Restorative Justice: The Empowerment Model.
RESTORATIVE JUSTICE AND RESPONSIVE REGULATION John Braithwaite New York: Oxford University Press, 2002, 336 pp., $25.00 (paperback).
The social movement for restorative justice--not to be confused with the widespread ancient practice of restorative justice--was born approximately 30 years ago. No longer a youngster, this movement is more self-reflective now than ever before. Enter two books that size up current practices of restorative justice and suggest some redirection. Their authors address markedly different questions. Charles Barton, author of Restorative Justice: The Empowerment Model, asks: what are best practices during restorative justice sessions? John Braithwaite, in Restorative Justice and Responsive Regulation, asks: how do we best exercise control over people and groups for the good of humanity?
Barton's book is immediately useful as a guide to conducting restorative justice meetings subsequent to interpersonal crime. Barton lays some groundwork, early in the book, with theories of moral development and emotional healing, and unlike most scholars of restorative justice (including Braithwaite), he considers why restorative justice works for victims as well as for offenders. Barton draws mainly on his own observation and facilitation of conferences in order to specify, rather precisely, what conferences should be at the micro level.
For Barton, the issue of how to best facilitate victim-offender encounters is the most important and the most neglected issue in restorative justice today. Barton is thus confident of his contribution: 'Basically, if you stick to the empowerment model and the facilitation instruments provided in the Appendices, you will not go wrong' (p. 130). His empowerment model of facilitation stipulates 21 discrete steps running across three conference stages: exploration (e.g. sharing one's account of the crime), transition (e.g. the offender's responding to the victim's account) and agreement (e.g. planning reparations). Barton also details preconference preparation and follow-up tasks. Particular chapters are addressed to particular stakeholders. These convey what one should expect and what is in one's best interests to do and say. In an Appendix, Barton provides a script for facilitators, including an exemplary seating plan and a crisis management plan. Finally, he includes materials for conference role-plays.
Barton criticizes the criminal justice system not because it does harm but rather because it disempowers--silences and marginalizes--the people most affected by a specific crime. Barton believes that the primary stakeholders to a crime should decide whether or not to opt for restorative justice over traditional court processing. If they do opt for restorative justice, he believes that they should be 'encouraged to speak their minds and make their own decisions' during the meeting (p. viii). There is a contradiction between Barton's message of empowerment and his scripting of conferences. I believe that this contradiction delivers an important lesson about restorative justice and power, though one that Barton would likely disagree with: restorative justice does not necessarily reduce the extent to which participants are controlled. Participants face pressure of a subtle kind to be remorseful, forgiving and/or civic-minded. Perhaps restorative justice reduces state control, but even this is contestable. Because personal power is more problematic than Barton suggests, I think his model benefits more from an emphasis on communication than on power. Barton's directives clear various obstacles to open communication. For example, his advice on allowing offenders to speak first encourages 'a fuller account' of what they did and how they feel about it (p. 71). The offender does not have to sit silently for long, which an angry victim might read as defiance and react to with a closed heart. Rather than empower, such advice helps participants to be understood.
Power is a much more fundamental concern in Braithwaite's book. Braithwaite contemplates the twin needs of stable democracy: to involve people in matters that affect them (to empower) and to control behaviour sufficient for peace and justice (to constrain power). Like Barton, Braithwaite observes that primary stakeholders to a crime should be able to choose between justice processes. He agrees that facilitation is important. However, Braithwaite is opposed to formalism, so his book is not a resource for doing restorative justice. Moreover, it provokes too much thought to be called a guide. It is a tool for envisioning restorative justice. And Braithwaite's vision of restorative justice is far broader than 'corrections' after a criminal act; it applies pre-emptively to misconduct of all kinds. Hence the expression responsive regulation, by which Braithwaite means close monitoring of what offenders do after successive rounds of restorative dialogue.
In Chapter 1, Braithwaite offers a history of restorative justice--succinct for all its coverage of diverse practices and values. In Chapter 2 he elaborates on the idea of responsive regulation, illustrated by the 'regulatory pyramid'. Persuasive communication appears at the base of the regulatory pyramid: it is the presumptive response to misconduct. Moving up the pyramid are deterrent and, finally, incapacitative sanctions. Every effort is made to avoid escalating to these sanctions because they 'cost' us money and freedom. Braithwaite also explains that 'by resorting to more dominating, less respectful forms of social control only when more dialogic forms have been tried first, coercive control comes to be seen as more legitimate' (pp. 32-3), increasing the likelihood of law-abiding behaviour. The desired message is that society is forgiving but that controls on behaviour are inexorable.
Chapter 3 reviews evaluation research, suggesting the fairly promising status of restorative justice on a variety of outcomes. The review allows Braithwaite to identify specific gaps in research to date. Only after this empirical evaluation does Braithwaite examine, in Chapter 4, a massive amount of theoretical literature to clarify just how restorative justice might remedy human problems and promote democratic citizenship. He considers such diverse mechanisms as a sense of procedural fairness, unacknowledged shame, social identity and community crime prevention efforts. The reader will likely conclude from this chapter--as from Barton's theoretical review, extending as it does to victims--that restorative justice has to this point been under-theorized, relying perhaps too much on Braithwaite's own reintegrative shaming theory.
While on the topic of restorative justice 'working', Braithwaite discusses the limitations of formal deterrence, incapacitation via imprisonment, and individual treatment. This discussion backs his earlier call for presumptive restorative justice. Particularly compelling are the challenges of controlling the deviant corporation by getting tough the usual way. Penalties meant to deter and incapacitate the corporation's activities are likely to fall hardest on persons either selected to take the fall or whose jobs are at risk when the corporation is forced to close. But deterrence, incapacitation and rehabilitation do have circumscribed roles to play in a holistic and evidence-based responsive approach. Such an approach recognizes broad responsibility for crime and for social control. It targets numerous actors to deter, incapacitate and rehabilitate. For example, it seeks to provoke deterrent efforts by parties who might know about misconduct and can influence violators. Potential third-party regulators include large firms that sell supplies or buy from small companies that deal, say, in hazardous materials. Such firms have 'much more regular contact with them than any government inspector, more intimate and technically sophisticated knowledge of where their bodies are buried, greater technical capacity to help them fix the problems, and more leverage over them than the state' (p. 115). Braithwaite would expand the variety of ways in which institutions and persons are controlled. The limit on control, prescribed by Braithwaite and Pettit's (1990) republican theory of justice, is the point at which control no longer yields net increases in dominion--civic freedom.
Restorative justice is not enough, writes Braithwaite. It is a presumptive way of preventing and reacting to misconduct, but it is not the only way. Repeatedly, Braithwaite bids the reader to attend to what works. Observe closely in context. Braithwaite brings this message to bear on his treatment of the pitfalls of restorative justice practice (Chapter 5, 'Worries about Restorative Justice'). Worries include expanding the net of social control over juveniles; upsetting the balance of power between government branches; exposing offenders to overly severe or stigmatizing treatment; and exacerbating social inequalities such as those based on gender and age. Braithwaite calls for more and better research on some of these problems (e.g. net-widening). Other problems cannot be resolved: for example, 'there can be no doubt that capture by dominant groups is an ineradicable reality of restorative justice (just as it is of state justice)' (p. 161). Generally, problems teach us how to improve practice. For example, victim-offender mediation--much used in North America with young offenders--is contra-indicated by likely imbalances of power between the two participants, going it alone without support persons. Conferences, which invite communities of care to participate, help offset power imbalances.
Restorative justice is commonly but erroneously understood as a response to interpersonal crimes. This is wrong on two counts, in Braithwaite's view. First, restorative justice need not be seen as a 'response'. It is, moreover, a way to regulate. Second, it potentially applies to many kinds of violation. Indeed, restorative justice already characterizes how many Western governments deal with corporate crime and how they typically conduct diplomatic relations with other Western governments. These observations raise the question: why is restorative justice not consistently working to control harmful action in the corporate and political domains? Braithwaite's answer concerns the lack of punitive threats in the corporate realm and the limited use of dialogue in the political realm. For example, mounting political conflicts between groups must be dealt with restoratively first: the regulatory pyramid applies as it does with other crimes. In addition, such conflicts demand peacemaking processes in the general population as well as mediation between leaders; the former is too rarely seen. On the ground, as it were, the people know that many parties share responsibility for violence. Even where elites are motivated to resolve civil conflicts (which cannot be assumed), they have an interest in scapegoating the few. However, when peacemaking is not a democratic and pervasive process, 'the peace is usually not enduring because unresolved resentments fester in civil society' (p. 194).
Braithwaite states that restorative justice channels the same psychosocial mechanisms, whether used with large-scale conflict or a single act of juvenile delinquency. The tyrant and the wayward youth are both trying to save face, to construct a worthy self. Such conceptual linkages are very effective concerning the psychology of peacemaking. But they can also be confusing, as when Braithwaite links the development of young people and the development of nations in Chapter 7 on 'Sustainable Development'. He considers sustainable development as a key goal of restorative justice. He conceptualizes development very generally, as support for the economically marginalized. To foster the maturation of children into responsible citizens, Braithwaite proposes youth development circles, or ongoing mentoring conferences for at-risk youth. To foster nation-building, Braithwaite recommends targeting such democracy-corrupting influences as tax evasion and monopolies. Whereas both proposals are compelling, the one chapter might have been two as the topics are not clearly equivalent. Braithwaite might also have taken on some of the potential ills of societal development. Such ills may include, but are not limited to, damage to the natural environment. Other than referring to literature on the compatibility of environmental and human-developmental well-being, Braithwaite deals with human consequences only.
In the book's final chapter, Braithwaite discusses transformation of the current legal system in the direction of restorative, responsive processes. He believes it to be a large task but not an unfeasible one. It requires structural changes consistent with democracy: equal access to all justice processes (both the courts or restorative justice) and fortification of people's organizations to match the power of lobbies representing corporate interests. Braithwaite's book begins as a survey of restorative justice but ends as an inspiring deliberation on how to create a more just society.
Braithwaite, J. and P. Pettit (1990) Not Just Deserts: A Republican Theory of Criminal Justice. Oxford: Clarendon Press.
University of Tennessee
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|Title Annotation:||Restorative Justice and Responsive Regulation|
|Publication:||Journal of Sociology|
|Article Type:||Book Review|
|Date:||Sep 1, 2005|
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