Moral Education in Victim Offender Conferencing.
If every crime represents a failure in moral learning-- on the part of the offender, his/her community, and possibly the surrounding society -- then every crime also presents an opportunity for moral learning. Just as the child accepting a treat is caught before running away and admonished to say "thank you," the offender is caught in the act of turning away from moral and legal norms and punished. This analogy between moral learning and punishment breaks down, of course, if punishment is narrowly understood as excising an evil from the social body. The analogy holds, however, over a broad range of aims in criminal justice: correcting the offender, restoring social order and security, repairing harm to the victim, reaffirming moral values or rectifying a moral imbalance, and reminding all observers of the public will. All these aims are moral for morality includes both person and society, intention and act, correcting and healing, and values and goods. To the extent that moral aims are achieved -- incorporated into individual and/or communal life--some kind of moral learning is also accomplished.
This paper argues that victim offender conferencing offers an opportunity to reevaluate and expand the educational potential of criminal justice. The reevaluation depends on the expansion: if the public response to crime can be more effective educationally, then the educational aims of criminal justice can be more reasonably and directly pursued. If victim offender conferencing offers more effective educational practice than does punishment alone, then the aims listed above can be reaffirmed more clearly as educational aims. That is, moral learning--in its various forms--can have more priority as an outcome of the criminal justice system.
Victim Offender Conferencing and Restorative Justice
Victim offender conferencing is part of the larger movement of restorative justice, which draws its inspiration from a wide variety of responses to conflict, all of which aim above all to restore what the conflict has damaged or threatened, to the extent possible. Thus, divorce mediation cannot restore the marriage, but it can restore the ability of parents to cooperate for the good of their children. Labor dispute mediation cannot restore all lost corporate profits or employees' health, but it can restore enough trust to resume operations and correct unjust conditions. Likewise, victim offender conferencing cannot completely erase the trauma of crime, but it can restore a sense of physical and emotional security, replace the value of material goods, and provide a pathway for reintegrating offenders.
As Aristotle says, justice is a complex term meaning several things: complete virtue, legal order, transactional equity, political equality, proportional distribution of goods, rectification of harms, and equity as a modification where the letter of law would be too rigid.(1) Responding to crime with the aim of restorative justice incorporates elements of all of these. Crime is addressed as a violation of the legal order, but also as a violation of persons. Political equality and rights are reaffirmed, but in a context of personal conversation and even confrontation. The proportion between crime and consequences is maintained, but according to the perceptions of those most directly involved more than by the impersonal hand of the state. Harms are rectified in proportion to the damage done but especially in light of what is important to those harmed. Contracts are negotiated by consensus. Above all--and most pertinent to this paper--crime is addressed in a manner consistent with what Aristotle calls complete justice: an overall sense of what is right and good for individuals as well as the commonwealth, the combination of all the virtues of public life in the good person. It is this element of justice that especially marks the various forms of victim offender conferencing.
Victim offender conferencing is a process of dialogue, negotiation, and problem solving involving those most directly affected by the crime. Four versions of conferencing are in common use. Victim offender mediation (also called victim offender dialogue) involves three parties directly--the offender, the victim, and a mediator--although supporters may be present. Family group conferencing typically includes a conference facilitator, the victim, the offender, and members of their respective families and support networks. Community conferencing includes a convener/facilitator, victims, offenders, and members or representatives of the local community, sometimes in addition to family members or personal supporters. Circle sentencing is open to the public and can include as many as one hundred persons, including victims, offenders, family members, personal supporters, and concerned members of the community--all participating in an orderly pattern of conversation guided by a circle keeper. Increasingly, these processes appear in combinations and with variations that reflect the on-going experimental nature of the conferencing movement.
All four versions of victim offender conferencing share similar assumptions and purposes and follow similar formats, ensuring that all participants are respected, heard, and permitted to contribute to the solution: (a) the facilitator opens the session with introductions of participants and of the process; (b) the victim, offender, and other participants describe the incident from their points of view; (c) together, participants identify the issues and interests at stake and explore possible ways to solve the problems that have been raised; (d) participants agree to a settlement by consensus, which may include financial reparation, personal service, community service, education or training or counseling for either party, or other possible actions jointly agreed-upon; (e) the facilitator closes the session by summarizing what has occurred in the process and the terms of the settlement; and (f) in the informal space that follows, the participants discuss what they have experienced, often share food and drink, and very often exchange profound gestures of apology, forgiveness, reconciliation, and reintegration.
The working of restorative justice is visible, creative, and open-ended in its concern for victims and offenders. Participants are willing "to go the second mile" to achieve good will and harmony, pursuing a kind of "poetic justice" in which the unique situation of the offense and the conflicted parties can be utilized to design forms of restitution that are practical, meaningful, and symbolic of mutual respect and trust.(2) The conference is a social space in which participants can tap into individual and communal strengths to design effective ways that injury and conflict can be converted into healing and community development.
These guiding principles are the distinguishing marks of restorative practices in all their forms. In this sense, restorative justice is more a philosophy or even a "spirituality of practice" than it is a set of procedures, interventions, or programs. The principles provide direction for participants, but not all participants pursue this path with equal determination, creativity, or endurance. It is therefore important to recognize the limits assumed in the suggestions raised in this paper. Restorative practices are oriented to outcomes more than to procedures, but the outcomes are dependent upon the particularities of each situation, including the backgrounds, sensitivity, creativity, and enthusiasm of participants. Even so, there is a consistency between means and ends, such that the nature of the outcomes will be consistent with the nature of the interactions in the intervention. Practitioners can respond to each occasion of criminal apprehension with a consistent set of restorative principles in mind, yet the outcomes of each occasion will depend upon dynamics peculiar to that situation.
Expanding the Educational Aim of Criminal Justice
The punishment of offenders already involves moral aims that are therefore educational aims, as noted above. To make this linkage between morality and education clearer, it is necessary to make explicit the assumptions involved. Education is always an intervention in the ongoing process of social learning, to facilitate learning in a particular direction; the direction is embodied in the assumptions guiding the practice. The assumptions in the educative aim of criminal justice are well articulated by Jean Hampton.(3)
First, if moral education is a purpose of punishment, it entails a judgment of moral wrongdoing. The offender has not merely broken a law; he or she has done something morally wrong, and the state is acting through the criminal justice system to bring this wrong to the offender's attention. Second, by definition, moral acts are freely chosen; therefore a moral education theory of punishment entails a belief in human freedom. The offender is a free person, who could have chosen the right but chose instead the wrong. Punishment is imposed not merely as a behaviorist instrument, to curb wrongdoing by a conditioned response, but as an instructional instrument appealing to the offender's freedom, seeking to raise the offender's awareness of right and wrong so that he or she will make better choices in the future. Third, if moral education is the purpose of punishment, then the punishment is intended to benefit the offender directly. That is, it is intended to augment or correct the offender's knowledge of right and wrong. It would not be consistent with this purpose to punish the offender merely to demonstrate the state's determination to enforce the law or to display the power of the state over individual citizens. Fourth, a moral education theory of punishment is inconsistent with viewing crime as an illness that needs to be treated or as a handicap that requires rehabilitation. Rather, crime is evidence of ignorance, a lack of moral perception and knowledge; or crime is a result of weakness of will, a failure of moral judgment and character. In either case, crime is evidence of a problem whose remedy is learning, and hence can be addressed by education. Fifth, punishment as moral education always has a moral goal -- to communicate moral truth in the face of wrongdoing. In this view, crime is miseducative, a departure from truth, a frustration of human freedom and growth, a denial of right understanding. The victim is wronged by the offender's imposition of moral falsehood. The punishment of the offender is therefore a declaration of the victim's moral innocence at the same time that it is a denunciation of the offender's moral culpability. The aim is not merely to uphold the law, but to uphold and affirm moral righteousness.
These five assumptions comprise a view of the individual as a social person and a moral person, accountable at once to a particular community and to an understanding of right and wrong--and since accountable, therefore both educable and capable of choice. Even more than in punishment, these assumptions are operative in restorative justice, and especially in victim offender conferencing, which is an intervention designed to facilitate moral learning, individually and communally, using the occasion of criminal apprehension as a teachable moment for all involved.
First, as in a moral education view of punishment, victim offender conferencing is designed to confront the offender with a judgment of wrongdoing, not merely lawbreaking. In conferencing, however, this judgment draws upon the moral authority of the community as well as that of the state.
As in punitive justice, one source of moral authority resides in the moral principles underlying the laws of the state--the system of inalienable rights articulated in the tradition of the Declaration of Independence and the Bill of Rights. These are the classic liberal moral principles of individual freedom and equality that comprise what John Rawls calls an "overlapping consensus" in Western style democratic societies, providing a basis upon which to adjudicate public claims and coerce public conformity.(4) These rights parallel what Thomas Lickona calls "universal values," such as responsibility, respect, tolerance, fairness, honesty, and cooperation.(5) It is helpful to think of these as procedural values, specifying a manner of social cooperation without demanding agreement on substantive commitments and ways of life. Their moral authority is based on personal assent achieved through rational reflection and reasoned debate, which is also the ground for the state's judgment of moral wrongdoing in criminal justice. In victim offender conferencing, this judgment is embodied in the policeman who makes the arrest, in the judge who participates in the arraigmnent or sits in the sentencing circle, and in the facilitator of the conference who represents the public stake in this case and reinforces these values as the governing principles for interaction in the conference itself. All of these persons, as representatives of the state, also represent its moral authority. This moral consensus on equality and human dignity also guides the conference process of equal participation, shared responsibility, consensus decision-making, and--as a kind of background safety-net--the option of offenders and victims to withdraw from the conference and take their case to the court system.
Victim offender conferencing also introduces a second source of moral authority by incorporating informal social interaction into the process of justice and by including members of the families and/or communities of the victim and offender. Offenders are held accountable not only to the procedural values of the state but to family commitments to standards of behavior, good character, religious norms, cultural expectations, interpersonal trust, and familial loyalty and reputation. There may or may not be consensus on these communal values in the larger society or even in the conference, but they are part of the moral fabric of each person's life as a member of a family and of overlapping networks of community support. These are values that arise from a comprehensive view of the right and good, rooted in familial and cultural and religious traditions. These values do not necessarily appeal to reason; their authority may flow from divine command, interpersonal bonds, or cultural expectations.(6)
The conference provides a public space in which these communal values can be expressed, but it does not guarantee they will be incorporated into the outcomes. Rather, the procedural safeguards of the conference function as a kind of testing ground for family and community norms, sometimes supporting and sometimes challenging them. Three examples from recent conferences can serve as illustrations. In one instance, a parent demanded a rigid accountability from her son, linked with an ultimatum of rejection from the household; the ultimatum was challenged in the circle by other parents and was later withdrawn. In a second instance, a parent dismissed the seriousness of her daughter's offense; other circle members refused to accept this as a proper response. A third instance moved in the other direction when, in contrast to the harshness of parents and community members, the victim forgave the offenders and offered them a pathway to reintegration as respected young adults.
The educative aim of victim offender conferencing therefore moves in two directions: raising consciousness of the moral values underlying democratic society and embodied in its laws, and reinforcing--but also testing--the substantive moral values in families and communities. It is difficult to describe in simple terms the multiple directions in which learning moves in this kind of situation. Individuals are made more aware of certain values and more aware of roles they are expected to fulfill--including their role as citizens with rights and responsibilities. The moral authority of families and communities is reinforced and held accountable to liberal democratic values. Participants representing state institutions are given a platform from which to project societal norms and they are required to put these norms at the service of personal, familial, and communal goods.
Second, victim offender conferencing confronts the offender as one possessing freedom of will, who could have chosen to do otherwise in the past and who can be expected to choose to do otherwise in the future. In the matter of moral confrontation, restorative justice and punitive justice do not differ--both confront the offender in moral terms--but they do differ in the manner of confrontation. The conferencing process educates not merely by looking backward to wrong choices and forward to better choices, but also by requiring the offender to participate in good choices here and now. A convicted offender can passively accept punishment as imposed by the court, while refusing to accept responsibility for the offense or for his or her response to the offense. In conferencing, the offender must exercise freedom to gain access to the conference and must exercise freedom to complete the work of the conference. Furthermore, because the conference requires consensus on any agreements, the offender cannot maintain a passive role and allow justice to be done to him or her. The offender must actively participate in determining justice in this case. Individual moral autonomy is doubly assumed.
Third, both punitive justice and victim offender conferencing require that sanctions work to the benefit of the offender, toward his or her moral education. It is a hallmark of victim offender conferencing, however, that the sanctions and the process through which they are determined work first of all to the benefit of the victim as well and to the benefit of the community, if possible. To the extent that the benefit intended for the victim and community is educative, this intention might appear to imply that the victim and community need to learn something and thus bear some moral culpability that needs to be corrected. While this is certainly possible, it is not assumed in the design and purpose of victim offender conferencing. What can be assumed is that the manner of resolving crime in victim offender conferencing can be a moral lesson for all involved. Values are reinforced, commitments are affirmed, needs are clarified, and all participants are instructed and coached in a method of solving problems and resolving conflicts respectfully.
Fourth, victim offender conferencing is directed to learning rather than to treatment or rehabilitation, even more emphatically than in a moral education theory of punishment. Treatment and rehabilitation imply that the offender is at least temporarily disabled in fulfilling his or her responsibilities and hence must be subjected to a therapeutic regimen of some kind. In a conference, the offender is expected to participate fully, to be held accountable for the crime, and to take responsibility for restoring what the crime has damaged, to the extent possible and appropriate. This is one of the empowering dynamics of conferencing, since accountability implies the ability to fulfill one's responsibilities, and the conference supplies practical support in doing so. This does not preclude including therapeutic elements in the conference agreement, but it puts the offender in the position of having to participate in choosing the treatment program.
This dynamic of empowerment with support is extended to the victim and to the community as well. The victim is able to confront the offender and negotiate a solution from a position of moral strength rather than as one diminished by the crime. The community is given a forum through which it can exercise its responsibility for its members rather than suffer crime passively and depend entirely upon the coercive power of the state for protection and order.
Fifth, victim offender conferencing also has a moral goal, but its aim is more comprehensive than the goal of a moral education theory of punishment. In punitive justice, "The state, as it punishes the lawbreaker, is trying to promote his moral personality; it realizes that '[h]is soul is in jeopardy as his victim's is not'."(7) Restorative justice aims not only to correct the offender but also to make the whole situation right, to the extent possible. The first priority morally is to heal the victim, the second to correct the offender. The process of victim offender conferencing aims to reinforce a moral commitment to the universal, procedural values of the state and to strengthen the communal values of empathy, compassion, healing, forgiveness, reconciliation, trust, fidelity, and loyalty.
In sum, then, rather than assuming that the offender is the sole focus of moral learning, victim offender conferencing includes family, friends, and community members within its educative aim. Rather than assuming that the process of criminal apprehension and adjudication will result in a changed offender who will be able to go forth and embody that learning alone, the conference aims to alter the patterns of interaction in the community of support to which the offender belongs. The whole community learns. Just as all who have suffered from the crime have a stake in restoring what has been damaged and lost, all have a stake in learning ways of interacting that will reinforce positive behavior and attitudes and reduce harmful behavior. Ultimately, the educative aim of criminal justice is to achieve more resilient and peaceful communities.
The Educative Dynamics in Victim Offender Conferencing
Education is directed toward lasting change: growth in knowledge, skills, and attitudes that can endure over time. Disputes about educational methods are disputes about how to facilitate this kind of change, and disputes in the theory and practice of moral education are no exception. Disagreements about what morality is, to what set of morals each person is accountable, and how morals are learned have led to conflicting theories of how morality can best be taught. In general, competing programs of moral education appeal to four basic methods for theoretical justification: behaviorism, values clarification, the cognitive-developmental approach, and character education.
A behaviorist methodology prescribes a carefully calibrated system of rewards and punishments--or incentives and disincentives--which, if consistently applied, will gradually shape the behavior and attitudes of learners. Values clarification distinguishes moral instruction, which is the responsibility of so-called private institutions such as families and churches, from public moral discourse, which is guided by public institutions such as schools. Hence, in this view, public educators presume that students already have moral values, either as innate capacities or as a result of previous training and experience. Therefore, the responsibility of public institutions such as schools is to help students clarify their values and to learn to articulate these values in the public arena, using procedural values such as respect and tolerance as a framework governing public moral discourse. The cognitive-developmental approach emphasizes the structural organization of moral thinking rather than the content of moral rules.(8) As children learn, they must continually reorganize their ways of thinking to take account of the increasing complexity of their experience. In regard to right and wrong, the direction of development is from moral judgments based on reward and punishment to moral judgments expressing universal moral principles based on reason. The educator's role is to stimulate this developmental process by presenting learners with vignettes of ethical conflicts and challenging them to use the more advanced styles of moral reasoning in determining a response. Character educators also stress moral development through the individual's life course, but in terms of growth in the practice of virtue rather than in increasing universality in moral thinking. Abstract universal moral principles--however important to democratic participation--are seen as meaningless if individuals do not know what is good and are not committed to pursue it. Children need to learn what is right and good by observing those around them, by hearing the stories of heroic virtue in the past, and by practicing the right and pursuing the good until it is ingrained in their character.
These four methods are not mutually exclusive in practice, and all four play some role in victim offender conferencing. What seems particularly beneficial, from the perspective of victim offender conferencing, is the complementarity between the dynamics associated with each of these methods, in the particular circumstance of responding to crime.
Criminal justice, unlike other aspects of social order and public action, is peculiar in its determination to impose the public will on individuals. For the most part, by far, social order is maintained through informal social controls that operate cooperatively between the innate sociality of individuals and the implicit or explicit expectations of families, communities, and the larger society. Human freedom--as the capacity of each person to perceive, learn, and act as a self-determining yet other regarding member of the group--is the essential linchpin of social order. The maintenance of social order in all the complexities of countless unique circumstances would be impossible without the exercise of human freedom, formed in accord with social obligations. To the formation of this individual conscience all moral education is aimed. It is therefore peculiar indeed that in situations of critical social concern--that is, crime--individual freedom is overwhelmed by the social determination to impose the public will. This peculiarity can easily be seen as a contradiction: education vs. punishment, restorative justice vs. punitive justice.
Yet as Hampton's moral education theory of punishment illustrates, this determination to impose pain upon offenders does not abandon educative aims entirely. Rather it declares a limit of toleration, a boundary beyond which the failure to learn will not be tolerated. The stakes of moral learning as the exercise of human freedom are thus declared: participation in the group as a free person thrives within this boundary only, and action violating this boundary will result in expulsion from the group and/or the curtailment of freedom. How the imposition of pain functions in this situation is too complex to analyze here, but it at least signals a willingness to act as though the social bond of mutual care has been abrogated. That is, the imposition of pain functions as a symbol of the limit of toleration.
Punishment therefore involves considerable social risk. The pain imposed can be miseducative as well as educative. The denial of freedom can provoke further alienation as well as greater desire for inclusion. The limit of toleration -- always in some sense arbitrary and subject to political machination, and restricted by law to a kind of universal application -- can be too severe for the case. Yet it is impossible to escape entirely the need for some socially determined limit; and it is difficult to imagine how such a limit -- however it is symbolized -- could function without similar risks. Punishment may not be an essential part of justice, but an equally potent symbol would be needed to replace it.
Moral education at this boundary therefore takes on urgency, calling for the proper exercise of human freedom lest the offender be lost to the group -- with this loss being justified in advance by the loss already suffered by the victim. This creates a potent opportunity for learning. The question posed in this paper is, does the social response to crime grasp this opportunity as effectively as possible? The argument so far suggests that punishment alone is not likely to be as effective as victim offender conferencing--always assuming that victim offender conferencing is being employed in a situation where the social limit of toleration has already been made clear. This argument can be extended by showing how the four methods of moral education identified above are enacted in the process of victim offender conferencing, with particular attention to the cognitive-developmental approach and character education.
A behaviorist understanding of moral education highlights the interplay of positive and negative reinforcements in victim offender conferencing. Punishment lies at the outside edge of the process, threatened but not imposed, while within the conference the conversation vibrates between disincentives and incentives: shame and invitation, guilt and positive engagement, confrontation with harm done and empowerment in problem solving.
Values clarification names the process through which the moral convictions of individuals and the moral assumptions underlying social institutions are articulated in a public space. Moral learning occurs when the demand to express these values in public brings clarity to the values, especially when participants must also integrate their personal convictions with societal expectations--as they must in victim offender conferencing. It should be noted that the concern voiced by some character educators that values clarification encourages moral relativism is not vindicated here.(9) When personal or communal values must be articulated in a public context with face-to-face accountability for public responsibility, there is little reinforcement for a claim to the priority of one's own personal preferences as a substitute for morality. Rather, what occurs is closer to the social and logical testing of moral ideas imagined by Dewey.(10)
The cognitive-developmental approach assumes that moral development is stimulated by wrestling with moral problems and conflicts, resulting in a natural--but not automatic--progress toward the higher stages of moral thinking. Victim offender conferencing appears to provide an excellent challenge to participants to rise to a higher level of moral thinking.
The pioneer of this approach, Lawrence Kohlberg, proposes three basic levels of moral development, with two stages within each level.(11) It is helpful to conceive of the stages as a repertoire of ways individuals can organize their thinking to deal with moral conflicts, limited by their level of cognitive development. At the preconventional level, "the child is responsive to cultural rules and labels of good and bad, right or wrong, but interprets these labels in terms of either the physical or the hedonistic consequences of action ... or in terms of the physical power of those who enunciate the rules and labels."(12) A stage one child thinks about right and wrong egoistically, as it directly affects his or her experience of pleasure or pain. When the mother says "No" and frowns, the child understands his or her action as wrong because it feels wrong. The second stage child takes reciprocal relations into account: doing what others need and getting what oneself needs.
At the conventional level, the child moves beyond egoistic considerations to a conception of family and cultural expectations. These expectations are not questioned; the group is seen as larger than or superior to the individuals belonging to the group, and hence it can demand obedience to group norms. Where stage three thinking is sensitive to earning social approval, in stage four thinking the child translates this approval into a set of unchanging external norms against which he or she measures his or her own behavior, exercising self-judgment. For example, "It's wrong to lie" threatens social disapproval for the stage three child, while it demands conformity to an unchanging and absolute law for the stage four child.
Upon reaching the postconventional level, usually in one's adolescent years, the individual is developing a sense of personal autonomy. At this level, the individual is constructing or defining morality, rather than merely maintaining it or accepting it. Where stage four thinking saw the moral order as resting on unchanging laws, stage five thinking assumes the moral order rests on the consensus of free members--and moral rules are therefore changeable, at least in theory. Agreements freely entered into are morally binding, but the parties to the agreement are free to determine the terms of the agreement so long as they do this without violating the rights of any involved. The sixth stage of moral thinking moves beyond this consensus-based morality to universally binding moral principles, rooted in individual convictions and based on rational reflection. Examples would be Kant's categorical imperative, "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end"(13); "Love your neighbor as yourself"(14); "Do not do to others what you would not want them to do to you"(15); and "Always treat others as you would like them to treat you."(16) At this stage of thinking, the individual moves beyond ethical relativism to universal principles of justice, freely binding his or her self to follow these principles regardless of whether or not others agree or extend support.
According to Kohlberg, the sequence of these six stages does not vary, but the rate and degree of progress depend upon environmental conditions; for example, higher levels of education correlate with higher levels of moral reasoning.(17) While individuals can revert to ways of moral thinking in earlier stages, they cannot comprehend or perform moral reasoning more than one stage beyond their own highest stage of cognitive development. Moral education is therefore most effective when designed to help students take the next step in their developmental sequence, by presenting the student with a moral conflict and leading the student to reason toward a solution.
Victim offender conferencing presents exactly this sort of moral conflict which participants in the conference must resolve--with a level of complexity that is missing in fabricated cases. In a recent case of juvenile auto theft, for example, the following understandings of the moral conflict were expressed: the theft is wrong because I can be punished for it (stage one); the theft is wrong because it inconvenienced the owner/victim (stage two); the theft is wrong because nobody likes a thief (stage three); the theft is wrong because it broke the law (stage four); the theft is wrong because it violated the shared understanding of neighbors that their property would be respected by others (stage five); and the theft is wrong because stealing is a violation of human dignity and human rights (stage six). Whatever their stage of cognitive development, the conversation presented a challenge to rise to a higher level of moral thinking--a level more adequate for solving the problem. From the cognitive-developmental perspective, the educational power of victim offender conferencing lies in the process of moral dialogue, stimulating individual participants to comprehend and use higher levels of moral reasoning. The effects of this kind of learning tend to carry over into other situations. "As people can comprehend higher moral concepts, they tend to use them in making moral decisions," simply because these more developmentally advanced ways of thinking are more effective in organizing cooperation.(18)
Character education was defined 2300 years ago, when Aristotle noted that "states of character arise out of like activities ... for example, men become builders by building and lyre-players by playing the lyre; so too we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts."(19) While human beings are "adapted by nature to receive moral virtues," virtues do not arise automatically; they have to be learned, and the only way to learn them is to practice them. Long years of practice will develop habits of thought, perception, desire, and action oriented toward pursuing what was really good for oneself-which is in accord with one's humanity. Thus the personal good will also be good for the community, for human beings are by nature social creatures and the personal good must therefore also be a social good, or it would be contrary to one's own nature.
Nurturing a sense of belonging in a moral community is crucial to the growth of virtue, because these qualities of character can exist and be passed on only in the life of a community. Unlike the cognitive-developmental approach, which idealizes the morally autonomous individual willing to stand apart from or even against the community, character education stresses the morally committed individual rooted in the community, dedicated to the community's good. and embodying the best of the community's moral tradition. The three essential components of a virtue are thus: (a) virtues are rooted in activity, more something one does than something one thinks or talks about; (b) virtues develop over time, so that they can truly be understood only in the context of a whole life; and (c) virtues do not belong to individuals alone but always belong to a community as part of its moral tradition.(20)
Therefore, for a community to foster the growth of virtue in its members, the life of the community must include activities that embody the moral tradition and can be practiced over the long term, throughout a member's lifetime. According to MacIntyre, the kinds of activities that nurture virtues have these characteristics: (a) they are complex activities, made up of many component activities; (b) they have standards of excellence by which they can be judged, so that it is evident what is meant by being good at this activity; (c) they are activities valued for their external goods, that is, for what these activities provide for the health, enjoyment, prosperity, and good functioning of the community; and (d) they are activities valued for their internal goods, that is, for the qualities of character those who practice these activities must have, in order to do them well.(21) Farming, for example, is this kind of complex activity, made up of many component activities such as seed selection, field preparation, planting and cultivating, harvesting and marketing. There are standards of excellence by which farmers can be judged, so that it is clear what is meant by a "good farmer." Farming is valued for its external goods, the food produced for the community; and farming is valued for its internal goods, the qualities of attention to nature, care for the land and animals, hard work, and business sense that good farming requires.
Victim offender conferencing is a practice in the sense defined by MacIntyre. The external goods of conferencing can include restitution paid to the victim, community service, victim satisfaction with the process, reintegration of the offender, healing of the victim, restoration of the community's sense of security, reduced recidivism rates among offenders, and increased interdependence among community members. These are the kinds of outcomes that can be measured and according to which the process can be judged successful. At the same time, conferencing requires internal goods--qualities of character that render participants able to achieve the external goods identified above: interpersonal sensitivity, fairness, honesty, respect, responsibility, willingness to listen, willingness to articulate one's beliefs and values, willingness to change, willingness to be held accountable, willingness to belong and to give and receive support, and willingness to repent and forgive. Without these qualities in some degree, conferences cannot achieve the desired outcomes. Thus, as stated earlier in this paper, the quality of outcomes is dependent upon the capacities and character of participants. Yet the nature of the practice itself is educative, in the sense of demanding the exercise of these qualities of character--these virtues--and providing a public arena in which they can be displayed, appreciated, reinforced, strengthened, and extended.
Aristotle defines each virtue as a mean between two extremes: an excess and a deficiency. There is no formula for determining this mean; it is always an act of moral judgment, doing the right thing "to the right person, to the right extent, at the right time, for the right reason, and in the right way." Aristotle admits this is not easy, and for this reason good conduct is "rare, praiseworthy, and noble."(22) Also, for this reason, opportunities to practice this kind of moral judgment are essential to moral learning. Several of the virtues Aristotle highlights in the Nicomachean Ethics are central to the practice of victim offender conferencing; these can serve to illustrate the complementarity between qualities of character and moral decision-making.
Aristotle presents generosity as the mean between extravagance and stinginess, which are typically the kinds excess and deficiency to avoid in working out terms of restitution in conferences. Pride is the mean between self-abasement and vanity, an accurate sense of the honor one has earned by what one has done. To discredit the good one has done is a vice, just as it is a vice to think better of one's actions than they deserve. Conferences often involve efforts on both sides of the mean. Offenders may fail to see the harm they have done and so must be shown the true effects of their deeds, to move them from false vanity toward an honest assessment. Conversely, offenders may be so shamed by their deeds that they see no good in themselves at all, and their deeds must be put in proper perspective so that they can rise above them to regain some sense of pride. Victims often feel debased by what they have suffered and need to be helped to see that the crime was not their, fault, so they can regain a proper sense of self-esteem. Good temper is the mean between short temper and apathy. "The man who is angry at the right things and with the right people, and further, as he ought, when he ought, and as long as he ought, is praised."(23) This is the kind of "instruction" in anger that occurs in conferencing. Anger is not in itself discouraged in victim offender conferencing; rather, anger can be an important source of energy in defense of what is right and good when it is expressed in a good way.
Aristotle devotes two entire books of the Nicomachean Ethics to the virtue of friendship. The crux of this virtue is that true friends support each other in doing what is right and in avoiding what is wrong. In this light, victim offender conferencing is a school in friendship: helping offenders turn from the misleading loyalties of a deviant peer group and toward real support which helps them become the best person they can become. Conferences also help community members and family members rise to their best hopes for one another and then commit to helping one another achieve it. Shame, according to Aristotle, is not a true virtue because it is more an affect than a characteristic. Yet he considers it close to being a virtue in young people, as a proper "fear of dishonor" if their unworthy deeds were to become known by their elders.(24) Because of the fragmentation of contemporary American life, much that is done by youth may pass unnoticed or unconfronted by elders whose esteem they value. Victim offender conferencing provides an avenue for exactly this kind of check on juvenile offenders.
Justice, as noted earlier, is a complex term with many meanings. For Aristotle, however, the excess and deficiency in regard to justice is quite simple: the unjust person grasps for more than he or she deserves, creating some kind of inequality, while the just person seeks to match equal with equal or to restore equality where it has been taken away. This sense of equality is not rigid, however, for justice that cannot bend is not the best justice.
What creates the problem is that the equitable is just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which shall be correct.... And this is the nature of the equitable, a correction of law where it is defective owing to its universality. In fact this is the reason why all things are not determined by law, namely, that about some things it is impossible to lay down a law, so that a decree is needed. For when the thing is indefinite the rule is also indefinite, like the leaden rule used in making the Lesbian moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts.(25)
This describes the kind of outcomes sought in conferencing. Because of the sensitivity to the facts by people who know the victim and offender very well it is possible to shape a solution that truly fits the needs of those affected. Conferences can be faulted because, at least on the surface, they do not result in equal sentences for equal crimes. But this does not mean that conferences fail to achieve justice as the equitable, where legal justice fails on account of a lack of flexibility.
Practical wisdom is the ability to deliberate well, weighing the matter at hand and acting to bring about the best result. Aristotle sees this as an intellectual virtue, a seeking after truth, in the sense of trying to know what the facts of the situation are, what is truly at stake in the situation, and what good can be done in this situation. He is careful to point out, however, that there can never be the degree of certainty in these matters that one can achieve in mathematics and logic. Therefore practical wisdom is also a moral virtue, a wisdom that can be learned only through long effort at trying to achieve the good in all that one does. This virtue is required in every conference, as those seated in the circle try to find the good that can be done in this situation and then commit themselves to achieve it.
In sum, Aristotle points out that the practice of virtue is inseparable from moral reasoning, which is inseparable from the pursuit of pleasure and the avoidance of pain, which is inseparable from a conception of the good life as a whole and its constitutive goods. That is, the underlying social dynamics of the four methods of moral education identified in this paper are complementary in the informal, everyday practice of morality. They can also be seen as complementary in pedagogical practice, as long as the context of learning is sufficiently complex to require the exercise of all four methods. In many educational settings, the complexity of everyday life is eliminated in favor of conceptual clarity and simplicity; but this is not necessarily an advantage for learning.(26) Rather, the human brain is designed to learn in the complex situations of daily life, with particular attention to social demands and remedies.(27) Here, victim offender conferencing has an advantage over classroom moral education, because the social situation is complex and the stakes are actual rather than contrived. Positive and negative reinforcements abound. Values are expressed, challenged, clarified, and modified. Participation in moral decisionmaking is required as a precondition for inclusion in the process. The practice of virtues is required in order to achieve the outcomes explicitly projected.
Conclusion: A Reevaluation of the Educative Aim of Criminal Justice
The preceding two sections suggest that the educative elements in victim offender conferencing expand the potential for moral education in criminal justice, beyond the use of punishment alone. The facilitation of these elements by the structure and process of victim offender conferencing does not guarantee that education occurs, but it indicates that the process has that capability.
There is a growing body of evidence that conferencing meets the perceived needs of those who participate. Victims who have participated in victim offender conferencing report greater satisfaction and more fairness than victims who participate in court, while offenders participating in conferencing perceive greater fairness, "extremely high" satisfaction, and possibly lower recidivism. Victims in conferences also experience reduced fear and anxiety, greater interpersonal respect, a desire to help offenders, opportunities to express feelings and ask questions, higher rates of completed restitution, and a sense that the process was helpful to them.(28) These high rates of satisfaction can be interpreted as indirect evidence of moral learning, to the extent that successfully completing the conference indicates rising to the demands of the situation and achieving the competence needed to solve the problem. These data would also indicate that the potential for moral education is being realized in conferencing to a greater extent than in court processes alone.
This is not evidence for simply replacing courts with conferences or replacing punishment with restoration, since all the conferencing studied occurred within a context presuming the possibility of courts and punishment.
It is, however, evidence that the educative aim of criminal justice can be expanded -- indeed, is being expanded -- by victim offender conferencing. This, in turn, prompts a reevaluation of the priority of education in criminal justice. If the public response to crime can be made more effective educationally, it should be made more effective. Furthermore, there is no apparent limit to how far this effectiveness can be expanded. Apart from institutional conservatism or ideological loyalties, there appears to be no certain degree or frequency of punishment necessary in order to achieve its symbolic purpose as a signal of the social limit of tolerance. Moral learning is enhanced when the complementarity between the limit of tolerance and the teachable moment is realized. The way lies open for moral education to become a priority of the criminal justice system, not only in service of public safety and victim satisfaction, but in service of the good sense and good will upon which our democracy depends.
My hope for my own town is that the thousands of children who have experienced participatory anti-bullying programs in our schools, the thousands of adults who have experience restorative justice conferences in our police stations, will learn how to do justice restoratively and apply those lessons in the families, clubs and workplaces where they face their sharpest conflicts. Most especially I hope conferences are educating the police for democracy.... My hope about conferences in my town is that citizens are learning in them how to deliberate respectfully in the face of the greatest of the provocations of daily life. If they can learn to deliberate wisely and respectfully in the most provocative contexts then they are citizens well educated for democracy.(29)
(1) ARISTOTLE, THE NICOMACHEAN ETHICS bk V (trans. W.D. Ross 1925).
(2) Eglash, Creative restitution: A broader meaning for an old term, 48 J. CRIM. LAW, CRIMINOL., & POLICE SCI. 619, at 620 (1958).
(3) Hampton, The Moral Education Theory of Punishment, in PUNISHMENT 112, at 117-20 (ed. A. J. Simmons, M. Cohen, J. Cohen, & C. R. Beitz 1995).
(4) Rawls, The Idea of an Overlapping Consensus, 7 OXFORD J. LEGAL STUD. I (1987).
(5) T. LICKONA, EDUCATING FOR CHARACTER: How OUR SCHOOLS CAN TEACH RESPECT AND RESPONSIBILITY 38 (1991).
(6) Kohlberg, Stages of Moral Development as a Basis for Moral Education, in MORAL DEVELOPMENT, MORAL EDUCATION, AND KOHLBERG 15 (ed. B. Munsey 1980). Kohlberg associates the universality of principled moral judgment with its increasing rationality and autonomy, "independent of appeals to either authority or self-interest" (54).
(7) See Hampton, The Moral Education Theory of Punishment, supra n. 3, at 119.
(8) See Kohlberg, Stages of Moral Development as a Basis for Moral Education, supra n. 6, at 31.
(9) See W. KILPATRICK, WHY JOHNNY CAN'T TELL RIGHT FROM WRONG 78-82 (1992); T. LICKONA, EDUCATING FOR CHARACTER: HOW OUR SCHOOLS CAN TEACH RESPECT AND RESPONSIBILITY, supra n. 5, at 10-11.
(10) J. DEWEY, RECONSTRUCTION IN PHILOSOPHY ch. 7, 161-86 (1920, rev. ed. 1957): "Reconstruction in Moral Conceptions."
(11.) See Kohlberg, Stages of Moral Development as a Basis for Moral Education, supra n. 6.
(12.) Id. at 91.
(13) I. KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS 96 (1785; trans. H. J. Paton 1964).
(14) Leviticus 19:18.
(15) Confucius, ANALECTS, 12:2.
(16) Matthew 7:12.
(17) See Kohlberg, Stages of Moral Development as a Basis for Moral Education, supra n. 6; Rest, Developmental Psychology and Value Education, in MORAL DEVELOPMENT, MORAL EDUCATION, AND KOHLBERG, supra n. 6, at 113-14.
(18) Rest, Developmental Psychology and Value Education, in MORAL DEVELOPMENT, MORAL EDUCATION, AND KOHLBERG, supra n. 6, at 116 (emphasis in original).
(19) ARISTOTLE, THE NICOMACHEAN ETHICS, supra n. 1, bk II, 1103ab.
(20) A. MAClNTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 18687 (2nd. ed. 1984).
(21) Id. at 187-91.
(22) ARISTOTLE, THE NICOMACHEAN ETHICS, supra n. 1, bk II, 1109a.
(23) Id. bk IV, 1125b.
(24) Id. bk IV, 1128b.
(25) Id. bk V, 1137b.
(26) See Cobb & Bowers, Cognitive and Situated Learning Perspectives in Theory and Practice, 28 (2) EDUCATIONAL RESEARCHER, 4(1999).
(27) Iran-Nejad & Marsh II, Discovering the Future of Education 114 EDUCATION, 249 (1993); J. LAVE, COGNITION IN PRACTICE: MIND, MATHEMATICS, AND CULTURE IN EVERYDAY LIFE (1988).
(28) J. BRAITHWAITE, RESTORATIVE JUSTICE: ASSESSING AN IMMODEST THEORY AND A PESSIMISTIC THEORY (1997), available at: <http:// ba048864.aic.gov.au/links/braithwaite/abstract.html>.
(29) Id. sec. II.O.
Francis J. Schweigert, recently appointed as Community Liaison for the Northwest Area Foundation, Saint Paul, Minnesota, previously served on the faculties of the Department of Educational Policy and Administration, University of Minnesota and the Department of Philosophy, University of St. Thomas.
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|Author:||SCHWEIGERT, FRANCIS J.|
|Publication:||Criminal Justice Ethics|
|Date:||Jun 22, 1999|
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