Restorative Justice – Building a Parallel System

Jim Consedine

Restorative justice is a challenge to all caring people to create a more positive, fruitful criminal justice process to carry us into and through this next millennium.

Archbishop Desmond Tutu

New Zealand is at a crossroads as regards its criminal justice processes. We have developed a largely punitive rather than restorative public culture, fuelled by the corporate media and politicians among others. We have continued high imprisonment rates (8613 imprisoned, December 2013), second only to the US in OECD countries. Imprisonment has become extremely expensive, with the average prisoner costing nearly $100 000 per year. Finance Minister Bill English has said prisons are too expensive, describing them as ‘a moral and fiscal failure.’(22 May 2011).

And for what result? For most, the opportunity for inmates to mix and bond with like-minded people and develop further anti-social skills. They have little hope for their futures when they are sentenced. None is installed in prison.

By any standard, current imprisonment policy is an expensive social disaster. It is also often a violent one as recent murders and beatings in custody attest. Most NZ prisons continue to have problems with violence, suicide, drugs and gangs. On average, prisoners have poorer mental and physical health than the general population. Most have problems with addiction, low educational achievement, lack of employment skills and dysfunctional family relationships. According to government statistics (2014), about 89% have a lifetime prevalence of substance abuse and 52% have psychotic, mood or anxiety disorders. Prisons have become a dustbin for the poor, the mentally ill and the addicted.

For every person sentenced to imprisonment, there are at least 10 family members badly affected by that sentence. In NZ, that is over 80,000 people. Obviously, while spouses and partners are affected, there are also thousands of children growing up who have or have had a parent in prison. Is it any wonder that many end up in prison themselves? Their role model for life has been an imprisoned parent.

The brutal murder in March 2015 of Benton Parata at Christchurch Prison sadly highlights this scenario. He was the son of a gang member who spent long terms in prison while Benton was growing up. Benton was the latest of nine inmates murdered in prison since 1996. Hundreds more have been beaten up.

For serious crimes, prison sentences have more than doubled in length compared to 20 years ago. It is the families of inmates who suffer as well. Increased poverty is often the price they pay. Jobs are lost. Children with a parent in prison, victimized. They are innocent parties.

Expanding Restorative Justice

Restorative justice processes speak to the heart and soul. They are about accountability and healing. They are not just about law. Properly done, they can offer so much help to victims of crime, their families and to willing offenders. They have yet to be fully tested in an imaginative way in New Zealand. The original government pilot processes, while interesting, were strangled to a large degree by red tape. The legislated system currently operating faces similar problems. It is vastly under resourced and over bureaucratized. Is it any wonder that so few take part and delays in the process are prevalent?

Only when we develop restorative justice processes on a wider scale, properly resourced, publically funded, and using well trained facilitators at community level, will we seriously tackle crime and its causes, and offer real hope to victims and offenders alike.

Prisons victimise the poor, do not provide proper justice and offend against the common good. On a global scale, according to Pope John Paul II, prisons have become ‘structures of sin’. Maori and Pacifica traditions, Christian teaching and the Scriptures, all offer constructive and positive insights, values and guidelines for conducting more just and fairer restorative processes to help deal with most criminal offending. We ignore such time-proven insights at our peril.

A background of material poverty, mental illness, addiction and unemployment is a fact for 80% of offenders. RJ can offer little to change these. But there are other important forms of personal poverty and deprivation which can be addressed. International research speaks of poverty of self-esteem through shame, poverty of social skills, poverty in emotional literacy, and poverty of empathy. RJ processes can help hugely with these. These are all issues of justice.

The community’s role is to create the conditions most favourable to the restoration of both offender and victim. It aids this healing process by providing trained facilitators, recorders, venues, support personnel, judges and the like.

A Political Rethink?

Is an across-party political rethink of RJ necessary? Compelling evidence would suggest so. The current system is being killed by 1000 cuts! It has been bureaucratized. It lacks vision and freedom to be creative. It has lost sight of the focus of what ‘true justice’ tries to deliver. It is being badly short-changed through a lack of resources, especially trained facilitators. It has clogged up the courts to the point where it almost begs the question: has RJ been structured to eventually fail?

As a nation we need a culture change in our thinking about justice commensurate to the change which occurred in our nuclear-free thinking. The policy of the last 20 years of imprisoning yet more people for longer periods is a cop-out. It guarantees greater institutionalization and simply panders to ignorance and our basest fears. It absolutely guarantees even more victims in the future.

Of course, there are a percentage of offenders for whom RJ is not appropriate initially, who need to be kept out of circulation for the safety of the community. They are too dangerous to let loose. In NZ, they probably number a thousand or two, but not 8000 plus. As for most of the rest, do we really want to continue to create so many criminally ‘up-skilled’ graduates from our prisons? For that is what we currently do.

The recent law change, which requires all cases where there is a guilty plea and which have an identifiable victim to be referred to an RJ conference, is clearly not working. The eight week remand period is a major problem. In truth, it is unworkable. It was never meant to be a compulsory process. Many victims and offenders simply do not want to participate in such a meeting. Compulsory attendance guarantees a very high failure rate. The courts are clogged up. RJ is copping the blame, leading to the whole RJ philosophy and practice being unjustly discredited and undermined.

Practicing Justice Better

Is it time to develop a fully resourced stand-alone RJ court system to run parallel to the current retributive system and not simply be an adjunct to it?

Restorative justice needs to be separated out from the retributive system, so it can live and breathe on its own. A return to basic principles could be a starting point. This doesn’t mean back to the drawing board. But we need to ask again, what are we setting out to achieve? What does justice really look like? What is in it for victims? Offenders? The wider community?

Like the drug courts and other parallel systems, it could have its own protocols and kaupapa which offenders and victims could opt to be part of provided they meet basic criteria. Either victims or offenders could apply. Hopefully both. Offenders must engage openly and honestly, accept responsibility for their actions, and commit to implement agreed outcomes. Victims would find understanding, acceptance, a chance to speak to the issues, and hopefully find some healing and closure. This would bring them into a central role in the process. This is true justice in action.

Such a system would also provide real incentives for offenders seeking to change who would be held much more accountable on a personal face-to-face basis. A process like this would bring our delivery of justice much closer to the teachings of Christ.

After an RJ conference and upon agreement, a case would be returned to the RJ Court from where the follow-up would be monitored. The beauty of this would be that officials engaged would be specifically trained. For minor crimes, RJ court officers could facilitate a process of apology and reparation. But RJ processes need time. Rushing them will not provide better justice outcomes.

New Zealand could also start expanding current RJ services. This could be a win/win situation for all concerned and it would ease the pressure on courts. Victims would have a much more respected place in the criminal justice processes. Their pain would be more fully recognized and acknowledged. Healing for them could begin.

The stakes could be high. But as overseas evidence clearly shows, crime would be substantially reduced, more victims healed, and offenders held much more accountable. It would keep many out of prison, saving substantial tax-payer money. Many families would not be broken up, children left without a parent.

There is a strong case for a parallel RJ court system. Because of our size and relative homogony, New Zealand could lead the world with such adult RJ processes as we once did with juvenile justice. With faith, vision and courage, we could create a much fairer justice system.

Isn’t this what we all want?

Jim Consedine, a prison chaplain for 23 years, was the founding national coordinator of the Restorative Justice Network, and author/co-editor of two books on restorative justice.

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