, economic circumstances, the emergence of protest movements generally, and of prisoners'

74 Criminal Punishment and Restorative Justice

rights movements in particular. Steadily increasing rates of recorded crime, of the size of prison populations, and of recidivism (however measured) did little to sustain intellectual support for rehabilitation. We have already noted that this period also coincided with the emergence of a radical criminology towards which the 'law and order' lobby within politics quickly became antipathetic. The residual question becomes that of the potential role for rehabilitative programmes in this new millennium with its escalating penal populations and apparent intoxication with 'swift and certain justice' to punish and deter crime. This is much more difficult to answer because it has seemed to be the case in recent years that penal policies have been derived much more as a response to political pressures and frustration, than from enlightened penological considerations. These factors notwithstanding, one should not be seduced by their apparent failure for a number of reasons that deserve brief explanation. The discussion hinges on having a clear view of what the process of imprisonment is designed to achieve beyond mere social incapacitation. Incapacitation is, stripped of other considerations that are predominantly punitive, simply a means of denying individuals the opportunity to offend rather than of doing something more useful with them. In short it buys time rather than uses timet and does so very expensively. The purpose should surely be to restore within the community at the end of a prison (or other) sentence people who are able to make informed choices about their future lives. This means having reviewed what has happened in the past, with particular reference to the motivations for previous offending and its harmful consequences for those offended against, society and the offender. It also involves using reasonable and affordable resources to develop personal strategies and abilities to resist the temptation towards further similar (and possibly other) offending. It does not mean compelling prisoners to undergo 'treatment', or expecting evidence of damascene conversion before release can be contemplated: neither does it propose indeterminacy of sentencing or increased discretion being afforded to correctional officials either within prisons or outside them. It is the contention here that the concept of reform relates to past conduct, and acceptance by the individual with assistance (if necessary) of its harmful and 'wrongful' nature and effect on others directly affected by it in the first instance, and the wider society in the second. Rehabilitation, on the other hand, relates to future conduct, and development of realistic personal strategies for crime avoidance. The latter may derive from counselling or training (or both), but these must focus realistically on the personal circumstances of the individual, and the pressures on him or her to re-offend. 12 This, it might be suggested, answers the question posed in the title of this chapter. Reform (in today's idiom perhaps an outmoded concept) and rehabilitation (also in today's idiom perhaps a discredited concept) are two distinctly different propositions within criminal punishment. Both have desirable purposes in the interests of crime reduction, and used sequentially can prove effective. Ultimately, however, offenders themselves have to make their own decisions about the future. Many will inevitably return to the same area, home, associates, temptations and pressures that may have encouraged, though not

Reform and Rehabilitation 75

caused, offending in the first place. This is an inevitable fact of life for them and for society, but one for which they can be prepared, and in which they should be assisted. In thinking about developing concepts of the administration of criminal justice and punishment which are examined in Chapter 6 , it may be helpful to ponder the views of Hudson (1987) and AlIen (1981) which very thoughtfully encapsulate much of what has been discussed so far: Rehabilitationists can also claim that theirs is the only approach to penology which offers any hope of reducing crime. While overall crime rates may only be responsive to radical social change, rehabilitation does attempt very positively to prevent individual recidivism: that is its raison d'etre. Whether or not one believes in the rehabilitative potential of the institution, no-one can deny that the whole point of rehabilitation is to prevent re-offending. Hudson, 1987, p.74.

And: In what areas may rehabilitation be expected to make legitimate contributions to the administration of criminal justice? Certain problems beset penal administration regardless of its theoretical orientation: they must be faced whatever role is ultimately accorded the rehabilitative ideal. Even if the role is severely limited and the effort to make prisoners better and less dangerous is largely abandoned, penal policy can hardly ignore the problem of prisoners being made worse and more dangerous by the prison experience. There appears to be a considerable division of sociological opinion on whether or to what degree prisons are schools of crime.. However this may be, it J;llust be clear that in many particular cases the prison experience is devastating and traumatic. . Considerations of both social policy and compassion urge that institutionally-related deterioration of prisoners be avoided whenever possible. AlIen, 1981, pp.79-80.

Criminal punishment, particularly through imprisonment, has long intrigued theorists, philosophers, academics, practitioners, politicians and the public, and for widely differing reasons. There is every reason to believe that it will continue to do so in the years that lie ahead. Theories and practices based on retribution, deterrence, incapacitation, reform and rehabilitation, either singly or in combination, have waxed and waned in what may be seen to be an almost cyclic fashion. As one after another appears to fail in the ultimate purpose of reducing crime, there is the tendency to re-visit and re-invent alternative theories to justify the punishment agenda, rather than re-address and re-assess the causes of crime within our contemporary societies. If there is a certainty within our understanding of penology, it is that prisons do not reduce crime, and may actually increase it. However, much may depend upon how prisons are designed and operated in determining the way prisoners view crime, and thus the attitudes towards it that they retain once they leave prison. The extent to which it is reasonable to make less use of imprisonment and greater use of community sanctions will remain a political issue, but one that

76 Criminal Punishment and Restorative Justice

must be approached on the basis of social justice rather than of political expediency. It has been a recurring theme in the discussion thus far that the central purpose of criminal punishment should be to reduce crime. All the indications lead inexorably to the conclusion that whatever the prevailing contemporary punishment theories may be, crime reduction does not appear to result from them. Criminal justice policies based upon responses to political pressure, and without substantiated theoretical under-pinning, are prone to failure: but those based on supposition and vindictiveness dangerously debase the concept of justice. The dilemmas which have confronted criminologists and others working as professionals in the field of criminal justice administration in former times still continue to challenge them today. These professionals have, through study and careful consideration, to arrive at a considered and balanced view of the moral and the operational validity of each of the approaches discussed in the preceding chapters. This is no easy task, but until it has been attempted, professional practice will have no constructive or enlightened theoretical basis to guide it. The volume and nature of crime in most developed societies today shows no signs of decreasing, and in many areas of the world are evidently increasing year on year. The competitive pressures of modern living, the continuing existence of evident or widely perceived social inequalities, and possibly increasing opportunities to commit crime and evade detection, may all encourage, but do not excuse criminal behaviour. The means selected by governments to confront the inevitability of crime, and to deal with those who break the law, ultimately reflect not only political morality and relative maturity. These also reflect the extent of national resolve to reduce, insofar as this may be practicable, the social circumstances in which the commission of crime are perceived as either justified or necessary.

ENDNOTES for Chapter 5 1.

2.

In the early years of the "rehabilitative' era it was widely believed that because criminal offending was a form of "social sickness', the offender might be "treated' over a period of time, and ultimately"cured'. Therapeutic approaches were thus devised on a medical model of treatment which supposed no limit in duration, and placed considerable power in the hands of correctional professionals and administrators. Indeed, the use of techniques such as aversion therapy, electroconvulsive therapy (ECT) and administration of psychotropic drugs were all considered as appropriate within the scope of treatment regimes. (See Hudson, 1987, pp.24-5, Menninger, 1966; and particularly Clarke and Sinclair (1974 at page 58, and Brody, 1976 at page 37.) The latter two sources confirm the general conclusion of Martinson (1974, p.25) that "there is now little reason to believe that anyone of the widely used methods of treating offenders is much better than any others at preventing reconviction'. But see the note above in relation to the medical model of treatment, and what has been termed the medical myth' of dealing with offenders as though their offending displayed identifiable (and treatable) symptoms of social sickness. This was the primary weakness of the positivist tradition pioneered by Lombroso, Garofalo and Ferri among other members of the Italian School. For a detailed account of Hegel's approach see Bean, 1981, at pages 47-53. Though this may, at first sight, appear to be predominantly a utilitarian position, I do not propose it in a general sense, but rather that crime should reduce as a result of increased individual law-abiding behaviour, and thus lesser use of penal sanctions. If, for instance, there is relatively little benefit to be gained from the forms of rehabilitative programmes described earlier I

3. 4.

Reform and Rehabilitation 77

5.

6.

7.

(and see Notes 1 and 2 above), then the case for shorter rather than longer sentences is unanswerable (see Brody, 1976, op. cit.). The point is made here because if reform and rehabilitation are perceived either to be synonymous or inter-changeable in meaning rather than separate and sequential, then the case for abandonment of one or other affects the appropriateness of either. In advancing the premise that the two are entirely separate functions of punishment, this conceptual difficulty is entirely avoided. The radical (or critical) approach to criminology was predicated on a predominantly Marxist view of the functioning of the state, or, at the very least, on a neo-socialist agenda for political change. While this agenda was driven (and with some justification) by a perceived need to achieve a significant redistribution of power and wealth in the post-World War Two era in Europe and North America, it did not adhere to the established principles of law or justice. Thus a movement designed to achieve social change swept up within its proposals explanations of crime of a deterministic nature, more as a reaction against positivism, than as a considered prescription for more equitable justice. Hart (1961) in The Concept of Law argues precisely the reverse proposition in the following terms: The objection to assigning to Reform this place in punishment is not merely that punishment entails suffering and Reform does not; but that Reform is essentially a remedial step for which ex hypothesi there is an opportunity only at the point where the criminal law has failed in its primary task of securing society from the evil which breach of the law involves. Society is divisible at any moment into two classes, (i) those who have actually broken a given law and (ii) those who have not yet broken it but may. To take Reform as the dominant objective would be to forego the hope of influencing the second - and in relation to the more serious offences - numerically much greater class. We should thus subordinate the prevention of first offences to the prevention of recidivism. (Hart, 1961, p.181.)

8.

See Radzinowicz and King (1977) at pages 84-7 for a critique of the radicalist position. As they point out, the socialist school drew its inspiration from Karl Marx, yet neither Marx nor Engels ever developed a systematic socialist theory of crime. For that we have to turn to William Adrian Bonger, a Dutch professor of sociology, a man of great learning and sensitivity, and a militant socialist. His book Economic Conditions and Crime, published in English in 1916, brought Marxist principles fully to' bear on the interpretation of crime in capitalist countries. (Radzinowicz and King, 1977, p.81.)

9.

The Statement of Purpose devised by HM Prison Service for England and Wales in 1988, states the following: Her Majesty's Prison Service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity, and help them lead law-abiding and useful lives in custody and after release.

10. Rule 1 of the Prison Rules (England and Wales), Statutory Instrument 1964 Number 388 (as amended) states that: The purpose of the training and treatment of convicted prisoners shall be to encourage them to lead a good and useful life. 11. A number of commentators on the decline of the rehabilitative ideal, notably AlIen (1981), Palmer (1975) and Adams (1976) questioned the extent to which Martinson's (1974) data actually supported his pessimistic view of the effectiveness of rehabilitative programmes. The fact that Martinson to some extent subsequently modified his "nothing works' assertion provides some indication that these critics may have been influential in provoking a re-assessment of the position. See for example, Palmer's (1975) work Martinson Revisited, at pages 133 et seq., and Allen (1981), The Decline of the Rehabilitative Ideal at pages 60-85.

78 Criminal Punishment and Restorative Justice 12. One of the principal criticisms levelled at therapeutic programmes of counselling was the preferred method of dealing with groups of similar offenders as though they displayed homogenous characteristics due to the nature of their offending, rather than as individuals who might have committed similar offences, though each in unique circumstances. Much of the reported work relating to therapeutic regimes is significantly descriptive, more detailed analysis being precluded by the insistence of professionals on 'medical confidentiality'. (See, for instance, Parker (1970), and Genders and Player (1995) in the United Kingdom, and, in a more general sense, Schreiber (1970), Garabedian (1970) and Fleisher (1989) in the United States, Gayraud (1970) in France, Schoener (1979) and Wagner (1979) in Germany, and Bandini and Gatti (1970) in Italy.)

REFERENCES (in order within the text) Galligan, D.J. (1981), 'The Return to Retribution in Penal Theory', in C.F.H. Tapper (ed.), Crime, Proof and Punishment, [Essays in honour of Sir Rupert Cross], London: Butterworth, pp.144-71. AlIen, F.A. (1981), The Decline of the Rehabilitative Ideal, New York and London: Yale University Press, pp.1-59. Hudson, B. (1981), Justice Through Punishment, London: Macmillan, pp.23-36. Cavadino, M. and Dignan, J. (1997b), Reparation, Restitution and Rights, International Review of Victilnology, vo!' 4, pp.233-253. Hudson, B. (1981), op. cit., pp.24-5. Menninger, K. ((1966), The Crime ofPunishlnent, London: Viking Press. Clarke, R.V.G. and Sinclair, I. (1974), 'Towards More Effective Treatment Evaluation', European Committee on Crime Problems, Collected Studies in Criminological Research, vo!' XII, Strasbourg: Council of Europe, p.58. Brody, S.R. (1976), The Effectiveness of Sentencing, London: HMSO, p.37. Martinson, R. (1974), 'What Works? Questions and Answers About Prison Reform', The Public Interest, (Spring), p.25. Hanks, P. (ed.), (1983), Collins English DictionanJ, London and Glasgow: Collins, pp.1227 and 1230. Bean, P. (1981), Punishment: A Philosophical and Criminological InquinJ, Oxford: Martin Robertson, p.46. Hudson, B. (1987), op. cit., p.3. Hegel, G.F. (1967), Philosophy of Right, [tr. T.M. Knox], Oxford: Clarendon Press, para. 100. Bean, P. (1981), op. cit., pp.47-53. Ewing, A.C. (1929), The MoralihJ of Punishment, London: Kegan Paul, Trench and Trubner, p.84. Brody, S.R. (1976), op. cit, p.37. Honderich, T. (1976), Punishlnent: The Supposed Justifications, Harmondsworth: Penguin Books. Bean, P. (1981), op. cit. Hudson, B. (1987), op. cit. Box, S. (1987), Recession, Crilne and Punishment, London: Macmillan, pp.194-9. Hart, H.L.A. (1961b), The Concept of Law, Oxford: Oxford University Press, p.181. Radzinowicz, Sir L. and King, J. (1977), The Growth ofCrilne: The International Experience, Harmondsworth: Penguin Books, pp.84-7. Bonger, W.A. (1916), Criminality and Economic Conditions, London: Heinemann. Radzinowicz, Sir L. and King, J. (1977), op. cit, p.81. Hazell, R. (1980), 'Treatment Fails: Patient Survives', Prison Seroice Journal, vo!' 39, (July), pp.2-8. Ferri, E. (1929), Crilninal Society, Boston: Little Brown, p.vi. Bean, P. (1981), op. cit, pp.53-4. Bottoms, A.E. (1977), 'Reflections on the Renaissance of Dangerousness', Howard Journal of Criminal

Justice, vo!' XVI, no.2, p.74. Bottoms, A.E. (1977), op. cit, p.75. Palmer, T. (1975), 'Martinson Re-visited', Journal of Research in Crilne and Delinquency, Volume 12, pp.133-52. Allen, F.A. (1981), op. cit, pp.57-8.

Reform and Rehabilitation 79 Parker, T. (1970), The Frying Pan: A Prison and its Prisoners, London: Hutchinson. Genders, E. and Player, E. (1995), Grendon: A Study ofa Therapeutic Prison, Oxford: Clarendon Press. Schreiber, A.M. (1970), 'Intermediate Therapeutic Incarceration of Dangerous Criminals: Perspectives and Problems', Virginia Law Review, 56/4, pp.602-634. Garabedian, P.G. (1970), 'The Natural History of an Inmate Community in a Maximum Security Prison', Journal of Crilninal Law, Crilninology and Police Science, pp.78-85. Fleisher, M.S. (1989), Warehousing Violence, London and Newbury Park, California: SAGE Publications Inc. Gayraud, A. (1970), 'Prison and Therapeutic Community', Revue de Science Criminelle et de Droit Penal COlnpare, 25/3, pp.674-76. Schoner, E. (1979), 'The Therapeutic Process in the Treatment Unit', 2. Strafuollz. Straffiilligenhilfe, 28/1, pp.6-8. Wagner, G. (1979), 'Organizational Concept of a Treatment Unit', 2 Strafuollz. Strafiilligenhilfe, 28/1, pp.4-6. Bandini, T. and Gatti, U. (1970), 'The Therapeutic Community in Prison', Quaderni di Crilninologica Clinica, 12/4, Rome, pp.305-20. Adams, S. (1976), 'Evaluation: A Way Out of Rhetoric', Rehabilitation, Recidivism and Research, Hackensack, New Jersey: National Council on Crime and Delinquency, pp.75-91. Hudson, B. (1987), op. cit, p.74. AlIen, F.A., (1981), op. cit, pp.79-80.

CHAPTER 6

Penology for Modern Times: Does Restorative Justice Provide a Synthesis of Punishment Theories? Forgiveness to the injured doth belong; For they ne'er pardon, who have done the wrong. John Dryden, The Conquest ofGrenada, Part I, i.

THE PRESENT POSITION In the preceding chapters of this survey of criminal punishment an attempt has been made to describe, however briefly, the theories and justifications that have historically dominated the approaches towards this very problematic, but unfortunately necessary social practice. Considerable discussion has also been devoted to the changing perceptions of how justice is supposed to have been served through the punishment of criminal offenders, particularly over the closing decades of the twentieth century. Much of the literature surveyed has its origins in North America and continental Europe where, during the period following the Second World War, academic discussion of what has been termed 'the punishment debate' tended to be predominantly focussed. There are, however, encouraging signs of a far wider involvement in this debate within developed and developing nations throughout the world, particularly within Africa, Australasia, Eastern Europe, China, and elsewhere. The complexity of the theoretical aspects of the punishment debate has undoubtedly made it an aspect of criminology that has to some extent frustrated (and possibly even confused) many potential academics and professionals within criminal justice who might have sought concise and orderly explanations. In ideal circumstances, these explanations should, moreover, be straightforwardly applicable to the central purpose of crime reduction. Moral and legal philosophy are, however, seldom compatible partners with political philosophy in the search for explanations of, and solutions to, apparently intractable social problems such as crime control.

The philosophy and legacy of }.S. Mill J.S. Mill (1806-1873) was undoubtedly the first post-Enlightenment philosopher to attempt the task of defining the acceptable limits of political intervention in

Penology for Modem Times 81

relation to individual and collective freedom. His essay On Liberty, written in 1859, is still regarded as one of the most profound and elegant contributions to the debate on law and morality.1 Although Mill viewed the necessity of regulating the operation of the law and the state from a utilitarian perspective, he had an unequivocally clear view of the required relationships between the individual, society and the state in the preservation of an orderly and just social environment. The following extract from his essay makes the point precisely: Though society is not founded on a contract, and though no good purpose is answered by inventing a contract in order to deduce social obligations from it, every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest. This conduct consists, first, in not injuring the interests of another; or rather, certain interests, which, either by express or legal provision or by tacit understanding, ought to be considered as rights; and secondly, in each person's bearing his share (to be fixed on some equitable principle) of the labours and sacrifices incurred for defending the society or its members from injury or molestation. These conditions society is justified in enforcing, at all costs, to those who endeavour to withhold fulfilment. Nor is this all society may do ... As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. Mill, 1859, quoted in Blom-Cooper and Drewry, 1976, pp.lD-ll.

Though it has been argued that it was Mill's underlying inteDtion to place significant limitations upon the power of the state to intervene in human affairs, he was, evidently, attempting to articulate a universal morality. This form of morality Hart subsequently described as the necessary 'cement of society, without which there would be aggregates of individuals but no society' (Hart, 1963, in BlomCooper and Drewry, 1976, p.27). Mill's concern about the limits of state intervention must be seen in the context of the aftermath of the French Revolution of 1789-99, and the coercion and bloodshed of the Reign of Terror which paralysed that country then and for some years subsequently. The legal code of the immediate post-revolutionary era was extremely repressive and brutal towards not only the remaining members of the former ruling class, but also the intelligentsia of the country, many of whom who were perceived as antipathetic towards the revolutionary ethos. Mill's intellect was also very considerable. His father was a close friend of Jeremy Bentham, and at the age of 18 years Mill edited a five volume edition of Bentham's Rationale of Judicial Evidence (1827). He was also an acknowledged political commentator on the subsequent demonstrations of unrest in France between 1830 and 1848. It was, importantly, during the same period that the early revolutionary writings of Marx and Engels appeared in the Communist Manifesto (1848). Essentially, however, Mill was a political economist and

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reformer with a passionate belief in democracy, morality, and individual dignity, upon whose ideals Fabian socialism was subsequently founded. The chief legacy of J.S. Mill in terms of criminological development lies in the reciprocal nature of the relationship that he perceived as essential between the individual and the state, and between individuals within the state. It was, in Mill's view, the morality of these relationships that provided the logical basis for concepts of social justice and of the laws that ensure it (Greene, 1967, pp.381-6). Within contemporary social democracies, these ideas may be seen to have a considerable relevance for what might be described as the morality of punishment. We have noted, in the final part of the preceding chapter, the apparent link between the incidence of crime and individual and collective perceptions of social injustice and lesser eligibility. The point has also been made that conditions of social inequality do not excuse the commission of crime, but may contribute towards an explanation of its frequency. Put another way, perhaps, where there occurs a Widespread disregard of the law, and thus a high frequency of criminal behaviour, it becomes necessary not only to identify the causal factors, but also to examine the morality of the legal processes in operation. It has also been suggested that criminal punishment reflects the nature and extent of social (and moral) disapproval of wrongful (or illegal) acts, and an attempt (however approximate) to restore the social equilibrium disturbed by crime. In these circumstances, and within most contemporary legal systems, the state assumes the jurisdiction on behalf of its members to punish offenders, because it is the law enacted by the state that has been broken, and the law also provides for penalties to be imposed in such instances. The problem that derives from this conception of the authority of the state is that of identifying the extent of the consensus within society that confers the authority for the state to intervene on its behalf. Mill himself was clearly concerned at the extent of 'elitist' influences in the framing of laws, and thus of the potential injustices that might be visited on the remainder of a society which did not form part of the decision making process (see Honderich, 1976, pp.184-90). Though in stating this position, Mill aroused considerable objection and opposition from those in authority at the time, the question remains whether his approach was designed more as a statement of general moral principle than as a specific prescription for the administration of justice. 2 It therefore follows that the issues of moral consensus and loci of po\ver are critical factors in decisions about what is defined as illegal, and in the extent of punishment that may be considered reasonable as a response to illegal acts. Anatole France caricatures these ideas in observing that 'the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges' (Auden and Kronenburger, 1962, p.208). However, since the rich would not, other things being equal, require to use bridges for such a purpose, forbidding the poor to do so represents an evident discrimination, and is therefore essentially unjust.

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The principal concern here is, however, of a somewhat different nature. Each of the theories of punishment discussed earlier (in Chapters 3, 4 and 5) exhibits areas of legitimate criticism, and, in some instances, of outright objection. What must concern us now is how we may arrive at a rationale for punishment that overcomes all, or most of these difficulties. Let us briefly summarise the main points of objection, bearing in mind that the cardinal purpose of punishment is to achieve a general reduction in crime. There seems to be a general consensus that retribution alone is a dangerous premise upon which to base criminal punishment because however much it may satisfy the desire for vengeance, there are considerable difficulties in making the nature and amount of punishment to be inflicted proportionate to the harm done. The danger resides in the practice of punishment becoming arbitrary, vindictive, and disproportionate as between similar forms of offending. In addition, retribution is a backward-looking concept, concentrating attention more on the offence than the offender, and thus it has little, or no prospective purpose. 3 We might agree as a matter of general principle that when the law is broken and offences are committed, then these infractions deserve punishment, if only to reinforce the credibility of the law and redress the harm done. The question again becomes that of how much punishment is deserved in each case, and of how this is to be decided on an equitable basis. Von Hirsch (1986) has eloquently argued the case for 'commensurate deserts' based on a calculus of the culpability (or blameworthiness) of the offender's conduct, but this, again, has an entirely retrospective focus. In his own words, 'prospective considerations-the effect of the penalty on future behaviour-should not determine the comparative severity of penalties' (von Hirsch, 1986, p32).4 The concept of deterrence in either of its general or specific (individual) forms is, as has been noted, of a largely unquantifiable and, therefore of a questionably reliable nature. Though intuition may convince us that some persons may be deterred from offending by the prospect of punishment, or others may be deterred by seeing offenders punished, there is no means of knowing who, or how many, will be affected. Andenaes (1966 and 1970) and later Beyleveld (1979a and b) have both advanced compelling arguments for the presumed effectiveness of deterrence, and yet in either case, have been unable to determine with any certainty the extent to which it has operational effect either on offenders, or the wider community. Thus to base penal policies on such intuitive logic must be considered dubious, not least because the extent of preventive measures necessary to achieve deterrence remains entirely uncertain. Moral philosophy has also strongly called into question the acceptability of using the punishment of others as a means of affecting the behaviour of those who have not, or even might not, have committed or commit offences. 5 The best that can be assumed about the operation of deterrence is that it might be a desirable by-product of punishment, but it remains one that we cannot reasonably rely upon.

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Reform as an aim and justification of punishment has a long history, but appears to have almost disappeared from contemporary explanations. At the least, it seems to have become regarded as a tangential issue, largely because in many countries rates of re-offending following penal sanctions are so high as to make the concept of reform of questionable validity in the public mind. The retributivist would claim that reform is not a necessary condition of punishment, since it has no bearing on the imperative that crime must be seen to be punished, or in decisions relating to the extent of punishment that is proportionate to the harm done. Strictly speaking, from the same point of view, it is not a matter for the law whether reform results from punishment, though most penologists would prefer that it should do so as a moral corollary of the penal process. Reform does, however, have the significant benefit of providing a prospective (or forward-looking) justification for punishment, seeking the return to full social membership of offenders who have broken its rules and been censured for doing so. It also, theoretically at least, provides offenders with a means of acknowledging the wrongfulness of their actions, and of resolving to lead law-abiding lives in the future. Many professional persons concerned with the administration of justice would contend that if the effects of deterrence are uncertain, so also are those of reform, and to a similar extent. Unfortunately, follow-up studies dealing with the reconviction of offenders within specified periods are unreliable indicators of reform. We simply cannot know how many of those who do not re-appear in recidivism statistics have re-offended (but not been caught), or have actually refrained from crime. This does not, however, mean that reform does not occur in some individual cases, or that is an inappropriate or immoral purpose of punishment. We shall discuss later how its apparent advantages might be brought to bear within contemporary penology. Rehabilitation, on the other hand, has always been perceived as a moral imperative of punishment, whether prompted by retributive sentencing and subsequent remorse, or by programmes designed to address offending behaviour and promote understanding in offenders of the harmful effects of crime. The strict retributivist would claim that the offender, having served a penalty, has 'paid the price for the offence' or 'repaid his debt to society', and is thereby entitled to resume his place in the community regardless of any disposition to be law-abiding or otherwise in the future. Following upon the decline of belief in the 'justice model' of punishment, a number of influential writers began to suggest the emergence of a renaissance of interest in rehabilitation (Cullen and Gilbert, 1982; Hudson, 1986). There remains, however, the difficulty of making the demands for rehabilitative programmes fit with a concept of determinate (fixed term) sentencing, and thus of avoiding either an overall increase in the length of sentences, or a return to the Widespread use if indeterminate (duration unspecified) sentences~ The argument frequently advanced against rehabilitative programmes lies in the power that these place in the hands of therapeutic professionals and penal administrators to decide when, in individual

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cases, such programmes may have proved effective. There is also no doubt that pursuit of the rehabilitative ideal adds considerable costs to the budgets of correctional services, and this proves to be relatively unpopular where economic resources are strictly limited, or the benefits of rehabilitative programmes are perceived as marginal (Cornwell, 2002).6 If the foregoing critique presents a balanced and accurate summary of the present position as it is generally perceived in relation to the effectiveness of criminal punishment as a means of crime reduction, then criminology (and more specifically penology) remain in relatively uncharted waters. The 'nothing works' analysis of Martinson (1974) could be said to have permeated the entire morality and logic of criminal punishment. If it were to be universally believed, it might easily fuel a return to the only fail-safe explanation that punishment is deserved because harm has been done (both to the victims of crime and the wider society). In the interests of progress in criminology and penology it should be hoped that matters could, and must, be viewed quite differently. And this is by no means impossible, but it means adopting a different approach to the entire concept of criminal punishment, sentencing, and the administration of justice. In the remaining part of this chapter, an entirely different view of these necessary processes is adopted in a manner that might give the purposes of punishment a significantly different meaning in a contemporary setting.

LOOKING AHEAD It might be proposed, for the purposes of discussion, that one could admit certain aims and justifications of punishment as being established and reasonable beyond the need for further discussion or qualification. These might be stated briefly to be consistent with the ancient doctrine of nullum crimen, nulla poena, sine lege enshrined in the Magna Carta of 1215, and providing the basis of subsequent legislation in many countries of the world today? The principle insists that there is no crime and no resort to penalty without the prior existence of law to prohibit certain actions or omissions. We might also concur with the corollary of this, which is that the purpose of the criminal law is to prevent or reduce crime by providing for sanctions to be imposed upon those who break the law once it is in existence. We might further stipulate that the sanctions imposed must have a number of legitimate purposes: first, to uphold the operation of the law; second, to punish those who transgress the law; and third, to deter those who might consider breaking the law from actually doing so. As to the first purpose, we might agree that in order to be just, the law must have a universal moral validity. That is to say that it serves a necessary social requirement, and applies to every citizen equally, providing always that he or she has the intellectual capacity to understand its demands, and the freedom of choice to obey it, or not to do so. As to the second purpose, we might also agree that sanctions or punishments that are deserved as a result of illegal acts should be in some direct proportion to the harmfulness of the

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offence committed, or at the least, not be manifestly disproportionate. And, as to the third purpose, we might admit that its inhibiting effect should not infringe any natural or material human rights as these are customarily perceived. One further qualification may also be necessary in order to prevent our conception of the law from becoming arbitrary or potentially abusive. This would provide that the restriction or curtailment of rights or freedom implicit in any sanction or punishment must necessarily be limited to the minimum consistent with the nature of the sanction, and with human dignity and general welfare. This is to affirm the principle that legal punishment must not be cruel, unusual or degrading, in accordance with existing internationallegislation.8 Finally, we might reasonably insist that insofar as those who are punished are concerned, there should be no consequential, additional, or residual disadvantages contingent upon the imposition of sanctions, which detract from their restoration to a full place within a law-abiding society. Put another way, the operation of legal punishment should not, in any actual or intellectual sense, impede or prevent the offender from subsequently resuming full citizenship, and should materially encourage this. All of this brings us to a very interesting stage in our deliberations. We have acknowledged the fact of retribution within the purposes of punishment, the right of the state to impose it, and have placed necessary limitations on its use to prevent it from becoming vindictive or unnecessarily oppressive. We have also recognised the potential of deterrence as an inhibitive and possibly a preventive influence in upholding the law, although we have not identified this as a central purpose for, or justification of punishment. We have further suggested that there must be a restorative mechanism within criminal punishment which allows offenders to resume full citizenship having been punished, but have not qualified this further. And we have implicitly, though somewhat obliquely, suggested that what might be termed the moral-educative effect of sanctions should enable offenders to perceive the harmful nature of their conduct, and resolve to behave differently in the future. The last mentioned notion goes at least part way to a reformist view of the punishment process. We now stand at what might be described as the crossroads of contemporary criminology and penology. We have accorded the state the right to intervene to remedy offences, and have endorsed the necessity for this as a means of public protection and of dealing with wrongdoing. We have also noted the inevitability that the process of intervention may result in the curtailment of individual rights, though we have sought to restrict this to the minimum. This brings us face to face with the question of whether offenders have a residual right to rehabilitation as an essential part of the intervention process that leads to eventual social restoration. The right to rehabilitation? Rotman (1986) has suggested that there are two contradictory models of rehabilitation, one that is authoritarian and paternalistic, and the other humanistic

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and liberty oriented. The first represents the outdated and repressive model of corrections, and the second derives from the offender being enabled to gain an insight into the harm caused by offences. The humanistic model perceives offenders as having rights of full citizenship curtailed only by the limitations imposed by sanctions. His analysis continues: This continuum of rights culminates in the right to rehabilitation, which can be formulated as the right to an opportunity to return to society with an improved chance of being a useful citizen ... This right requires not only education and therapy, but also a non-destructive environment and, when possible, less restrictive alternatives to incarceration. The right to rehabilitation is consistent with the drive towards the full restoration of the civil and political rights of citizenship after release. Rotman, 1986, pp.1026-7.

However, as he further points out: The recognition of rehabilitation as a right not only grants rehabilitative undertakings a specific due-process protection, but demands momentous changes in sentencing and correctional systems. For instance, it require both new legal guidelines for the sentencing authorities or an improvement of the present ones to reduce overcrowding which is incompatible with rehabilitation, and considerable expansion of communitybased alternatives to imprisonment. Rotman, 1986, p.1037.

He concludes: Rehabilitation will be fully realised only when it is recognized as a right of the offender, independent of utilitarian considerations and of transient penal strategies. Viewed as the culmination of a continuum of offender's rights, rehabilitation can no longer serve as a pretext for discretionary abuse on the part of sentencing and correctional authorities. To the contrary, a right to rehabilitation reinforces the legal status of the sentenced offender and requires sentencing and correctional policies compatible with rehabilitative (prison) conditions. Because of its deep connection with the essence of criminal punishment, the right to rehabilitation has a paramount constitutional significance. Thus a constitutional right has been included in the bill of rights of various countries and is one of the basic principles of customary international law. Rotman, 1986, pp.1067-8.

Interestingly, for our purposes here, Rotman points out that a number of European countries (Italy, Spain and Germany among them) perceive rehabilitation as a constitutional right of offenders, although neither the United States nor Britain does so (Rotman, 1986, p.1023, fn.2).9 It is also the case that customary international law' establishes a duty of rehabilitation as expressed in the United Nations Standard Minimum Rules for the Treatment of Prisoners (1955), the Council of Europe Human Rights in Prison (1986), and the American Convention of Human Rights.

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The European Prison Rules (1987 at Part IV, 87-89) also provide for the pre-release preparation of prisoners held in custody. We need to be cautious here in one particular respect. The concept of rehabilitation has different meanings for different purposes within criminal justice legislation. In terms of what might be described as its normal usage relating to the prospective release of prisoners, rehabilitation works in much the manner as has been described so far. What has been termed 'technical rehabilitation' relates to statutory arrangements within which provisions are made to consider former convictions as 'spent' or 'void' after specific periods of time. (See for example, Treverton-Jones, 1989, pp.176-8).10 In Britain, certain offences are specifically excluded from such arrangements, while others become annulled after varying periods of time, depending of the length of the sentence imposed. But this analysis would be incomplete without consideration of the situation of others who become part of the criminal justice process as a direct result of the commission of crime: notably the victims of crim~nal acts, whether these be individuals, groups of persons, or organizations. In many modern societies during recent years, there has been an increasing tendency to regard the victims of crime as having 'rights' within the legal process, not only from the viewpoint of compensation, but also in relation to the judicial process itself (Cavadino and Dignan, 1997a and b; Ashworth, 1993; Wright, 1991; and Watson et al., 1989).11

RESTORATIVE JUSTICE The notions of victims' rights and of offender reparation have come together to form the basis of the widely endorsed concept of 'restorative justice' which has gained an increasing place in criminological thinking during the past five years or so, and on a world-wide basis. There are various definitions of the concept in use at the present time, but the following one suffices for our purposes here. Restorative justice is: An approach to justice that focuses on repairing the harm caused by crime while holding the offender responsible for his/her actions, by providing an opportunity for the parties directly affected by a crime-victim, offender and community-to identify and address their needs in the aftermath of a crime and seek a resolution that provides healing, restoration, reparation and reintegration, and prevents future harm. Cormier, 2002a, p.91-2.

In order to clarify precisely how the concept is perceived as having an operational usefulness, it may be helpful to identify what its proponents claim that it does, and does not propose. Zehr (2002a) argues that restorative justice is not primarily or essentially concerned with forgiveness or reconciliation, mediation, the reduction of recidivism, or necessarily an alternative to imprisonment. It is also not either new, or a European-American construct, or the antithesis of retribution.

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Restorative justice is, however, very much concerned with the needs and roles of victims, offenders and communities, and, because it is victim-oriented, it focuses on needs more than deserts. Restorative justice perceives crime as a violation of people and relationships, and violations create obligations: the central obligation is to put right the wrongs done (Zehr, 2002a, 36-52).12 Coyle (2000) lists the principles or fundamental elements of restorative justice in the following manner: In restorative justice the emphasis of the process is the relationship between the perpetrator and the victim(s). This is in contrast to the focus of the retributive justice system in which the relationship is between the perpetrator and the State, with the State taking the place of the victim. Restorative justice aims at satisfaction for the victim within a framework of reconciliation and forgiveness. Restorative justice also aims at bringing the offender to an understanding of the harm that has been caused, acceptance of the responsibility for those consequences, and into a new relationship with the community. Restorative justice is normally seen as an alternative to retributive justice and as a different method of sentencing. However, there is also growing consideration of the extent to which these principles can be applied to imprisonment itself. Coyle, 2000, p.6.

Taken together, these analyses provide us with a useful platform for assessing not only the impact and possible attractiveness of the restorative justice initiative, but also for understanding why it is essentially different from those explanations of criminal punishment to which, in the past, we have been accustomed. Also, when we consider the idea of rehabilitation within criminal punishment, there has been a tendency in the past to overlook the fact that however much we may consider it appropriate to suggest the need of offenders for rehabilitation, the trauma of crime may leave victims as much, or even more in need of it. Not only does crime frequently involve physical injury, but the psychological harm to victims often takes many months, if not years to overcome. From this viewpoint alone, restorative justice begins to take a wider view of the social harm that results from criminal acts. The community also is harmed by crime, mostly in an indirect sense, but also on occasions directly. For example, a series of aggressive burglaries that target a specific residential area generates fear in local populations, and the effect beyond this is that residents naturally take counter-measures to deter criminals from further offences. The counter-measures, normally evident in security systems and physical barriers, serve to diminish the sense of community, and the area ultimately becomes less desirable as one in which to live. The final stage in this spiral of events is that property values tumble because new residents are reluctant to purchase properties in a high risk area, and even if they do so, have to bear the cost of enhanced insurance premiums in addition to the risk. The result is that what have been termed 'positive freedoms' become diminished, and individuals have reduced

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potential to make effective choices about their lives (see, for example, Watson et al., 1989; Cavadino and Dignan, 1997a., p.245-6). While one might not take particular issue with Cormier's definition of restorative justice or Zehr's analysis discussed earlier, there are a number of issues within Coyle's principles that need to be clarified or discussed further. The first of these is the claim that restorative justice is not the antithesis of retributive justice, but rather an alternative, and the second concerns the relationship between the offender and the state within criminal justice. A third area of uncertainty relates to the extent to which victims of crime become involved in the criminal justice process. Beyond these concerns lies the much more difficult matter of offender: victim relationships within the context of serious crime, imprisonment, and reparation. As to the first of the difficulties noted above, it is difficult (particularly in the light of the evident crisis within criminal punishment following the demise of the 'justice model' discussed in earlier chapters) not to be cautious about the timing of the naissance of restorative justice. We have seen how the 'justice model' was formulated as a deliberate move away from the pejorative aspects of the rehabilitative era, and towards increasing reliance upon retribution and deterrence in sentencing. Now it appears that a deliberate swing is being suggested in precisely the opposite direction, but under a different set of conceptual constructs, and placing victims of crime very much in the forefront of the criminal justice process. This conceptualisation of justice is not without its attendant difficulties and moral dilemmas. In the second place, it alters significantly, the established relationship between the offender and the state, in which the state previously acted in loco parentis to all victims of criminal offences. The primary reason for the dilemma is that it is the state's law that is broken by criminal acts, and thus it is the state's prerogative to prosecute and (if guilty) penalise offenders without external considerations impinging upon the judicial process. Whether reparation, reconciliation, rehabilitation or restoration have a subsequent place is clearly a matter for discussion, but it could be argued that these should not be superimposed upon the sentencing process, since to do so might jeopardise other principles such as desert, proportionality, and equity. Thirdly, and in the case of more serious crime, there is a question as to the advisability and appropriateness of anticipating reconciliation between victims and offenders if this requires a face-to-face or direct contact between one and the other. Many victims may well not wish to be confronted with persons who have caused them anguish and trauma, while others might be further traumatised by such an experience. There also arises the difficult question of how those offenders who do not wish to take part in a process of reconciliation will be dealt with by comparison with those who do. Does restorative justice propose that the former should be further penalised for non-compliance, or the latter gain some advantage from compliance? Still a further question becomes that of who will make the decision in such cases, and on what criteria such decisions would be based. It will be recalled

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that the rise of the 'justice model' was fuelled by the desire to limit discretion in sentencing and the exercise of administrative power by justice system professionals, particularly in relation to sentencing, parole and similar decision making (here see von Hirsch, 1986, p.20; Cavadino and Dignan, 1997b, pp.186-190; and Hudson, 1987, pp.162-3). These reservations apart, there is an issue of deeper significance which is raised by the concept of restorative justice. This concerns the possibility of a move back towards what has been termed a 'bifurcation' in penal policies, a term originally used by Bottoms (1977, p.88) and subsequently by many other writers, to describe what are known as 'twin track' processes within criminal justice. These involve dealing differentially with those offenders considered amenable to rehabilitative (or restorative) programmes-the corrigible-and those considered not to be amenable-the incorrigible. This form of penal policy lay at the heart of the discredited rehabilitative ethic of the 1960s and 1970s, in which the amenable were selected for treatment and therapy, while the less amenable were effectively subjected to preventive detention (Comwell, 1989, p.2; Hudson, 1987, pp.8-9). The same problem arose in Britain once more during the 1990s within, the 'justice model' whereby violent and sexual offenders were singled out for exemplary custodial sentencing with diminished parole eligibility, while other, less serious offenders, were to be punished within the community.13 This distinction was adopted in an attempt to limit the ever-increasing prison population, and had little, if anything, to do with established concepts of criminal justice. Viewed in a positive sense, however, there is much that must be said in favour of the notion of restorative justice. McElrea (2002a) perceives the principal advantages of what he describes as a world-wide move towards recognition of victims' rights, the democratisation of judicial processes, and a holistic approach to dealing with the problem of crime, as the hallmarks of restorative justice. These advantages are reinforced in his view by a move away from predominantly procedural concepts of justice towards substantive justice. The latter involves increasing recognition 'that justice is not just about following fair procedures (e.g. due process or the rules of natural justice). Rather it requires us to produce outcomes that are fair and meet the needs of society''' (McElrea, 2002a, p.65). Coyle (2001) describes the contemporary situation in Britain (and to a similar extent in Europe and North America and elsewhere) in the following terms: The debate about law and order in this country [UK] and the attempt by some commentators to produce simple, quick fire solutions to eternal problems of human behaviour underline the need for a new statement about the principles on which criminal justice is based. The principles remain as valid as they ever were. But they have to be articulated in a language which can be understood today, rather than in tired and outworn cliches. This should take us beyond the notion of retribution, suffering, and the infliction of pain, and on to the concept of repairing the damage which has been done, to restoring the balance between the victim and the offender, to bringing the offender to a realisation of the harm which has been done, and of the

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need to make amends. It will give victims the satisfaction of knowing that the pain and hurt which they have suffered is understood and regretted. Coyle, 2001, p.3.

There is no doubt that the restorative justice concept is gaining an increasing impetus in every continent of the world today, particularly in the United States, Canada, Southern Africa, Australia, New Zealand, and within Europe. There is equally no doubt that its application to minor offending and the crimes of youth has considerable potential in enabling community-based resolutions to be attempted. Its application to serious crime seems to be a much more difficult problem, for all the reasons described here, and for others which deserve brief mention. Restorative justice is also a prescription for a new era of justice that may not be too distant, but which is certainly delayed by traditional beliefs and approaches to justice administration based on a procedural and conceptual status quo. Paradoxically, it tends to be judiciaries, criminal justice professionals and administrators, and serious offenders who stand in the way of its wider application at this time. The concept of 'victim allocution' provides a significant hurdle to be overcome if a full-blown version of restorative justice is to be envisaged. This process accords the victims of offences the right to make a representation to the court (either verbally, or by use of victim-impact statements) prior to sentences or reparation being considered. As Cavadino and Dignan (1997a) point out most perceptively: One of the most effective ways of restoring the victim's sense of autonomy - of reempowering the victim - is to invite him or her to participate in determining ways in which the upset and any material loss might be made good. Indeed, it is very difficult to see how adequate reparation could be arranged without involving the victim in the deliberations. (Note, however, that the assertion of a right for victims to participate in the offence resolution process in this way is very different from asserting the kind of right of victim allocution on the appropriate retributive sentence to which Ashworth (1993) is so vehemently - and in our opinion rightly - opposed). Moreover, if victims are to be treated with equal concern and respect (Dworkin, 1978), then their entitlement to reparation should not be governed by the seriousness of the offence as is the case at present. Cavadino and Dignan, 1997a., pp.245-6. 14 [Parentheses and italics in original.]

It is, it might be suggested, one thing to allow the views of the victim to be considered for the purposes of assessing the extent and method of reparation, and quite another to allow such a view to influence the sentencing process to any extent whatsoever. In this particular respect many of those involved in justice administration might concur strongly with Ashworth's opinion. What, then, does restorative justice offer as an agenda for dealing with criminal offences that is significantly different from former theories of punishment? Or, put another way, to what extent is it a substantive concept of punishment, rather than

Penology for Modern Times 93

an agenda for asserting the supposed rights of victims and offenders within a rather more democratic (or certainly less autocratic) conception of the administration of justice? Is it, in fact, a concept of punishment at all, or rather a theoretical construct that attempts merely to distance notions of retribution, desert, deterrence, reform and rehabilitation by substituting notions of reparation, restoration, reconciliation and social re-integration? These questions require substantive answers if the concept of restorative justice is to achieve world-wide acceptance. In relation to serious crime it would seem from the analysis of restorative justice discussed earlier that punishment in the form of retribution and based on some element of desert may remain on the agenda, though in a much more muted sense. It also seems to be the case that this method of judicial intervention should, desirably, be of a rehabilitative nature, but in a somewhat different sense from that formerly envisaged within the 'rehabilitative' model. There is no apparent mention of deterrence whatsoever, and this is a quantum leap from the former 'justice model' and its subsequent neo-retributive derivations. Reform seems, yet again, in some danger of being consigned to some form of quasi-religious contemplative scrap yard, though there is at the least an implication that this is viewed as coterminous with, or subsumed within, rehabilitation. The title of this chapter begs an answer to the question of whether restorative justice as it is presently articulated provides a synthesis of theories of punishment. It would seem to be the case that, with the concept of deterrence evidently excepted, it has made a substantive and morally sustainable attempt to be perceived as meeting that elusive goal. The problem is whether restorative justice does not inevitably lean towards a further punitive bifurcation, dealing with minor offences and offenders in a strategy for conflict-resolution, and more serious offences and offenders via custodial punishment of a predominantly preventive nature. Though it is claimed by its proponents to be concerned eventually to identify the extent of its applicability to serious crime, restorative justice has not yet advanced a compelling argument that it is able to achieve this, or, indeed, perceives how this difficult task might be approached. Insofar as it has, on the face of it, allowed the notion of reform to lapse into desuetude. For reasons earlier discussed, this may well represent a missed opportunity. On the other hand, there is no particular reason why the principles of restorative justice, as here described, could not be incorporated within the process of custodial punishment. One of the main difficulties that the concept raises is that, as Coyle has indicated, it needs to speak in contemporary language. This implies that all former explanations of criminal punishment are of an archaic nature, and are thus largely irrelevant in the present context. The problem is that there are no precise contemporary translations of words such as 'reform', however much one might like to discover or dispense with them. It has been suggested (in Chapter 5) that the notion of reform is, in fact, a pre-condition for rehabilitation. In the light of all that has been discussed, that belief also retains considerable validity. However outdated or anachronistic the idea of reform may appear to be, it is the enabling factor or

94

Criminal Punishment and Restorative Justice

hinge between the concepts of retrospective punishment and prospective rehabilitation-or re-integration in the language of restorative justice. Until the offender can be brought to an awareness of the harm occasioned by his/her offence(s) and express genuine regret for this harm, the process of social readaptation becomes semantically meaningless. At this stage there is a long road in prospect, but it is a road that is at least paved with the admirable and long-overdue desire to make justice more evidently moral and constructive within our contemporary societies.

ENDNOTES FOR Chapter 6 1.

2.

3.

4.

5. 6.

7.

8.

9. 10.

11. 12.

The reader who requires a more expanded account of Mill's concept of the relationship between the state and the individual citizen might read Honderich's (1976) explanation in Punishment: The Supposed Justifications at Chapter 7, at pages 184-94. Typical of the responses to Mill's essay On Liberty is the riposte of the jurist Sir James Fitzjames Stephen (1829-1894) which is to be found in Blom-Cooper and Drewry (1976), Law and Morality, at pages 13-17. See, for example, the work of Armstrong (1961), 'The Retributivist Hits Back', in H.B. Acton, (ed.), (1969), The Philosophy ofPunishment at pages 138-58, and of Mabbott (1939) in the same collection of essays at pages 39-54.. In Chapter 3 of his Past or Future Crimes: Deservedness and Dangerousness in the Sentencing ofCriminals, von Hirsch (1985) provides a comprehensive explanation of the concept of desert within punishment, and the need for proportionality. See also the contribution of C.W.K. Mundle, (1954), 'Punishment and Desert', in H.B. Acton, (1969), op. cit. at pages 65-80. See Chapter Four (supra), and also in particular the explanation of J.P.Gibbs, (1975), Crime, Punishment and Deterrence, especially at Chapter Two, pages 29-56. For a more detailed explanation of this analysis see DJ. Cornwell, (2002), 'Some Do, Some Don't; Some Will, Some Won't: Designing for Outcomes in Custodial Corrections', [Inaugural Charles Erickson Memorial Lecture], Proceedings of the 4th Annual Conference of the International Corrections and Prisons Association (ICPA), Noordwijkerhout, Netherlands, (October), at pages 28-35. Edgardo Rotman (1986) provides a useful summary of this principle in his 'Do Criminal Offenders Have a Constitutional Right to Rehabilitation', in The Journal ofCriminal Law and Criminology, Volume 77, No.4, at pages 1031-5. This derivation of 'customary legislation' embraces the United Nations Universal Declaration on Human Rights (1948), the European Convention on Human Rights (1953), and the parallel provisions of the Council of Europe, particularly Human Rights in Prisons (1986), and European Prison Rules (1987). Each of these provisions prohibits the use of 'punishment that is cruel, unusual or degrading'. See: Costituzione [Cost.] Art. 27 (Italy); Constituci6n [Const.] Art 25) (Spain); and also Judgement of 5 June 1973, Bundesverfassungsgericht [BverfGE] 35 and 202 (Germany). G.D. Treverton-Jones (1989) provides a detailed account of the UK legislation providing for 'technical rehabilitation' in Imprisonment: The Legal Status and Rights ofPrisoners, at pages 176-8. The term applies to provisions within the Rehabilitation of Offenders Act 1974 that allow for previous convictions to be regarded as 'spent' after specific periods of time (dependent on the seriousness of the crime). Sentences of a length of two and a half years or more, life sentences, and detention at Her Majesty's pleasure are exempted from these provisions. For a further discussion of the supposed rights of victims see Cavadino and Dignan, (1997a.), Reparation, Retribution and Rights, at pages 244-248. The description provided here is a brief summary of a paper presented by Dr. Howard Zehr to the 4th Annual Conference of the International Corrections and Prisons Association (ICPA) at Noordwijkerhout, Netherlands in October 2002. It is included within the published pr~eedings of

Penology for Modern Times 95 the Conference at pages 36-52. The author is Professor of Restorative Justice at the Eastern Mennonite University's Graduate Conflict Transformation Program in Virginia, U.S.A. 13. Cavadino and Dignan (~997b.) discuss the origins and impact of 'punitive bifurcation' in some detail in The Penal System: An Introduction [Second Edition], at pages 294-5. Hudson (1987) provides a similar, though shorter account in Justice Through Punishment at pages 8-9. 14. This quotation is taken from a final draft of Cavadino and Dignan's (1997a.) paper reprinted in International ReviewofVictimology, Volume 4, at pages 233-53.

REFERENCES (in order within the text) Mill, J.S. (1859), 'On Liberty' [Extract] in 'Mill-A Nineteenth Century View of Liberty Under the Law', reprinted in L. Blom-Cooper and G. Drewry (eds.), (1976), Law and Morality: A Reader, London: Duckworth, pp.9-12. Honderich, T. (1976), Punishment: The Supposed Justifications, Harmondsworth: Penguin Books, Chapter 7, pp.184-94. Hart, H.L.A. (1963), 'Utilitarianism Redivivus?' [Extract], Law, Liberty and Morality, Oxford: University Press, reprinted in L. Blom-Cooper and G. Drewry (eds.), (1976), op. cit, pp.27-9. Greene, J.E. (ed.), (1967), One Hundred Great Thinkers, London: Heron Books, pp.381-6. Honderich, T. (1976), op. cit, pp.184-90. Stephen, Sir J.F. (J) (1873), 'Liberty, Equality, Fraternity', [A Victorian Jurist's Riposte to Mill], reprinted in L. Blom-Cooper and G. Drewry (eds.), (1976), op. cit, pp.13-17. Armstrong, K.G. (1969), 'The Retributivist Hits Back',in H.B. Acton (ed.), (1969), The Philosophy of Punishment: A Collection ofPapers, London: Macmillan, pp.138-58. Mabbott, J.D. (1939), 'Punishment', H.B. Acton (ed.), (1969), op. cit, pp.39-54. Von Hirsch, A. (1986), Past or Future Crimes: Deservedness and Dangerousness in the Sentencing ofCriminals, Manchester: University Press, Chapter 3, pp.31-60. Mundle, C.W.K. (1954), 'Punishment and Desert', H.B. Acton (ed.), (1969), op. cit, pp.65-82. Auden, W.H. and Kronenberger, L. (eds.), (1962), The Faber Book ofAphorisms, London: Faber and Faber, p.208. Von Hirsch, A. (1986), op. cit, pp.32 et seq.. Andenaes, J. (1966), 'The General Preventive Effects of Punishments', University ofPennsylvania Law

Review, vol. 114, pp.949-83. Andenaes, J. (1970), 'The Morality of Deterrence', University ofChicago Law Review, vol. 38, pp.649-64. Beyleveld, D. (1979a.), 'Deterrence Research as a Basis for Deterrence Policies', Howard Journal ofCriminal Justice, vol. 18, pp.135-49. Beyleveld, D. (1979b.), 'Identifying, Explaining and Predicting Deterrence', British Journal ofCriminology, vol. 19, pp.205-24. Gibbs, J.P. (1975), Crime, Punishment and Deterrence, New York and Oxford: Elsevier, Chapter Two, pp.2956. Cullen, F. and Gilbert, K. (1982), Reaffirming Rehabilitation, Cincinnati: Anderson. Hudson, B. (1987), Justice Through Punishment: A Critique of the Justice Model ofCorrections, London: Macmillan, pp.170-76. Cornwell, D.J. (2002), 'Some Do, Some Don't: Some Will, Some Won't: Designing for Outcomes in th Custodial Corrections', [Inaugural Charles Erickson Memorial Lecture], Proceedings of the 4 Annual Conference of the International Corrections and Prisons Association (ICPA), Ottowa, Ontario: ICPA, pp.28-35. Martinson, R. (1974), 'What Works? Questions and Answers About Prison Reform', The Public Interest, Number 35, (Spring). Rotman, E. (1986), 'Do Criminal Offenders Have a Constitutional Right to Rehabilitation?' The Journal of

Criminal Law and Criminology, vol. 77, no.4, pp. 1031-5. Council of Europe, (1986), Human Rights in Prisons, Strasbourg: Council of Europe. Council of Europe, (1987), European Prison Rules, Strasbourg: Council of Europe. Rotman, E. (1986), op. cit, pp.l026-7. Rotman, E. (1986), op. cit, p.1037.

96 Criminal Punishment and Restorative Justice Rotman, E. (1986), op. cit. pp.1067-8. Rotman, E. (1986), op. cit, p.1023 at footnote 2. United Nations, (1955), Standard Minimum Rules for the Treatment ofPrisoners, New York: United Nations. Council of Europe, (1986), op. cit. Council of Europe, (1987), op. cit, Part IV, pp.87-9. Treverton-Jones, G.D. (1989), Imprisonment: The Legal Status and Rights ofPrisoners, London: Sweet & Maxwell, pp.176-8. Cavadino, M. and Dignan, J. (1997a.), 'Reparation, Retribution and Rights', International Review of Victimology, vol. 4, pp.233-53. Cavadino, M. and Dignan, J. (1997b.), The Penal System: An Introduction, [Second Edition], London: SAGE Publications Limited. Ashworth, A. (1993), 'Victim Impact Statements and Sentencing', Criminal Law Review, [1993], pp.498-509. Wright, M. (1991), Justicfor Victims and Offenders, Milton Keynes: Open University Press. Watson, D, Boucherat, J. and Davis, D. (1989), 'Reparation for Recidivists', M. Wright and B. Galway (eds.), Mediation and Criminal Justice: Victims, Offenders and Community, London: SAGE Publications Limited. Cormier, R. (2002a), 'Restorative Justice in the Case of Serious Crime', Proceedings of the 4th Annual Conference of the International Corrections and Prisons Association (ICPA), op. cit, pp.91-102. Zehr, H, (2002a), "Restorative Justice Defined', Proceedings of the 4th Annual Conference of the International Corrections and Prisons Association (ICPA), op. cit, pp.36-51. Coyle, A. (2001), 'Restorative Justice in the Prison Setting', International Prisons Chaplains Association Conference [Europe] 2001, TCPA: www.icpa.net. Watson, D. et al. (1989), op. cit. Cavadino, M. and Dignan, J. (1997a.), op. cit., pp.244-5. Von Hirsch, A. (1986), op. cit, p.20. Cavadino M. and Dignan, M. (1997b.), op. cit, pp.186-90. Hudson, B. (1987), op. cit, pp.162-3. Bottoms, A.E. (1977), 'Reflections on the Renaissance of Dangerousness', Howard Journal ofCriminal Justice, vol. XVI, no. 2, pp.70-96 Comwell, D.J. (1989), Criminal Dangerousness and Its Punishment: Beyond the Phenomenological illusion, D. Phil. Thesis, University of York, p.2. Hudson, B. (1987), op. cit, pp.8-9. McElrea, F.W.M. (J), (2002a), 'Restorative Justice Issues and Trends: Where is Restorative Justice Going?' Proceedings of the 4th Annual Conference of the International Corrections and Prisons Association (ICPA), op. cit, pp.64-74. Cavadino, M. and Dignan, J. (1997b.), op. cit, pp.294-5. Hudson, B. (1987), op. cit, pp.8-9. Coyle, A. (2001), op. cit, p.3. Cavadino, M. and Dignan, J. (1997b.), op. cit, p.11. Ashworth, A. (1993), op. cit. Dworkin, R. (1978), Taking Rights Seriously, [New Impression], London: Duckworth.

CHAPTER 7

Criminal Punishment: Is there an Inclusive Theory? Law cannot persuade where it cannot punish. Thomas Fuller, Holy State, V:18.

As a result of all the discussion within the previous chapters, one important question remains unanswered. It asks whether it is possible to construct a unified or inclusive philosophy of criminal punishment which will accommodate all the justifications that have been presented, in a manner that has a relevance for contemporary societies and the need to reduce crime within them. The conclusion reached in the final paragraphs of the preceding chapter: that restorative justice has still some distance to travel before it can be considered a fully fledged theory of criminal punishment is unfortunate, but, at this stage, is necessarily stated. There is much about the concept of restorative justice that is positive, appropriate in a contemporary context, and rightly places emphasis on the harm caused by offences both to victims and to society. It also recognises the need for offenders to make reparation for their wrongful acts, and in a substantive way to repair the damage caused by offending in a spirit of reconciliation. Some concerns with the operation of the concept have been indicated, and these are essentially threefold. First, that it may not work as effectively in the custodial correctional setting as in a community context, due to the generally serious nature of crimes punished by custodial measures, and the nature of many of the offenders who commit them. Secondly, there seems some danger of creating what has been termed a bifurcation in penal policies, by which is meant dealing entirely unevenly with different forms of offenders and their offences. And third, it is evident that the principle of the state alone (and impartially) administering criminal punishment is to some considerable extent potentially diluted or altered by the participation of victims within the judicial process. The question has also been raised concerning the manner in which criminal justice policies administered within the concept of restorative justice would deal with offenders who declined to become involved in the reformative or reparative processes. While this has, to some extent, a bearing on the second reservation noted above, it has a subsequent, though not necessarily a subsidiary, potential for inequitable treatment of offenders, and in particular, those imprisoned for their offences. The danger is that restorative justice, with all its admirable aims, could become coercive justice in such circumstances. The ever-elusive question that returns to confront us is whether, in the light of these considerations, it becomes possible to arrive at an inclusive theory of criminal punishment, or, perhaps alternatively, whether such a theory is strictly necessary at all. As has been described in earlier chapters, trends in penological fashion change more from the dictates of political and economic expediency than from moral and

98 Criminal Punishment and Restorative Justice

ethical considerations, and, viewed entirely pragmatically, this situation is unlikely to change in the foreseeable future. However, as Gross (1979) wrote in considering this same problem: But more is required, for any enterprise has a purpose, and it is necessary to understand what that purpose is if we are to judge the success of the enterprise, or if indeed we are to decide whether the enterprise is worthwhile. At this point there are serious difficulties, for everywhere criminal justice is strangely uncertain in its goals, and reasons that at first seem to be at odds are offered to explain what is going on. Sometimes it is said that the point is simply to pay the wicked for their wrongdoing; at other times, that correction of those who show themselves to be in need of it is the reason we determine criminal liability. One often hears the view that crimes are punished to show those who have broken the law and those who might be tempted to break it that the law has teeth that bite. And just as often one hears it suggested that the enterprise is carried on to make the community safer by identifying and then removing (or at least watching) those who have shown themselves to be dangerous. It seems reasonable to suppose that each of these has a proper place somewhere among the aims and purposes of criminal justice, but there is little agreement about the proper place of each. This is distressing, for it is important to know what goal it is that causes this curious social pursuit to be carried on everywhere with such dedication that its abandonment is virtually unthinkable. A commercial enterprise similarly unenlightened could not long survive, and certainly could not prosper. Gross, 1979, pp.4-5.

The point made by Gross is an important one. Not only is it widely endorsed, but it also suggests a retributive approach to punishment based on 'paying back' those who offend, and that this may have the beneficial effect of deterring others from offending. It epitomises the 'law and order' approach to criminal justice that focuses on the offence rather than the offender, and uses offences rather than offenders as the central rationale for crime reduction. This is precisely why the 'justice' model of punishment failed, and created the contemporary penological vacuum that has yet to be filled satisfactorily. More important perhaps is the fact that, as Gross indicates, such an approach is unenlightened. It does not have a prospective purpose because it contains no prescription for change or improvement, either socially or individually. All that can be claimed for it is that it satisfies the perceived needs for vengeance and intimidation. It also explains to a considerable extent why so many countries of the world make increasing use of imprisonment as a sanction, and, as Rubin (1979) suggests, generate a prison problem in addition to a crime problem (Rubin, 1979, p.8).l An inclusive theory of punishment needs to provide a moral and operational reconciliation of the necessity that offenders are sanctioned for committing offences and maximise the likelihood that they will refrain from future reoffending. 2 It has been stated earlier that the extent of this intervention should, insofar as it is possible to do so, reflect the extent of the harm done, and certainly should not be manifestly excessive in pursuit of the secondary aim of crime reduction. And because the effects of criminal punishment in terms of general deterrence are so evidently uncertain, it has been proposed that its use for this

Criminal Punishment: Is there an Inclusive Theory? 99

purpose is neither moral nor reasonable in terms of the formulation of criminal justice policies. While it might be conceded that the necessary infliction of punishment on offenders for the commission of offences may in some cases contribute to individual (or specific) deterrence, this is not, in a general sense, a necessary condition or justification of punishment. Indeed, the imperative of proportionality (or restriction of the extent of punishment to the harm done) largely excludes considerations of this nature from the sentencing process. Since it cannot, in any case, be foreseen in individual instances how much additional punishment would be necessary to secure the desired effect, the purposes of punishment are not advanced by allowing such considerations to impinge upon sentencing decisions. The full reintegration of offenders into society should, in an ideal world, be consequent upon some extent of reparation having been made within the punishment process to society generally, and the victims of crime in particular. The world is, unfortunately, far from ideal, and however desirable such a state of affairs might appear to be, insistence on the necessity for reparation becomes possibly more idealistic than rationa1. 3 The additional question that such a notion raises is that of whether 'mercy', or remission of punishment is appropriate or justified in those cases in which it is evident that the offender expresses genuine remorse for the harm done, and a subsequent willingness to make good this harm through reparation. This is altogether uncertain territory, and leads, inevitably, to a number of subsidiary questions and considerations. The first of these questions is whether subsequent expression of remorse (however assessed as to its validity) or willingness to provide reparation, actually alters in any material sense, the extent of the harm done, the seriousness of the offence(s) committed, and thus the extent of proportionate punishment that is deserved. Put another way, in the absence of remorse, does the intrinsic nature of the crime and the harm it occasions become to any measurable extent more culpable? If it does not, then the administration of differential punishment would, in itself, be unjust. This is difficult, because our human instinct and intuition suggest a merciful approach towards remorse, while a requirement for strict justice makes no such demand upon us. On the other hand, as Dworkin (1986) points out, justice as fairness is perceived differently within different cultures. In the United States, Americans are much more preoccupied with a concept of fairness based on the notion of individual rights, whereas in Britain the nineteenth century idea of general welfare focuses attention much more on fairness as between classes or groups within society (Dworkin, 1986, p.31). Smart (1969) has, alternatively, expressed the view that the exercise of mercy in a judicial sense must be individualistic in nature, and only makes strict logical sense within a retributivist view of punishment. The position is summarised thus: There seem to be two major ways of looking at the notion of mercy. In the majority of cases acts of 'mercy' are simply measures by which we ensure that the punishment fits the crime. We exercise mercy to avoid an unduly harsh penalty which an insufficiently flexible legal system would impose upon the offender. In other words we exercise' mercy' to avoid an injustice ...

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We also think of mercy as benevolently reducing or waiving punishment. If we regard mercy as deciding, solely through benevolence, to impose less than the deserved punishment on an offender then the answer to the original question 'when are we justified in being merciful? must be: lonly when we are compelled to be by the claims that other obligations have on us.' Smart, 1969, p.227.

However we view this dilemma, and whatever conception of 'rights' we use to decid€ on the outcome, we should also bear in mind the view that is sometimes expressed in the punishment literature that offenders have a 'right' to punishment as a means of exculpation from guilt, and also a corresponding right to serve this punishment in full, free from interference in the supposed interests of reform or rehabilitation. In other words, the extent of the punishment should not be contingent upon the willingness (or otherwise) of the offender to be improved by it. There is also the difficulty (identified and discussed earlier in Chapter 6) that is caused by designing penal policies that deal with like cases differently on the supposition that some offenders are more amenable to personal change than are others. If our concept of punishment is to be 'universal' or 'inclusive', it must be able to demonstrate a potential to deal with all offenders with equal clarity of purpose and with a morality that is beyond question. What have been called 'twin track' policies have an unfortunate history of being inequitable, and this was one of the main reasons for the demise of the 'rehabilitative' model of punishment in the 1960s and 1970s (see for example Bean, 1981, pp.86-91; Hudson, 1987, pp.26-41).4 Hudson reminds us very forcefully of the dangers: Disparity in sentencing, with similar crimes receiving wildly dissimilar sentences, is an unavoidable feature of a judicial system charged with ascertaining the individual circumstances and needs of offenders. Two crimes are rarely enough similar; the differences multiply exponentially when different personal histories, different personality make-ups, different intelligence levels, different opportunities for making a living legitimately, become relevant to sentencing decisions ... Too often, sentences correspond not to any real needs of offenders, but to the whims and tempers of judges. Hudson, 1987, p.27.

This stated, however, preoccupation with the reduction of crime as a central purpose of criminal punishment propels us towards the need to make the possibility of reform and rehabilitation available to all offenders, whether or not we perceive them to have a 'right' to this. Interestingly, some writers (notably Hudson, 1987; Cullen and Gilbert, 1982; and Garland, 1985) have argued that while prisons are in many respects ideally suited to deliver reformist strategies which assist offenders to understand the harmfulness of offending, these institutions are ill-equipped to fulfil a rehabilitative purpose. They argue that reformism is essentially a curriculum with elements of learning included to inculcate a common achievement, namely adherence to the work ethic and the necessary personal, social and vocational

Criminal Punishment: Is there an Inclusive Theory? 101

skills to implement the commitment to legitimate work, and such like are expressions common to educators and reformers (Hudson, 1987, p.34). On the other hand, the same writers perceive rehabilitative programmes, with their emphasis on psychologically based prescriptions, as being predicated predominantly on people's differences rather than their common features and characteristics: The therapeutic endeavour engages with the ways in which individuals are diverging from normal behaviour, normal personality, and attempts to work with their individuality, their singular pattern of departure from the normaL Treatment should be specifically prescribed for the individual, and ideally it should be individually administered. A large-scale institution cannot function on the basis of emphasising people's individuality, and thus rehabilitation and the prison are quite incompatible. Hudson, 1987, p.34-5.

The distinction drawn between these two activities is one that should be taken seriously, and not only for the reasons advanced above. It has also been suggested (by Taylor, 1981; Allen, 1964; and Morris, 1974/ among others) that primarily because prisons operate in isolation from the community and rehabilitation can only be achieved within the community, the 'myth' of rehabilitation should be disentangled from the reality of imprisonment, and abandoned rather than prisons being abolished. 5 While this form of approach might, at first sight, appear to leave our search for an inclusive theory of punishment somewhat in disarray, it may, paradoxically, be actually helpful. For if we were to insist that rehabilitation is, in fact, best attempted within a community frame of reference, but reformed behaviour can be learned in prisons (or in the community), there may be advantages to be gained in a number of respects. What we would ultimately be searching for is a mode of sentencing that made provision for both activities, and allowed that not only are these contiguous, but also that they are consequential, or contingent one upon the other. Sentencing policy in such a conception of justice would be entirely determinate in nature, fixing a retributive tariff for the harm done by the offence(s), and a mandatory period for post-sentence supervision within the community with individual rehabilitative provision included. 6 The total sentence period would be deemed to satisfy the judicial view of the seriousness of the offence(s), though only the retributive element would relate to culpability and desert? In case such a concept might seem somewhat complicated or abstruse, let us examine how it might work in practice. Offender A is convicted of two offences of armed robbery involving the use of firearms. Obligatory sentencing guidelines require that on conviction for such offences, a minimum of five years and a maximum of ten years will be imposed on each count, depending upon the seriousness of the circumstances in which the offence was committed (i.e. the extent of the harm occasioned). In the case of Offender A, the court took into account the fact that he was an accomplice rather than a ring-leader, a first time offender, and had acted to some extent under duress or coercion. It therefore concluded in considering sentence that the

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maximum of 20 years would be manifestly excessive, and that a total sentence period of 12 years would adequately reflect the seriousness of the combined offences in his case. It further assessed that of the 12 years to be imposed, six years imprisonment would satisfy the requirement for retribution, and the balance (of six years) should be spent under post-sentence supervision. The court further imposed a mandatory ban on Offender A, disqualifying him from possession or carriage of a firearm for life. Offender B, convicted of the same offences, was noted by the court to be the ring-leader in the commission of the offences, to have had two previous convictions for aggravated robbery (though not involving firearms), and to have physically threatened and abused the victims in each instance. It therefore concluded that although no firearms had been discharged in either case, a sentence closer to the maximum permitted should be imposed. It sentenced Offender B to 15 years imprisonment to satisfy the require.ment for retribution, and three years post sentence supervision - a total sentence period of 18 years. Offender B was also banned from carriage or possession of a firearm for life. A third defendant, Offender C, was the driver of the vehicle used in the commission of both offences, but had done so because he owed Offender B a substantial sum of money, and this would wipe out his debt. Offender C took no actual part in either robbery (other than to drive the car), but was convicted as an accessory to both offences. He had only minor previous convictions for theft and drugs offences, but was aware of the nature of the armed robbery offences that would be committed. In his case, the court concluded that he should be sentenced to a total sentence period of ten years, of which four years would be imprisonment, and the remaining six under post-sentence supervision. Within our illustration, therefore, three offenders convicted of the same offences, received different (or commensurate) sentences reflecting the extent of their participation in the crimes, and thus the need for retribution based on culpability and desert. The total sentence periods also reflected the overall seriousness of their offences per se, but within the mandatory sentencing guidelines laid down for the courts in passing sentence. Thus:

• Offender A - Total sentence = 12 years: imprisonment = six years; community supervision = six years. • Offender B - Total sentence = 18 years: imprisonment = 15 years; community supervision = three years. • Offender C - Total sentence = 10 years; imprisonment = four years; community supervision = six years. While this represents only a very crude sentencing analogy, it serves to enable a number of subsidiary points to be made which are important for an inclusive model of punishment. First, it proposes a total sentence period that reflects the overall gravity of crimes. Secondly, it permits the extent of retributive punishment to be calculated and imposed independently of other considerations, though within sentencing maxima and minima. Thirdly, these sentencing guidelines have a specific purpose in confining the punishment of like offences within boundaries wide enough to enable relative degrees of harm and

Criminal Punishment: Is there an Inclusive Theory? 103

culpability to be expressed, but yet with an element of control to prevent major disparities in sentencing. Fourthly, the structure permits considerable discretion between the use of custodial and non-custodial penalties in combination. This balance enables the difference between the overall seriousness of the crime and the period necessary to satisfy retribution to be adjusted in the form of individualised sentences. In viewing the custodial (or punitive) phase and the community (or rehabilitative) phase as separate but contiguous elements of the total sentence period, a clear distinction is made between these two essential components of punishment. It also enables rehabilitation to become a community-based enterprise within post-sentence supervision. Finally, it is envisaged within this model that prisons would retain a reformative ethos more appropriate to their mode of operation, but release would not necessarily be contingent upon remorse or reformed behaviour being demonstrated. The model would not,however, absolutely rule out the use of remission processes to reward good behaviour and progress in custody. This form of executive (or administrative) mechanism is useful in encouraging progress in prison, and a subsequent means of adjusting the relationship between the punitive and the rehabilitative elements of a sentence when, post-trial and sentence, this is deemed to be appropriate and desirable. Finally, by way of explanation, it will be evident that in less serious cases of offending the entire sentence period might be spent within the community, with the punitive and the rehabilitative elements aggregated for the purposes of sentence calculation. In other words, where a non-custodial sentence was deemed entirely appropriate in relation to the nature or seriousness of offences, there would be no specific requirement for the punitive element to be spent in custody. Thus far, we have arrived at a concept of criminal punishment that admits the necessity for retribution, but places some (and ,necessary) limitations on its application. It has also provided for a reformative process to emerge either custodially or non-custodially, with the added possibility of it having some subsequent effect on the balance between the punitive (custodial) and community based elements of a sentence. And we have placed the rehabilitative function of punishment where (within the community) we might consider it is most likely to be effective. If the effect of these penal sanctions (or measures) is such as to deter offences in either an individual or general sense, then this is an added advantage, but we have not sought to rely upon it. All these considerations allow us to take a new look at the aspirations for restorative justice (discussed earlier in Chapter 6) in a rather different and more constructive light. While there was much of a positive nature to commend within its conceptualisation, our former reservations focused principally upon doubts about its applicability within the custodial penal system. A sentencing model of a type broadly similar to that described above goes a considerable way towards reducing these reservations, primarily because it does not depend upon rehabilitation within the custodial sector, but allows for reform either within it or in the community.

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There is no ~eason at all why prison regimes (or for that matter community programmes) cannot be devised to provide work opportunities or similar constructive activities through which, in the form of paid employment, offenders can become involved in really purposeful reparation. This means that by giving his or her consent to participate in reparative work, the offender is able to contribute a proportion of a weekly wage towards a general fund for the victims of crime. Indeed some versions of restorative justice envisage a direct reparative relationship between the offender and the victim(s) of his or her crime, but for reasons of equity, one might not wish to be that specific, or consider such an approach to be necessarily desirable. While reparation of victims of crime in general is a more anonymous form of making amends for offending, it seems to have the significant advantage of being universal. It would also contribute directly towards a central fund that would alleviate the social costs of compensation schemes funded entirely by central government. Such a mode of reparation would thus enable more victims to receive some measure of compensation, without this being dependent upon the attitude of individual offenders towards their immediate victims. Support has been indicated earlier for the notion of social re-integration of offenders through rehabilitative initiatives operated within the community setting. Further, that by separating reform and reparation (either in custody or in the community) from rehabilitation (solely within the community), the interests of restorative justice are potentially better served in relation to all offenders. Such a concept also creates an appropriate conceptual distance and linkage between reform, reparation and rehabilitation in a logical sequential order. All of this, if the concept described is accepted in principle, brings us as close to an inclusive theory of criminal punishment as has ever been achieved to date. In arriving at this point we have made a strenuous effort to reconcile (as honestly and meticulously as possible) the essential moral and operational imperatives of the traditionally accepted aims of, and justifications for punishment. We have acknowledged the necessity for retribution based on desert and the proportionality of sanctions, but have not entertained presumptive ideas about any necessary relationship between these and deterrence. We have also acknowledged that deterrence may occur in each of its accepted formulations, but have not relied upon it in any substantive way as a basis for the expression of penal policies. This has been a severely constraining factor within the punishment debate heretofore, and has probably been allowed to obscure more issues than it has clarified. As to the remaining components, remorse, reform, reparation, and rehabilitation have each been given a constructive and meaningful place within a sequential conceptualisation of justice administration in a contemporary setting. Viewed in such a manner, the concept of restorative justice might have both a theoretical and an operational future agenda for crime reduction in this new millennium. It seems important at this stage to return to the necessity expressed earlier to provide criminal justice with a contemporary context and language. Many of the writers whose work has been cited in this and previous chapters evidently had this purpose clearly in mind, even though there were significant differences in the approaches that each adopted. An inclusive theory of criminal punishment,

Criminal Punishment: Is there an Inclusive Theory? 105

or state intervention in relation to the commission of offences, has many masters to satisfy, not least those who adjudicate upon them, and politicians whose electoral credibility frequently depends heavily upon the views they express about crime. The public within every state naturally wishes to see levels of crime reduced, and most particularly those forms of crime that pose a direct threat to individual and collective safety. Victims of crime are entitled to expect some consideration and, to an appropriate extent, an evident status within the processes of justice. Those who commit offences also have the right to be dealt with justly, to be punished only to the extent that is deserved, and in a constructive rather than a destructive manner. Punishment for the sake of punishment should be a strategem of last resort within civilised societies, but punishment that meets the legitimate aspirations of all those involved in the administration of justice has considerably greater contemporary resonance. An inclusive theory of criminal punishment has necessarily to meet each of these demands, and the concept of restorative justice goes much further towards achieving this than any of the agendas pursued during the last half of the twentieth century. Some of the more heinous offences may have to be specifically excluded from its considerations, but the infinite majority of lesser offences might, with considerable social benefit, be included within its application. Its inclusiveness extends far beyond a significant theoretical synthesis of punishment justifications and purposes: it enables the dignity of the state and its laws, the victims of crime, the wider society and the perpetrators of harm to be maintained in a civilised manner. For each of these reasons, restorative justice is fast achieving acceptance as a preferential means of dealing with offending in many countries of the world. Its proponents are to be found within a wide spectrum of interests in criminal justice administration, including judges, lawyers, academics, theologians, penal administrators, policy makers, and professional practitioners in the disciplines of criminology, psychology, medicine, social work, probation, and the like. Their common purpose is to promote the implementation of restorative justice principles within a new formulation of correctional policies and practice. In this task they are supported by prestigious international organizations such as the American Correctional Association, the International Corrections and Prisons Association, and the International Prison Chaplains Association. It is therefore appropriate that the concluding chapters of this book are devoted to presentation of a number of international perspectives on restorative justice, and of how its principles are being translated into an agenda for farreaching reform of criminal justice delivery across the world. That such an initiative should have gathered the impetus that it has in so many countries is no accident: it is a clear manifestation of widespread and increasing dissatisfaction with traditional approaches to, and explanations of criminal justice processes. It also sends an unequivocal message that the need for significant change is not only long over-due, but it is also a moral and practical imperative for civilised nations in this new millennium.

106 Criminal Punishment and Restorative Justice

ENDNOTES for Chapter 7 1.

2.

3.

4.

5.

6.

7.

Rubin's comment relates to both the increasing use of imprisonment within justice model punishment, and the tendency for sentencing also to become harsher. When these combine with additional restrictions on the use of parole release, the overall population housed in prisons rises swiftly and extensively. In some jurisdictions the increased populations lead to prison overcrowding, and eventually to crisis situations as proved to be the case in Britain and the United States during the 1980s and 1990s. For an expanded account of this form of development see Cavadino, (1992 and 1994). There seems to us to be little merit in seeking an inclusive theory of criminal punishment unless it serves to enhance the chances of achieving the long-term goal of crime reduction. A number of attempts have been made in the past to re-state the justifications for punishment in the form of inclusive theories (see, for example, Hall (1972) and Silving (1972)), but most approach the problem from an exclusively conceptual standpoint that tends to neglect the operational implications for penal systems. The point is made to indicate that we are uncertain of the extent to which it is realistic to expect that all offenders will wish to take part in reparative initiatives, and neither is there a means (short of outright coercion) of compelling them to do so. To base release considerations upon participation in reparative programmes seems to us to be of questionable morality where the extent of punishment is based predominantly on desert and proportionality. The twin track model of punishment criticised by Bottoms (1977) and others as 'penal bifurcation' dealt quite differently with those considered amenable to change, and those considered not to be so amenable. Paradoxically, within the rehabilitative model of the 1960s and 1970, the former frequently attracted indeterminate sentences resulting in them serving longer sentences than their'incorrigible' counterparts for whom preventive detention on a determinate basis was seen as more appropriate. This form of approach, adopted by Taylor (1981) was a deliberate riposte to the claims of abolitionists and reductivists (such as Sim (1994)), that prisons should largely be abolished rather than attempts to rehabilitate discontinued. Similar arguments were also advanced in the United States following Martinson's (1974) statement which became known as the 'nothing works' assessment of rehabilitative programmes. Within the term 'rehabilitative provision' we would subsume the range of counselling, supervision, life skills, group therapy, and vocational training initiatives that encourage not only law-abiding behaviour, but also social survival, employment, and the like. The use of offending behaviour programmes also forms an important part of this approach, particularly where sentences are entirely non-custodial. These are best undertaken at the start of the sentence period. The point of importance here is that the model of justice we propose is based primarily on desert and proportionality, though we accept that this makes it, in effect, strictly a retributive model in considerations relating to sentencing in general, and custodial sentencing in particular. The reader will note that we have deliberately not confused the model by including, within the sentencing process, considerations of deterrence in addition to those of retribution. We perceive nothing anomalous in linking this to the prospective notion of rehabilitation, providing that the linkage is made through the concepts of reform and reparation within the punitive process.

REFERENCES (in order within the text) Gross, H. (1979), A Theory of Criminal Justice, New York: Oxford University Press, pp.4-5. Rubin, S. (1979), 'New Sentencing Proposals and Laws in the 1970s', Federal Probation, vo!. 43, no. 2, p.8. Hall, J. (1972), 'The Inclusive Theory of Punishment', R.J. Gerber and P.D. McAnany (eds.), Contemporary Punishment: Views, Explanations and Justifications, South Bend, Indiana: University of Notre Dame Press, pp.233-7. Silving, H. (1972), ,A New Philosophy of Criminal Justice', R.J. Gerber and P.D. McAnany, op. cit., pp.252 et seq.

Criminal Punishment: Is there an Inclusive Theory? 107 Cavadino, M. (1992), 'Theorising the Penal Crisis', A.K. Bottomley, D. Farrington, T. Fowles, R. Reiner and S. Walklate (eds.), Criminal Justice: Theory and Penal Practice, London: British Society of Criminology, pp.1-22. Cavadino, M. (1994), 'The UK Pen~l Crisis: Where Next?' A. Duff, S. Marshall, R.E. Dobash and R.P. Dobash (eds.), Penal Theory and Penal Practice: Tradition and Innovation in Criminal Justice, Manchester: Manchester University Press, pp.42-56. Dworkin, R. (1986), A Matter of Principle, Oxford: Clarendon Press, p.31. Smart, A. (1969), 'Mercy', H.B. Acton (ed.), The Philosophy of Punishment: A Collection of Papers, London: Macmillan, p.227. Bottoms, A.E. (1977), 'Reflections on the Renaissance of Dangerousness', Howard Journal of Criminal Justice, voL 16, pp.70-97. Bean, P. (1981), Punishment, Oxford: Martin Robertson, pp.86-91. Hudson, B. (1987), Justice Through Punishment: A Critique of the 'Justice' Model of Corrections, London: Macmillan, pp.26-41. Hudson, B. (1987), op. cit. p.27. Cullen, F. and Gilbert, K. (1982), Reaffirming Rehabilitation, Cincinnati: Anderson. Garland, D. (1985), Punishment and Welfare, Aldershot: Gower Publications. Hudson, B. (1987), op. cit., p.34-5. Taylor, I. (1981), Law and Order: Arguments for Socialism, London: Macmillan. Allen, F.A. (1964), The Borderland of Criminal Justice, Chicago: University of Chicago Press. Morris, N. (1974), 'Prison as Coerced Cure', The Future ofImprisonment, Chicago: University of Chicago Press. Sim, J. (1994), 'The Abolitionist Approach: A British Perspective', A. Duff et al., op. cit., pp.263-84. Martinson, R. (1974), 'What Works? - Questions and Answers About Prison Reform', The Public Interest, vo!. 35, pp.22-5.

CHAPTER 8

New Horizons: International Perspectives on Restorative Justice Progress, therefore, is not an accident, but a necessity ... It is a part of nature. Herbert Spencer, Social Statistics, I, Ch.2. 4.

The previous discussion within this work has focussed almost exclusively upon the development of criminology as an academic discipline, and also on the evolution of theories of criminal punishment from their earliest formulations to the present era. To many people closely _involved in the administration of criminal justice world-wide, and to many students aspiring to work within the agencies associated with correctional services, the traditional arguments set forward are frustratingly inconclusive and in certain respects inevitably somewhat circular. To make matters even worse, as Garland (1999) has so aptly noted, at the present time: Penal issues have taken on a significance for politics and for popular culture that makes the question of crime and punishment one of the most pressing problems of our age ... The politics of many of the developed western democracies in the last few decades have been politics of reaction and reconstruction in which the institutional structures and political understandings of the post-war welfare state have been challenged and to some extent transformed. There is reason to believe that our penal institutions are currently undergoing a similar structural transformation that is changing the meaning of crime and justice in ways that we are only beginning to understand. Garland, 1999, pp.7-8.

Stated simply, there is a growing realisation among enlightened politicians and criminal justice practitioners alike that penal policies based predominantly upon the concepts of retribution and deterrence do not result in significant levels of crime reduction, and may indeed have an entirely opposite and negative effect.l Moreover, since the penological ideals of reform and rehabilitation as articulated in the pre-justice model era have largely fallen into disuse, another ideological vacuum has emerged within which an entirely different concept of justice is beginning to stake a claim for serious consideration. 2 The new voice of contemporary penological discourse is that of restorative justice, and it is being heard with an increasing volume and confidence from every continent of the world. It is a voice that challenges not only previous concepts and beliefs, but also the very nature of justice and its administration in a manner and to an extent previously thought unimaginable. 3 The nature of this

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development has been noted with some accompanying comment and a degree of reservation in Chapter 6, particularly in relation to its application within the existing custodial sector of corrections. 4 This does not imply, however, that the discourse of restorative justice deserves no further consideration: to the contrary, it should be examined carefully to discover the nature of the proposals contained within it, the principles involved, and its potential for implementation. The previous chapter and the concluding part of this work are devoted entirely to this particular purpose. The concept of restorative justice embraces a number of proposals for farreaching change in the manner in which the criminal law is administered both structurally and operationally within most contemporary developed democracies. It proposes that these changes are necessary precisely because existing approaches to the delivery of justice through punishment reveal the range of shortcomings and dysfunctional features described in earlier chapters. These shortcomings have been very accurately summarised by Helen Silving in an analysis written as long ago as 1972 in the following words: Our total criminal law is devised under the impact of a philosophy that deliberately ignores the implications of sanctions, as if it did not matter what happens to a criminal defendant after his sentence becomes final. This nonchalance is based on a more or less tacit belief that a person who has been found' guilty' is within the total, totalitarian power of the state, which can do almost anything with him or to him, since by his' guilt' he has forfeited all his civil rights. Our case books do not deal with what happens in a penitentiary ... We cannot today simply accept, as we do, a magical concept of guilt'. I

Silving, 1972, p.253.

To which criticism it might be added that in a general sense the criminal law is much less concerned with the plight of the victims of crime than with the necessity that crime must be seen to be punished. 5 And further, it is evident that the entire process by which the law is administered lies outside the normal day to day functioning of the democratic society. Reservation of the processes of law solely within the hands of legal professionals is the principal reason for this objection, since at present it denies victims any significant voice in the legal process, as though such persons have absolutely no rights whatsoever within that process. This situation is exacerbated by the further (and Widespread) claim advanced by many observers of, and professionals within contemporary legal systems that criminal punishment is frequently over-used due to notions of relative desert and the influences of political intervention. These factors, frequently described as the 'instrumentalism' of punishment6, serve to undermine the important principle of parsimony in the use of sanctions: they also lead to unduly inflated expectations of the presumed 'positive' effects of punishment, and a systematic under-estimation of the 'negative' effects to which Silving draws attention.. Restorative justice proposes a considerably more holistic approach to the administration of justice, which seeks to remedy these important defects, and also (and perhaps even more significantly) substantially to 'democratise' the

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delivery of judicial processes. In both of these respects it represents a significant challenge to the status quo within the politico-legal systems of many established democracies, possibly to the extent of generating a long-overdue sense of vulnerability and anxiety within both the legal and political establishments? Such responses might be anticipated, if only because for too long in some European countries, and in particular in Britain, the incumbents of high political and judicial office have resisted major change to, or interference in the fundamental processes by which penal policies are determined and justice is administered. As McElrea points out, the' development is a timely and topical one: Not least because under Articles 10 and 17 of the European Union Council Framework Decision of 15 March 2001, each Member State must 'put in place laws, regulations and administrative provisions' to promote the use of restorative justice in appropriate cases within their national law by March 2006. McElrea, 2002c, p.l.

There are also, at the present time, some signs of attitudinal change and disquiet within the senior echelons of the British judiciary in relation to the effects of current sentencing practices, crime control policies, and the overall effectiveness of the administration of criminal justice. Continuing over-use of imprisonment as a sanction has resulted in a prison population of record proportions within England 'and Wales (more than 78,200 in November 2005)8, and which is predicted to rise during the years to 2009 and beyond. This represents an overall increase of more than a quarter over the past seven years alone, and the situation will become altogether unmanageable without either major infrastructural expansion or a significant shift in sentencing policy. Broadly the same circumstances prevail in the Netherlands, the United States of America, Canada, New Zealand, and in certain other countries within the European continent, causing similar questioning of the sustainability of present levels of penal populations. There is little doubt that use of the sanction of imprisonment will remain a necessary and appropriate resort in dealing with serious crime in both the immediate future and in the long-term criminal justice perspective. The emergence of restorative justice does not alter this situation, and neither does it seek to do so. The central issue is that the principles of restorative justice can, and many would argue should, be applied within the development of policies for custodial punishment in the same manner, though not to the same extent, as they are applicable to the non-custodial sector of correctional practice (see, for example, Blad, 2003b; 2003c, p.l; Zehr, 2002b, pp.12-l3).9 This is what is meant by the insistence of many writers on restorative justice that it is not primarily predicated as an alternative to imprisonment. It is, however, the case that many offences are significantly over-punished by the use of imprisonment that might adequately be punished in a non-custodial manner if the principles of restorative justice were to be more widely accepted and used as tenets of criminal justice policy and practice. The social and jurisprudential advantages of adopting such an approach are potentially

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substantial, and not solely confined to a reductivist orientation in relation to the use of penal custody. The principle of parsimony in the use of punishment does not necessarily stand in perpetual conflict with that of proportionality: it insists rather that sanctions should never be disproportionate to the harm occasioned, however crudely the notion of equivalence may be constructed. The reluctance of many contemporary politicians and jurists to accept this hypothesis seems to be based on both an uncritical rationalisation that 'more punishment is better punishment', and a fear of being perceived as 'soft on crime'. A more critical examination of the central requirements of restorative justice might lead to the realisation that the demands that it makes of offenders are substantially more extensive and constructive than those that are achieved by resort to the use of custody in existing circumstances. The fact that, within the same process, some recognition is given to the victims of crime appears to be a peripheral issue, consideration of which is altogether marginal to the perceived need for retribution to be exacted. Moreover, proportionality, however construed or inferred, can become more a calculus or index of perceived social nuisance than of strict justice.l° Although it is evident that restorative justice represents no 'soft option' and may, in fact, be seen to be a significantly 'uncomfortable' option for offenders in a number of respects, the manner in which it confronts existing penal philosophies is not only appropriate, but also necessary. By making the offender take some responsibility for his or her past and future behaviour, it directly challenges the notion of negative sanctions that require no actual response from offenders. There remains, however, the problem of what can and should be done in cases in which offenders decline to enter into the restorative process, or are unprepared to accept the harmful nature of their offending behaviour. This situation might appear to open wide the door for the development of 'twin-track' models of corrections11 that deal differentially with similar offences on the basis of the willingness (or lack of it) of those who commit them to accept, or even reflect upon, their anti-social conduct. On the other hand, there has for a long time existed within sentencing philosophy the concept that genuine contrition or remorse should be taken into account in the interests of parsimony~ The ideal of imposing punishment in the least degree necessary might be thought to be at considerable variance with prevailing trends within many contemporary democracies. 12 These become important considerations if the cause of restorative justice is to achieve universal recognition. Much will depend upon the willingness of those who presently hold high political and judicial office to be prepared to contemplate the necessity for major change within criminal justice administration. 13 This is essential not only in relation to the Widespread over-use of custodial punishment, but also with regard to the extent to which it is imposed when it becomes unavoidable. Silving's commentary that was quoted earlier has a particular resonance in this debate, and now has to be given much more attention and consideration than has been the case in the past. The concluding chapters of this book are devoted to an international analysis of, and commentary upon the concept and potential of restorative justice. 14 Each chapter provides a national perspective written by an eminent academic or

.

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practitioner whose professional experience is focussed on the development and promotion of restorative justice principles within the criminal justice system of the country concerned. The analysis is widely spread across the continents of North America, Central Europe and Australasia, but it has a common theme. This is to indicate the extent to which the concept of restorative justice might contribute in a very timely manner to a resolution of hitherto unresolved problems and dilemmas within contemporary criminal justice administration on a global basis. As each of the authors indicates in a different manner, the challenge is to extend the debate about the application of restorative justice principles beyond the rhetoric of the 'promise' that it holds out for a more equitable and effective form of criminal justice. More important than this, however, is to indicate how this may actually be achieved in practice. Both the United Nations and the Council of Europe have endorsed resolutions calling on member states to introduce restorative justice policies and practice within their criminal justice systems, though it is left to the discretion of the countries concerned to decide when and how far this is practicable. There exists, therefore, a world-wide initiative for change, the impetus of which is at present variable and uncertain. The further and wider the debate over the appropriateness and applicability of restorative justice principles proceeds, the more it becomes apparent that there are no 'quick fix' solutions that can be applied in a superficial manner to enable these to be implemented in practice. The entire rationale of restorative justice insists that judicial processes and practices have to be re-focussed and re-aligned, and this, in itself, presents an extensive challenge to the existing structures of criminal justice. Thus it is, in essence, an uncompromising and yet hopeful message that will not necessarily be willingly received within the traditionalist and change-resistant echelons of many established democracies.

NEW ZEALAND In Chapter 9 that follows, Judge F.W.M (Fred) McElrea presents a perspective on restorative justice from New Zealand. Judge McElrea has been a Youth Court judge for some 12 years, and a District Court judge in Auckland for 16 years, in addition to having written and lectured widely on the need to create a culture of change and reform within existing structures of justice. He was one of the founding directors of the International Corrections and Prisons Association (ICPA), and has written extensively on restorative justice over a period of 12 years. His contribution is based on a paper presented to the London conference Modernising Criminal Justice - New World Challenges held in June 2002, and draws together what he describes as some old and some new strands of his writings about restorative justice. Judge McElrea/s analysis amounts to a penetrating case for change, though not just within the legal profession, but as a means of providing a better deal for victims, of holding offenders accountable in a meaningful way, and increasing the involvement of the community in the process of conflict resolution. It is heavily based upon his own experience and that of his colleagues, and brings to

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the debate a wealth of insights into the potential for the application of restorative justice principles in an essentially pragmatic, effective and contemporary manner. Interestingly for our purposes within this book, Judge McElrea expresses the conviction that punishment can be part of the restorative process, and that restorative justice should not be seen as an alternative to punishment.l s Moreover, punishment should not, in his view, be the overriding objective in dealing with crime, because it focuses attention upon the offender, largely to the exclusion of the victim. These, and a number of other practical suggestions for reforming the way in which courts actually operate, form the central themes of an immensely valuable perspective that is neatly encapsulated by this short extract from his own introduction: I wish to argue that restorative justice should not be seen as a fringe solution, or one only for juveniles, or only for a limited type of crimes. It has gained a foothold on the cliffs of public opinion by its success in such limited areas, but it offers a new way of gaining the summit. It does not pretend to be the only solution, or always appropriate, but like the salt in the pot it can change the flavour of justice. (McElrea, 2002c, p.l.)

THE NETHERLANDS Dr John R. Blad, whose contribution in Chapter 10 comes from the Netherlands, is an Associate Professor of Criminal Law and Criminal Procedural Law at the Law School of Erasmus University, Rotterdam. His main area of professional expertise lies in the legal and social sciences, and particularly the sociology of law. He is the editor of the Dutch/Flemish Journal of Restorative Justice (Tijdschrift voor Herstelrecht), and his main academic interests lie within penal theory and criminal justice philosophy. Dr Blad's doctoral thesis, submitted in 1996, was a critique of criminal justice abolitionism (Abolitionisme als Strafrechtstheorie), and in criticism of abolitionism he discovered the potential of restorative justice. He has also contributed substantially to the debates concerning the decrirriinalisation of euthanasia, and physician (and citizen) assisted suicide in the Netherlands. His most recent Dutch publications have focussed on restorative social policy and restorative detention. Dr Blad questions (among other issues) not only the accepted definitions of criminal behaviour, but also the reasons why punishment rather. than state facilitated intervention is perceived as the natural response to serious crime. His analysis of the urgent need to reinstate the principles of subsidiarity and parsimony within criminal justice is a compelling one, as is his conviction that restorative justice may not require an 'inclusive' theory of punishment, but rather an integrated theory of criminal law enforcement that acknowledges fundamental principles. He believes that restorative justice will be seen to hold the key to a resolution of these dilemmas.

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CANADA In Chapter 11, Dr Robert B. Cormier presents a Canadian perspective that describes an agenda for developing restorative justice principles into practice through collaborative projects between community based organizations and criminal justice practitioners at a number of different levels, and in a variety of circumstances. These projects, he insists, must operate within the basic principles endorsed by the United Nations, and be subjected to extensive and rigorous evaluation. Once this has been achieved, the findings of the research need to be disseminated widely to professionals working within criminal justice agencies, and the results communicated to the public. Dr Cormier is Senior Director, Research and Community Development, Public Safety and Emergency Preparedness Canada, based in Ottawa, and has over 30 years' experience in the field of criminal justice administration. He was a member of the Canadian delegation at the eighth (1990), ninth (1995) and tenth (2000) UN Congresses on the Prevention of Crime and Treatment of Offenders. He is, therefore, uniquely well-placed to describe not only how restorative justice initiatives have evolved within Canada, but also from that experience and the lessons learned, how other nations might benefit from both in a substantive manner without necessarily having to endure a lengthy evolutionary period. His message is that restorative justice is an 'exportable' and 'importable' commodity on an international scale, capable of being translated into practice in different cultures while still adhering to its own specific principles and vision. It is also of interest to note here that in the course of planning this work, potential contributors from a number of other countries within Scandinavia, The Middle East and Africa were invited to participate in this comparative analysis. In each case those concerned, while fully endorsing the principles and objectives of restorative justice, felt unable to contribute because the concept has not, as yet, gained a formally acknowledged foothold within the contemporary national criminal justice policies of their countries. The same, it has to be admitted, is also the situation in the United Kingdom at the present time, though there is an increasing interest among academics and some criminal justice practitioners in pursuing the development of restorative practices which currently lie at the margins of the penal system. 16 However regrettable this state of affairs may be, it is also understandable. For as each of the contributions in the following chapters will indicate, albeit in different ways, implementation of the principles of restorative justice necessitates the abandonment, or at least the subjugation and relegation of existing concepts of criminal punishment, and deeply entrenched belief in their appropriateness and effectiveness. Even worse still, perhaps, in the many countries that have experienced an escalation of serious crime in recent years, the penal 'hawks' continue to occupy the high ground of the agenda that declares itself to be 'tough on crime and tough on the causes of crime'. This same agenda believes implicitly in the efficacy of deterrence, and continues to exhibit a primary regard for the notion of retribution as an essential moral ingredient of the 'war against crime'. In the face of such intransigent attitudes, the concept of restorative justice with its apparently 'dove-like' appeal for reconciliation, mediation and restoration

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becomes difficult to make persuasive or convincing. This is, however, as Zehr points out, to misunderstand entirely the motivations of restorative justice (Zehr, 2002b, pp.5-13). Before entering this debate, however, there are four importantly central issues that might be considered to form the backdrop against' which consideration of restorative justice as a prescription for criminological and penological change must be viewed. The first is that the concept of restorative justice represents a proactive agenda for change in its own right, and is not merely a reactive response to the failure of former punishment theories and practices either to deliver justice in relation to the commission of crime, or to result in crime reduction. Though inevitably the shortcomings of former models of criminal justice have to be identified and described insofar as these have resulted in the urgent need for change, such shortcomings do not provide the essential raison d'€tre for the articulation of restorative justice principles. 17 The second issue flows to some extent from the first, or at the least becomes a consequence of it. The failure of contemporary criminal justice policies based predominantly on retribution and deterrence to deliver crime reduction requires that significant change be made sooner rather than later. Whether or not restorative justice emerges as the accepted means of facilitating such change may be a matter of question, but it in no sense negates the need for change itself. The inevitability of the need for change is therefore fuelled by the intrinsic failure of former punishment modes, and by the policy vacuum that has arisen as a direct result of such failure. The third issue concerns the 'bottom up' manner in which the concept of restorative justice has come to prominence in the search for a philosophy of criminal punishment that is appropriate and potentially effective in the context of world-wide twenty-first century democracy. As will become evident, the concept strives to achieve conflict resolution and respect for the equal rights of victims and offenders within considerations of criminal justice. Victims of crime within the Anglo-Saxon' and some other European traditions of justice have never hitherto been afforded the extent of consideration to which many would consider them entitled. Restorative justice seeks to redress this situation very directly, while giving due weight in deciding on the extent of any necessary . punishment to the attitude of the offender towards both the victim(s) and the harm occasioned by the offence(s). The victims of crime within a restorative justice concept are both those immediately harmed by the offence(s), and also those indirectly affected as members of the wider society. The imperative to give victims of crime a central place within criminal justice considerations has emerged not from the consciousness of politicians and penal policy makers that such would be neither more nor less than appropriate. Rather, it has come from an increasing groundswell of insistence within the 'body politic' and within moral philosophy that it is strictly necessary, and can no longer be ignored. As a result, and until Widespread acceptance of the imperative becomes more evident in political and judicial circles, restorative justice will continue to embarrass those responsible for policy formulation. ls The fourth issue is an historical one. Stated simply, restorative justice is not really a new concept at all. Conflict resolution and reconciliation have been I

116 Criminal Punishment and Restorative Justice

central tenets of social justice in many societies, some relatively undeveloped, and others more developed than has perhaps been recognised, since the dawn of time. 19 Paradoxically, it seems to be the case that it is within the more complex modernised societies of the so-called 'western-style democracies' that these ingredients of social justice have declined in their perceived importance within the public moral consciousness. There may, therefore, be essential lessons to be learned from the past and from unexpected places, and these may reinforce the need for a greater humility in deciding on how true justice should be administered. Finally, the contentious issue of victim's rights has to be addressed and clarified, at least to the extent that the harm occasioned to such persons is formally recognised and redressed as an integral element of the justice process. It has to be acknowledged, however, that there are widely divergent views at present, both as to how this is best achieved, and the extent to which victims should be permitted to play an active part in the determination of sentences (see Cavadino and Dignan, 1997a; Ashworth, 1993b; and pp.61-2 supra). Dworkin has proposed that equal concern should be shown towards victims of crime as to all others involved (Dworkin, 1978). This approach is entirely consistent with the principle of equality of consideration so eloquently elaborated in the earlier work of Ginsberg (1965, pp.78-9), and subsequently that of Williams (1985, pp.60-62). The rights of victims may, however, stem more from the negative derivation of the principle rather than its positive counterpart. This implies, for instance, that if there is an acknowledged right (as is maintained in the rules of natural justice) that both sides in a dispute should be heard, then negatively, no person involved should be ignored or have his claim to be heard merely overridden. Thus it might also be contended that if an individual has rights to personal property and security under the law, then any infringement of such rights (construed negatively) transgresses the right not to have one's property or security interfered with or limited in any unnecessary manner. 20 Lest there be any doubt, I do not intend to suggest here that victims of crime necessarily have a right to participate in the adversarial (or inquisitorial) conduct of trial processes, for that is the role of the state (as prosecutor) and of the defence. I do, however, propose that once the issue of guilt (or innocence) has been established, then (and only then) it does become appropriate for the harm occasioned to victims to be taken into due consideration. Restorative justice seeks to enable this to happen within a rather different framework from that which has traditionally dominated criminal adjudicative processes hitherto. Each of the three international perspectives which follow focuses upon this important, if neglected, dimension of contemporary criminal justice. Viewed collectively, these perspectives amount to a compelling case for the adoption of restorative justice principles to provide a more humane and effective form of criminal justice in the future.

New Horizons: International Perspectives 117

ENDNOTES for Chapter 8 1.

2.

3.

4.

5.

6. 7.

8.

9.

10.

11. 12.

Principally by exposing more persons than is strictly necessary to the experience of imprisonment and its subsequent dysfunctional effects. Over-use of custodial punishment is also extremely expensive by comparison with the cost of non-custodial measures such as probation, community service or similar sanctions. See Garland's (1999) comment above in the final sentence. Though he may well not have had restorative justice specifically in mind at the time of writing, the concept was attracting increased interest among academics and criminal justice practitioners during the late 1990s, with much of its formative descriptive literature dating from 1995 onwards. This is largely because the emergence of the concept of restorative justice has been what might be termed a 'bottom-up' development, proposed and articulated not by penal policy-makers or politicians, but by practitioners and academics working within the criminal justice environment. It has also attracted the attention and support of a wide range of acknowledged professionals, amongst whom judges, senior social work, probation, correctional and police service officials, and academics within the disciplines of law and the social sciences have featured prominently. The reservations in relation to the application of restorative justice principles and practice within the custodial sector of corrections relate to the present design, operation, managerial ethos, and regimes of most existing prisons throughout the world. They also relate to the purposes that such establishments presently fulfil in pursuit of contemporary criminal justice policies. Such is not to suggest that it is not possible to conceive of restorative prisons, examples of which are beginning to emerge on a tentative basis in a number of countries. Such prisons were not, however, designed to deliver a comprehensively restorative ethos, but have been adapted, in part, to deliver regimes that approximate to reparative concepts such as providing work to be undertaken for disadvantaged groups on a charitable basis. Though this is to some extent to be expected, and the commission of crime has necessarily to be countered by sanctions, the exclusion of victims from due consideration is Widespread and increasingly unacceptable in terms of distributive justice. This means, in effect, the deliberate use of criminal punishment as an instrument of social policy, most frequently for its supposed deterrent effects upon potential offenders. Historically, and also widely in a contemporary sense, criminal justice policies have been devised and implemented predominantly by officials of government, largely in response to political pressures arising from public perceptions of crime prevalence. Judiciaries have also proved markedly resistant to initiatives designed to change sentencing practices, both as a matter of judicial independence, and also of inherent traditionalism. Restorative justice, by its very nature and principles, seeks to place strict limitations on the unnecessary or excessive imposition of punitive measures, and also to ' democratise' the processes of justice through inclusion of victims into the judicial process. See the news page of the Prison Reform Trust website (www.prisonreformtrust.org.uk). and the website of HM Prison Service. The corresponding prison population in 1977 was 60,131. At the time of writing it stood at 77,752 (4 November 2005). This total excluded however more than 3,000 prisoners released under the provisions of Home Detention Curfew in advance of their scheduled Earliest Date of Release. On the same date the Operational Capacity of the Prison Service of England and Wales was 78,255. Blad proposes a definition of restorative detention as 'a detention regime which expresses restorative culture and which is fully stnlctured according to the need of, and the conditions for, restoration of damages and social relations of trust and inclusion'. (Blad, 2003c, p.l.) [Italic emphasis mine.] By this is intended the fact that sentences within the guideline maxilna and lninima may vary in length for the same generic offence(s), but may tend towards the maxilna in dealing with particular offences perceived by governments to represent a specific form of undesirable behaviour. Or what Bottoms (1977) and others since have referred to as 'bifurcated' penal policies. (See Bottoms, 1977, p.87-9, and Cavadino and Dignan, 1997b, pp.22-7.) In this regard it is important to note the potential conflict between the principles of parsimony and proportionality within sentencing. The former would impose the minimum extent of punishment necessary to punish appropriately, while the latter would impose punishment to an extent considered strictly proportionate to the harm done (or the seriousness of the offence).

118 Criminal Punishment and Restorative Justice 13. In Britain, the United States and some other western democracies, there is little evidence that such authorities are amenable to change in this respect. The indications within the publicly expressed political rhetoric of the countries concerned are, in fact, more rather than less punitive. 14. As proposed, for example, by writers such as Zehr,2002b, pp.13-18 and Zedner, (1994), pp.228-50. 15. See Zehr, 2002b, pp.58-9. 16. Here see, for example, Coyle, 2001 and Dignan, 1994, pp.231-244. 17. In fact, restorative justice as a concept has developed as a response to an entirely different paradigm of criminal justice that seeks to promote inclusion and reintegration rather than exclusion and denunciation as the primary purposes of penal punishment. 18. It will do so because it suggests and promotes a more humane and purposeful form of justice which enables the offender to be reintegrated into society as a result of having taken responsibility for his or her own actions, and having made some extent of reparation for the harm done by them. This must be seen in contrast with the traditional approaches to punishment that merely penalise offenders for what they have done, and require no necessary acceptance of responsibility or attempt to redress the harm. The latter are frequently referred to as 'negative' sanctions. In addition, the inclusion of victims of crime within the restorative justice process provides opportunities for reconciliation and healing that are largely absent from the considerations of traditional justice. 19. This is evident in the conflict resolution strategies deeply embedded in many of the ancient tribal or ethnic cultures of the populations native to North America, Australia, and New Zealand, and also in other nations within the continents of Africa and India. 20. See here in particular, Ginsberg, 1965, pp.78-9.

REFERENCES (In order within the text.) Garland, D. (1999), 'Punishment and Society Today' [Editorial], Punishment and Society, vol.1(1), pp.7-8. Silving, H. (1972), 'A New Philosophy of Criminal Justice', R.J. Gerber and P.D. McAnany (eds), ContemporanJ Punishment: Views, Explanations and Justifications, South Bend, Indiana: University of Notre Dame Press, pp.253. McElrea, F.W.M. (J), (2002c), 'Restorative Justice: A New Zealand Perspective', Paper to the Conference Modernising CriJninal Justice: New World Challenges, London, (June), p.l. Blad, J.R. (2003b), 'Community, Mediation, Criminal Justice and Restorative Justice: Rearranging the Institutions of Law', L. Walgrave (ed), Repositioning Restorative Justice, Devon: Willan Publishing, pp.191-208. Blad, J.R. (2003c), An Ideal-Typical Model of Restorative Detention, [Unpublished Short Presentation Paper], Rotterdam: Erasmus University, p.1. Zehr, H. (2002b), The Little Book ofRestorative Justice, Intercourse, Pennsylvania: Good Books, p.12-13. McElrea, F.W.M. (J), (2002c), op. cit., ibid. Bottoms, A.E. (1977), 'Reflections on the Renaissance of Dangerousness', Howard Journal of CriJninal Justice, vol. XVI, no. 2, pp. 87-9. Cavadino, M. and Dignan, J. (1997b), The Penal Systeln: An Introduction, [Second Edition], London: Sage Publications, pp.22-7. Zehr, H. (2002b), op. cit., pp.13-18. Zedner, L. (1994), 'Reparation and Retribution: Are They Reconcilable?', Modem Law Review, vol.57, pp.228-250. Zehr, H. (2002b), op. cit., pp.58-9. Coyle, A. (2001), 'Restorative Justice in the Prison Setting', Paper to the International Prison Chaplain's Association Conference (Europe), (May), www.icpa.net. Dignan, J. (1994), 'Reintegration Through Reparation: A Way Forward for Restorative Justice?', A. Duff, S. Marshall, R.E. Dobash and R.P. Dobash (eds), Penal TheonJ and Penal Practice: Tradition and Innovation in Criminal Justice, Manchester: Manchester University Press, pp.231-244. Zehr, H. (2002b), op. cit., pp.5-13. Cavadino, M. and Dignan, J. (1997a), 'Reparation, Retribution and Rights', International Review of Victimology, vol. 4, pp.233-53. Ashworth, A. (1993b),'Victim Impact Statements and Sentencing', Crilninal Law Review, pp. 498-509. Dworkin, R. (1978), Taking Rights Seriously, London: Duckworth. Ginsberg, M. (1965), On Justice in SociehJ, Harmondsworth: Penguin Books, pp.78-9. Williams, B. (1985), Ethics and the Limits of Philosophy, London: Fontana, pp.60-62. Ginsberg, M. (1965), op. cit., ibid.

CHAPTER 9

Restorative Justice-A New Zealand Perspective Judge F.W.M. (Fred) McElrea Auckland District Court, New Zealand Progress is the law of life, Man is not man as yet. Robert Browning, One Word More, V.

This chapter brings together some old and some new strands of my writings about restorative justice. My involvement has been principally as a youth court judge for 12 years, and a District Court judge for 16 years, but one with some academic qualifications from my own country and from the United Kingdom, and with an eye to reform of our justice structures. I agree on the need for a culture of change, but it is not just in the legal profession that this is necessary. I support restorative justice as a means of providing a better deal for victims, of holding offenders accountable in a meaningful way, and increasing the involvement of the community in the process of conflict resolution. By these means I believe also that confidence in the law will be restored and our communities made safer. For historical reasons, New Zealand's interest in restorative justice has been driven primarily by practitioners, and not by policy makers or academics. Three or four years before the term 'restorative justice' had become known in New Zealand, the Children, Young Persons and Their Families Act 1989 introduced the idea of the family group conference. The 1989 Act applied to youth court proceedings dealing with offenders aged 14 to 17 years, and one of the primary objectives of the legislation was to strengthen the ability of families to hold their young people accountable and encourage them to develop in law-abiding and socially productive ways. Those like myself working with the Act soon saw it, talked about it and wrote about the family group conference concept as a new model of justice. When I later returned to Cambridge on sabbatical leave and read Zehr's (1990) Changing Lenses it seemed he was describing a very similar approach. In early 1994 I wrote two papers (McElrea, 1994a and b), the first assessing our youth justice model as a restorative model, and the second arguing for the application of its central principles to adults through community group conferences. From later in that year these adult conferences have been held on an informal, nonstatutory basis (mostly, but not entirely in Auckland) encouraged by a number of like-minded judges with the blessing of the chief District Court judge. There are currently some 20 restorative justice schemes in different parts of the country receiving some government funding, mostly set up by the Crime Prevention

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Unit, but also including a court-based pilot operating in four courts including my own. I will refer shortly to the Sentencing Act 2002, our latest development. I have listed elsewhere (see Eaton and McElrea, 2003) three distinctiveindeed revolutionary-elements of the youth court model. First, the transfer of power, principally the court's power, from the state to the community; secondly, the family group conference (FGe) as a mechanism for producing a negotiated, community response; and third, the involvement of victims as key participants, making possible a healing process for both offender and victim2 • A High court decision in 19953 supported this analysis by referring to the youth court model as: a restorative justice system rather than a retributive or deterrent system. The object of the new provisions was to enable victims and the community, as well as young persons, to participate in a process which would help them all and heal the damage caused by their offences. An essential part of this process is a negotiated community response at a family group conference. It is a system which operates in a vastly different way to that which the Courts are required to use in dealing with adult offenders.

Today the difference is not so vast as is suggested in the judgement of Justice Williamson quoted above. Since that judgement was given, considerable progress has been made with restorative justice for adults, and a new Sentencing Act has been introduced. A typical restorative conference involves the prior admission of responsibility by the offender, the voluntary attendance of all participants, the assistance of a neutral person as facilitator, and (ideally) the presence of a police officer. It provides the opportunity for explanations to be given, questions answered, apologies given, the drawing up of a plan to address the wrong done, and an agreement as to how that plan will be implemented and monitored. The court is usually but not necessarily involved. Implementing restorative principles The Sentencing Act 2002 contains a number of provisions that explicitly endorse restorative justice or the principles upon which it is founded. They are in many ways remarkable and are, as far as I am aware, unprecedented. Section 7 of the Act lists eight purposes of sentencing, and while these are not listed in any order of priority, the first four will be seen to support the restorative approach. The complete list of purposes is as follows: 1. To hold the offender accountable for harm done to the victim and the community by the offending: or, 2. To promote in the offender a sense of responsibility for, and an acknowledgement of, that harm: or, 3. To provide for the interests of the victim of the offence; or, 4. To provide reparation for harm done by the offending; or, 5. To denounce the conduct in which the offender was involved; or, 6. To deter the offender or other persons from committing the same or a similar offence; or, 7. To protect the community from the offender; or, 8. To assist in the offender's rehabilitation and reintegration; or 9. A combination of two or more of the purposes in paragraphs 1 to 8.

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Likewise the section dealing with principles of sentencing (section 8) requires the court to 'take into account any outcomes of restorative processes that have occurred'. Section 10 is a key section. It requires the court to take into account any offer of amends made to the victim, any agreement between the offender and victim as to how the wrong or loss may be remedied or to ensure it will not recur, any measures taken by the offender or his family to compensate the victim, make an apology, or 'otherwise make good the harm that has occurred', and the extent to which such matters have been accepted as 'expiating or mitigating the wrong'. (This last aspect was also present in the previous legislation.) The section also allows the court to adjourn sentencing until any such measure has been implemented. Other principles of the new Act are also relevant but are not new, for example, the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community (section 16(1).) While some provisions of the Act are overtly designed to produce longer prison sentences for very serious offences, the sections mentioned here should allow restorative justice principles to be reflected in sentencing decisions to a much greater extent than before. The involvement of families in the youth justice process has been one of its remarkable features. They have become key players in formulating proposals for dealing with their young offenders - and even in the implementation and monitoring of those proposals. In others words, families have been encouraged to take responsibility for their own young people and have been given encouragement and sometimes financial assistance to achieve this end. Family members are involved as support persons on both sides, that is to say, for offender and for victim. The roles of family members in such a process (whether for young offenders or for adults) are diverse. These include providing moral support and encouragement; helping offenders or victims to express themselves; providing input to suggestions for resolution of the conflict; monitoring outcome proposals designed to prevent re-offending or deal with victims needs; or helping the family of victims or offenders to look at the wider implications of the offending for them. One of the appealing aspects of restorative processes is that they are inclusive of lay people - whether family members or members of the wider community. Lay people will not claim something as their own if it is run by the professionals, be they lawyers, social workers, judges or police. Good practice requires that these people play their parts in an unobtrusive but supportive way. One should be able to find, or create, a theory about the innate sense of justice and the ingenuity of ordinary people, which can so easily be stifled by 'experts'. The most creative outcomes result from the collective imagination of victims and others working together. Wonderful examples I recall are of the boy who had to take a bunch of flowers to the victim along with his apology letter; of the youth whose eight victims asked him to write out a list of his goals in life and how he would achieve them; and of the shop-owner victim who accepted an offender's offer of unpaid work in lieu of financial reparation, and later gave him a paid job. Courts are inherently unlikely to come up with such imaginative outcomes,

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mainly because their sentences are based on statutes that offer a few standard (and often stale) alternatives. Much of our western criminal justice culture is based on a philosophy that emphasises the rights of the individual, but this usually means the rights of the defendant. Because we have used a two-party system, the state versus the defendant, the victim has been the forgotten party. The key person in the community chemistry is probably the victim. Under a restorative model, victims are not just faceless, nameless people. Their anger and hurt is witnessed in a faceto-face encounter. The de-personalising defence mechanisms of offenders-'They can afford it', 'It's only a car', and so on-tend to break down when the victim is experienced as a living, hurting, human being. While restorative conferences are not 'shaming conferences', shame can lead to apology and an expression of remorse, which in turn can lead to acceptance of the apology and a release for the victim from the trauma of the past. In all of this there is a role for forgiveness but it should never be something expected of victims. It is theirs to give if they feel it appropriate at the time. It will often be a natural response and one that benefits both parties. Restorative justice allows a place for this but also a place for grace, that unearned generosity of spirit and its transforming power that can enable both sides to let go of the hurt of the past and start building for the future. There is of course a spiritual element there for those who wish to explore it. It is not exclusively a Christian viewpoint, but Christians would say that only the transforming power of love can break the cycle of violence, anger and revenge. Victims are also entitled to put their questions to offenders and to expect honest answers: 'Why did you do it?'; 'Why me?'; 'Did you think about how I might feel?'; 'Were you planning to do it again?'; 'What are you going to do to fix· my problem?'; 'What are you going to do about your own life, so there won't be other victims?' Interestingly, victims were not given a central focus in our 1989 youth justice legislation. It is questionable whether on paper it was a restorative justice model at all. Victims were entitled to attend family group conferences, and the Act required 'due regard to [be had to] the interests of any victims' of youth offending (Section 208(h))-a pretty feeble expression. A 1994 amendment allowed victims to be accompanied at conferences by supporters and required that they be consulted about the arrangements for the conference, but overall the Act itself still does not give victims a central role. One reason why in practice victims were seen as important at conferences (despite an insipid statute) was that our first principal youth court judge, M.J.A. (Mick) Brown, was part-Maori and intuitively understood their key role in achieving justice. He insisted from the start that ours was a victim-centred process, and his influence was crucial in the development of a restorative approach. It is not difficult for ordinary folk to understand restorative justice because it is essentially the way most families work. They do not operate like courts and yet they grapple with very basic issues of justice: fair hearing, punishment, reparation and reconciliation. Most importantly families seek to keep the peace, and to find positive outcomes to conflict. The former Deputy Minister of Justice of Saskatchewan, Brent Cotter Q.C., once complained that the criminal justice

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system encourages offenders to deny responsibility and hope that they might get off. In a family, he said, such behaviour would be considered dysfunctional, and in a community it is the same. When I studied the traditional theories of punishment as a law and philosophy student in the 1960s they seemed to make sense, but since 1988 as a judge I have found them profoundly unsatisfactory-especially the deterrence theory. Levels of crime do not seem to drop when levels of punishment increase, and yet they should do if people acted rationally. One would expect people to value their life and their liberty, but they often do not respond as expected when life or liberty is threatened by way of punishment. New Zealand's experience of the death penalty is one case in point. Through all phases of abolition, reinstatement and further abolition the murder rate was not affected. More punitive sentencing for crimes of violence was introduced in New Zealand in 1985. Over the following seven years violent offending increased by 41 per cent and yet the average length of prison sentences for such offences had increased by 58 per cent. The problem with the deterrence theory is that it presupposes it is dealing with rational creatures who respond to threats of punishment. But force is not always the answer, or is not the whole answer. Restorative justice processes can and should operate at the cognitive or rational level, but they can also build on normal and vital human emotions. These become evident when hurt and anger are expressed by victims to offenders in a palpable way, when offenders feel remorse and empathy for their victims, when elements of forgiveness are present, when a shared optimism for the future emerges; and when dignity and respect are restored to victim and offender. Restorative conferences are not just a decision-making process; they need to be able to draw on worthwhile programs. But they are also an experience, an opportunity for human encounter. This is one reason why the victim's presence is so essential. Without a victim present it is almost impossible to get that essential element of encounter and confrontation that challenges an offender's perception of their actions and shows them the human face of crime. In the experience of such an encounter a change of heart is possible. Courts hardly ever see that occur. As well as giving proper rein to the emotions, restorative processes can express deep spiritual values of Christianity and other faiths, like repentance, forgiveness, renewal, healing, reconciliation and growth. Father Henare Tate (1990) in New Zealand writes of those spiritual values that find expression in a Maori approach to justice. First Nations people of North America apply spiritual values, as Rupert Ross (1995; 1996) has shown. The Hebrew people saw justice as flowing from the Creator like a river that waters the land. And so restorative justice can acknowledge and work with the whole person: heart, mind and spirit. The offender is not just a theoretical construct from a narrow, utilitarian model of human behaviour. It needs to be stressed that restorative justice is not simply the old argument for 'rehabilitation rather than punishment', dressed up in new language. That type of paternalistic approach has had its day and has failed. To treat offenders as simply being sick people requiring treatment rather than punishment is not a credible

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approach. Amongst other faults it ignores the desire of others to see justice done and it can interfere with important rights of offenders, for example, to an outcome that is not disproportionate to the offence and which terminates within a limited period. Just as significantly, this approach has failed because it left intact-indeed, reinforced-the central role of the state, and it ignored the plight of victims. Consequently the liberalism of much of the latter part of the twentieth century did not alter the basic model of justice entrenched in New Zealand with its heavy emphasis upon prisons. (New Zeal~d imprisons people at a higher rate than does the United Kingdom, though not at United States levels.) The fact of the matter is that punishment hardly ever seems to reform (in the sense of reshape) anyone. Leaving aside a few outstanding programs like those for paedophiles operating in some New Zealand prisons, no-one seems to believe that people are improved by going to prison-quite the contrary. Similarly locking up young persons in social welfare homes does not attract a lot of support as a way to reform them. Mike Doolan's (1993) illuminating Legal Research Foundation article on the origins of New Zealand's youth justice system explained that 60 years of paternalistic welfare legislation had had little impact on levels of offending behaviour: Youth justice reform in New Zealand, then, beckons the practitioner away from the excessive pursuit of rehabilitation, from attempts to explain criminality in the contexts of individual and family pathology, from dispositions which are frequently more intrusive, coercive and inherently unjust, and from an approach which provides little opportunity for the viewpoints of victims, and even of offenders themselves, to be recognised. Doolan, 1993, p.19.

The move towards a more communitarian approach to justice has both encouraged restorative justice and been encouraged by it. At the same time the western world has undergone some radical rethinking of the role of the state. No longer is it assumed to be the only vehicle for delivering solutions in a variety of areas that were traditionally its preserve, such as public utilities, transport, price and wage controls. There are now different views about the nature of justice and the role of the state in delivering justice. Canada's sentencing circles and New Zealand's family group conferences have jointly helped to add to the restorative justice model a community element that was not present in the North American VORps or VOM6 model. In fact sentencing circles are a more thorough-going community-based model than family group conferences and I have nothing but admiration for them and for people like Yukon's former judge Barry Stuart, who has emphasised the community-building potential of restorative justice. The United Kingdom's evolution of youth offender panels provided another valuable means of involving members of the community in a restorative process. Finally on the topic of sentencing theory, the 'just deserts' viewpoint presupposes that the deserved amount of punishment can be objectively known and delivered by the state through the courts. It is unlikely to have any truck

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with notions that a suitable outcome might depend upon the input of family, victim and community, that judges might not always know what is right for others, and that punishment might be one factor only in a balanced sentencing approach. In any event, this theory is based on a distorted notion of accountability. Accountability The most relevant and helpfUl statement on accountability that I have come across is what Howard Zehr (1994) stated in a video presentation about restorative justice entitled Restorative Justice: Making Things Right: From a structural justice standpoint, one of the more fundamental needs is to hold offenders accountable in a meaningful way. I have conversations with judges sometimes and they say, 'Well, but I need to hold the offender accountable' -and I agree absolutely, but the difference is as to how we understand accountability. What they're understanding by it, and the usual understanding is 'you take your punishmenf. Well, that's a very abstract thing. You do your time in prison and you're paying your debt to society, but it doesn't feel like you're paying a debt to anybodybasically, you're living off people while you are doing that. You never in that process come to understand what you did, and what I'm saying 'accountability' means is understanding what you did and, then taking responsibility for it; and taking responsibility for it means doing something to make it right, but also helping to be part of that process. Zehr, 1994.

I support Zehr in that statement. The traditional western model of criminal justice does not in my view hold offenders accountable in a meaningful way. We may think that the traditional court system holds offenders accountable but it has become too ritualised, too de-personalised, and too much like a game to succeed in many cases. The problem lies in the very model of justice that we use. At the heart of the usual western concept of criminal justice is the idea of a contest between the state and the accused, conducted according to well-defined rules of fair play and leading to a verdict of guilty or not guilty. One of the most important of these rules is the presumption of innocence - the accused is to be found 'not guilty' unless the state can prove otherwise. Those found guilty are punished by the state, and of course the more punitive the sentencing regime the greater is the incentive for a guilty person to rely on the presumption of innocence and put the state to the proof: in other words, to plead not guilty. The concept of a fair trial has been described as the apotheosis of the adversarial system - its highest ideal. It has come to be seen in procedural terms, formulated by complex rules of evidence (for example, excluding hearsay evidence), the judges' rules for the conduct of police interviews, and other settled principles of 'due process'. Important though these are in themselves, they have preoccupied our thinking in criminal justice for too long. The over-riding issue is whether fair procedures are followed: not whether they produce a just result, a fair outcome for the accused, satisfaction for the victim or harmony in the community to which both victim and offender belong. We are stuck in a mould, formed mostly in the nineteenth century, which measures justice by its own

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procedures. Instead of justice being the measuring rod of law, law has become the definition of justice. It is important that we understand this 'positivist' basis of our thinking about criminal justice or we will be ruled by it unawares. As Dowrick indicates, referring back to medieval jurists: 'This contemporary version of justice as fair trial is the culmination of a long development within the English legal system' (Dowrick, 1961, pp.32-3). Dowrick also quotes John Austin, the first Professor of Jurisprudence in England, who around 1830 was expounding the positivist view of justice as conformity to the established laws of the land. Austin proclaimed that 'in truth, law [the positive law of the land] is itself the standard of justice' (Austin quoted by Dowrick, 1961, op. cit., p.177). This thinking was part of the colonial heritage of New Zealand and of England's other colonies. It is not a matter of mere legal philosophy. Rather it is an intensely practical matter that underlies much of our thinking and practice about criminal justice. It is time to challenge the Austinian attitude. It has led to the portrayal of criminal justice as a game, with the lawyers playing the system (the rules) while the court acts as umpire, and justice too often becomes the loser. It has, I believe, come to serve society and the law (and lawyers) poorly. To return to Zehr's challenge about accountability, the plain fact is that our nineteenth century model does not promote accountability. To start with, much of the language used is from a bygone era. Following the taking of 'depositions' the accused is 'arraigned' upon an 'indictment'. The accused stands in 'the dock', almost like an exhibit on display: 'You are charged that on or about [date] you did [crime]. How do you plead?' The whole trial is conducted very publicly, with accompanying rituals that serve to dramatise and hence de-personalise the experience. Any shaming is of the ostracising type which the Australian John Braithwaite argues does not promote a change in attitudes (Braithwaite, 1989). New Zealand's Julie Leibrich refers to this as the 'public humiliation' of the courtroom where, in an adversarial system, the person is literally made to stand apart, and contrasts it with personal disgrace and private remorse. She found that public humiliation was counter-productive in the process of 'going straight'. (Leibrich, 1996.) More recent New Zealand research has established the same point (see Maxwell, 2003) . It is not surprising then that, increasingly, the news media treat crime as prime news, and criminal trials as free drama or live entertainment that they are keen to televise. The media thrive on conflict, on public contests, on finding winners and losers. If the victim features at all in court reports, it is usually as a 'loser', even where the accused has also 'lost', so the only 'winner' is the prosecution, or the impersonal state. Feelings of antagonism, fear, anger and general negativity are fuelled, both amongst the trial participants and the viewing public alike. There is scarcely ever good news reported from the courts. I suggest that one of the key defects in the criminal process today relates to pleading, and that the very word 'plead' should be abolished. It suggests the prostrate supplicant offering up a prayer for relief to a kingly presence. The fact of the matter is that a 'plea' of not guilty does not necessarily mean that the defendant denies guilt. It may mean only that the defendant wishes to 'put the prosecution to the proof', or to see if the prosecution can prove its case. This can

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operate as an incentive not to accept responsibility but instead to deny all responsibility that the defendant or his lawyer thinks cannot be proved. As things stand this is not only permissible but encouraged. Further, with proceedings laid indictably (or intended for trial by jury) the defendant is not even asked to plead until after a preliminary hearing involving the taking of depositions' . Of course if a key element of an offence does not exist then the defendant should indeed be found not guilty. But if, instead, the prosecution should fail to prove an ingredient of the offence through the absence (or faded memory) of an important witness, or because a witness lies, or through failure to correctly recite the breath-alcohol litany in the witness box, or by simple oversight of the prosecutor, or because relevant evidence is ruled inadmissible - is justice served by a not guilty finding? The role of the criminal justice system must include both convicting offenders and acquitting the innocent. Where the guilty are found not guilty by this process an injustice is done which the positivist approach does not recognise. I therefore propose that we should do away with the concept of putting the 'prosecution to the proof, except where the defendant denies the charge or has no means of knowing what happened at the time. Why should not defendants be told the charge against them and asked whether that charge is admitted or denied? If it is admitted then the prosecution should not have to prove it. This would mean that lawyers would have an important role to perform in ensuring that accused persons understand what it is they are admitting to/ and what defences might be available to them. If denied it should be proved using the adversarial system. A further refinement could be a formal mechanism for admitting in part and denying in part, as commonly occurs in civil claims, and in those cases the prosecution need prove only the disputed part. In dealing with Environment Court prosecutions I ask counsel to prepare a Summary of Agreed Facts and Disputed Issues. Those facts that are agreed are admitted under section 369 of our Crimes Act 1961, and the evidence then can focus only on those issues in dispute. The incentive on counsel to agree-and they always have agreed-is the saving in costs for their clients. I have followed the same procedure in a complicated fraud trial, but again only with the co-operation of both sides. Why should this not be standard procedure? I see no reason, other than a desire to keep the cards up one's sleeve, to favour luck over truthfulness, and to leave lawyers in charge of the process. 4 In fact I have recently become convinced that the problem with the traditional criminal model is not so much a retributive philosophy as the twoparty adversarial system so heavily dominated by professionals, especially lawyers: this has distorted our sense of justice and forced us into the win/lose mentality that, incidentally, so often produces a lose/lose result. For lawyers, attacks on the adversarial system have usually come from those advocating the European inquisitorial system, but both of these systems are state dominated and by their very nature, disempower the victim. I suggest that restorative justice, understood as a revolution in criminal procedure, can enable or lead to a victimf

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centred experience of justice, and with it a reordering of our objectives. If we get the procedures right, the rest is likely to follow. The place of punishment What, then, is the role of punishment? Perhaps because of my background I have always believed that punishment can be part of a restorative justice solution, and I have never seen restorative justice as an alternative to punishment. My preference is to say that punishment should not be the overriding objective in dealing with crime, because that is to put the focus on the perpetrator to the exclusion of the victim. As Biggar writes: 'Justice is primarily not about the punishment of the perpetrator but rather about the vindication of the victim' (1999, p27). And as Zehr puts it: A primary goal of both retributive theory and restorative theory is to vindicate through reciprocity, by evening the score. Where they differ is in what each suggests will effectively right the balance ... Retributive theory believes that pain will vindicate, but in practice that is often counter-productive for both victim and offender. Restorative justice theory, on the other hand, argues that what truly vindicates is acknowledgement of victims' harms and needs, combined with an active effort to encourage offenders to take responsibility, make right the wrongs, and address the causes of their behaviour. By addressing this need for vindication in a positive way, restorative justice has the potential to affirm both victim and offender and to help them transform their lives. Zehr, 2002b, pp.58-9

The term 'vindication' is an interesting one. According to The New Shorter Oxford English Dictionary it can refer to the action of avenging or revenging a person or wrong, or it can refer to clearing someone of blame, criticism or doubt, justifying a person, defending against encroachment or interference. The ambiguity is helpful because all of those aspects can be part of a proper response to criminal offending. What is new is the emphasis on the victim's perspective the 'vindication of the victim'. Zehr has an interesting comment on this: My work with victims suggests that the need for vindication is indeed one of the most basic needs that victims experience; it is one of the central demands that they make of a justice system. I'll go out on a limb, in fact, and argue that this need for vindication is more basic and instinctual than the need for revenge; revenge, rather, is but one among a number of ways that one can seek vindication. What the victimizer has done, in effect, is to take his or her own shame and transfer it to the one victimized, lowering them in the process. When victims seek vindication from justice, in part they are seeking reciprocity through the removal of this shame and humiliation. By denouncing the wrong and establishing appropriate responsibility, the justice process should contribute to this. However, if we vindicate the victim by simply transferring that shame back to the offender, we are repeating and intensifying the cycle. In order to progress on their journeys, both victim and offender need ways to replace their humiliation with honor and respect. Shame and humiliation must at least be removed and ideally be transformed. This does not easily happen within the retributive framework of our criminal justice systems. Zehr, 2002c, pp.28-9.

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Undoubtedly a punitive sentence is one form of vindication of the victim. Some people may not have thought there was any other. However victim researchers like Howard Zehr and Shirley Julich support a wider view. The Massey University November 2002 hui series in which both participated, established a number of important aspects of victim vindication. First, very powerful vindication for a victim lies in hearing an offender acknowledge that he or she has wronged the victim. That personal acceptance of responsibility is of greater value to a victim than a court finding which the offender disputes or does not acknowledge. Secondly, however, regardless of the offender's attitude, public acknowledgement of injury is a basic form of vindication. Nigel Biggar, now Professor of Theology and Ethics at Trinity College, Dublin, puts it well in more recent writing: To suffer an injury and have it ignored is to be told, effectively, 'what happens to you doesn't matter, because you don't matter'. Therefore, to have it acknowledged is to have one's dignity as an equal member of a human community affirmed. Biggar, 2002, p.20

Third, victims also feel. vindicated when their needs are addressed; but they feel an injustice when they are used merely as a means of finding the right outcome for offenders and addressing offenders' needs. Treating victims' needs as important in their own right is part of their vindication through restoration to dignity. Fourthly, victims are often made to feel they are at fault for allowing themselves to have been offended against, or for continuing to suffer the effects of crime; therefore they are vindicated when it is acknowledged that they were not at fault, that their questions are fair ones and that their needs deserve attention-some would say, prior attention. As Biggar puts it, 'victims, not their oppressors, have first claim upon the attention and resources of succour/. (Biggar, 2002/ p.26.) Fifth, victims have their own needs to discover the truth-about 'what happened, why it happened, and who was responsible' (Biggar, 2002/ p.20). Getting answers directly from offenders helps serve this purpose and the process of vindication, especially where offenders possess unique information. Other sources of information are also valuable. And, finally, Shirley Julich stresses that victims also feel vindicated when their community hears the truth about the offending and the offender, especially when this is a community which has allowed the offending to occur and to which both offender and victim must return. Most restorative conference plans in New Zealand have one or more punitive elements, such as unpaid community work, curfew (house arrest), or other loss of privileges. These elements may also serve utilitarian functions such as engendering good work habits, or keeping the offender out of trouble, but they are usually seen also as punishment. The real success of our restorative conference process lies, in my view, not in pursuing a non-punitive objective but

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in the use of procedures that put the victim at the heart of the process and make the community a partner with the state in finding positive solutions. The point that most often worries lawyers and some other professionals is the question of fairness to different defendants. The concern is that there will be widely differing outcomes resulting from similar offending because of the differing membership of the restorative conferences and in particular the victims' attitudes. The point is an important one and I do not dismiss it. However I believe that it is founded on a concern about fairness that looks entirely to a defendant's viewpoint rather than asking what is fair from the viewpoints of defendant, victim and the community. Western legal systems have traditionally given very little weight to victims'. views about sentencing, perhaps in order to avoid subjectivity. While that aim has its justification, it is in my view counterbalanced by the following considerations. First, defendants take victims as they find them in many respects already. The same piece of careless driving of a motor vehicle can have very different consequences depending upon quite fortuitous events relating to the presence and position of other persons or vehicles on the road. The same driving (viewed objectively) can lead to a charge of careless driving, careless driving causing injury, or careless driving causing death - with three very different sentencing outcomes. Secondly, many of the elements of a successful restorative conference are already recognised as valid elements in mitigation of penalties - remorse meaningfully expressed, apologies made, restitution offered or paid, and the victim's attitude to these elements. These elements therefore can lead to different outcomes in otherwise similar cases even under the standard western sentencing model. When a lawyer once asked me whether it was fair that an offender's sentence should be affected by the victim's attitude, it occurred to me that for at least a hundred years sentences have been affected by the offender's attitude - so why not both? Third, consistency of outcome is not possible without some injustice. Sentencing grids or minimum mandatory sentences that work on two or three elements (for example, nature of charge, number of previous convictions) can produce consistent outcomes only on those factors and by ignoring others. When considering fairness from all participants' points of view, the restorative process is more likely to produce overall fairness. Fourthly, traditional court sentences depend in part on the quality of the lawyers and other professionals involved, and the identity of the judge. The appellate structure itself recognises that there are areas of discretion which mean that there will be different outcomes in similar cases depending upon the judge's view of the matter, and what he or she has been told. Finally, it is not suggested that conference outcomes should not be subject to some form of oversight by the courts. In the adult models operating in New Zealand on a voluntary basis, the courts continue to sentence and can take account of the conference recommendations to whatever extent the judge thinks proper. In the statutory youth court model that we operate, some conferences do not involve court processes (diversionary conferences.) But all conferences require the agreement of all parties including the specialist police 'Youth Aid' officers who, like

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all other participants, can veto a particular outcome if they think it is inappropriate. If agreement is not reached the matter goes to the court. Even where the court has referred a matter to a conference, the result is only a recommendation to the court. In this way the court (and the police) are able to filter out inappropriate outcomes or to approve them with adjustments that make the outcome fairer. Further considerations I wish now to stress the manner in which restorative justice can help build stronger communities. Some people ask whether restorative justice can work where there is no sense of community, for example, in large cities or where people are separated by long distances from their natural community. Experience has shown that restorative justice is a community-building process. When you bring together people (including a victim) who are asked to devise ways of making things right, you are inevitably putting some measure of support around the victim, the offender and those involved with them. People are asked to take responsibility for each other-and that is what a community is all about. There is some scope even for officials to be held accountable. Police can be asked why it was necessary to arrest and hold a suspect in the police cells. Social workers can be asked why they have failed to carry out the terms of earlier conference outcomes or court sentences. New Zealand is now using restorative conferencing in schools, and where a school is involved, questions might be asked about the way the school has handled the matter, and so on. Restorative justice can in fact be a form of participatory democracy at a community level, with ordinary people, affected by conflict, taking responsibility for doing something about it. In the process, it becomes possible, to some degree, able to hold accountable not only the offender but also others who have some responsibility for the state of affairs. This value of the restorative process in building a sense of community is especially important in a multicultural society. When people from different cultures sit down to discuss how best to solve the problems created by and leading to a crime, they learn about each other's viewpoint and can value the contribution the other offers. Here, for example, I recall the conference in New Zealand where the Maori offender's grandmother sat down next to the middleaged victims who were not Maori and interpreted for them the prayers being offered in Maori by the boy's grandfather. Restorative justice has recently been introduced also into one of our prisons, again on a pilot scheme basis. A full time restorative justice coordinator working in the Hawks Bay Regional Prison organizes meetings between prisoners and victims where both parties wish to have such a meeting. The outcomes have nearly always been very positive. As these meetings occur post-sentence they have no relationship to the sentencing process and are purely for the benefit of the parties themselves. I believe however they do have important benefits for the wider community generally. The question of whether or not the police should preside over restorative conferences is an issue upon which practices differ. England now has considerable experience of successful pOlice-run restorative conferences, thanks to the initiatives taken by Sir Charles Pollard when he led the Thames Valley Police. (I am glad to know that in his 'retirement' Sir Charles is still providing leadership in restorative

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justice.) New Zealand has no such experience as it decided at an early stage that the police had a different, more appropriate role to play. All four of the Australian statutory schemes for young people have followed the New Zealand model in not using the police to convene and facilitate the conference. In New Zealand this job is done by an independent person, the Youth Justice Co-ordinator, employed by Child, Youth and Family Services. The police are present at each New Zealand conference in the person of a Youth Aid officer, and like every person entitled to be present they have a right of veto, but they have no co-ordinating role. They are also invited to most adult restorative conferences. The police in a very real sense represent the public interest at family group conferences, and must be present and free to speak and act in the public interest if the system is to have credibility with the public. By contrast, the early Australian 'Wagga Wagga' model supported the use of the police for this central role. It was also the model used in the RISE7 project for adults in Canberra, but it is not without its critics. Harry Blagg, writing with several years experience of the West Australian scene, suggested that the 'Wagga' model promised to intensify rather than reduce police controls over Aboriginal people (Blagg, 1997).8 I can also attest to the views of the head of the police Youth Aid section in New Zealand, Inspector Chris Graveson, who is strongly against the police taking on this role. Three arguments he has advanced are summarised in the following questions or statements that express the reservations clearly: I

As police are bringing the prosecution, it would be seen as inappropriate for them to be organizing and being in control of the process that is to determine the outcome. It would simply be seen that the police are the investigator, the prosecutor and the judge, and how would alleged inappropriate police actions be dealt with at the conference? If police were in the function of co-ordinator, they would have to be seen to be objective and it would limit the amount of support they could give to the victim ... If the police are chairing the conference, then it limits what they can and cannot say ... If the offence is outrageous or serious, or there are other serious factors that concern the police or the community, then how can the police express these with vigour when they are meant to be there to facilitate? McElrea, 2002c, p.15. 9

Conclusion By way of a conclusion, and a drawing together of the strands of this discussion, it may be helpful to repeat the words of the American writer Daniel Van Ness. He concluded a lecture in New Zealand in 1997 by reminding us that the many true stories which sound too good to be true can 'vindicate our hopefulness. Offenders can assume responsibility. Harm can be repaired. Enemies can become friends. Justice can bring restoration' (Van Ness, 1977).10 Restorative justice is a wonderful message of hope to academics, practitioners and a public who alike had become dispirited, weary and wary. Visitors to New Zealand frequently comment on the obvious enthusiasm of its youth justice practitioners, despite the lack of resources and other problems that often dog their progress.

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Part of this hopefulness lies in our experience of breaking some of the stereotypes that permeate criminal justice. In the Australian RISE research~ conferences were seen as fairer than courts by both victims and offenders. In New Zealand, police Youth Aid officers are involved in conferences as constructive, helpful participants. Everywhere victims are regularly found not to be vengeful people demanding their pound of flesh. Lawyers are well capable of playing non-adversarial roles. Judges can be enablers and servants. What a breath of fresh air it is to be free of those rusty old shackles, to be hopeful, and to be inspired by the prospect of a better way of doing justice.

ENDNOTES for Chapter 9 1.

This perspective is an abridged and augmented version of Judge Fred McElrea's paper presented to the conference 'Modernising Criminal Justice-New World Challenges' in London 16-20 June 2002. It is included here under its original title, and with his expressed permission. 2. See also McElrea (2002b.) 'Recognising Victims' Rights', in Justice Review International, Issue I, Winter 2002/3 at pages 16-19 for an expanded account of what he terms a move from procedural justice towards substantive justice. 3. The High Court of New Zealand's decision was recorded in RE v. police [unreported], Christchurch Registry, AP 328/94 of 2 March 1995, Williamson J. 4. Here see, for example, Maxwell (2003) below, in relation to the desired outcomes of Youth Justice. 5. The abbreviation VORP stands for Victim-Offender Reconciliation Program. 6. The abbreviation VOM denotes Victim-Offender Mediation. 7. The Canberra RISE Project carries the full title of the Re-Integrative Shaming Experiment. 8. This account is to be found in The British Journal of CriminologtJ, Volume 37, Number 3, at pages 481-501. It should be noted that within the same publication (at pages 502-6), Braithwaite wrote a response which is indicated below. 9. McElrea quotes here from his original paper (2002c) delivered in London, June 2002. But see also Graveson (2002) for the background against which the original comments were made. 10. The author took a detailed note of the conclusion of the lecture delivered by Daniel Van Ness in New Zealand in 1997, the extract from which appears here. Much of Van Ness's approach to restorative justice is to be found in Van Ness, D. and Strong, K.H. (2001), Restoring Justice, [Second Edition], USA: Anderson.

REFERENCES (In order within the text.) Zehr, H. (1990), Changing Lenses: A New Focus for Crime and Justice, Scottdale, Pennsylvania: Herald Press. McElrea, F.W.M.(J) (1994a), 'The Intent of the Children, Young Persons and Their Families Act 1989Restorative Justice?' [a paper presented at Auckland to the Youth Justice Conference of the New Zealand Youth Court Association (Auckland) Inc. on 25 February 1994]. Subsequently published in Youth Law Review, (July/ August/ September). McElrea, F.W.M.(J) (1994b),'Restorative Justice- The New Zealand Youth Court: A Model for Development in Other courts? [a paper presented at Rotorua to the National Conference of District Court Judges on 6-9 April 1994]. Subsequently published in Journal ofJudicial Administration, vol. 4, no.l, (August). McElrea, F.W.M.(J) (2002a), Restorative Justice Issues and Trends: Where is Restorative Justice Going? Proceedings of the 4th Annual Conference of the International Corrections and Prisons Association [ICPA], Noordwijkerhout, Netherlands, (October), Ottowa, Canada: ICPA, pp.65-70. McElrea, F.W.M.(J) (2002b), 'Recognising Victims' Rights', Justice Review International, Issue 1, (Winter), pp.16-19.

134 Criminal Punishment and Restorative Justice Eaton, J. and McElrea, F.W.M.G) (2003), Sentencing: The New Dimensions, New Zealand Law Society Seminar booklet, (March). Tate, H. (1990), 'The Unseen World', New Zealand Geographic, vol. 5, Ganuary/March), pp.87-92. Ross, R. (1995),'Aborignal Community Healing in Action: the Hollow Water Approach', Justice as Healing, (Spring). Ross, R. (1996), Returning to the Teachings: Exploring Aboriginal Justice, Penguin Books. Doolan, M. (1993), 'Youth Justice - Legislation and Practice', The Youth Court in New Zealand: A New Model ofJustice, Legal Research Foundation, Auckland University, Publication No. 34. Zehr, H. (1994), Restorative Justice: Making Things Right, Harrisonburg, Virginia: Menonite Central Committee, [Videotape recording]. Dowrick, F.E. (1961), Justice According to the English Common Lawyers, London: Butterworth, pp.32-3. Dowrick, F.E. (1961), op. cit., p.177. Braithwaite, J. (1989), Cri1ne, Shame and Reintegration, Cambridge: Cambridge University Press. Leibrich, J. (1996), 'The Role of Shame in Going Straight: A Study of Former Offenders', B. Galway and J. Hudson (eds.), Restorative Justice: International Perspectives, Monsey, New York: Criminal Justice Press. Maxwell, G. (2003), Achieving Effective Outcomes in Youth Justice: Implications ofNew Research for Principles, Policy and Practice. [Paper given at the Simon Fraser University, Vancouver]. Biggar, N. (1999), 'Can We Reconcile Peace With Justice?', The World of Forgiveness, vol. 2, noA, (May), p.27. Zehr, H. (2002b), The Little Book ofRestorative Justice, Intercourse, Pennsylvania: Good Books. Zehr, H. (2002c), 'Journey to Belonging', E.G.M. Weitekamp and H-J Kerner (eds.), Restorative Justice: Theoretical Perspectives, Devon, U.K.: Willan Publishing, pp.28-9. Biggar, N. (2004), Burying the Past: Making Peace and Doing Justice After Civil Conflict, [Second Edition], Washington, D.C.: Georgetown University Press, p.20. Biggar, N. (2004), op. cit., p.26. Blagg, H. (1997), ,A Just Measure of Shame? Aboriginal Youth and Conferencing in Australia', The British Journal of CriminologtJ, vol. 37, no.3, ppA81-501. Braithwaite, J. (1997), 'Conferencing and Plurality: A Reply to Blagg', The British Journal of Criminology, vol. 37, no.3, pp.502-6. McElrea, F.W.M. (J.) (2002c), 'Restorative Justice: A New Zealand Perspective', Paper to the conference 'Modernising Criminal Justice: New World Challenges', London 16-20 June 2002, p. 15. Graveson, C. (2002), 'Youth Offending: A Police Perspective', Social Work Now, Issue 21, pp.22-6. Van Ness, D. and Strong, K.H. (2001), Restoring Justice, [Second Edition], USA: Anderson.

CHAPTER 10

The Seductiveness of Punishment and the Case for Restorative Justice: The Netherlands Dr John R. Blad Erasmus University, Rotterdam Things and actions are what they are, and the consequences of them will be what they will be: why then should we desire to be deceived? Bishop Joseph Butler, Fifteen Sermons, 7:16

In Chapter 6, one of the questions raised is whether restorative justice implies an alternative concept of punishment, or even a synthesis of the variety of existing punishment theories. McElrea's answer is that restorative justice may indeed imply punishment, but that he prefers a situation in which punishment is not the overriding objective in dealing with crime. In agreeing with that preference, and the reasons so eloquently given for it by McElrea, I would like to explore the suggestion that restorative justice may indeed imply a radical alternative to punishment, leading to its eventual abolition, or at least to such a reduction in its use that we might legitimately speak of punishment as ultima ratio.l In my academic career as a professor of criminal law, my daily activity consists in passing on the traditional and institutional ways of criminal justice, including the theories that should legitimise these traditional ways. People need institutions, even if these are defective in many respects (Berger and Luckman, 1996). Just as fish cannot leave their waters, even if these are polluted, and survive, so we cannot abolish our central institutions such as criminal justice. But we can criticise and change them, and where they are defective, we should do so. Criminal justice seems to me in recent years to have come to resemble an old hospital that should be demolished because it has collected so many viruses that it is, in fact, pathogenic. Some of the viruses that infect criminal procedure have been pointed out by McElrea, and they have become present because the focus or aim of criminal procedure is deliberately to cause pain. The root cause is not the desire to do justice, but our misconceptions about, and misuse of punishment. When we demolish a hospital because it has become pathogenic, we transfer our patients to another building because we are not giving up our desire to cure. So it is with restorative justice: it is about doing justice by making use of sanctions. But these are sanctions of a different kind, based on an entirely different set of fundamental ideas. These fundamental ideas, it must be stressed, still need to be developed further. Knowing that the basic ideas of restorative justice-in their present state of evolution - have been made very clear in this book, I can focus my contribution

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initially on a critique of punishment and the instrumental use of it. ,Subsequently, I shall go on to show that restorative justice is about constructive use of sanctions, and that, from a normative point of view, sanction and not punishment is all we really need to do justice. But before all that, I shall describe some actual developments in my country within the domain of criminal justice.

Developments in the Netherlands The Netherlands have always been known for their lenient penal policies, and in particular a rather low use, until the 1980s, of criminal punishment by resorting to imprisonment. For more than 150 years the use of incarceration had decreased slowly but surely to reach a record low imprisonment rate of 17 per 100,000 inhabitants in 1975 (van Ruller, 1986). Until 1985, one could say that the dominant opinion was that punishment must be administered in certain instances-for reasons of retribution- but that it was an 'evil' as such, and to be avoided whenever possible. Criminal perpetrators, it was believed, should be treated in a humane manner, and rehabilitation of the culprit was the dominant aim in the administration of punishment. This implied that a humanistic belief reigned among legal and para-legal professionals that offenders could, and in principle should, be corrected and reintegrated into society. What was perceived as crucial was to build and maintain constructive social relationships between professionals involved in the administration of punishment (prison staff, probation officers and the like), to stress the fundamental human equality of convicted offenders and their fellow citizens, and to prepare offenders as adequately as possible, to lead a new lawabiding life. 2 Victims did not receive much attention within criminal procedure, but this started to change around 1980 when the first victim support initiatives developed. Nowadays there is a nationwide system of victim support, and this support is recognised by many as crucial for the legitimacy of contemporary criminal justice. One might have thought that the Netherlands is a country in which restorative justice, with its emphasis on inclusion of, and support for both offender and victim, would be enthusiastically embraced as a new stage of development in the historical process of civilising criminal justice. Such, however, could not be further from the truth. Unfortunately, at exactly the time when authors from abroad were citing the Netherlands as an example to other countries (for example, Rutherford, 1986; Downes, 1988), the Dutch government took a deliberate turn in a much more punitive direction with the publication of a White Paper entitled Crime and Society in 1985. Within the White Paper, a so-called 'rational' policy was announced, claiming to make criminal justice consistent, consequent and credible 'again'3 as a means of controlling crime. In view of the spectacular rise of property crime in particular, the machinery of penal law had to be 'tuned up' in terms of its effectiveness and efficiency. More and more severe punishment was proclaimed as an urgent need to make the citizens law-abiding (again), and to keep society in check. A strategy of deliberate incrementalism in relation to punishment was chosen on the basic assumption that general deterrence would have the demonstrable effect of threatening crime with punishment. 4

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Four target-groups were identified in this new (now called 'managerial') policy, which also indicated the' outcomes/ that were to be delivered to eac'h of them: Target Group Perpetrators Potential perpetrators Law-abiding citizens Victims

Outcome Punishment Credible threat of punishment Norm-confirmation through punishment Acknowledgement of victimisation

We can easily recognise that each of the outcomes was intended to be produced by the activity of punishing. This centrality of punishment implies that the acknowledgement of victimisation, even for those victims whose offenders have not been found, lies in punishing offenders in other cases. Another aspect of this new, unprecedented government policy on crime control was the distinction made between serious and organized crime, and less serious but very frequent forms of offending (from then onwards no longer to be termed 'petty/ crime any more). To combat serious and organized crime (mainly connected to the illegal markets of drugs, weapons and prostitution), punishment was to be made both more frequent and more severe. A budget of more than 200 million guilders per annum was earmarked for intensified lawenforcement, and for expanding the prison system. A massive prison building programme was launched (to increase capacity from 4/000 cells in 1985 to some 15/000 today), and detection and prosecution of organized criminals was to be facilitated by increasing the powers of the police and the office of public prosecutions. All of this implied, among other things, a de-formalisation of procedural criminal law to the limits of what is still deemed acceptable under the rule of law. Lesser and more common offending was not to be confronted primarily by criminal law, but rather by social and technical preventive efforts of local administrators, the citizens themselves, and by making use of other disciplines of law such as administrative law. But the criminallaw-punishment-still had to represent 'the stick behind the door/, in case the preventive efforts appeared to have failed. Although this second track of the criminal justice policy of 1985 has, in fact, stimulated a whole series of preventive programmes, it does also fundamentally rely on punishment, and does not imply a strategy of reduction in the use of punishment. We can clearly see this when we understand that every detected and reported offence will, under this policy, be interpreted as a failure of the preventive initiatives, and will have to be dealt with in punitive mode. Since punishment is announced to be the systematic back-up for preventive measures, these are thought to be effective only through the threat of punishment. So now we are in an era in which 'penal instrumentalism' reigns (Blad, 2003a). First, this means that punishment is seen as an instrument of social policy, and secondly, that there is an ignoring of the conditions under which punishment can indeed be instrumental in achieving certain aims, and also of the limits to be necessarily imposed on the use of punishment. Penal

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instrumentalisation has led to an astoundingly different picture of criminal justice in the Netherlands today. The penal climate is now far from lenient, but intentionally and demonstratively punitive, and still becoming more so. Contrary to what might have been the case before 1985, restorative justice has only a chance of becoming accepted within Dutch criminal justice policy at the margins of the system, and certainly not at the centre of it as a fundamental alternative to punishment. The main reason is the now widely accepted idea of the absolute necessity of punishment as the only serious answer to crime. This broadly shared belief is a consequence of a prolonged dominant discourse by politicians along the lines of the 'Crime and Society' initiative, and its implementation since 1985. Every new shocking incident leads to claims for more penalisation, and every seeming increase in recorded crime (of whatever nature) is now seen entirely as an indication that the punitive instruments are still failing, and need to be sharpened still further. The 'insatiability' of the deterrence strategy that Braithwaite and Pettit (1990) have indicated has proved to be a reality within Dutch penal policy. Nevertheless, there have been some more or less 'pure' restorative justice experiments running for a number of years now, and seven of these have been positively evaluated by an independent researcher (Hokwerda, 2004). There is a journal (Tijdschrift voor Herstelrecht) that has restorative justice as its main theme, trying to promote restorative justice initiatives and research, and many Dutch police and justice officials show some sympathy for the basic philosophy of restorative justice. The difficulty is to make a break-through, and achieve a 'restorative turn' in official criminal law policy. In order to do so, it will be necessary to overcome what I now describe as the'seductiveness' of punishment. The seductiveness of punishment There are two reasons why I have devoted space to recent developments in Netherlands criminal justice. The first is to make it clear that my contribution to this book does not provide a 'Dutch' view on restorative justice. In terms of official Dutch policy, restorative justice is something exotic, however interesting, that does not imply a realistic alternative to repression through punishment. The second reason is that I suspect that citizens and officials in other countries, facing similarly high levels of recorded crime, are contemplating or even implementing a similar strategy of increasing deterrence. I appreciate the social urgency of the crime problem, and also that there is a crucial political task and responsibility here. Politicians, and the justice systems that they politically control, must be seen to 'do something about crime', and there is a traditional discourse available by which they can pick up this challenge: this discourse is punishment. The discourse of punishment has tremendous seductive power: those willing to penalise and punish show themselves to be on the 'good' side of the divide of social morality, and seem to have the courage to be tough and show the firmness needed to face the threat of crime. But unfortunately, the practices of punishment as we know them are not much less than a tragedy, especially when we consider the more serious forms of offending behaviour (Garland, 1990, p.292). Punishment itself does not solve any real problems in relation to the background or causation of crime, and imprisonment as a way of punishment in most cases exacerbates the problems.

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Calling for punishment is a fine way of expressing moral indignation and outrage, but too often this indignation stands in the way of finding realistic answers, particularly insofar as we tend to drive the perpetrator out of our (moral, discursive) community, and treat him as an outsider who must have a defective morality. The micro-sociological drawbacks and negative effects of punishment, such as the pain delivered to the families of offenders, the induction of a criminal career, the disruption of social bonds, and even the obvious counter-productive effects on a larger scale, as for instance, in the so-called war against drugs, are ignored, and must be ignored. The consistently high rates of recidivism following criminal conviction (in the order of 60 to 80 per cent in many jurisdictions) are only perceived as an unfortunate circumstance, and not as an indication that perhaps the instrumentality of punishment is only a social myth, and that, in fact, it may be an entirely counter-productive action. So let us examine, very briefly, some important themes whicn seduce us into wanting to punish, and look also at what might be said about these themes from a restorative viewpoint.

Why do we punish? Of course, the dominant motive for a process of criminalisation (and its concomitant penalisation) is the incidence of a socially negative action that we cannot accept. Because we would rather not see it happening, we would like to prevent it and redress the consequences when it happens. We want to make it clear to everyone that such action is highly undesirable, and when someone performs it we want to sanction that act. In a state context we need the law to express our normative values, that is to say, what we find we may legitimately expect from each other as equal citizens. But the question is, why do we threaten with punishment instead of doing something else rather more constructive, such as insisting upon an obligation to redress the wrong and repair the harm? Obviously, a restorative legal system would choose the latter course, and make the offender accountable for the consequences of his wrongdoing by postulating obligations. But let us suppose first that we penalise because we want to reinforce a norm, and think we can deter from performing criminal actions by threatening with punishment. Secondly, that we understand each occasion of conviction and the imposition of punishment as a 'retribution' for the choice of the offender to transgress the norm, and as re-confirmation of the transgressed norm. And thirdly, that the implementation of punishment should result in the moral and social reintegration of the offender. The second supposed instance also shows us another reason for threatening with punishment: that is the notion that people who willingly and knowingly perform criminal actions are morally reprehensible, and thus deserve punishment to the extent of their guilt. Now if we exclude the notion of punishment, what we want to do is to express normative expectations, to prevent transgressions of these expectations, to protect norms against transgressions, to re-confirm them after transgressions, to express our rejection of wrongful actions5, and express the" offender's moral and social responsibility. Finally, we want to sanction the offender in such a way that we can be hopeful that he will take our normative expectations seriously.

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In making this 'thought experiment', we can recognise that other systems of law such as private law have the same basic purpose. The discursive nature of private law is, however, different-it has no notions of crime and punishmentbut its performance is a functional equivalent of the criminal law in the domain defined as 'private'. Criminal law is public law, and what some restorative justice thinkers are trying to do is to conceive a functional equivalent to criminal law in the public arena, but with'accountability' and 'restorative obligations' as its central organizing notions. 6 When 'we'7 penalise we announce that the perpetrator of legally proscribed actions will be punished. Now, regardless of our motives for penalisation (or threatening with punishment), it puts us in a position in which our integrity is at stake if we do not punish once the crime is committed, detected and solved. It becomes our sacred duty to punish because punishing is our preferred way of communicating with the perpetrator. Because of our penalisation and our threats of inflicting pain, infliction of pain becomes necessary for us, for the sake of our integrity. But is it necessary for the offender or for the victim or for the families of victims and offenders, and does it contribute anything positive? Insofar as these questions are put in each criminal proceeding, the answers tend to be systematically affirmative, since the legislator has deemed punishment to be a necessary reaction. The culprit's remorse or even his intention to reform, if at all perceived as such by the officials8, may lead to a lesser degree of punishment, but punished he will be. The necessity to make our threats true and credible forces the culprit into a passive role in the context of a legal procedure that has all the viruses which McElrea points out. Insofar as the offender feels remorse and genuinely wishes to make reparation and reform, this cannot happen in the criminal procedure because the only appropriate way to take responsibility is to be punished and tolerate the procedural interventions which lead to that punishment and its implementation. And since we, as punishing actors, know that punishment is the deliberate infliction of pain, we want to distance ourselves from the offender, and tend to portray him as someone who is different from ourselves. He is not punished because he is a criminal, but he is, or becomes a criminal because we punish him (Christie, 1981).9 In this sense, also, true 'retribution' of the perpetrator will not really be achieved because the experience of retribution (as opposed to mere revenge) would imply that we can recognise a genuine moral acceptance of the sanction by the offender (Duff, 2001). The phases of criminal procedure, however, are not the context in which we can judge, in a reliable way, the genuineness of the attitudes of the defendant. With some justification we might suspect that the threat of punishment might encourage calculating attitudes, or at the least, ones designed to achieve damage limitation. And, moreover, when the punishment is implemented, this will be done beyond the public view, and any genuine signs of remorse and reform will go unnoticed. It is also the case that correctional officials may, with some reason, interpret good behaviour as an opportunistic attempt to limit the duration or the impact of the sentence. The ultimate aim of the criminal procedure is, in short, that we want to make the offender suffer. To do this we create conditions that we think will produce

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that suffering, without really knowing anything of the genuine inner feelings of the convicted offender. And when he has 'done his time' he is rehabilitated - or is he? I do not seek here to discuss the social techniques of rehabilitative programmes, a matter which has been questioned and discussed in Chapter 5, but our own morality: our re-acceptance of those punished with a term of imprisonment. Do we feel that such persons have really paid their dues? Do we accept them without any reservation, or as we accept other fellow men in good faith?lO Fortunately some us of do, but my impression is that in general social relations with ex-convicts and certainly ex-prisoners are burdened with uncertainty and distrust. The social image of the 'criminal' emanating from the criminal justice culture and radiated by its practices is so powerful that real development of a criminal identity is rather more probable than re-acceptance of punished persons as rehabilitated fellow-citizens.l 1 Problems of general prevention I should now like to look briefly but critically at the much-discussed role of general prevention through the process of punishment. In the Netherlands, though not there alone, there are popular beliefs about general prevention that permanently seduce people into thinking of punishment as an effective tool to create or preserve a desired social order. The strategy of deterrence, as I have indicated above, is the political favourite, and dominates ideas of retribution which also figure prominently. We can recognise the domination over retribution by the fact that levels of proportionality in sentencing are regularly scaled up by the legislators, often on the occasion of shocking incidents or moral panics about a series of such incidents, for instance of socalled senseless violence. There is even a tendency to re-introduce fixed (minimum) penalties which would imply that the courts are expected to determine sentence primarily on the basis of the act committed, and without any particular regard for the personality or personal circumstances of the offender, either or both of which might influence the extent of his 'guilt' or reprehensible behaviour. General prevention through deterrence is one of the historically foundational ideas of criminal justice, elaborated by Bentham and Beccaria as we have seen already in Chapter 4. What I wish to draw to attention is that this negative12 strategy depends on a credible threat of punishment, inducing the desirable refraining from breaking the law. This implies an accumulated set of conditions which are only rarely all fulfilled: • a more or less fixed penalty system (or tariffs); • adequate knowledge of prohibition and sanction; • a rational and calculating attitude in actors (not compulsive or impulsive)13; • transparency of consequences before acting; • actors making the same calculations (of negative and positive consequences, all appreciated in an identical way as negative or positive) as the legislator, regardless of their individual characteristics and social circumstances; and • a high risk of detection and prosecution, the risk of which is widely known.

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If we look at these conditions, we may assume that only in the less important patterns of social interaction and the less serious forms of offending (such, for instance, as traffic violations with fixed penalties) deterrence may, in a general sense, have the supposed behavioural effects. But even in such circumstances, it proves to be very difficult to have a decisive influence on behaviour, as is indicated by the very limited effect of camera monitoring of roads to control speeding. A car driver such as myself moderates his speed when approaching cameras in order to avoid a ticket. But even then the impulse to drive as fast as road and traffic conditions seem to allow is so strong that speeding is a problematic form of conduct that is not really controlled by penalisation. Indeed, in the Netherlands our criminal justice budget partly depends upon the expected high incidence of monetary sanctions for speeding. But when the offences to be considered are more serious or important (for both offenders and their victims) and more complex in their social causation, the model is completely inadequate. In fact it was abandoned in Europe early in the nineteenth century, when individualisation (implying flexibility rather than fixation) of punishment appeared to be necessary in doing justice.l4 Widely disregarded or underestimated counter-productive effects of (trying to achieve) prevention through deterrence are the encouragement of defiance of authority and the development of strategies to avoid punishment. Both of these may have important negative consequences for society (for instance in the development of illegal organizations), and, in addition, generate a tendency towards punitive escalation. As a result, I agree with the famous Dutch criminologist Bonger who concluded that the deterrence strategy is a 'poison' for criminal justice, perverting its potential moral and functional qualities (Bonger, 1934).

Restorative justice and constructive sanctioning In the concluding part of this analysis I now turn to what I perceive to be the true nature of restorative justice, and the ways in which it can help us to overcome many of the difficulties indicated up to this point. I want in particular to address constructive sanctioning and restorative detention as two of the central principles that might enable restorative justice to make more sense of the whole process of justice administration in the future. With the exception of certain very serious and specific forms of offendingI2, I would wish to suggest that sanctions rather than punishment are all we really need to deal adequately with most forms of illegal activity.IS From a normative point of view, offences imply a rejection of our legitimate expectations, and amount to a negation of the norm that is broken. This negative action has to be countered by a sanction that forms the negation of the negation of the norm. The norm broken is thus re-confirmed and re-established as the common reference for approved conduct. Do we actually need punishment to sanction, or to give the message that a certain action is reprehensible? In criminal justice discourse, sanction is equated with punishmentI6, but in principle we could well do without inflicting pain, and in reality we often make matters worse by adding pain to the pain of the offence committed. What is crucial is to express our censure of the deviant action, and that this censure is primarily a matter of normative speech. This censure - from a normative point of view - is the minimal sanction required.

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What we do want is to see that the offender also truly realises that his conduct is unacceptable, and we want to resolve our doubts in relation to our common future with the offender. The first desire implies that we have to seek genuine communication with the offender, and the second that we re-construct positive and reliable social relations with that person. In terms of a legal system this means that we must have the competence to intervene in instances of crime, and that these interventions are aimed at the restoration of normative behaviour, the redress of damages, and the re-construction of social relationships. It should be quite clear that restorative justice, with its primary aim being not just to punish the offender, but rather to restore the various forms of damage caused by offences, is a sanction system.l 7 Its procedures make the offender responsible, and try to persuade him to make amends for what he did. The restorative agreement that is reached implies obligations for the offender, the gravity of which should reflect, in a general way, the acknowledged gravity of the offence. And if the offender is not willing to accept this responsibility, then following a form of adjudication, an obligation to restore the damage can be imposed. The key criterion for success within a restorative justice approach lies in the extent to which damages are restored. Since these damages include the moral and other more symbolic damage, and also damage to the offender himself, the ideal solution is a restorative procedure involving the active participation of the offender and the victim(s). If this is not possible, then restorative outcomes may still be achieved in many cases. It must be stressed, however, that having to impose obligations implies that only material damages will be redressed, while non-material damages-such as the loss of social trustmay remain. Restorative justice involves all those directly involved in the offence(s) and its consequences, and invites them to participate in a collective dialogue and reflection about the meaning(s) of the damaging event. Within this process, a rich and socially realistic diagnosis can be reached as to how the offending behaviour has occurred. And precisely because of its participatory character and its dialogical (or narrative) character, the restorative process offers important opportunities for changing definitions that imply chances for personal development. It is these definitions that define the perspectives within which other behavioural choices become available. However, a crucial precondition here is that the offender voluntarily invests himself in this procedural investigation of 'self' in relation to 'others'. This means that restorative justice cannot really be instrumental: it offers nothing more or less than opportunities. Contrary to the exclusive idea of punishment, restorative justice departs from the notion that there is a permanent need to include individuals within meaningful social practices and networks in order to be able to organize and maintain normative feedback on conduct. Methods of inclusion can be 'imagined' (Pavlich, 2002) and designed during conferences, and the construction of future inclusive relationships can begin with the implementation of the agreed (and approved) restorative plan. The offender can actively rehabilitate himself by accepting his obligation to redress the damage done to his victim(s), and, in the process, acknowledge their situation as well as his own. 18

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A reduction of recidivism could well become a possible outcome of the inclusive and narrative qualities of this procedure and its value-orientation. For as Morris and Maxwell concluded from their initial research into the effects of Family Group Conferences (FGCs) in New Zealand: The most important findings (however) are that FGCs can contribute to lessening the chance of re-offending even when other important factors such as adverse early experiences, other events which may be related to chance, and subsequent life events are accounted for. Critical factors for young people are: • • • • • • • •

having a conference that is memorable; not being made to feel a bad person; feeling involved in the conference decision-making; agreeing with the conference outcome; completing the tasks agreed to; feeling sorry for what they had done; meeting the victim and apologising to him/her; and feeling that they had repaired the damage.

In sum: subjective participation is the key (Morris and Maxwell, 2001, p.261).

Restorative detention My final observations are concerned with the concept of restorative detention, and the extent to which this might become an effective reality. I have argued that punishment does not necessarily have to exist in order that offending behaviour is negatively sanctioned. But it is a matter of fact that we have penalised many forms of socially negative action, and that for serious offences the punishment is often imprisonment. Moreover, when imprisonment is imposed, we should not abandon the restorative concept. Simply locking people away is not very constructive, and we should try to find ways to make detention the start of a new and better future for the offender, and for ourselves in our relations with that offender. Many proponents of restorative justice have taken up the challenge to construct a restorative detention regime. Restorative detention can be defined as a detention regime that expresses restorative culture, and which is fully structured to the needs of, and conditions for, restoration of damage and social relations of trust and inclusion' (Blad and Pauwelsen, 2003). The fundamental values of restorative culture are, amongst other things, active responsibility for wrongful conduct, responsiveness to human needs, full participation in decisions relating to one's own life, and respect for basic human rights. The value of active responsibility implies that the emphasis is not on professional rehabilitative techniques, but on the rehabilitative efforts of the offender himself. The most important constituent elements of restorative detention would become an active analysis of the crime committed, its circumstances, and the reasons for it within the offender's own background. This has to be undertaken by the offender himself, but within the context of programmes operated within the establishment in which he is detained. And since (in the circumstances of imprisonment) the court has considered deprivation of liberty to be the I

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appropriate punishment, and has indicated this punishment as the principal way to restore relations with society at large, then the offending behaviour (and the trouble the offender is now in) should become the primary focus in the .first stage of detention. It raises the question of how the offender understands his own offending, and how he feels that this has affected and will affect his relationships with others. However, many offenders sentenced to imprisonment show a tendency to consider themselves to be the victims (which they generally also are under existing circumstances), and to neutralise their guilt' and minimise their own responsibility. Promotion of victim awareness is a third important element of restorative detention. Activities should, therefore, be organized to create and increase an awareness of what it means to become a victim of crime. This can be done in a variety of ways, including viewing and discussing selected films and documentaries, and meeting with victims or the representatives of victims. Of central importance also within a restorative detention regime would be the facilitation of inter-actions between offenders and victims, whether these were their own victims, or victims in general. Offence analysis can be used as the basis for writing letters of apology to be offered to known victims of offences. If victims are willing to receive these letters, they can become the starting point for a (shuttle-) mediation process which can eventually lead to face-to-face contact. Sometimes such meetings are the only way for victims to come to a real resolution of the traumatic event, and for offenders to cope with their own feelings of guilt and remorse. This also applies to exchanges between the detained person as a victim and offenders living outside in the community. Mediation and conferencing should also be available options in cases of conflict within penal institutions, whether these involve disputes between detainees and staff, detainees, or even the staff group. It therefore follows that in all units within institutions, there must be well-trained staff members who can facilitate mediation and conferencing. In addition to restorative action in relation to his primary victim(s), the offender should also be invited to do restorative work for the community which is his secondary victim. Such projects should preferably be of a charitable nature such as mending broken wheelchairs for handicapped people in a third world country, or renovating and refurbishing a local park. This type of project can have the effect of building self-esteem and trust with the local community, but it should run so that it is clearly understood by all as comprising rehabilitative work.l 9 Relationships with family members and significant others should be impaired or interrupted as minimally as possible, and also contacts within the wider community should be kept intact or promoted. This can be achieved by having and maintaining volunteer citizen groups that visit the institution on a regular basis, and participate in as many events as possible. Such events might include discussion groups, cultural events, and the like. Preparation for release should also be a matter of conferencing, and be initiated at an appropriate time before release takes place. The conference group for this purpose should plan the release process in all its aspects, particularly in I

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relation to work, accommodation, education, and counselling support. Membership of the conference group should include those who are responsible for re-integration programmes on the one hand, and the offender to be released with his chosen relatives or close friends on the other. These participants must all take responsibility for a reliable process of re-integration being formulated and agreed. It is of vital moral importance to make explicit and stress the fact that the released person has rehabilitated himself, and is thus entitled to all the rights and privileges of every free citizen including the right to basic trust in social relations. If necessary, the released person should be supported in re-vindicating these rights, and in particular the right of non-discrimination. 2o (See Liebmann and Braithwaite, 1999.) In view of all that has been suggested in the foregoing account, it will be evident that restorative justice presents a very real moral and intellectual challenge to our established and contemporary understanding. Criminal justice is an institution with a long tradition that has a simple but very strong idea at its organizational centre: this idea is punishment. The central notion of punishment has elaborated itself in a complex structure of agencies and activities, legitimised by a series of theories in a symbolic universe within which we all grow up. Thus it is a formidable challenge to rethink what this institution of criminal justice is doing or, put somewhat better, what is done in its name. As well socialised citizens it is much easier for us, that is to say it is more self-evident, to go along with it and to believe that there are criminals who deserve nothing less than punishment. If we do so, then we have fallen into the trap of identifying a person with his criminal actions, and this would lead us to accept stigmatisation and exclusion. The moral challenge for us is not to do that, and to accept that criminal actions are not signifiers of character per se. We can invite the offender to reject his offence and to learn to act differently. The intellectual challenge of restorative justice is to take restoration' as a central organizational notion, and to think through how and to what extent it can be institutionalised. Fortunately, these challenges are being taken up in many countries by a growing number of people who are genuinely concerned with doing justice. I

ENDNOTES for Chapter 10 1.

2.

3.

In this contribution punishment is defined in conformity with penal doctrine as the deliberate infliction of pain by a legally authorised authority as a consequence of committing a criminal offence previously proscribed. Of course, also in the Netherlands rehabilitative ideology, and as described in Chapter 5 of this book, which expressed a strong belief in professional diagnostic and curative skills, and was influential. It led to the same disappointments as anywhere else. It was part of the ideological construction of this White Paper to talk about making criminal justice credible 'again'. This suggests that it was once credible as an effective crime controlling institution. In reality the meaning (and possible effect) of criminal law has always been inherently problematic.

The Case for Restorative Justice: The Netherlands 147 4.

5. 6. 7. 8.

9.

10. 11. 12.

13. 14. 15.

16. 17.

18. 19. 20.

Punishment is defined in criminal law theory as the deliberate infliction of pain. That is also the meaning I give to the term. Being "punitive" means being willing and intending to inflict pain to stop or control conduct considered unacceptable for whatever good or bad reason. To be fair" here I also think away the notion of "crime"" but hold on to the idea that there are reprehensible and wrongful actions. For further reading, and the fact that restorative justice does not focus on most of the regulatory offences, see Blad, (2003b). I imply here that we all like to identify ourselves as co-legislators with our political representatives who decide on these matters. Most of the time they will not perceive it because there is a great lack of inter-personal contact and communication. If they do perceive it, the chances are high that signs of remorse and reform will be interpreted as an opportunistic display aimed at inducing a more lenient punishment. And" by contrast, procedural devices of restorative justice intend to reduce the social and moral distance between the offender and 'us", and enable us to understand each other as equals. In that way we can find the right reasons to reduce pain as far as we dare to, as Christie recommends in his final chapter. Who may in fact be undetected and unpunished offenders. A very interesting study showing us exactly how and why imprisoned young men predict their own relapse into crime has been completed by Little (1990). This strategy of deterrence is often called a "negative" strategy because it relies upon a morally negative action - threatening with the infliction of pain. In this sense it differs from a strategy that seeks general prevention through "norm demonstration" which does not necessarily imply the deliberate infliction of pain. The famous Dutch criminal law professor Pompe spoke of 'petty passions and great pleasure in calculating', as the assumed qualities of the Uomo Economicus. That famous justice that was so critically cited by Anatole France, which prohibits the rich and the poor equally to sleep under bridges along the Seine, and to steal bread. I make the exception here of cases in which security considerations dominate the intervention. Measures against dangerous people - declared to be dangerous because of their pathology or because of self-declared animosity towards civil society- theoretically fall outside the province of punishment. In fact this synchronism is unjustified. We cannot only sanction without punishment, but we can also punish without sanctioning. In its appeal to the offender to recognise the basic facts and to take responsibility for the consequences, restorative justice establishes sanctions that express the rejection of the wrongful act. Rehabilitation is, in one of its original meanings, making things right again. See, for a most comprehensive British restorative prison project including such work: www.prisonstudies.org. See further, Liebmann and Braithwaite"s (1999) work is available on the web, and in the proceedings of the 4th Annual Conference of the International Corrections and Prisons Association (ICPA) in October 2002.

REFERENCES (In order within the text.) Berger, P. and Luckman, T. (1996), The Social Construction of Reality, Harmondsworth: Penguin Books. Van Ruller, S. (1986), 'Honderd Jaar Vrijheidsbeneming in Cijfers', D.H. DeJong (ed.), De Vriheidsstraf Arnhem: Gouda Quint. Rutherford, A. (1986), Prisons and the Process ofJustice, Oxford: Oxford University Press. Downes, D. (1988), Contrasts in Tolerance, Oxford: Clarendon Press. Blad, J.R. (2003a), 'Against Penal Instrumentalism', Building a Global Alliance for Restorative Justice Processes and Family Empowerment, Proceedings of the Fourth International Conference on Conferencing, Circles and Other Restorative Practices, pp.130-141.

148 Criminal Punishment and Restorative Justice Netherlands Ministry of Justice, (1985), Crime and Society, (Policy Plan for 1985-1990), The Hague. Braithwaite, J. and Pettit, P. (1990), Not Just Deserts: A Republican Theory of Criminal Justice, Oxford: Clarendon Press. Hokwerda, Y. M. (2004), Herstelrecht in feugdstrafzaken: Een Evaluatieonderzoek van Zeven Experimenten in Nederland, Den Haag: Boom Juridische Uitgevers. Garland, D. (1990), Punishment and Modern Society: A Study in Social Theory, Oxford: Oxford University Press, p.292. Blad, J.R. (2003b), 'Community Mediation, Criminal Justice and Restorative Justice: Rearranging the Institutions of Law', L. Walgrave (ed.), Repositioning Restorative Justice, Devon: Willan Publishing, pp.191-208. Christie, N. (1981), Limits to Pain, Oxford: Martin Robertson. Duff, R.A. (2001), Punishment, Communication and Community, Oxford: Oxford University Press. Little, M. (1990), Young Men in Prison: The Criminal Identity Explored Through the Rules of Behaviour, Aldershot: Dartmouth Publishing. Pompe, W.P.]. (1928), De Persoon des Daders in het Strafrecht, Inaugurele Rede, Zwolle: W.E.]. Tjeenk Willink. Bonger, W.A. (1934), 'Het "Nieuwe" Strafrecht', Tijdschrift Voor Strafrecht, pp.15-5I. Pavlich, G. (2002), 'Towards an Ethics of Restorative Justice', L. Walgrave (ed.), Restorative Justice and the Law, Devon: Willan Publishing, pp.1-18. Morris, A. and Maxwell, G. (2001), Restorative Justice for Juveniles, Oxford-Portland, Oregon: Hart Publishing. Blad, J.R. and Pauwelsen, J. (2003), Rentray: De Justitiele Inrichting als Rehabilitiecentrum, Erasmus Universiteit Rotterdam in opdracht van Justitiele Jeugdinrichting Rentray Flevoland. Liebmann, M. and Braithwaite, S. (1999), Restorative Justice in Custodial Settings, (Report for the Working Group in Northern Ireland), wwweb. International Corrections and Prisons Association (ICPA), (2002), Transitions, People, Policies and Practices, Proceedings of the Fourth AGM and Conference, Ottawa, Ontario: ICPA, and www.icpa.ca.

CHAPTER 11

Where There's a Will There's a Way: A Canadian Perspective on Restorative Justice Robert B. Corm.ier, Ph.D. Senior Director, Research and Community Development Public Safety and Emergency Preparedness Canada Hos successus alit; possunt quia posse videntur. Virgil, Aeneid, V, 231.1

INTRODUCTION AND CONTEXT The previous two chapters provide perspectives on restorative justice from New Zealand and the Netherlands, respectively. Although the emergence and development of restorative justice within the broader criminal justice context in Canada is different in some respects from these other two countries, as the reader will see, the points made by Judge McElrea and Professor Blad are relevant to the discussion of the Canadian experience. Before addressing the specific matter of restorative justice, it may be useful to review the general organization and practice of criminal justice in Canada. There is a complex arrangement of jurisdictional responsibilities for criminal justice (Griffiths and Verdun-Jones, 1994). In brief, the criminal law power resides with the federal government, and provincial and territorial governments are largely responsible for the administration of justice. The provinces administer the courts; however, the Supreme Court of Canada serves as the final court of appeal. In the area of corrections, the provinces and territories are responsible for youth, adult probation, remanded cases and offenders sentenced to prison terms of less than two years. The Correctional Service of Canada has jurisdiction for offenders serving sentences of two years or more. Parole decisions for federal and provincial/territorial offenders are made by the National Parole Board (i.e. federal), except in three provinces that have opted to establish their own boards to make parole decisions in respect of provincial offenders in their jurisdiction. 2 The Royal Canadian Mounted Police operates a range of national policing services and provides community policing in the territories and all provinces, except the two largest provinces, Ontario and Quebec, which have their own provincial police forces. In addition, most cities have municipal police forces that have jurisdiction within city limits. Through the First Nations Policing Programme, Aboriginal police services, under the governance of local band councils, .have been introduced in some First Nation reserves. 3

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The central features of the Canadian system of justice include generally the following. It is rooted in the constitution that includes the Canadian Charter of Rights and Freedoms which contains fundamental legal rights. Principles of sentencing and of corrections are enshrined in law. There is considerable discretion at all points in the criminal justice system, which provides for extensive use of diversion and alternative measures to imprisonment. For cases that are adjudicated in courts, there is a wide range of sentencing options available to the sentencing, judge, including fine, restitution, probation, community service, imprisonment and conditional sentence of imprisonment (i.e., where an offender is sentenced to a prison term of up to two years which is served in the community).4 Corrections in Canada are characterized by a strong orientation toward individualized assessment of offenders and interventions aimed at supporting their reintegration in the community. The mission statement of the Correctional Service of Canada states: The Correctional Service of Canada, as part of the criminal justice system and respecting the rule of law, contributes to the protection of society by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control. http://www.csc-scc.gc.ca

The parole process whereby offenders are released prior to the end of sentence in a graduated fashion under conditions of supervision and support has a very long tradition (National Parole Board, http://www.npbcnlc.gc.ca/ about/ parolehistory_e.htnl) and is a key element of the Canadian correctional system. Although rehabilitation is often said to have been discredited following the conclusion in the 1970s that 'nothing works' (Martinson, 1974), the response in Canada at that time was to re-examine the evidence and undertake further research, programme development and evaluation (Gendreau and Ross, 1979; Ross and Gendreau, 1980; Ross and Gendreau, 1987). Indeed, Canadian researchers have been active in conducting research on risk assessment and treatment interventions with offenders over the past 30 years, and the results of this research are reflected in a strong theoretical and empirical base for correctional policy and practice (Andrews and Bonta, 2003; Bonta and Cormier, 2001). There is now a large body of research that shows that appropriate interventions that are targeted to identified risk/need factors reduce the likelihood of re-offending (Andrews et al., 1990). In Chapter 9, Judge McElrea makes the point that the driving force behind restorative justice in New Zealand was to empower families of young people in conflict with the law to hold them accountable for their actions and promote their rehabilitation. Similarly, in Professor Blad's analysis presented in Chapter 10, his central principles of 'constructive sanctioning' and 'restorative detention' lead to rehabilitation. Indeed, restorative justice can be viewed as an extension of conventional, offender rehabilitation - a larger umbrella that aims to meet the needs of victims and offenders. This conceptualization is based on the premise

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that a full resolution of matters following a crime may require focused efforts on the relationship between the parties, for the benefit of both, in addition to services and programmes to meet the separate needs of the parties, and in the case of the offender, the future risk to the pUblic. Much of the work on restorative justice in Canada can be understood in these terms. Research has been conducted in Canada on public attitudes towards restorative justice, and survey results have shown favourable attitudes (Doob, 2000; Galaway 1994, reported in Shaw and Jane, 1998; Roberts, Nuffield, Hann, Beare and Tremblay, 1998). For example, Doob (2000) fou:nd that when respondents were given a scenario describing a family group conference in the case of an offender who stole from a store, 65 per cent indicated that it would be appropriate to handle it that way rather than in court if the offender were an adult, and 75 per cent in the case of a young offender. In his survey research, Doob also found that 55 per cent of adults in Ontario were 'very interested' or 'somewhat interested' in becoming involved in structures outside the formal justice system that are reparative in nature. In a national telephone survey, 90 per cent of respondents indicated that they were in favour of restorative approaches at sentencing (i.e., restitution and community service) for crimes that do not involve violence, such as theft and vandalism (Roberts et al., 1998).

ROOTS AND FOUNDATIONS OF RESTORATIVE JUSTICE There is no single, universally accepted definition of restorative jllstice, although a central feature of any definition would include some notion of repairing the harm caused by crime and restoring the parties to a state of wellness or wholeness which was disturbed by the criminal act. In an earlier paper, I proposed the following definition: Restorative justice is an approach to justice that focuses on repairing the harm caused by crime while holding the offender responsible for his or her actions, by providing an opportunity for the parties directly affected by a crime-victim(s), offender and community - to identify and address their needs in the aftermath of a crime, and seek a resolution that affords healing, reparation and reintegration, and prevents future harm. C:ormier, 2002b.

When we say that restorative justice is an 'approach' to justice, rather than a programme or set of programmes, we are speaking of the philosophy and values that underpin restorative justice. In this vein, Howard Zehr makes the point that 'restorative justice is a compass, not a map' (Zehr, 2000, p. 10). The values, as reflected in the above definition, include responsibility, inclusiveness, openness, trust, hope and healing. The goals include offender accountability, healing, reparation, reintegration and prevention of further crimes. S Because restorative justice is an 'approach' to justice, Canadian policy makers and practitioners have recognized that it has a potentially broad

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application to the field of justice. Restorative justice has been applied in Canada at every stage of the criminal justice system, including at the pre-charge (diversion), post-charge (alternative measures), sentencing, post-sentence (incarceration and parole) stages (Department of Justice, Canada, 2000; Latimer, Dowden and Muise, 2001). The Royal Canadian Mounted Police, which has played a leading role in restorative justice in Canada from a policing perspective, has been operating Community Justice Forums, based on the family group conferencing model developed in New Zealand for the past ten years (Chatterjee, 2000; Shaw and Jane, 1998). As McElrea has noted in Chapter 9, family group conferencing was the starting point for restorative justice in New Zealand. Victim-offender mediation programmes that operate as alternative measures have been established in the courts in many centres across Canada (Department of Justice, Canada, 2000; Nuffield, 1997; Pate, 1990; Umbreit et al., 1995). The Correctional Service of Canada has engaged in a number of restorative justice initiatives, including a (post-sentence) victim-offender mediation programme that has been operating in collaboration with a voluntary sector organization, the Fraser Region Community Justice Initiatives Association, since 1990. 6 In keeping with Blad's notion of restorative detention indicated in Chapter 10, the Correctional Service of Canada has introduced restorative principles in the operating procedures of one institution in the Prairie Region. The National Parole Board, with the introduction of elder-assisted and community-assisted parole hearings has been an important innovator in the application of restorative justice in the context of conditional release (Vandoremalen, 1998). Restorative justice is not new and, indeed, is found in a variety of cultural and religious traditions (Zehr, 2002).7 The starting point for a discussion of restorative justice in Canada is the roots of restorative justice in the cultures of Aboriginal peoples. Although it would not be appropriate to characterize models of justice and healing in Aboriginal communities as restorative justice programmes-clearly, they have a much broader cultural scope-the principles that underlie traditional healing approaches are entirely consistent with the concept of restorative justice (LaPrairie, 1992; Roach, 2000). Accordingly, as these rich traditions have become more well known, they have influenced the development of restorative justice in the mainstream system, particularly evident in the innovation of sentencing circles (Stuart, 1996, 2001) as well as healing models within Aboriginal communities such as the Hollow Water Community Holistic Circle Healing process (Solicitor General Canada, 1997a).8 The beginning of the modern application of restorative justice in Canada is typically given as 1974 in Kitchener-Waterloo, Ontario where the Mennonite Central Committee (Church) introduced victim-offender mediation in the courts (Peachey, 1989). Non-governmental organizations and faith communities have continued to be at the forefront of innovations in restorative justice since that time (Church Council on Justice and Corrections, 1996; Pate, 1990). For example, the Church Council on Justice and Corrections, a national faith-based coalition of eleven founding Churches, has made restorative justice the focus of its work since it was established in 1974.

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A turning point in the evolution of restorative justice in Canada occurred in 1988. The Parliamentary Standing Committee on Justice and Solicitor General conducted a review of sentencing, conditional release and related aspects of corrections, and published a report titled Taking Responsibility, commonly known as the Daubney Report (Canada, House of Commons, 1988). This far-ranging review included a focus on the needs of victims, and restorative justice. The committee recommended that the government support the expansion and evaluation throughout Canada of victim-offender reconciliation programmes at all stages of the criminal justice process which: a) provide substantial support to victims through effective victim services; and b) encourage a high degree of community participation (p. 98). The report also recommended that the purposes of sentencing be enacted in legislation, and that these include reparation of harm to the victim and the community, and promoting a sense of responsibility in offenders. The purpose and principles of sentencing were introduced in the Criminal Code of Canada in 1996, and the stated objectives of sentencing include 'to provide reparations for harm done to victims or to the community' and 'to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community' (Criminal Code, Canada ss. 718 e. and f.). The other objectives (718 a. to d.) relate to denunciation, deterrence, incapacitation and rehabilitation. 9 A key impetus for the development of restorative justice in Canada was the growth in the prison population in the early 1990s. At the beginning of the decade the federal penitentiary population was increasing at an annual rate of about 8 per cent, far higher than the average long-term rate of about 2 per cent per year. In 1992-93, the incarceration rate in Canada had risen to 131 per 100,000 general population. If these trends had continued, the projected growth was considered unsustainable from a fiscal and social perspective (Solicitor General Canada, 1996, p.4). This situation prompted a search for measures to reduce the growth in the prison population. Federal, Provincial and Territorial (F IPIT) officials worked jointly on this issue and prepared a report, titled Corrections Population Growth (May, 1996), that was received by the FIPIT Ministers Responsible for Justice. The report contained several recommendations aimed at promoting safe and effective alternatives to incarceration and reducing Canada's reliance on imprisonment. Recommendation 6 called for increased use of restorative justice and mediation approaches: Experience with innovative approaches in the areas of Aboriginal justice, young offenders and adult diversion has demonstrated that restorative justice principles that concentrate on repairing the harm done rather than only penalizing the wrongdoer hold promise. Victims have a meaningful role to play in the criminal justice system, and such approaches can be more responsive to the needs of victims and those of the community. Where the conditions are appropriate, jurisdictions are encouraged to explore approaches based on such principles. Demonstration projects in which the federal government participates will be documented and evaluation results made available. Similar sharing of information by all jurisdictions is encouraged. Solicitor General Canada, 1996, p. 10.

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Jurisdictions reported on activities in response to this and the other recommendations in subsequent progress reports (Solicitor General Canada, 1997b; 1998; 2000). Most jurisdictions reported having introduced restorative justice policies and programmes. The most comprehensive initiative is the restorative justice programme for youth in Nova Scotia (Department of Justice, Nova Scotia, 1998).10 In addition to the general concern about prison overcrowding in the early 1990s, a serious problem of overrepresentation of Aboriginal people in the criminal justice system (Jackson, 1988) has led to a search for effective alternative approaches to justice based on Aboriginal culture and traditions. The sentencing principles in the Criminal Code of. Canada direct judges to consider alternatives to incarceration before resorting to prison and, in the case of an Aboriginal offender, to consider the particular circumstances of the Aboriginal person when considering an alternative to incarceration (CCC, s.718.2 (e)). The Supreme Court of Canada provided an interpretation of this provision in Gladue (R. v. Gladue, [1999] 1 S.C.R. 688) and made an explicit link between s 718.2 (e) and restorative justice as expressed in Aboriginal traditions and culture: Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence. In that Part, s. 718.2 (e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. The provision is not simply a codification of existing jurisprudence. It is remedial in nature and is designed to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is judicial duty to give the provision's remedial purpose real force. Section 718.2 (e) must be read in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. In determining a fit sentence, all principles and factors set out in that Part must be taken into consideration. Attention should be paid to the fact that Part XXIII, through certain provisions, has placed a new emphasis upon decreasing the use of incarceration. R. v. Gladue, p.2, (emphasis added).

The Court in Gladue also addressed the issue of restorative justice and punishment as follows: The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment. Yet in our view a sentence focused on restorative justice is not necessarily a 'lighter' sentence. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. R. v. Gladue, p.18.

Elements of restorative justice can also be found in criminal law related to youth. The Youth Criminal Justice Act (YCJA), which superseded the Young

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Offenders Act (enacted in 1982 to replace the Juvenile Delinquency Act of 1908) and came into force in April 2003, includes the principle that 'within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should ... (ii) encourage the repair of harm done to victims and the community'[YCJA, s. 3. (l)(c)]. It also places an emphasis on extra-judicial measures (i.e., other than judicial proceedings), noting that 'extra-judicial measures are often the most appropriate and effective way to address youth crime' [YCJA, 4 (a)]. It further specifies that: Extra-judicial measures should be designed to (a) provide an effective and timely response to offending behaviour outside the bounds of judicial measures; (b) encourage young persons to acknowledge and repair the harm caused to the victim and the community; (c) encourage families of young persons-including extended families where appropriate-and the community to become involved in the design and implementation of those measures; (d) provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation; and (e) respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence. YCJA, s. 5

The Act also provides for the establishment of Youth Justice Committees which may give advice on extra-judicial measures, support the young person in the community in various ways, support victims, facilitate reconciliation between the victim and the offender, advise governments on matters related to implementation of the Act and the youth criminal justice system, provide information to the public on the Act and on the system, and act as a conference (YCJA, s. 18). A conference is very broadly defined in the Act. It may be convened 'for the purpose of making any decision required to be made under this Act' and the mandate 'may be, among other things, to give advice on appropriate extra-judicial measures, conditions for judicial interim release, sentences, including the review of sentences, and reintegration plans' (YCJA, s. 19). Each province may establish rules for the convening and conducting of conferences to support extra-judicial measures. In summary, the Youth Criminal Justice Act encourages extra-judical measures and provides the scope for expanding the use of restorative justice processes but does not mandate their use. How the provisions will be used remains to be seen (see Hillian, Reitsma-Street and Hackler, 2004 for an analysis of conferencing under the Youth Criminal Justice Act).

PRINCIPLES AND GUIDELINES In a context where much of the work in restorative justice was being done to promote alternatives to incarceration, there were concerns expressed by victims and victims' advocates (Wemmers and Canuto, 2001; Canada, House of Commons, 1998). One concern that was noted in the report of the Standing Committee on Justice and Human Rights (House of Commons, 1998) was that restorative justice programmes would be used inappropriately, and would fail to

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denounce and deter serious crime. Another concern was that restorative justice programmes were dominated by non-governmental organizations with a primary mandate to assist offenders in their rehabilitation and reintegration, and that the perspective of victims had not been adequately taken into account in the design and implementation of these programmes. In particular, there were concerns about the ad hoc approach to restorative justice programmes and the absence of guidelines, especially in relation to victim participation, power imbalances, serious crimes and the training of facilitators. Victims argued that there was a lack of services to victims currently within the mainstream system and that basic services to victims would be sacrificed in order to fund restorative justice programmes. Victim's advocates also expressed an interest in participating in the process of setting the criteria and parameters for restorative justice programmes (Simmonds, 2000). Against this backdrop of development and debate, Canada was active in international efforts at the UN to develop basic principles of restorative justice that would serve to guide policy and practice in this emerging field (Cormier, 2002b). At the ninth session of the UN Commission on Crime Prevention and Criminal Justice in April 2000, Canada introduced a resolution aimed at establishing basic principles for the use of restorative justice programmes in criminal matters. The resolution built on the results of the discussion on Item 6 (Offenders and Victims: Accountability and Fairness in the Justice Process) at the 10th UN Congress on the Prevention of Crime and the Treatment of Offenders that immediately proceeded the ninth session of the Commission. The discussion on Item 6 at the Congress reached a consensus on the promise of restorative justice as well as a caution regarding the need to safeguard the rights and interests of victims in the implementation of restorative justice programmes. These two conclusions from the Congress discussion, i.e., that restorative justice offers promise in our collective efforts to reduce levels of conflict and promote healing, and the concerns about the possible improper implementation of restorative justice programmes, pointed clearly to the need to develop basic principles to ensure that the rights and interests of all parties are respected. This resolution began a process that culminated in a resolution adopted at the Economic and Social Council that established UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (ECOSOC Resolution 2002/12).11 The UN Basic Principles have attracted considerable interest among policy makers and practitioners in Canada. In order to give expression to the UN principles in a Canadian context, the Department of Justice produced two documents, titled Values and Principles of Restorative Justice in Criminal Matters and Restorative Justice Program Guidelines (Daubney and Sharpe, 2003).12 The latter document was specifically intended to address paragraph 12 of the UN Basic Principles, which invited Member States to establish guidelines to govern the use of restorative justice programmes. Conflict Resolution Network Canada, a voluntary sector organization of practitioners in the field of mediation and conflict resolution, conducted an on-line dialogue on the UN Basic Principles and the Department of Justice documents on restorative justice. 13

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The results of the dialogue indicated that the participants welcomed the UN Basic Principles and the Canadian Principles and Program Guidelines, and viewed them as being consistent with their own appreciation of the values underlying restorative justice and what constitutes good practice. They stressed the need to make programmes available at all stages of the criminal justice system, design programmes in response to local needs, provide adequate funding levels, and ensure a consistently high calibre of practice through training, evaluation and accountability mechanisms (Daubney and Sharpe, 2003, op. cit.). Some participants expressed concerns that the implementation of the Program Guidelines would shift control of restorative justice processes from communities to the government but the prevailing view was that the key was to build an interdependent relationship of trust and collaboration between community members involved in restorative justice processes and officials in the criminal justice system.

HIGHLIGHTS OF RESTORATIVE JUSTICE PRACTICE A good example of a demonstration project that sought to introduce a restorative justice approach as an alternative to incarceration was a programme called Restorative Resolutions. It was developed by the John Howard Society of Manitoba in 1993, and received funding as a demonstration project from the federal government and the province of Manitoba. Essentially, the programme was designed to provide a community-based alternative sentencing plan to the court, with input from victims, for offenders who were otherwise likely to be sentenced to a prison term in the range of six to nine months. The evaluation showed that victim-offender meetings occurred in a relatively small percentage (i.e., ten per cent) of cases but there were higher percentages of written apologies (24 per cent), restitution (56 per cent), victim impact statements (79 per cent), and community service (96 per cent) (Bonta, Wallace-Capretta and Rooney, 1998). The results of the evaluation also indicated that the offenders who participated in the programme, which included treatment to address the identified needs of the offenders as well the restorative component, had a lower recidivism rate than matched groups of probationers and inmates (Bonta, et al., 2002). Following its implementation as a demonstration project, Restorative Resolutions has been maintained as an ongoing programme. An example of an innovative restorative justice programme that is not intended as a diversion programme or an alternative to incarceration is the Collaborative Justice Project (CJP) that operates in the Ottawa Court House under the auspices of the Church Council on Justice and Corrections. The CJP is unique in that it offers an opportunity at the pre-sentence stage for healing and reparation for victims and offenders in cases of serious crimes. The rationale behind the CJP is to provide an alternative to the traditional criminal justice system that offers support to victims and assists accused persons in taking responsibility for their criminal behaviour. Specifically, the CJP introduces a process that operates in parallel with the court process in cases where the accused has pleaded guilty and has indicated a desire to

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make amends for the harm caused by his or her actions, and the victim is interested in receiving assistance from the project. The approach is flexible in that trained staff may facilitate a victim-offender meeting, a circle conference, or assist in other more indirect interchanges between the victim and the offender. These meetings or interchanges may result in a collaborative resolution proposal, which is presented before the cOuIt at sentencing. Preliminary results of the CJP have shown that a high percentage of victims and offenders were satisfied with the process, felt that their needs had been met in the programme and that they had been treated fairly in the process, and would choose a restorative justice approach in the future (Rugge and Cormier, forthcoming). The Community Holistic Circle Healing (CHCH) Process in Hollow Water First Nation is an outstanding example of an Aboriginal approach to justice and healing. The CHCH process, which is founded on Aboriginal teachings and traditions, addresses sexual abuse in a holistic manner involving victims, victimizers (offenders) and their respective families and community. The process, which continues to evolve, involves 13 steps that begin with disclosure by the victimizer or the victim and ensuring safety and support for the victim, followed by circles with the victim and the victimizer and preparatory meetings with their families, leading to a special gathering/healing circle and ending with a cleansing ceremony. The underlying concept for the process is 'healing as a return to balance' (Solicitor General Canada, 1997a). Offenders in the community who have been charged with a sexual offence, plead guilty and choose to enter the programme, are sentenced to probation with a condition that they participate in the CHCH process. The evaluation included interviews with community members and practitioners involved in the CHCH process, cost comparisons between CHCH and processing through the mainstream justice system, and an analysis of re-offending (Couture, Parker, Couture and Laboucane, 2001). The results of the interviews revealed that the respondents attributed significant improvements in the health and wellness of their community to the CHCH process, including an increased sense of safety, improved parenting, children staying in school longer, young people returning to the community to teach, and a reduction in the requirement for substance abuse treatment. A comparison of the resources spent on the CHCH process with the avoided costs of processing these cases through the mainstream justice system and housing these offenders in penitentiaries showed significant savings. The evaluation also found that only two of the 107 offenders who had participated in the programme over a period of ten years subsequently re-offended, which is a lower rate of recidivism than generally reported for sex offenders (Hanson, 2001; Harris and Hanson,2004). A significant, recent development in restorative justice in Canada has been the emergence of a demonstration project intended to give effect to innovative legislation related to victims in the Province of Manitoba. The Victims' Bill of Rights (2001)14 stipulates the following: 'A victim who wishes to explain to the offender the impact of the offence on the victim and his or her family may request the Commissioner of Correctional Services to arrange a meeting of the victim with the offender' (Section 21 [1]). In order to support the implementation of this provision, three community-based organizations - Victims' Voice, which

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operates under the auspices of the Mennonite Central Committee (Church), the John Howard Society of Manitoba, and Mediation Services-collaborated in the development of a demonstration project titled Victim Companions and Contracting Safe Justice that began in December 2003. This restorative justice project is significant in that it begins with support for the victim. In the first phase, trained victim companions help victims navigate their way through the criminal justice process, offer practical, sensitive support and assist them in moving on with their lives. The planned second phase, i.e., contracting safe justice, will provide victims with an opportunity safely to contact those who have harmed them through the development and negotiation of a contract with the offender that will set out the conditions of the contact. The victim companion from Victims' Voice will continue to provide support to the victim during the contracting safe justice phase, the John Howard Society of Manitoba will provide liaison and support to the offender, and Mediation Services will facilitate the meeting between the offender and the victim. It will be interesting to see the results of the evaluation of this project and to determine whether this model will prove to be useful and effective in supporting victimoffender meetings where victims exercise their right to request a meeting with the offender.

CONCLUSIONS Canada has a criminal justice legislative and policy framework for adults and young offenders which enables the use of restorative justice processes but does not require them. The practice of restorative justice has emerged because individual practitioners, voluntary sector organizations and communities have taken the initiative to introduce restorative justice programmes. The result has been that programmes have developed largely on' an ad hoc basis, although the promulgation of principles and guidelines has helped to promote a general consensus on values and good practice. There has been some research and development work that has contributed to the knowledge base on restorative justice, but much more research is needed. Indeed, we have barely scratched the surface in exploring the potential benefits and limitations of restorative justice (Cormier, 2002). There is no national programme of restorative justice. Notwithstanding the involvement of many criminal justice agencies in various restorative justice activities, restorative justice remains at the margins of the criminal justice system. The forces that favoured the development of restorative justice in Canada are the re-assertion of Aboriginal cultures, the stimulation by faith communities rooted in traditions of reconciliation, and the prison population growth in the early 1990s. The pressures of a rising prison population prompted a search for restorative justice approaches as alternatives to incarceration, particularly for Aboriginal people who are incarcerated at a higher proportion than their representation in the general population. Concerns from victims and victim. advocates, and the promulgation of the UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, have led to the

160 Criminal Punishment and Restorative Justice

development of restorative justice models that are better designed to take into account the interests of victims as well as offenders. Generally speaking, the Canadian approach is typically one of balance, moderation, compromise and a gradual evolution rather than radical change in direction. This characterizes the emergence of restorative justice in this country over the past 30 years. A consequence of this approach is that the benefits of good ideas are slow in coming. On the other hand, it provides some protection from the fallout of extreme policy fluctuations, which is not a trivial consideration in the field of criminal justice.

ENDNOTES for Chapter 11 1. 2

3.

4.

5.

6. 7. 8. 9.

10.

11.

12.

13.

14.

The translation of this quotation from Virgil's Aeneid is: 'Success nourished them; they seemed to be able, so they were able.' The term'provincial offenders' in this context refers to offenders who are convicted in a particular provincial jurisdiction where the crime was committed and are sentenced to a prison term of less than two years. Band councils, which are established under the Indian Act, consist of a chief and up to 12 councillors that are elected by the members of an Indian band. The Indian Act extends powers to band councils to make by-laws in various matters related to the health, safety and economy on Indian reserves and to spend the government monies that are allotted to Indian bands. In the event of a breach of a condition of a conditional sentence, the court has broad latitude, including taking no action, changing the optional conditions and directing that the offender serve part or all of the unexpired sentence in custody (Crilninal Code of Canada, s. 742.6 [9]). Howard Zehr's The Little Book ofRestorative Justice is an excellent primer on this topic. The philosophy and values of restorative justice presented here are neatly captured by Zehr in a diagram of a wheel with 'putting right wrongs and harms' at the center (p. 33). In addition, Zehr and his colleague, Harry Mika, have developed'signposts' that reflect the goals of restorative justice and are intended to guide practitioners in designing or evaluating programmes. For further information on the work of the Fraser Region Community Justice Initiatives Association, the reader may visit the Web site at http://www.cjibc.org/index.html. For an account of the ancient roots of restorative justice, see also Restoring Justice by Daniel Van Ness and Karen Heetderks Strong (2002). This process in Canada parallels the role of Maori tradition in the development of criminal justice in New Zealand (see Chapter Nine by Judge Fred McElrea). There is no suggestion here that restorative justice replaced the traditional purposes of sentencing that are rooted in punishment, and the order in which the purposes are listed generally reflects the priority which they are accorded. By 2002, the incarceration rate had decreased in Canada to 116 per 100,000 population (from 131 ten years earlier). It is interesting to compare this with developments in the Netherlands and to reflect on Professor Blad's point (see Chapter 10) regarding the significance of a shift in the emphasis from punishment to restoration. The UN document containing this resolution is titled 'Resolutions and decisions adopted by the Economic and Social Council at its substantive session of 2002', and is referenced as E/2002/INF/2/ Add.2. It can be accessed at the following Web site address: http://www.un.org/esa/coordination/ecosoc/doc2002.htm The Values and Principles of Restorative Justice in Criminal Matters and Restorative Justice Guidelines are posted at the following Web site address: http://www.cmetwork.ca/RJ/National Consultation! draft.htm For more information on the work that has been done by Conflict Resolution Network Canada in the field of restorative justice, the reader may visit the following Web site: http://www.cmetwork.ca/RJ/index.asp The Manitoba Victims' Bill of Rights can be accessed at the following Web address: http://web2.gov.mb.ca/laws/statutes/ccsm/v055e.php

A Canadian Perspective on Restorative Justice 161

REFERENCES (In order within the text.) Griffiths, C.T. and Verdun-Jones, S.N. (1994), Canadian Criminal Justice, Toronto: Harcourt Brace & Co. Martinson, R. (1974), 'What Works? - Questions and Answers about Prison Reform', The Public Interest, vo!. 35, pp.22-54. Gendreau, P. and Ross, R.R. (1979), 'Effective Correctional Treatment: Bibliotherapy for Cynics', Crilne and Delinquency, vo!. 25, ppA63-489. Ross, R.R. and Gendreau, P. (1980), Effective Correctional Treatment, Toronto: Butterworth. Gendreau, P. and Ross, R.R. (1987), 'Revivification of Rehabilitation: Evidence from the 1980s', Justice Quarterly, volA, pp.349-408. Andrews, D.A. and Bonta, J. (2003), The Psychology of Criminal Conduct, Cincinnati, Ohio: Anderson Publishing Co. Bonta, J. and Connier, R.B. (2001), 'Corrections Research in Canada: Impressive Progress and Promising Prospects', Canadian Journal ofCriminologtj, vo!. 43, pp.235-247. Andrews, D.A., Zinger, 1., Hoge, R.D., Bonta, J., Gendreau, P. and Cullen, F.T. (1990), 'Does Correctional Treatment Work? A Psychologically Informed Meta-Analysis', Criminologtj, vo!. 28, pp.369-404. Doob, A.N. (2000), 'Transforming the Punishment Environment: Understanding Public Views of What Should Be Accomplished at Sentencing', Canadian Journal ofCriminology, vo!. 42, pp.323-340. Shaw, M. and Jane, F. (1998), Restorative Justice and Policing in Canada: Bringing the COlnmunihj into Focus, Ottawa: Royal Canadian Mounted Police. Roberts, J., Nuffield, J., Hann, R., Beare, M. and Tremblay, P. (1998), Report ofa National Survey on Organized Crilne and Corrections in Canada, Ottawa, Solicitor General Canada. Cormier, R.B. (2002b), Restorative Justice: Directions and Principles - Developlnents in Canada, Ottawa: Solicitor General Canada. Zehr, H. (2002), The Little Book of Restorative Justice, Intercourse, Pennsylvania: Good Books. Department of Justice, Canada (2000), Restorative Justice in Canada: A Consultation Paper, Ottawa. Latimer, J., Dowden, C., and Muise, D. (2001), The Effectiveness ofRestorative Justice Practices: A MetaAnalysis, Ottawa: Department of Justice, Canada. Chatterjee, J. (1999), A Report on the Evaluation of RCMP Restorative Justice Initiative: Community Justice Forum as Seen by Participants, Ottawa: Royal Canadian Mounted Police. Nuffield, J. (1997), Evaluation of the Adult Victim-Offender Mediation Program, Saskatoon Communihj Mediation Services. Regina, Saskatchewan: Department of Justice, Saskatchewan. Pate, K. (1990), 'Victim-Young Offender Reconciliation as Alternative Measures Programs in Canada', B. Galaway and J. Hudson (eds), Criminal Justice, Restitution, and Reconciliation, Monsey, New York: Criminal Justice Press, pp.135-144. Umbreit, M.S., Coates, R.B., Kalanj, B., Lipkin, R., and Petros, G. (1995), Mediation of Criminal Conflict: An Assessment of Programs in Four Canadian Provinces, Center for Restorative Justice and Mediation, University of Minnesota, St. Paul, Minnesota. Vandoremalen, J. (1998), 'Pushing the Envelope of Human Rights through Innovation and Creativity in Aboriginal Corrections', Let's Talk (Correctional Services of Canada), vo!. 23, pp.18-19. LaPrairie, C. (1992), 'Aboriginal Crime and Justice: Explaining the Present, Exploring the Future', Canadian Journal of Criminologtj, vo!. 34, pp.281-297. Roach, K. (2000), 'Changing Punishment at the Turn of the Century: Restorative Justice on the Rise' Canadian Journal of Crilninologtj, vo!. 42, pp.240-280. Stuart, B. (1996), 'Circle Sentencing in Canada: A Partnership of the Community and the Criminal Justice System', International Journal ofC01nparative and Applied Criminal Justice, vo!. 20, pp.291-309. Stuart, B. (2001), 'Guiding Principles for Peacemaking Circles', G. Bazemore and M. Schiff (eds), Restorative Communihj Justice: Repairing Hann and Transforming Communities, Cincinnati, Ohio: Anderson, pp.219-241. Solicitor General Canada (1997a), The Four Circles ofHollow Water, Ottawa: Aboriginal Corrections Policy Unit. Peachey, D. E. (1989), 'The Kitchener Experiment', M.Wright and B. Galaway (eds), Mediation and Criminal Justice: Victims, Offenders and COlnlnunity, Newbury Park, California: SAGE Publications, pp.14-26. Canada, House of Commons (1988), Taking Responsibility: Report of the Standing Committee on Justice and Solicitor General on Its Review ofSentencing, Conditional Release and Related Aspects of Corrections, Ottawa, Supply and Services Canada.

162 Criminal Punishment and Restorative Justice Crilninal Code. R.S., c. C-34, s.l. Solicitor General Canada (1996), Corrections Population Growth: Report ofthe Federal/provincial/ferritorial Ministers Responsible for Justice, Ottawa. Solicitor General Canada (1997b), Corrections Population Growth: First Report on P~ogress for the Federal/provincial/ferritorial Ministers Responsible for Justice, Ottawa. Solicitor General Canada (1998), Corrections Population Growth: Second Progress Report for the Federal/provincial/ferritorial Ministers Responsible for Justice, Ottawa. Solicitor General Canada (2000), Corrections Population Growth: Fourth Edition for the Federal/provincial/ferritorial Ministers Responsible for Justice, Ottawa. Department of Justice, Nova Scotia (1998), Restorative Justice - A Program for Nova Scotia, Halifax, Nova Scotia. Jackson, M. (1988), Locking up Natives in Canada: A Report of the Canadian Bar Association on Imprisonment and Release, Ottawa: Canadian Bar Association. Youth Criminal Justice Act, S.C. 2002, ss. 1-165 and Schedule. Hillian, D., Reitsma-Street, M. and Hackler, J. (2004), 'Conferencing in the Youth Criminal Justice Act of Canada: Policy Developments in British Columbia', Canadian Journal of Criminology and Criminal Justice, vol. 46, pp.343-366. Wemmers, J. and Canuto, M. (2001), Victims' Experiences with, Expectations and Perceptions of Restorative Justice: A Critical Review of the Literature, Ottawa: Policy Centre for Victims Issues, Department of Justice, Canada. Canada, House of Commons (1998), Victilns Rights - A Voice not a Veto: Report of the Standing C01nmittee on Justice and Human Rights, Ottawa: Public Works and Government Services Canada. Simmonds, C. (2000), 'Victims and Restorative Justice: Are Victims Re-Victimized?', The Caveat Report (Canadians Against Violence), Langley, British Columbia. Daubney, D. and Sharpe, S. (2003), 'Is There a Need for Canadian Principles on the Use of Restorative Justice Programmes in Criminal Matters?', Paper presented at the 6th International Conference on Restorative Justice, Vancouver, British Columbia, aune). Bonta, J., Wallace-Capretta, S. and Rooney, J. (1998), Restorative Justice: An Evaluation of the Restorative Resolutions Project, Ottawa: Solicitor General Canada. Bonta, J., Wallace-Capretta, 5., Rooney, J. and McAnoy, K. (2002), An Outcome Evaluation of a Restorative Justice Alternative to Incarceration', ContemporanJ Justice Review, vol. 5, pp. 319-338. Rugge, T. and Cormier, R.B. (in press), 'Restorative Justice in Cases of Serious Crime: An Evaluation', E. Elliott and R. Gordon (eds), Restorative Justice: Emerging Issues in Practice and Evaluation, Devon, UK: Willan Publishing. Solicitor General Canada, (1997a), op. cit., p.128. Couture, J, Parker, T., Couture, R. and Laboucane, P. (2001), A Cost-Benefit Analysis ofHollow Water's Comlnunity Holistic Circle Healing Process, Ottawa: Solicitor General Canada. Hanson, R.K. (2001), Age and Sexual Recidivism: A Comparison of Rapists and Child Molesters, Ottawa: Solicitor General Canada. Harris, A.J.R. and Hanson, R.K. (2004), Sex Offender Recidivism: A Simple Question, Ottawa: Public Safety and Emergency Preparedness Canada. I

CHAPTER 12

Conclusions: Where from Here? Hope, like the gleaming taper's light, adorns and cheers our way; And still, as darker grows the night, emits a brighter ray. Oliver Goldsmith, The Captivity, 11

As the title of this book implies, its purpose has been to provide a commentary for students of criminology in particular, and also for practitioners within the various branches of criminal justice administration. To this extent it has been written with a specific readership in mind, although the issues discussed should have some considerable resonance for a much wider group of professional interests associated with studies in law, the social sciences, philosophy, psychology, theology and politics. This work has been written in an attempt to describe why an understanding of the concept of criminal punishment, with all its difficulties and perplexities, lies at the heart of criminological understanding, both in theory and in practice. The development of the academic discipline of criminology (and penology with which it is inextricably linked) is historically deeply entwined with the processes of making laws, of these laws being broken, and the reaction of societies to the breaking of them. It is these central issues which, as Sutherland (1960) has pointed out with admirable clarity, form the core of criminological study. What has come to be known as the 'punishment debate' is full of moral, ethical and operational complexities that confront (and frequently confound) those who seek to understand it with anything approaching clarity. For these reasons it is a debate that many students and practitioners of criminal justice seek to avoid dealing with in intellectual depth, and with which many politicians evidently refrain from engaging.l This is unfortunate because if the essential nature of the 'debate' were to be more widely understood, then the framing of appropriate penal policies and legislation would b~ considerably more likely to achieve the desirable purposes of crime reduction. It is not the intention at this stage to rehearse in any great detail the arguments and discussion set out in the earlier chapters of this book, save to highlight the principal issues that have emerged from them. What seems to be infinitely more important is to appreciate why penal policies based upon dubious premises have, in the past, signally failed to result in the reduction of crime within most modern societies. Indeed, many of these policies may actually have led, albeit perhaps inadvertently, to an increased incidence of crime. 2 In order to understand this we have to look beyond the supposed justifications for punishment to its frequently dysfunctional outcomes. Criminological study embraces the pivotal issue of crime causation in addition to those of explanation, control and prevention. However, as Cohen points out, 'the mere existence of something called criminology perpetuates the illusion that

164 Criminal Punishment and Restorative Justice

one can have a general theory about crime causation' (Cohen, 1973, p.622).3 We have noted in Chapters 1 and 2 the dilemmas that this situation can result in, particularly in relation to the routine and extensive application of punishment to offences that may arise from the inequitable distribution of fundamental social benefits. For while such situations do not excuse crime, they may provide a perceived motivation for it. As McCabe so aptly points out in her own definition of criminal behaviour: There is no word in the whole lexicon of legal and criminological terms which is so elusive of definition as the word crime'. Yet an understanding of the meaning of the word is of central importance to the study of the making and breaking of laws, and to the justification and measurement of punishment. I

McCabe, 1983, p.49.

In purely legalistic terms it is possible to define crimes somewhat simplistically as acts or omissions which are specifically proscribed by law. The fact that such acts or omissions are proscribed requires the availability of sanctions to reinforce individual and collective compliance with the law, and the necessary connection between crime and punishment becomes the inevitable recourse to the use of sanctions whenever the law is broken. Our intuition tells us, however, that on occasions laws are imperfect, may be enacted for the wrong reasons, or may discriminate in favour of, or against, particular individuals or groups of persons. In such circumstances, it becomes morally difficult to describe breaches of the law as crimes per se. And as McCabe continues: Definitions of crime are part of the texture of the complex social and political organizations within which such human activity is devised, organized, controlled and defined. Legal definitions are neither so restrictive nor so inapposite as they may seem, for they find a place for sanctions and limit their use. Moral definitions point to deep and long-held beliefs that may colour some of our perspectives on crime and punishment. Medical and social explanations and analogies contribute to the definition of crime. They also point the way forward to the consideration of criminal activity as a social process by which its existence and recognition depend on the reactions of victims and law-enforcement agencies almost as much as upon the perpetrator of the act which comes to be labelled as crime. McCabe, 1983, p.52.

McCabe's admirable analysis raises a number of the important issues which have, to some considerable extent, arisen and been discussed in the earlier chapters of this book. Principally, these concern the reasons (or justifications) for imposing punishment, the limitation of its infliction on offenders, its effectiveness, and its effects upon both the perpetrators and the victims of crime. Indeed, we have noted (in Chapter 3) the difficulties associated with penal policies grounded 'predominantly in retribution and desert, and, more specifically, the reasons for the demise of the so-called 'justice moder of the late 1970s and 1980s. That the model resulted in increasing use of punishment, and in particular the use of imprisonment,

Conclusions: Where from Here? 165

led to a widespread questioning of its legitimacy and appropriateness both in Britain and the United States of America, and elsewhere in Europe. It also became very clear in Chapter 4 that reliance upon deterrence (in each of its forms) to achieve crime control and reduction is a very questionable basis upon which to implement penal policy-making. Though the arguments in favour of deterrence make a seductive appeal to human intuition, the results of its effects in preventing crime are largely incapable of quantification, and are therefore unknowable. Moreover, where deterrence evidently fails to secure the desired results, there is an inevitable tendency to escalate its use, and ignore entirely the principles of parsimony and proportionality within the sentencing process. Even worse, perhaps, to rely upon the effectiveness of deterrence is to condone a deception that calls into question the entire morality of the use of state power in the punishment of offenders. In Chapter 5, the potential of the use of sanctions (and particularly that of imprisonment) to promote future law-abiding behaviour was critically examined, and found to raise a number of profound moral and operational questions and difficulties. Foremost among these were the difficulties of knowing how long it might take to secure the desired results, and also of knowing (in advance of the restoration of full social membership) whether such results had actually been achieved. Traditionally, the concepts of reform and rehabilitation have led either to indeterminacy in sentencing, or to the use of patterns of extended sentencing, either of which may make the duration of the sanction disproportionate to the seriousness of the offence. A further difficulty was evident in the extent of the power that decision making in relation to release invested in correctional officials and parole bodies, and of the consistency of decisions made as between individual cases. One of the main problems that besets the concepts of reform and rehabilitation is that if these considerations are removed from the prospective purposes of corrections, imprisonment in particular becomes a predominantly backward-looking incarcerative process based upon the social exclusion of offenders for specific (or worse, unspecific) periods of time. In addition, if there is a general expectation that some useful purpose should be served by imprisonment, then it is unlikely that this will be furthered by mere incarceration alone. Thus to remove a rehabilitative ethic from considerations of punishment effectively renders it retributive or deterrence based, or even both. In Chapter 6 and onwards, the focus of attention has been turned to an assessment of the potential of the fast-emerging concept of restorative justice as a possible means of overcoming the range of objections and difficulties associated with traditionally accepted concepts of criminal punishment. Within Chapter 6 in particular, due account has been taken of the attempts made formerly (and in particular by Mill) to place limitations on the exercise of punishment by the state. It has also been found necessary to elaborate a notion of reciprocal responsibility between the individual and the state in the interests of social justice. This form of responsibility extends, very usefully for the purposes of subsequent discussion, to the nature of the relationships between citizens, and also between groups of citizens and the state.

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In the same chapter, an attempt has also been made to reconcile the apparently conflicting (and in some significant instances unsatisfactory) aspects of traditional punishment theories and justifications into what might be termed a synthesised approach to justice administration. Many of the areas of objection and difficulty seem to derive from the almost exclusive attention that such theories focus upon the criminal offender, and the apparent lack of consideration that the processes of justice seem to afford to the victims of crime. (See, for example, Dignan, 2002, pp.175-6.) The latter, it might be suggested, are as much a part of the reciprocal responsibility that exists between the state and its citizens as are offenders themselves. Certainly it might be argued that the victims of crime suffer harm in a greater degree and to a more direct extent than does the state itself from the commission of criminal (and other) offences. The notion of restorative justice appears, at least on initial consideration, to have the potential to resolve many of the 'relationship' dilemmas that emerge from traditional concepts of punishment and the application of these in practice. It makes a deliberate and very evident attempt to place the victims of crime (and their needs) on an equal footing with offenders (and their possible needs), by affording them a recognised status within the process of justice. Perhaps, however, the greater strength of restorative justice lies in the manner in which it offers possibilities for both victims and offenders to become reconciled, and thus redress the fractured nature of the social relationships that result from crime. Upon further consideration, the concept of restorative justice reveals a number of potential advantages for the more effective administration of justice, but these also have to be weighed against some evident difficulties. For while it might be considered both admirable and necessary for the offender to make reparation for the harm done to a victim, and that such reparation should be actively encouraged, there has also to be a reasonable and appropriate agenda for dealing with offenders who decline to do so. The need for such an agenda raises the spectre of what have been described as 'bifurcated' penal policies that deal unevenly with differing classes of offenders. 4 Restorative justice clearly has the merit of making offenders take responsibility for their own actions, and demonstrate in a practical manner that these are not only regretted but also deserve the reparation that is made. This makes restorative justice no 'soft option' for offenders, and it also goes a considerable way towards dismantling the notion of 'negative sanctions' which mere incarceration encourages. s Restorative justice does, however, significantly alter the relationship between the offender and the state, and in so doing provides an entirely new interpretation of the concept of justice. This is most eloquently described by Zehr in the following comparative manner: Criminal Justice Crime is a violation of the law and of the state. Violations create guilt'. Justice requires the state to determine blame (guilt) and impose pain (punishment). I

Restorative Justice Crime is a violation of people and of relationships. Violations create obligations. Justice involves victims, offenders and community members in an effort to put things right.

Conclusions: Where from Here? 167 Central Focus: Offenders getting 'what they deserve'.

Central focus: Victim needs and offender responsibility for repairing harm. Zehr, 2002b, p.21.

From this analysis by Zehr it will be clear that an entirely new concept of justice is proposed: one within which the role of the state is considerably reduced where there is an evident willingness on the part of the offender to enter into the reparative process. This implies that in such circumstances offenders effectively rehabilitate themselves by taking responsibility for their actions, and making good the damage occasioned by them. Punishment for its own sake becomes much less of a necessity or a priority within such a framework of justice, though the use of imprisonment as an ultimate sanction is not, as we shall see later, ruled out in cases of serious crime. It is, however, in relation to serious crime that most of the critics of restorative justice raise their strongest objections. For while it may be completely appropriate for minor offenders to make amends for their offences through acceptance of blame and the requirement for reparation, serious offences must, it is argued, be treated with denunciation and condemnation. It is the case, however, that the proponents of restorative justice do not exclude considerations of retribution from the operation of justice in serious cases. Rather, they insist that when imprisonment becomes necessary to meet the requirements of retribution, then the mode of detention should be primarily restorative rather than essentially punitive (see for example, Zehr, 2002b, pp.12-13 and 58-60).6 In Chapter 7 the discussion takes up a number of the issues formerly discussed in an attempt to discover whether or not the concept of restorative justice might be capable of meeting the long felt need of criminology for an inclusive theory of punishment. To some observers of the 'punishment debate', and even to many who participate in it, the supposed need for an inclusive theory might seem to be an entirely peripheral issue, and largely unworthy of serious consideration. There are a number of reasons why such a theory might, however, be extremely useful, and particularly so in removing from the' debate' some of the more 'objectionable' aspects of punishment in practice. The main purpose of seeking an inclusive theory of punishment lies in arriving at a situation in which, when it is necessary to punish, the activity has a socially positive and prospective purpose. This means that whatever the means of punishment used, these should focus primarily on the future reduction of crime and redressing the harm occasioned by crime. Negative and retrospective modes of punishment, and in particular punishment of a dominantly retributive nature, tend not only to be vindictive (that is to say disposed to seek vengeance), but also to impose pain for its own sake rather than with a constructive purpose. This imposition of pain, so it is argued, is necessary because it is 'deserved', and it is 'deserved' because it is necessary in order to uphold the law. Such an argument is self-evidently circular, and achieves little by way of repairing the harm done by crime or changing the attitudes of offenders.

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An inclusive concept of punishment would, if it might be elaborated satisfactorily, include only those aspects or 'justifications' that were agreed to be prospectively and socially useful, while at the same time excluding those of a baser nature, or which served no particular ends in relation to crime reduction and the redress of harm. The question raised in Chapter 7 was, therefore, whether the concept of restorative justice could achieve such an apparently desirable purpose. Perhaps of equal importance for the development of criminology in a modern context is the need to express its theoretical and operational agendas in a meaningful contemporary language. The answer to the question is, at the present time, possibly somewhat equivocal. On the one hand there seems little doubt that restorative justice goes considerably further towards providing an inclusive theory of punishment than does any of the existing theories or justifications of the practice. On the other hand, however, it radically challenges the entire contemporary selfconsciousness and methodology of state-based administration of justice, and is specifically critical of the imposition of punishment as a means to its own ends rather than those of a wider social justice. Moreover, restorative justice operationally implies, as we are later enabled to appreciate more fully, the need for a culture of significant change in the way in which effective justice is delivered within modern societies. In view of all that has been set down in the foregoing chapters, and of the serious claims made for the development of restorative justice, it seemed entirely appropriate to attempt to discover how those with knowledge and experience of the concept in practice viewed its effectiveness and potential. The three international perspectives and their authors, introduced in Chapter 8, were carefully selected from a number of countries within which restorative justice has achieved a measure of acceptance and operational credibility. These contributions were also selected to evidence the world-wide nature of the naissance of restorative justice, the levels of professionalism and academic achievement of those involved in the debate, and the different theoretical and operational directions from which the concept can be approached. In the course of introducing these perspectives, it was important to note that in many respects restorative justice draws its inspiration in considerable measure from the inclusive' and conciliatory nature of many ancient cultures that have remained significantly untainted by the strident pressures of the modern democracies. This is evidently true of what are now frequently referred to as the 'first nation' cultures of North America, Australasia, Africa, and certain parts of the Indian, Middle Eastern and Asian sub-continents. That the same is not the case in the majority of the so-called'developed' western-style democracies seems to be a point well worth pondering as to the reasons why it is not so. The point made by Zehr, frequently now referred to as the 'grandfather' of restorative justice, that the concept is far from new, implies that it should not be approached as if it were an entirely contemporary construct designed to promote a 'new fashion' of justice (Zehr, 2002b, p.ll). Judge McElrea's New Zealand perspective presented in Chapter 10 provided a wealth of insights into the operation of restorative justice viewed from the working experience of a practising judge, and from his own extensive academic

Conclusions: Where from Here? 169

background. From the outset he concurred with the need for a change in attitudes not only within the legal profession, but also in relation to offender accountability, community involvement in justice, and a better deal for victims of crime. If these changes could be secured, he has contended, there would be greater confidence in the law, and communities would become safer places. The involvement of lay people within the processes of justice widens its scope, in McElrea's view, to enable members of the community to have a sense of 'ownership' or stake-holder status in its delivery. He was also sceptical of the way in which the western criminal justice culture focuses primarily upon the state and the defendant, largely to the exclusion of the victims of crime and their legitimate right to be heard. He further suggested that it was not difficult for ordinary people to understand restorative justice because essentially it works in the same way as families resolve their differences within an atmosphere of care, concern and tolerance. McElrea has stated unequivocally that he has found deterrence theory to be profoundly unsatisfactory, citing reasons for this that reinforce the criticisms of this punishment justification formerly expressed in Chapter 4. Moreover, he has insisted that restorative justice is not simply the old argument for 'rehabilitation rather than punishment' expressed in contemporary terms. Such a form of paternalistic approach has, in his estimation, had its day and failed. Neither was he any more sanguine about the likelihood of reform as a result of custodial punishment under present circumstances. He has, however, fully endorsed and supported Zehr's analysis of, and prescriptions for a more humane and inclusive form of justice based on the principles described in Chapter 6 and subsequently elaborated. Importantly for the purposes of this work, McElrea has suggested a number of ways in which not only the processes but also the quality of justice might be improved markedly if restorative justice principles were to be more widely endorsed and taken into use. Significantly, he has proposed that punishment should not be the overriding objective in dealing with crime, and that vindication of the victim is of greater importance. In this respect he has been critical of the western tradition of the two-party adversarial trial process which, due to the dominance of lawyers and procedures, has resulted in a win:lose mentality pervading the conduct of judicial adjudication. McElrea's insistence that victims have rights and needs that must be considered is a refreshing approach also widely endorsed by other proponents of the need for cultural change within the administration of justice (see Biggar, 2004, pp.20 and 27; and Zehr, 2002b, pp58-9 and 2002c, pp.28-9). He has also suggested that initiatives to bring together offenders and victims, where this is mutually accepted as helpful in achieving a measure of reconciliation and forgiveness, almost invariably results in positive outcomes? If one were to single out the quintessential element of Judge McElrea's contribution to this debate, it would most probably reflect the hopefulness that he believes the concept of restorative justice has to offer. This hopefulness accrues to offenders, victims, judiciaries, criminal justice professionals, and the wider community in almost equal measure. It amounts to an unequivocal assertion that justice could be better served if the shackles of past thinking and

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practice could be set aside, and thus enable the purposes of true justice to be embraced with a more conciliatory and constructive approach to the legitimate needs of all concerned. In order to achieve this, stereotypical concepts of justice might have to be sacrificed in the broader interests of increased fairness, and of due consideration of the needs of victims and offenders alike. In Chapter 10, Professor Blad has provided a perspective from The Netherlands, a country historically renowned for its apparently tolerant approach towards criminal offending. Appearances can, however, deceive, and the reasons for this are made apparent in his penetrating analysis. The central thrusts of Blad's contribution are elegantly described: contemporary criminal justice is sick or at the least infirm; it is used more as an instrument of social policy than as a means of delivering justice; and it is inadequate for the needs of contemporary societies in its present form. Such might be regarded as swingeing assertions were they not to be elaborated in the precise manner of the argument that he subsequently developed. Blad's assessment, although on the face of it somewhat austere in its criticism of the prevailing climate of European criminal justice, is, like McElrea's, essentially progressive and ultimately hopeful. There are, however, obstacles that bar the way to progress, and these have to be removed by reasoned rather than discursive dialogue. Blad's analogy of the pathogenic hospital is both apt and helpful, reinforcing McElrea's view that the future quality of justice will ultimately depenq upon identification and removal of the viruses that presently infect its administration. Viruses can, of course, be identified and eradicated, but in order to do so the pathological environment first has to be "virus free'. A number of viruses have been identified in this work, but their removal will ultimately depend upon adopting new approaches that first limit their spread, and subsequently neutralise their infectiousness. In his account of the post-1985 return to punitiveness within The Netherlands criminal justice environment, Blad's analysis contains echoes of similar policies of retrenchment which may be identified as having occurred within many western democracies. These echoes reflect the growing frustration of governments unable to stem the tide of rising rates of recorded and unrecorded crime, and also what Morris, somewhat earlier, described as a 'sense of penal rudderlessness' (Morris, 1974, p.l). The result was an escalation in the Dutch penal estate from 4,000 places in 1985 to 15,000 in the years thereafter. 8 The central contention within Blad's perspective is an important one: that the discourse of punishment has significant seductive power. This power enables the 'hawks' to retain the moral 'high ground' within penal politics, and ensure that increasing doses of "social medicine' are administered to those unwise enough to commit criminal offences. Such a situation, Blad contends, solves no real problems, and in most respects merely exacerbates them. And as he further points out, when we penalise (or threaten with punishment), our integrity is at stake if we fail to carry out our threat when offences are brought to justice. Moreover, because the threat implies the infliction of pain, that infliction also becomes necessary to maintain the integrity. Blad is also heavily critical of deterrence when it is used as the principal component of strategies designed to preserve public order and compliance with

Conclusions: Where from Here? 171

the law. Belief in the efficacy of deterrence is, he suggests, largely mythical, but the power of myths remains a seductive one within both the popular and the political consciousness. Worse still, Blad suggests, are the socially negative effects of deterrence strategies evident in encouraging defiance of authority, the development of strategies to avoid detection, and the generation of a tendency towards punitive escalation. Importantly for the discussion within this work, Blad, like McElrea expresses the belief that restorative justice holds the potential to revolutionise the delivery of justice while at the same time diminishing reliance on punishment as the principal instrument of maintaining social order. Like McElrea also, he prefers a situation in which punishment is not the overriding objective in dealing with crime. This, he suggests, can be accomplished by using constructive sanctions in place of punishment in response to all but the most serious forms of criminal offending. For the same reasons as those advanced by McElrea, Blad proposes an inclusive form of justice that makes offenders accountable, encourages reparation and reconciliation, and affords the victims of crime their rightful place within the processes of justice. In the final part of his contribution, Blad deals with the issue of what he terms 'restorative detention', that is to say the use of imprisonment to mark the gravity of serious offences for which reparation made within the community would be inappropriate. Interestingly, while proposing that custodial regimes can be designed to deliver a restorative ethos, and indeed should be so designed, he foresees no particular difficulty in dealing effectively with those offenders who may be unwilling to comply with the requirements for self-appraisal and involvement in work of a reparative nature. While he insists that both are essential ingredients of restorative detention, and that the primary focus in the early stages of detention must be participation in programmes that assist the offender to understand the nature and harmfulness of his offending, the deliberate promotion of victim awareness will, in all but a minority of cases, lead to regime compliance. Blad's concept of restorative detention is pragmatic and positive insofar as it appeals to the essential humanity of most offenders, and attempts to 'normalise' the experience of custody to the greatest extent possible. To this end, the involvement of local communities, victim support groups, significant others, and volunteer agencies become central features of constructive regimes. All of this, it must of course be noted, implies a quantum-shift away from the present conception of retributive incarceration, and towards a restorative model within which the offender rehabilitates himself (with the necessary assistance) and is thereby restored to full community membership. We shall return to this potentially contentious aspect of the case for restorative practices in the final part of this chapter. Professor Blad has also stressed the need for the important phase of release from custody to be carefully planned on a conferencing basis. Such a process should include those who had provided counselling and programme support in custody, and also those close relatives or others to whom the offender would return within the community. Such conferences should focus on work, accommodation, vocational or other education and training, and any necessary

172 Criminal Punishment and Restorative Justice

counselling support. He has also placed emphasis on the general necessity of making explicit that the released offender, having participated in his own rehabilitation, assumes on release from custody all the rights of a free citizen, including the right to be trusted. Only by insisting on these rights can it be asserted that the individual offender has been restored to his full place within society, and any diminution of them effectively stigmatises those released in an unacceptably discriminatory manner. Following the contrasting but consonant approaches adopted by McElrea and Blad, the third international perspective presented by Dr Cormier from Canada in Chapter 11 makes truly fascinating and instructive reading. It indicates with exceptional clarity the way in which two developed modern democracies, facing similar challenges to reduce rates of recorded crime, responded entirely differently in the formulation of penal policies. Whereas as Blad has indicated, The Netherlands government deliberately adopted a more punitive and costly approach during the period following the publication of its 1985 White Paper, and had previously experienced a very low rate of penal incarceration, the reaction of the Canadian government was of an entirely different nature. The latter, with an escalating prison population that was becoming politically unacceptable, deliberately pursued a reductivist agenda from 1988 onwards, designed to reduce both prohibitive costs and the number of persons held in prison custody.9 It is of interest to note that the rate of imprisonment per 100/000 of the population had reduced in Canada from 131 in 1992-3 to 116 in 2003-4/ while that in The Netherlands had increased from 17 per 100/000 in 1975 to 112 in 2003-4. , Further comparison of the criminal justice policy agendas in the two countries is similarly revealing. For as Blad has pointed out/ restorative justice ideals, while gaining momentum slowly in The Netherlands, still remain at the margins of penal policy at the present time. In contrast, as Cormier's analysis has shown, in Canada, restorative justice principles have been afforded an evident place within both criminal justice policy and legislation. Though this development evidently caused some concern initially, particularly among victims and their advocates in relation to the diversion of funds towards restorative justice initiatives rather than directly towards victims of crime, this concern was eventually largely resolved on a participative basis. Cormier's account also indicates important similarities with that of McElrea in relation to the adoption of restorative practices emanating from the culture and traditions of Aboriginal peoples. Though the Canadian initiative to adopt a measure of what might be termed 'positive discrimination' in relation to this group was prompted by its over-representation in prison custody, it provided evidence of a willingness to acknowledge that the Aboriginal culture inherently operated restorative approaches to conflict resolution. Of equal importance is the inference and that these were transferable within concepts of contemporary justice. The opinion of the Supreme Court of Canada as expressed in the landmark case of Regina. v. Gladue is notable for its view that a sentence embracing restorative justice principles and requirements is not necessarily of a 'lighter' nature, and may, indeed, be more onerous on the offender than a custodial one.

Conclusions: Where from Here? 173

This same general point is made in each of the international perspectives and elsewhere in this work10, and it supports the contention that where it is possible and appropriate to sentence in such a manner, the practice is increasingly being perceived by some members of judiciaries as having much to commend it. The impetus given by the Canadian government to the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (United Nations ECOSOC Resolution 2002/12) described by Cormier represents a significant move forward in gaining wider acceptance and endorsement of the concept of restorative justice. In combination with the national initiatives that he has described as originating from the United Nations resolution, there is clear evidence that where there is a will to implement restorative practices, there is also a way to do so. Such is not only a matter of encouragement for others to follow suit, but also clear evidence that to do so will not leave them friendless within a world that is weary of traditional approaches to punitive practices. Insofar as there is a possibility that in the future the wider extension (or even introduction in many countries) of restorative justice principles within criminal justice administration may lead to crime reduction, the results of a number of the current Canadian projects cited by Cormier are extremely encouraging. It is also interesting to note that the initiatives within the Canadian experience have, like those identified by McElrea and Blad, been initiated primarily by the energy and conviction of practitioners, voluntary organizations and communities rather than as a result of government intervention. The three international perspectives described in the immediately foregoing chapters display many common themes and characteristics. Though each provides a description of the contemporary situation within its country of origin, taken together they display evidence of a climate of optimism and hopefUlness that is beginning to point to new and more effective methods of dealing with criminal offending. More than this, however, the perspectives suggest that although many national justice structures and those who administer them still cling resolutely to the traditional ways of, and justifications for punishing offenders, these can be changed where fundamental attitudes can be changed. It seems altogether paradoxical within a world in which economic and social progress are measured by individual and collective affluence, technological innovation, more Widespread education, and access to information and communication, that we should have to return to the more humanistic and altruistic cultures of the less complex societies for guidance in matters of basic humanity and concern for human dignity. The practice of criminal punishment involves the deliberate infliction of pain on a ritualistic basis, and on the premise that it is necessarily deserved. Within the traditionally accepted notions of justice, nothing is required of those found guilty of crime other than that they endure this pain, whatever the justifications advanced for its infliction. And where the justifications for punishment may be seen to be grounded in error or supposition, the infliction of pain becomes a violation. This book has been written in an attempt to affirm that there are better ways of dealing with those who break the law than by inflicting punishment for its own sake..More than this, that to do so while making no demands of them to redress the harm they have done, or while denying them the opportunity to do

174 Criminal Punishment and Restorative Justice

so, is to debase their humanity. A criminology that tacitly endorses such practices or accepts them without significant criticism is both unenlightened and regressive. Fortunately, enlightened and progressive initiatives for change such as the concept of restorative justice provide us with a means of shaking off what McElrea describes as the 'rusty shackles of the past', and of moving into a new and more responsive era of criminal justice administration. This responsiveness would accrue to the benefit of victims, offenders, and the wider societies in which we live. Restorative programmes can enable us to send less people to prison by allowing more offenders to repair the harm occasioned by their offences and make reparation to the victims of crime while remaining within their communities. If both parties are able to become reconciled as a result of this acceptance of responsibility and reparation, then the social gain is universal. Sending many fewer people to prison would save significant expenditure (both capital and recurring) which presently places such heavy demands on national exchequers, and which may ultimately be avoidable. Such programmes may also, when operated widely and as deliberately selected means of diversion from custody, assist in reducing the overall incidence of crime within societies. The early signs from the Canadian experience indicate that we may be cautiously hopeful that such may be the case. There is no doubt whatsoever that restorative prisons can be designed, built and operated (or otherwise modified) in a manner that enables those who have to be detained in custody to focus on assisted self-analysis, reparation, and rehabilitating themselves. This means changing the emphasis and ethos of prisons from a retrospective and retributive pre-occupation to a prospective and constructive mode of operation. Such a transition would also be likely to make prisons less violent and criminalising places, provide correctional officials with a greater sense of social purpose, and possibly lead to the use of shorter sentences than penal policies grounded in retribution and deterrence seem to demand. Victims of crime have rights, not the least of which is to be afforded a more central place and extent of consideration within the processes of justice. Each of the perspectives and the discussion preceding them affirms these rights and endorses the importance of making them real rather than optional or aspirational. Though there are some reasonable reservations about the extent to which victim 'allocution' should properly be permitted, the principle is now firmly established that courts should take account of the situation of, and the extent of harm done to victims, in considering sentencing options. The issue of reconciliation through direct contact between individual offenders and their victims can be an area of contention and difficulty that has to be recognised.l 1 While it may be considered entirely reasonable in cases of relatively minor offending, and where both parties are willing, for direct contact to be arranged, the same principle may not extend to some forms of serious offending.l 2 The reasons for this are twofold: first that where serious psychological damage or trauma has resulted from the circumstances in which offences have been committed, this may be renewed or enhanced by such contact. Secondly, there is a danger that certain serious offenders may, while apparently being prepared to enter into reconciliation, derive a measure of

Conclusions: Where from Here? 175

pleasure or gratification from the discomfort or pain that the victim might experience from being in the immediate proximity of a perpetrator. Reconciliation "by proxy', perhaps initially through written apology where this will be accepted by victims, can be a useful way of initiating the process, particularly where professional intermediaries can 'prepare the ground' for this to happen. It may also be the entire extent to which an attempt towards reconciliation can be taken in cases of serious offending. All of this stated, however, the concept of reconciliation between offenders and victims remains important in principle, and should certainly not be discarded for its possible contingent disadvantages. The central question that this book raises is whether criminology and criminal punishment presently deliver true justice within modern societies. We have seen that the discipline of criminology has traditionally concerned itself with the making of laws, the breaking of these laws, and the reaction of societies to the breaking of laws. Criminal punishment, as it is presently understood, is the means, whether we like it or not, of making operational and explicit the extent of censure necessary to ensure that laws are upheld. In view of all that has been set down in this discussion, the short answer to the central question is that as matters stand, they do not deliver true justice. The reasons for this are complex, but stated most simply they amount to the fact that as Zehr.has so succinctly pointed out, "justice will not be served if we maintain our exclusive focus on the questions that drive our current justice systems: What laws have been broken? Who did it? What do they deserve?' (Zehr, 2002b, p.63). If we continue to ask these questions, our justice systems will continue to focus exclusively on offences, offenders and retrospective punishment. These systems will continue to ignore the more important questions of: Who has been harmed? Who should take responsibility for the harm? How can the harm be put right? Contemporary criminology, like the justice systems whose behaviour it should inform, needs to be considerably re-shaped to address rather different issues from those it has concentrated upon in the past. Laws will continue to be made and broken, and responses to the breaking of laws will still be required, but these must certainly be of a different nature. For example, as Blad has suggested, talking about sanctions rather than punishment would be greatly helpful. Of equal importance is the need for more rigorous and honest appraisal of the supposed effects of deterrence and its place within sentencing considerations. And if crime reduction is to be the key objective of criminal justice policies, then there may be better ways of achieving this than by using custodial sentences other than when these are strictly unavoidable. Giving an appropriate place and consideration to the victims of crime within our justice systems might enable us to transform them into being the servants of societies rather than solely the controllers of them. Enabling offenders to take responsibility for their actions and redress the harm these cause is altogether more constructive than punishing them simply for the sake of being seen to do so. Negative sanctions, it might be argued, produce negative responses, or at the least encourage them. Merely locking people up and requiring no response from them contributes to a "warehousing' concept of custody, and warehouses are expensive places to maintain if they serve relatively little useful social purpose.

176 Criminal Punishment and Restorative Justice

This book has been written to encourage students of criminology, practitioners within criminal justice systems, and perhaps even the politicians who control them, to consider and challenge issues within criminology and criminal punishment philosophy that may for too long have been taken for granted. If it does this, its essential purpose will have been achieved. There are, however, wider and socially more important issues at stake. These include that of why modern societies consider it necessary to punish so excessively when sanctions may often be more effective in reducing crime. We also need to question why so many people are imprisoned, and at such high social cost, when prisons fail so evidently to reduce criminal offending. Perhaps most importantly of all, we need to challenge the apparently widely endorsed assumption that our systems of justice are essentially just, particularly when these systems afford the victims of crime so little consideration. 'Justice as fairness' is an expression frequently encountered at the core of considerations that emerge from discussions of crime, punishment, and law enforcement. The activity of 'punishing' crime has a history and symbolism as ancient as civilisation itself, but the notion of 'redressing' crime implies an altogether different primary motivation. The early nineteenth century political philosopher Alexis de Tocqueville (1805-59) in his seminal work L'Ancien Regime et la Revolution wrote thus: To render a people obedient and keep them so, savage laws inefficiently enforced are less effective than mild laws enforced by an efficient administration regularly, automatically, as it were, every day and on all alike. De Tocqueville, 1856, quoted in Auden and Kronenburger, 1962, p.210.

The word 'mild' in both its original Old Saxon (mildi) and Old Norse (mildr) derivations means temperate or moderate. Whereas the administration of criminal punishment as we have traditionally understood it appears to have become increasingly immoderate, restorative justice at least promises a more temperate and reconciliatory approach. There is a Widespread and growing consensus that it offers a greater potential to deliver truer justice and the reduction of crime. That both criminology and criminal justice presently stand at a crossroads is beyond reasonable dispute. Which direction they will take into this new millennium remains a matter of conjecture. The signpost pointing in the direction of restorative justice is there for those who will be guided, but for those who will not, a long and winding road looms ahead.

ENDNOTES for Chapter 12 1.

2. 3.

This is evident in the articulation of the 'justice model' of punishment that rose to prominence in the 1970s and 1980s. (See Bean (1981) and Hudson (1987) for commentaries.) And see also the now infamous statement of the (then) British Home Secretary Michael Howard of October 1993 that'prison works', and that he had no reservations about implementing measures that would increase the size of the prison population. By, as Blad points out, unnecessarily criminalising and penalising large numbers of persons who might better be dealt with by other means. Cohen (1973) quoted in Bottomley (1979) at page 1.

Conclusions: VVhere from Here? 177 4.

'Bifurcated' penal policies (see Bottoms (1977) at pages 88-9) have been discussed at some length within Chapters 6 and 7. 5. The term 'negative sanctions' implies the use of forms of punishment which do not require any necessary response from offenders other than to undergo the imposition of the sanction (e.g. imprisonment). 6. And see later in Chapters 9 and lathe approaches taken to this by McElrea and Blad. 7. Meetings between offenders and victims depend on the expressed willingness of both parties to enter into a process of reconciliation and forgiveness. Some critics of restorative justice express doubts about the appropriateness of this in relation to certain forms of offending (such as rape, child abuse, etc.) in which personal injury or trauma can be long-lasting both physically and psychologically / emotionally. 8. This situation mirrors to some extent similar rises in the United Kingdom, and particularly that between 1997 and the present time. (See Chapter 8 at Note 8.) 9. In 1993-3 Canada imprisoned 131 per 100,000 of its population, and prior to 1985 The Netherlands a record low level of only 17 per 100,000. In 2003 the relative rates were 116 and 112 per 100,000 respectively (www.icps.org.uk). 10. For the explanation that restorative justice sanctions represent no 'soft option' for offenders, see the discussion in Chapter 6. 11. In the course of the preparation of this book, the author had an exchange of correspondence with Martin Narey (then Director General of the Prison Service of England and Wales) in which the latter was very firmly opposed to the idea of serious criminal offenders having contact with victims as a result of any officially promoted policy relating to imprisonment. 12. In cases, for example, of rape, incest, child molestation, or where gross violence has been used by perpetrators on victims in the commission of criminal offences.

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Index Aboriginal people 149 152-5 158-9 absolution 43 accountability 131 139-40 151 adversarial court 126-7 allocution 35 Africa 80 92 114 America 66 73 80 87 92 99 110 123-4 anti-social behaviour 27 30 70 Asia 80 Austin 126 Australia 80 92 132 Beccaria 26 54 59 Behavioural School 28 benefit and burden calculus 48 Bentham 42 54-5 81 bifurcation 91 93 97 100 111 Britain 47-8 61 71 73 878 91 99 110 114-5 124 131 burden of proof 126-7 Canada 92 110 114 124 149-60 172 causation (determinism) 29 China 80 Christianity see religion civil rights 32 109 civil wrongs 43-4 classical debate, the 26-8 Classical School 27 28 67 73 coercion 32 67 community 101 119 124 131 153 157-8 168 Community Justice Forums 152 condemnation 49 conflict resolution 115-6 121 control 32 55 correctionally oriented penology 37 crime causes of 75 163-4 definitions of 19-21 27

164 prevention 137 141 151 rates 32 66

reduction strategy 55 69 72 75 111 137 173 serious 110 114 137 1567 167 social stigma 48 141 criminal classes 27 59 critical criminology 28-30 culpability 44 48 71 83 101 cultural traditions 123 154 168 dangerousness debate 61 decency 26 delinquency 30 denunciation 46 desert 41 43-4 47-50 55 57 60 66 71-2 83 85-6 93 101 104 109 see also just deserts determinate sentences 31 33 47 61 72 84 101 130 141 determinism 29 55 69 71 deterrence 26 32 46 5362 66 70-2 74-5 83-6 93 98-9 104 108 123 136 138-9 141-2 155-6 165 general 54 57-9 61-2 measurement of effectiveness 53 55-6 59 specific 54 57-8 62 70-1 deviance 21 29-30 36 69 71 101 139 142 disablement 55 discretion 45-7 61 67 72 74 102 130 150 discrimination 30 46 567 82 disparity see sentencing disparity distributive model 48-50 Doing Justice 58 draconian approaches 26 33 69 drift 29 due process 33 47 87 125 economics 66 72-4 85 97 153 174 eighteenth century 19 elitism 82 Engels 81 Enlightenment, the 26 49

188 Criminal Punishment and Restorative Justice equality of consideration 116 equity 68 73 81 85 97 100 104 ethics 60 97 163 Europe 66 73 80 87-8 92 110 115 European Union Council 110 112 eye for an eye see jus talionis facilitators 120 156-7 fair hearing 122 false-positive predictions 60 Family Group Conferences 120-1 144 152 155 Ferri 26-7 67 72 Fielding 26 First Nation peoples 149 152-5 158-9 fixed penalties 45 forgiveness 49 France 19 81 freedom 81 85-6 89 155 free-will 29 42 48 55 689 139 Garofalo 26-7 67 gender 30 Germany 87 guilt 44 healing 120 151 158 Hegel 42 67-8 holistic approaches 91 158 Howard 26 human emotions 123 human rights 28-9 30 35 86 humanism 86 136 173-4 Imperialism 30 incapacitation 46 54 60-2 66 74-5 inclusive theory 97-8 101 104-5 113 167-8 indeterminate sentences 31 45-6 57 61 67 72 74 84 inequity see equity intemationallegislation 86-7 Islam see religion Italy 87

judicial discretion 33 457 67 130 jus talionis 26 just deserts 33 46 124-5 justice model 22 28 33-5 45 47-8 53-4 71-3 84 90-1 93 98 Kant 42 law and order lobby 32 47 74 98 lay people involved in legal process 121 169 legal threat 55 legalistic approach 27-9 lesser eligibility 29 Lombroso 26-7 67 Magna Carta 85 Marx 81 media 126 mediation 145 152-3 mercy 49 99-100 Middle East 114 Mill 42 80-2 moral aspects 22 26 30 37 41-4 48-9 55-61 67-8 70 73 76 80-5 94 97 98 104-5 115-6 138-9 146 163-5 natural crime 27 neo-classicism 34 47 neo-determinism 68 neo-expiation 35 neo-retributive model 446 93 neo-utilitarian 72 Netherlands 110 113 135-46 172 New Zealand 92 110 112-3 119-33 144 non-custodial sentences 103 110 121 offender 111 119 124 130 141 150 accountability 124-5 obligations 129 143 reintegration 86 93 99 139 143 146 150-1 relationship with victim 90 145 151 174-5 reparation 88 92 97 99 104 121 151 153 155 159

Index 189 operational considerations 76 104 163 parsimony 109 111 113 partial admittance 127 pathology 124 Plato 67-8 72 pleading 126 police 132 politics 21 29 34 37 42 46-8 61 73-6 80 97 10812 124 131 137 141 politicians 32 105 111 115 138 positivism 26-9 47 54-5 67-70 72-3 126-7 potential offenders 73 power 46 82 84 120 156 predictive incapacitation 57 61 presumption of innocence 125 presumptive sentences 45 prison as schools of crime 75 failure 42 population 110 153 riots 32 prisoners' rights 32 73-4 procedures 125-9 proportionality 27 33 43 47 50 54 98 104 111 155 psychology 53 55 66 punishment 19-21 26 312 35 37 41-3 45-6 48 50 53 55 58-9 66 68-70 80 82 85 109-10 113 115 122 124 128-9 135-40 163 170 arbitrary 26 46 hardening effect 59 proportionality of 43 50 59 unjustified 43 vindictive 68-9 72 76 race 30 radical criminology 28 30 47 69 71 74 reason 26 recidivism 31 45 47 58 73-4 84 88 121 139 144 150 157-8 reconciliation 22 89-90 93 97 115-6 122 153 174-5

see also social reconciliation reductivist agenda 35 reform (of offenders) 45 55 62 66-71 74-5 84 86 93 100 103-4 108 124 140 165 rehabilitation 31-2 45-6 49 62 66-8 71-5 84-9 91 93-4 100-1 103-4 108 124 136 140 143-6 150 165 failings of 46 see also technical

rehabilitation rehabilitative model 31-2 34 religion 26 30 123 152 Christian 26 122-3 135 152 157-9 Islamic 20 26 Jewish 123 Maori 123 remission 103 remorse 94 99 103 111 122 130 140 145 reparation 91 93 99 104 122 155 see also offender

reparation responsibility 42 44 48 70 111 120-2 125-6 1289 144 151 153 167 restitution 130 restorative conference 120 130 145 158 see also Family Group

Conference, sentencing circles, Community Justice FOYluns restorative detention 142 144 171 restorative justice 28 357 86 88-94 97 103-5 108-16 119-33 142-6 150-61 163-76 examples 121-2 157 positive outcomes 132-3 158 problems with 92 155-6 public attitudes to 151 retribution 31-4 41-6 4850 55 59 62 66 68 71-3 75 83-4 86 88-90 93 98 101 104 108 111 127-8 136 139-41

190 Criminal Punishment and Restorative Justice rights 49 68 81 86-8 100 105 122 146 149-50 155 171-2 see also civil rights,

human rights, prisoners' rights, victitn rights Romilly 26 rules of evidence 125 sanctions 136 142-3 165 satisfaction 44 Scandinavia 114 scientific approaches 66-7 72 scientific method 27 Second World War post 66 80 pre 27-8 Sentencing Act 2002 (New Zealand) 120 sentencing circles 124 sentencing disparity 33 47 100 102 130 separate needs 150-1 153 social aspects 20 21 26 30 34-5 42-3 47-8 55-9 61 72-6 82 85 89 111 131 137 138 142-3 153 164 causes 29 34 56 69 164 confidence in the law 119 conformity 57 contract 73 81-2 control 54 74 141 equilibrium 48 82 harm 27 89-90 97 justice 34 82 115-6 obligations 34 42 81 protection 61 reconciliation 35 89 sociological perspective 29 53 75 somato-typing 27 Spain 87 state 97 120 acting in loco parentis 90

stigmata 27 Struggle for Justice 58 subsidiarity 113 substantive justice 91 technical rehabilitation 88 therapy 31 Tocqueville, de 176 tough on crime approach 47 treatment 31 67-8 71-4 150 and training model 31 68 twin-track see bifurcation United Kingdom see Britain United Nations 87-8 112 114 156 159 USA see America Utilitarianism 42 46 48 54-7 61 71 73 81 87 123 129 vengeance 4 49 98 victimless crime 21 victim 88-9 97 105 111 113 115 119-20 122 124 127-31 136-7 145 153 155-6 158 allocution 92 re-empowerment 36 92 relationship with victimizer 90 143 151 174-5 rights 36 88 91-3 109 116 156 158 174 vindication 128-9 143 war against crime 34 47 66 114 white collar crime 21 28 43-44 youth crime 153-5

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TPS (235mm x155mm)

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