Transcript Slide 1

The second annual Liz Elliott
Memorial Lecture & Dialogue
Vancouver, 23 November 2012
Centre for Restorative Justice, SFU
Restorative Punishment: Reconciling Restorative
Justice with Imprisonment
Dr. Theo Gavrielides
IARS Founder & Director
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 socioethical, 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?
Alternative
Punishment
Alternative to
Punishment
"It leads to
obligations for
the offenders"
Daly
" Coerciveness
is where RJ
should end the
CJS begins"
Marshall
"RJ rewards
the patient"
Braithwaite
"Restorative
measures are
not inflicted for
their own sake"
Walgrave
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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 connectionsconnections 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 reality
How 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 up
Gavrielides, 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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Questions & Contact details
Dr. Theo Gavrielides
Founder & Director, IARS
159 Clapham Road,
London SW9 0PU, UK
[email protected]
+44 (0) 20 7820 0945
www.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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