The second annual Liz Elliott Memorial Lecture & Dialogue Vancouver, 23 November 2012 Centre for Restorative Justice, SFU Restorative Punishment: Reconciling.

The second annual Liz Elliott Memorial Lecture & Dialogue

Vancouver, 23 November 2012Centre for Restorative Justice, SFU

Restorative Punishment: Reconciling Restorative Justice with Imprisonment

Dr. Theo GavrielidesIARS Founder & Director

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Elliott, L, 2011

“Restorative Justice must be more than a programme within the current system – it

must be a new paradigm for responding to harm and conflict with its own philosophical and theoretical framework. Facilitating this

shift requires a re-thinking of the assumptions around punishment and

justice, placing emphasis instead on values and relationships”

Security with Care

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What do we know about restorative justice?

• It is a growing, international movement• It appears in various shapes and forms (mediation,

conferencing, circles, restorative boards) both within and outside of the criminal justice system

• It can appear at any stage of the criminal justice system• It has roots in ancient, Greek and indigenous

civilisations and was brought back in the 1970s• It has attracted volumes of writing• We have more evidence on restorative justice than any

other criminal justice policy, and yet …• Restorative justice is back on the agenda

internationally!

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Our conceptual framework

Restorative Justice is “an ethos with practical goals, among which is to restore harm by including affected parties in a (direct or indirect) encounter and a process of understanding through voluntary and honest dialogue” (Gavrielides 2007: 139).

Restorative Justice Practices:• Mediation (direct-indirect)• Family Group Conferencing• Healing & Sentencing Circles• Community Restorative Boards

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There is also consensus that restorative justice:• Suffers from definitional ambiguity• Lacks consistency in its application• Suffers from low public awareness• Sometimes promises more than what it can deliver and

often delivers more than what it promises• Suffers from lack of resources and funding• It exists in the margins of the criminal justice system

and often in the shadow of the law and policy• It doesn’t always work, but where and when it works it

can render better outcomes for offenders, victims and the community.

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How often do we pose and reflect?

How are restorative justice practices justified?

How is restorative justice morally justified?

Does restorative justice belong to the world of theories or is it just a variation of criminal justice practice? Does this matter for today’s policy and

practice?

Can we take a step back?

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“There is (still) a need for reflection on socio-ethical, philosophical, and legal theory…to

construct a coherent paradigm…which can serve as a frame of reference…” (Walgrave, 1995).

“The failure to theoretically and practically operationalise the concept of restorative justice is an abrogation of responsibility on the part of

those involved in promoting the concept of restorative justice and a serious weakness of the

literature” (Haines, 1998).

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How is it possible to proceed with a strategy on restorative justice if its relationship with the criminal justice system is not clarified and

agreed?

Is it possible to improve the justice system if we are not in agreement on where restorative justice

should fit?

Mainstreaming or living in a parallel universe?

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Laying the foundations …

• 1970s: Eglash, Barnett, Christie, Bianchi – Abolitionism, “alternative paradigm”, “conflicts as property”

• 1980s: Zehr “Changing Lenses”, van Ness “paradigm shift”• 1990s: Braithwaite – “Reintegrative shaming”, “Responsive

Regulation”, “Republican Theory of Justice, Duff – “Communicative theory”, Daly “Alternative punishment”, Cragg “The Practice of Punishment”

• 2000s: Moving away from the phase of innovation to the one of implementation - Mackay “Ethics and good restorative justice”, Gavrielides “Restorative Punishment”, Johnstone – alternative model.

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So, what is this lecture about?

• “Rethinking our assumptions around punishment and justice” Liz Elliott

• “Unless we have an alternative vision of restorative justice then practices will not last” Howard Zehr at the First Annual Liz Elliott memorial lecture

• “Understanding restorative justice as a way of living – making it part of a larger cultural change” Liz Elliott

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But why do we need to think normatively about restorative justice? • Restorative justice makes normative promises in addition

to its claims for empirical benefits (i.e. that it can guide our moral thinking vs. reduce reoffending).

• Restorative justice is morally problematic as it involves doing things to people that seem morally wrong. It is not a soft option – it can involve coercion in its restorative measures/ outcomes – “The burden of the restorative action” - processes (Walgrave).

• If restorative justice is to be taken forward by government, then a shared normative framework must be agreed.

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Alternative Punishment or Alternative to Punishment?

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Alternative Punishment or Alternative to Punishment?

None of the above!

The notion of “Restorative Punishment”

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The Paradigm Language• “Paradigm”: an achievement in a particular discipline which

defines the legitimate problems and methods of research within that discipline” (Barnett 1981).

• “They provide the lens through which we understand phenomena” (Zehr 1990).

• They form our “common sense”, and guide us in our understanding of what is “possible” and what is “impossible”. Things falling outside the paradigm, to the common eye seem absurd and abnormal.

• They are “particular ways of constructing reality” (Zehr 1990

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Paradigm crisis – an integrated approach

• Paradigm crisis: “As the paradigm develops and matures, it reveals occasional inabilities to solve new problems and explain new data” Khun 1970

• Revisiting punishment – poene (ποινή – πόνος) pain

• Pain through:• Incarceration – incapacitation – imprisonment• Restorative dialogue

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Restorative Punishment explained

• Two key elements of punishment• The expressive (RJ is interested) – deterrence is

welcomed but not a primary goal• The retributive (RJ is not interested)

• Being expressive is not enough – not one way directive at the wrongdoer - restorative dialogue.

• The restorative pain is not inflicted by the state or for its own sake. It is voluntarily endorsed by all parties as part of a community led ethos and practice.

• “Painful restorative obligation” leading to deterrence.

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Restorative Punishment – claims• Restorative punishment can teach

communication, negotiation, compromise and related skills.

• Restorative punishment can promote moral education, possibly creating a moral order in society.

• Restorative punishment can deter.

Gavrielides, T (2005) “Some meta-theoretical questions for restorative

justice” Ratio Juris.

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What are we trying to correct?

• Key target for RJ is to restore. But what? • Crime - “a violation of the state, defined by

lawbreaking and guilt”?• A “wound in human relationships” (Zehr) - violation

of people and interpersonal relationships”.

By restricting criminal procedure and law to the narrow legal definition of what is relevant and what is not, the victim and the offender cannot explore the real effects of the case and the degree of their culpability (Wright, Gavrielides).

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Core theoretical assumptions for restorative justice – its philosophical foundation• What created this relationship that RJ aims to restore?

• RJ assumes the existence of a “social liaison” that bonds individuals in a relationship of respect for others’ rights and freedoms. Victim & offender are seen as equal, free individuals. The offender is “one of us”.

• RJ assumes that this liaison has always been with us, because it is innate in our nature as human beings. We cannot see it, but we can feel it in moments of danger, or of extreme happiness. Individuals are not really strangers, and that is why victim and offender are not enemies.

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Core theoretical assumptions for restorative justice • “The RJ ethic is based in a spiritual sense that sees us all connected

to each other at a fundamental level and, as such, requires of us a more heightened and pervasive sense of justice” (Sullivan, Tifft, and Cordella, 1998).

• “In essence, the social values underlying RJ rely on connections-connections between offenders, victims and communities” (Morris et al, 2000).

• “RJ endorses a collective ethos and collective responsibility. Thus, it emphasises the existence of shared values, which can be used to address the offending and its consequences and to reintegrate victims and offenders at the local level” (Morris et al, 2000).

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Philosophies of Collectivits• “Oddities and accidents may be individual and independent, their

movements and machinations largely self-determined, but in their essence they are necessarily bound to others- for all are adjuncts and elements of a larger whole” (Barnes, 1991).

 • Alexander Pope, the first Epistle of the “Essay on Man” - “each of us, like

any other natural object, is a part of the universe; it is folly to deny the fact- and folly to wish it changed…for our good is determined and our moral comportment should be governed by our partial statues in the universal All”

• Each of us is not only a part, but also a “system” or a whole. We are “partial wholes” (Barnes 1988).

• Marcus Aurelius’ work “Meditations” - we are a part (μέρος) of Nature (φύσις), or of the universe (κόσμος), or of Fate (ειμαρμένη).

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Core assumption

• “Interdependency”, determination and self-assurance is created through the realisation of the existence of others. This reality creates the social liaison, which connects individuals,

• This is broken if a “crime” occurs.

• The “special relation”, between individuals and individuals and their community is the focus of restoration; with the RJ process we aim to mend it, and restore the relationship that was corrupted with the occurrence of “crime”.

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Bringing it to today’s realityHow truthful and real is the social liaison in modern

society?

•“We do not need to restructure our communities; only the normative idea that we have planted in our minds” Paul McCold

•A restorative community is one that provides the environment for growing human relations.

•The community takes care and protects the liaison. It succeeds that by keeping also a liaison between itself and the individual; not a liaison of control and power, but of care.

“Security with Care” Liz Elliott

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Time to reconcile • If restorative justice aims to deter through its painful

restorative obligation, then how different is its outcome from imprisonment?

• Different practices with shared outcomes?

• “Paradigm evolution” vs “Paradigm change”

• Reconciling without the need to:• Replace• Mainstream• Absorb.

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From philosophy to policy

• A Criminal Justice System for the 21st Century, Geoffrey Cowper, QC

• Improving/ reforming the criminal justice system

• The role of restorative justice

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From philosophy to policy

• Mind the Gap! Mainstreaming a community born and community led ethos.

• Creating the infrastructure that will allow RJ to sit comfortably and equally next to imprisonment.

• No room for top-down structures of power and control through (register, accreditation).

• Respect the principles and maintain standards.

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“So we make mistakes - can you say - you (the current system) don’t make mistakes…if you don’t think you do, walk through our community, every

family will have something to teach you. By getting involved, by all of us taking responsibility, it is not

that we wont make mistakes…”

(B Stuart 1995: Rose Couch, Community Justice Coordinator, Kwanlin Dun First Nations, Yukon,

Canada).

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Follow upGavrielides, T (2005) “Some meta-theoretical questions for restorative justice”

Ratio Juris.

Gavrielides, T. (2014). “Reconciling the Concepts of Restorative Justice and Imprisonment”. The Prison Journal.

Gavrielides, T. and V. Artinopoulou (2013). Reconstructing the Restorative Justice Philosophy, Ashgate Publishing: Furnham, UK.

Gavrielides, T. (2012) Rights and Restoration within Youth Justice, de Sitter Publications: Witby, ON.

Gavrielides, T. (2012). Waves of Healing: Using Restorative with Street Group Violence, IARS Publications: London.

Gavrielides, T. (2011). Restorative Justice and the Secure Estate: Alternatives for Young People in Custody, IARS Publications: London.

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Dr. Theo GavrielidesFounder & Director, IARS159 Clapham Road,London SW9 0PU, UK

[email protected]+44 (0) 20 7820 0945www.iars.org.uk

Dr. Gavrielides is also a Visiting Professor at Buckinghamshire New University, a Visiting Professorial Research Fellow at Panteion University and a Visiting Senior Research Fellow at Open University.

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