Re-Thinking Access to Criminal Justice in Canada: a Critical Review of Needs, Responses and Restorative Justice Initiatives

4. A Step Back … Towards the Future

4. A Step Back … Towards the Future

4.1 Reflections

As Chapter 3.0 indicates, there are many projects underway to bring a new perspective and vision to the criminal justice system based on a radically different understanding the concept of "justice." These efforts are directed at implementing a concept of substantive justice, going beyond procedural justice to just outcomes for all participants. As we indicated in Chapter 2.0, restorative processes may well have the capacity, not only to take into account, but perhaps to respond to some extent with the specific problems facing an accused and the victim, arising out of the criminal offence; they may also have the capacity to help a community harmed by crime to reintegrate the offender, support the victim and respond to its members' fears about social disorder. Yet the trend towards restorative justice measures needs to be complicated by considering whether they are really the "panacea" some of their proponents believe. Part of the difficulty with restorative justice is knowing what it really is, since the term is applied from everything from a revolution in justice to limited measures such as victim compensation schemes. For some, restorative justice is too little (they would bring restorative justice principles to bear on all societal practices), while for others even some of claims made for it in the more confined sphere of the criminal legal system are too much (for them, restorative justice poses a serious risk of heightening the inequality already characterizing criminal justice).

In this chapter, we step back and reflect on the measures discussed in the literature and implemented in practice in response to the criticisms of the mainstream criminal legal system and the needs of those who participate in it. We also suggest some directions for future research.

The on-going experiment in restorative justice raises a number of questions which should be addressed before we can conclude that these practices will increase access to criminal justice. Are some forms of restorative justice inappropriately transferred from cultures with different norms and values (Marhsall 1998)? A related concern is whether the concept of "community" which underlies restorative justice, particularly conferencing and circles, is meaningful in urban settings (Bussman 1992; Roach 1999; Law Commission of Canada 1999; Hudson 1998a; Manson 1998; Delgado 2000). Do these programs acknowledge and provide ways of addressing internal community power differentials and possible conflicts between the goals of victims and the community (Bazemore and Umbreit 1999; Law Commission of Canada 1999)? To what extent do restorative justice principles recognize how gender, racial and class may affect victims and offenders or worsen the position of particular groups compared to the mainstream system (Mika 1992; Marshall 1998; Van Ness 1999; Roach 2000; Delgado 2000)? Is the recourse to restorative justice initiatives by government at least in part a convenient way to "download" services without providing adequate resources (Marshall 1998; Law Commission of Canada 1999; Roberts and LaPrairie 2000)? Are restorative practices appropriate for all kinds of offences or should there be a dual system of retributive and restorative justice practices either for philosophical or efficacy reasons (Bussman 1992; Joseph 1996; Roach 1999, 2000; Delgado 2000)? If they are associated with the mainstream criminal legal system, will restorative justice principles be undermined by that system or even exacerbate the problems identified with the mainstream system (Van Ness and Strong 1997; Llewellyn and Howse 1998; Umbreit 1999; Bazemore and Umbreit 1999; Law Commission of Canada 1999; Field 1999; Roach 1999; Delgado 2000)?

We consider first a number of issues raised by the importance of "community" in restorative justice approaches and practices. As we discussed in Chapter 3.0, one of the major goals of restorative justice is to bring justice back to the community and to involve the community with the offender and the victim in reaching a just solution to the harm created by the offender's wrongdoing, although, as we have seen, not all forms of restorative justice emphasize this to the same extent. The extended community is crucial to circle sentencing, may be limited to the juvenile offender's family in family group conferencing and may not be involved at all in victim offender mediation. On the other hand, "bringing courts to the community" may be considered a restorative practice by some observers. Yet what is meant by "community?" Even if we can identify the community, what kind of internal dynamics enhance or impede restorative justice? Do communities have sufficient resources to implement restorative justice adequately?

The identification of "community" matters not only because restorative justice may involve the community, but also because the particular characteristics of a community ought to be taken into account in developing restorative justice practices. For example, circle sentencing recognizes that western systems have destroyed many traditional aboriginal practices because those systems were based on principles and norms sometimes antithetical to those of many, although not all, aboriginal communities. We should be similarly wary of importing approaches to the mainstream system which are based on fundamentally or at least significantly different world views or on particular characteristics, such as a well-defined community with an easily identified relationship to the offender (and victim, in fact) (Marshall 1998). Yet some commentators propose transferring practices developed in very different cultural settings to western jurisdictions. Concepts such as reintegrative shaming require a community about whose opinion the offender cares and cannot readily be used in contexts in which the state or other "anonymous" authority attempts to impose shaming (Marshall 1998); it requires, too, a culture in which apology and forgiveness are the norm. The same practice may have quite different implications in different cultural settings. Thus minimizing the presence of the Crown in circle sentencing is a tacit (and perhaps more explicit) acknowledgement of the legitimacy of some form of aboriginal self-government; but minimizing the presence of the Crown in the majority legal system may be viewed as a denial of state interest in offences against victims.

Without the involvement of community, Hudson (1998a: 251) argues, "restorative justice is reduced to the competing perspectives of the victim and the perpetrator." Involving the "community," however, requires us to identify it. The identification of community is difficult in the contemporary urban world (Bussmann 1992: 320), where many residents are "immigrants" to their neighbourhoods. As Roach (1999) asks, "[a]re [restorative justice initiatives] viable in a mobile, busy urban environment in which you may not know or even want to know your neighbour?" Hudson (1998a: 251) points out, "[Most] of us now inhabit not 'communities,' but shifting, temporary alliances which come together on the basis of private prudentialism." In some cases, the "community" will be determined by the scope of the offence. Thus juvenile vandalism may occur within the range of a few blocks; the residents and shopkeepers in this area may constitute the community for certain purposes. Yet by community, we also mean those who are in some way associated with the offender or the victim or both; in the context of reintegration, for instance, there must be an association between offender and community which is more than that created by the offence itself. If the offender is to work in "the community" as part of the process of restoration, in which community does he or she work? Delgado (2000: 769) wonders, for example, whether a poor minority offender should work for a middle class white victim, for a predominantly white charitable organization or in his or her own community: what is the purpose of the work and how does it relate to the concept of "community?"

Post-modernists would reject the notion of community, while in contrast Delgado (2000: 769) points out, "[i]n a diverse, multicultural society, many collectivities may vie for…status [as "the community"]" and Meyer (2000: 1519) finds that we "define ourselves in myriad ways." Yet at least one participant in an early project combining legal and social services in Atlanta, Georgia (now labeled a restorative justice project) has been forced to conclude that restorative justice may succeed only in homogeneous communities (Ammar 2000: 1591). Even where we think the identification of community is easy, as in the case of Aboriginal circles, this may not be the case in urban rather than reserve settings (Manson 1999: 489). We need to establish more clearly the meaning and purpose of community in restorative justice initiatives (is the community always the same for purposes of reintegration and restoration, for example?) and develop ways of ensuring that there is some kind of organic connection between the offender and the community which makes the interaction between offender and community meaningful.

Even if it is possible to define the parameters of the relevant community, Ashworth (1993: 294) is critical of the vagueness of the concept of "community harm" in restorative justice and asks how the nature and quantum of harm to the community can be assessed; what forms of restorative justice should be used; and how does this process differ from one based on punishment? Van Ness (1993) suggests that Ashworth does not appreciate the difference between the community and the state and thus the importance of recognizing the distinct interest of the community does not answer Ashworth's questions, which remain valid even if one assumes that they can be answered.

It is also important to acknowledge and redress imbalances of power within the community and conflicts between the norms and goals governing victim participation and those governing community involvement. It is crucial that a balance between the sharing of power with the community and maintenance of restorative justice principles be maintained. On the one hand, a failure to recognize community differences may result in these initiatives being subsumed within or co-opted by the traditional system, a point to which we return below. On the other hand, a failure to monitor community-based initiatives adequately may run the risk of powerful members of the community unduly influencing the process or diminishing the involvement of more vulnerable groups (Bazemore and Umbreit 1999, citing Griffiths et al 1996). Replacing state control with community control "may make some liberal individualists uneasy and … raises concerns for those who are sceptical about the possibilities of non-coercive local politics and self-governance" (Roach 2000). Yet the idea that community politics are in equilibrium or that in some communities, certain classes of people are not at a disadvantage because of gender, race or class is unrealistic. As we pointed out in Chapter 2.0, some commentators have been concerned about how state control has been replaced by social control with the potential to divide communities rather than heal them (Griffiths 1999: 293, quoting LaPrairie 1996).

A related issue is how disagreements between the victim and the community about the appropriate "restoration" are to be resolved (Law Commission of Canada 1999). Increased victim involvement in the mainstream criminal justice system has been in part motivated by the perception and reality that the interests of the state or the Crown are not necessarily those of the victim; yet there may well be instances in restorative justice processes where victims and the larger community are at odds. It may also be that particular communities families engaged in conferencing will expect different behaviour from male and female offenders and treat them differently in determining sanctions for the same reason, although at least one study in New Zealand indicates that "women seem to confront fewer traditional disadvantages to active participation than in other dispute resolution alternatives" (Van Ness 1999: 267, relying on Maxwell and Morris 1996). In some aboriginal communities, however, flags have been raised about the treatment of wife abuse; concern about restoration of aboriginal culture has often failed to take account of differential experiences in aboriginal communities for women (Zellerer 1999; Lash 2000). One of the risks with restorative justice approaches is that while they may take into account the offender's status, they may be less likely to understand the need to provide the victim with the means of overcoming the cultural and patriarchal oppression underlying wife abuse and the cultural norms which make it difficult for them to demand redress for violence (Miedema 1996; Miedema and Wachholz 1998).

Where communities become involved through the action of government,[61] to what extent is community involvement merely a reflection of downloading from government to other entities or the process of privatization? And do adequate resources accompany the increased responsibility (Marshall 1998)?

The coincidence of timing of restorative justice projects raises the spectre of the more general trend to "downloading" of government activities which has occurred over the past decade or so or, in a variant of that concern, from the desire to remove some of the pressure from overloaded courts (Law Commission of Canada 1999), a criticism made about mandatory mediation in the civil context (Menkel-Meadow 1991; Street 1998). Nova Scotia officials explicitly deny that downloading plays a part in its restorative justice program (Nova Scotia Department of Justice 1998). Nevertheless, as provincial functions have been downloaded to municipalities, so, it might be said, centralized legal functions have been downloaded to the local community. While in both cases, there might well be some normative justification for this transfer, in other cases, there may be concern that the allocation or transfer of resources has not kept pace with the transfer of function.

Restorative justice projects are labour intensive, requiring a great deal of preparation of the major participants and training of facilitators and mediators. These processes require real and not perfunctory participation with a commitment to changed behaviour in the future. As we indicated in Chapter 3:0, family group conferences may implement only perfunctory preparation. Bazemore and Umbreit (1999) compare elements of "community justice" on the basis of compliance with restorative justice principles. For example, restorative justice requires a dialogue between the offender and victim, while a complete focus on financial reparation has the least restorative impact; a voluntary process with separate preparation meetings, giving the victim choices and an opportunity to speak first, non-directional mediation by a trained community volunteer based on a transformative model with a high tolerance for expression of feelings, lasting at least an hour are all reflective of restorative justice compared to a process which is mandatory for the offender, with no separate meetings, giving victims little choice or opportunity for involvement, highly directive mediation by paid lawyers or other professionals who talk a great deal compared to the parties and have a low tolerance for expression of feelings (or silence) and which is settlement-driven and lasts for perhaps 15 minutes. Despite the emphasis on "encounter" between the victim and the offender, short cuts are tempting where resources are inadequate.

Nor should it be presumed that families will automatically respond positively to involvement in family group counseling or victim-offender mediation; education about the processes is crucial. Therefore, it is necessary to commit the resources necessary for trained facilitators, preparatory work and time for the actual mediation or conference (Marshall 1998). Roberts and LaPrairie (2000) report that nearly a third of judges who considered conditional sentences could not find out about the community resources available and that more judges would impose conditional sentences if there were more community resources available. Similarly, for community involvement in and acceptance of conditional sentences, it is necessary that resources be expended to inform the public be informed about why conditional sentences are a satisfactory substitute for imprisonment (Roberts and LaPrairie 2000).

A variant of concern about the amount of resources allocated to restorative justice is how resources are delivered and controlled. As we indicated in Chapter 2.0, Lancaster (1994: 349) has cautioned against targeted resources and advocated "holistic" funding which permits customary approaches to apply in the community, while working with outside justice institutions. We also asked in Chapter 2.0 about the extent to which some of the resources now being allocated to restorative justice (and thus within the criminal justice system), were previously allocated to social programs, since as a result of the withdrawal of those social support services, and as a result of the criminalization of certain activities, youth and marginalized adults may well become criminal offenders (National Council of Welfare 1995, 2000; Roach 1996: 239; Martin 1999: 190-91, 193). In short, it is important to understand how restorative justice practices may have been co-opted to serve this revised criminal/social dynamic.

Concerns about the privatization of justice take another form. In stressing responsiveness to the needs of offenders, victims and communities, these approaches often fail to factor in the systemic implications of crime, looking more to the individual or to a generic 'victim" or "offender." Crime becomes less an affront to the state or society as a whole and more an intrusion of an individual victim's rights and – perhaps – the concern of the local community. To what extent, therefore, are these projects another example of the privatization of justice or individualization of systemic concerns (Mossman 1997; Hughes 1997)? The symbolic value of the state's condemnation of certain kinds of activities becomes simply a dispute between the victim and the offender, particularly of concern in domestic, sexual and racial crime (Hudson 1998: 247). Privatization of justice, whether in the civil or criminal context, often fails to address the societal interest in ensuring that widespread wrongdoing is known and addressed or that societal values are reaffirmed (Fiss 1984; Braithwaite and Parker 1999: 108; Delgado 2000). Bussann (1992: 318, 319) points to the way in which the "criminal law, its institutions, and sanctions symbolize existing social moral or basic values," while mediation lacks such symbols. Roach (2000) argues, however, that privatization is not in itself the problem; rather the real issue if whether there will be adequate funding for restorative justice initiatives. Bussann (1992: 323) suggests that mediation reflects the importance rational communication or discourse plays today; increasingly, people listen to each other and respond to each other's arguments. This discursive quality – the "encounter" between offender and victim – is reflected in informal or unofficial dispute resolution processes generally, civil, as well as criminal. Again, however, the potential of discourse lies in adequate preparation to ensure as much as possible that the victim and the offender appreciate the nature of their meeting and the opportunity through a face-to-face meeting, to come to greater appreciate their respective situations.

While some proponents would replace retributive justice with restorative justice (perhaps with separation of offenders, that is, incarceration, where unavoidable), some would go further and eliminate the boundaries between civil and criminal justice. Van Ness and Strong (1997: 49) maintain, however, that the criminal law serves different purposes from those served by the criminal law: "it provides an effective method of vindicating the rights of secondary victims, it restrains and channels in acceptable ways retributive emotions in society, and it offers procedural efficiencies in enforcing public values." At the same time, proponents of restorative justice express concern that restorative justice will be undermined or distorted by association with the mainstream system with its emphasis on the offender and its coercive character (Van Ness and Strong 1997: 60). Some commentators maintain that if the formal system maintains control of the new processes, instead of sharing power, the result will be "net-widening, rather than the development of more effective alternative decision making processes" (Bazemore and Umbreit 1999, citing Polk 1994; Messmer and Otto 1992: 3). There is a real danger of increased criminalization of activities which would not otherwise be the subject of a criminal charge with a disparate impact on the poor and members of vulnerable groups (Levi 1997: 758). Since restorative justice often applies in the case of minor crimes, and since a failure to abide by the conditions imposed in a restorative justice process may result in imprisonment, restorative justice processes applied uncritically may merely serve to enhance to disadvantages suffered by those who are already effectively "outside the system" and without recognized community supports.

Some of the questions about the relationship between restorative justice and the mainstream criminal legal system can be traced to the debate between "rights" and "needs" to which we referred in Chapter 2.0. Van Ness (1993: 259) argues that the objective of restorative justice is to address "the need for building safe communities as well as the need for resolving specific crimes." Thus although Van Ness does not wish to jettison the criminal courts altogether, it is evident that he wants to see "healing" given a higher priority than "punishment." Ashworth (1993), on the other hand, differentiates between the function of criminal justice and the function of civil justice, with the latter being the appropriate recourse for claims of harm. Similarly, he differentiates between the right of victims to services (such as restitution and better communication) and the right of victims to be involved in criminal law processes. The latter may distort the goals of criminal justice, such as fairness (that is, consistency) in sentencing by imposing a more stringent sanction against an offender whose victim experienced great harm than against another offender whose victim experienced less harm as a result of the same crime. Without a clear understanding of restorative justice principles – and a reluctance to apply them to any "difference" in the mainstream system –, the traditional system may subsume "new" approaches for its own purposes with, among other consequences, more control of and sanctions against the offender (Kurki 2000: 287-88).

Much of the restorative justice literature glosses over differences in power between victims and offenders or between certain offenders and others, as well as the extent to which mediators or facilitators can pressure victims and (especially juvenile) offenders (Kurki 2000: 286). In one stream of restorative justice, at least, the emphasis on healing and forgiveness fails to acknowledge these differences. Requiring forgiveness may result in the victim's need to reassert his or her sense of self, diminished by the crime against him or her, being overwhelmed by pressure to forgive (Ammar 2000: 1586; Delgado 2000), since "the focus when someone forgives is predominantly on the other person, not on oneself (Enright and Kittle 2000: 1630). Indeed, Garvey (1999: 1828) contends that "[i]t reflects a moral failure … for victims to withhold forgiveness unreasonably from offenders who have done all they can do to expiate their guilt … Forgiveness is something victims ought to give even if they are not obligated to give it." This pressure on victims distorts the relationship between victim and offender in a way that is reminiscent of the re-victimization of the victim in sexual assault cases in the traditional criminal system.

Furthermore, restorative justice often seems "apolitical," failing to take into account structural inequality and imbalances of power between victims and offenders. Mika (1992: 561, 563), for example, maintains that victim offender reconciliation reveals an "astructural bias" manifested in the assumption that the individual relationship between the victim and the offender "transcends" the socio-structural relationship and ignores the social context. Braithwaite and Parker (1999: 107) contend that conferences "are in danger of doing too little justice with too little equity," although they argue that it is possible to overcome this danger. While sometimes offences (such as wife abuse) may reflect an on-going relationship of domination and subordination between the victim and the offender, in other cases, offenders may be poor or otherwise disadvantaged compared to a middle-class victim and "it will be the offender who needs a better education, increased job training, and an improved living environment" (Delgado 2000). Llewellyn and Howse (1998) answer these concerns about power imbalances by suggesting that the parties should help establish the ground rules, yet this seems more likely to reinforce the power imbalance than to dismantle systemic power hierarchies.

Some proponents of restorative justice argue that it should not be expected to solve "the deep structural injustices that cause problems like homelessness or hunger" (Braithwaite and Parker 1999: 108), although, as we mentioned in Chapter 3.0, others are turning away from restorative justice to the more ambitious restorative governance. Nevertheless, Braithwaite and Parker (1999: 109) suggest that three "republican solutions" may meet the challenges posed to restorative justice initiatives: the rule of law governs with the result that formal proceduralism acts in a supervisory way to counter the excesses of informalism; "de-individualizing" the process by using community conferences more than victim offender mediation; and perhaps most idealistically, "[v]ibrant social movement politics that percolates into the deliberation of conferences, defends minorities against tyrannies of the majority and connects private concerns to campaigns for public transformation." Social movement politics acts to check the abuse of both state and community (Braithwaite and Parker 1999: 111).

Inequality may also be ignored – or even reflected in – the kind of reparation an offender may be required to make. Financial reparations are easily paid by economically advantaged offenders, but only with difficulty by others (Roach 2000). Community "services" may be a contemporary menial version of the punishment carried out by prison labour gangs (Delgado 2000: 769). It is not insignificant that one of the ways in which an advocate of a community court in Hartford, Connecticut measures success is by the nearly 43,000 hours the city has "benefitted" from the "community service" performed by offenders; this service, in the form of cleaning garbage from parks and vacant lots, loading trucks at soup kitchens (this advocate does not ask whether there is any connection between the need for the soup kitchens and the plight of at least some of the offenders) and clearing snow from handicap accessible curbs (Kaas 2000). On the face of it, some of these activities would be considered selfless examples of voluntary community services. In the context of community sanctions, however, one must ask how much free labour performed by offenders saves the municipalities in providing the services expected of them. Young (1999: 275) prefers the term "community restitution" to "community service" to differentiate it from both punishment and voluntary service, although Garvey (1999) believes that it should be viewed as punishment, since this is the only way for the offender to atone and for society to condemn morally the offender's actions. In any event, it is not difficult to see how community service sanctions may be a form of degrading shaming. Van Ness (1999: 267) recognizes that shaming may be degrading, but says that "[p]rogram guidelines and mediator and facilitator training must ensure that shaming is reintegrative rather than stigmatizing." According to Roach (2000), however, some proponents favour stigmatizing or humiliating penalties because they will help in obtaining public support for alternatives to imprisonment.

The lack of understanding of the impact of systemic power differentials (reflected in micro-level relationships between some victims and offenders) is marked out in another way. Their enthusiasm for restorative justice leads some supporters to suggest that there are few types of wrongdoing which are not suitable for these processes. Yet other commentators wonder whether there are some crimes which might not be suitable for mediation for a variety of reasons. For example, domestic abuse cases may be unsuitable for mediation (Joseph 1996). In light of the goal of restoration of the relationship, in the context of wife abuse and sexual assault cases, these processes may seem too much like the admonishment to "go home and sort things out" which until recently was too often the response to charges of domestic violence. Furthermore, not all communities may have developed the same degree of concern about sexual assault or wife abuse as has even the mainstream criminal legal system (Zellerer 1999: 354; Griffiths and Hamilton 1996: 188). Although some commentators have suggested that victim offender mediation might be employed in cases of severe crimes, including murder, they have also cautioned that more research needs to be done to determine whether there could be "unintended negative consequences, … including a significant re-victimization of the victim" (Umbreit, Bradshaw and Coates 1999: 340).

The relationship between restorative justice initiatives and the mainstream legal system remains to be delineated. Many programs, while called restorative justice, are merely adjuncts to the mainstream process and are governed by the mainstream rules. Roach (2000) asks, "[i]f restorative and aboriginal justice represent legal pluralism and an alternative to state centred criminal law, will their incorporation in formal diversion programmes and especially in judge-driven sentencing distort them beyond all recognition?" More fundamentally, it has been observed that even though restorative justice challenges the meaning of "crime," "[m]ost programs are organised around criminal behaviour rather than around conflict that may or may not be criminal" (Law Commission of Canada 1999; Field 1999: 38). Llewellyn and Howse (1998) maintain that restorative justice cannot be run in conjunction with the existing system and they point to the power of the retributive system to dictate the course of restorative justice.

Much criticism of the mainstream system is directed at its reliance on rules. In contrast, restorative justice projects usually rely less on formal than on informal procedures. (See Joseph 1996: 216 for a concise summary of the differences between "conventional" and "restorative" values and assumptions.) Often this is desirable; at the same time, it is important to appreciate that formal procedures often are protective of both offender and victim (Marshall 1998; Nova Scotia Department of Justice 1998; Delgado 2000: 760, although he later (at 772) contends that the criminal justice system in the United States may be the only institution in which the formal processes are more racist than citizens' informal practices). Whatever the weaknesses of the trial, for example, it is based on well-developed practices about the rights of the accused and shields, to some extent, the victim from direct contact with the offender. It is these very practices that are set-aside in restorative justice. The offender may give up these rights in favour of a different penalty or outcome by pleading guilty. At the same time, it can be argued that this is little different from plea bargaining and other mechanisms upon which the current system relies (Van Ness 1999: 268). The victim, on the other hand, may feel pressure to participate in a restorative justice approach, even though she or he would prefer not to have to deal with the offender directly and may wish to leave the experience behind her or him (Gaudreault 1999: 6).

As restorative justice initiatives lose their novelty, there is the possibility that they will become perfunctory or practitioners will become satisfied with meeting minimum requirements or cutting corners reflective of a "loss of vision"

4.2 Future Directions

Throughout this assessment of new approaches to access to criminal justice, we have referred to the concerns commentators have expressed about these processes or about their implementation in the current criminal justice system. In the previous section, we "reflected" on some of the issues raised by restorative justice principles and processes. In this section, we focus on the issues of evaluation and equality.

We reported in Chapter 3.0 that the studies of restorative justice measures – primarily of victim offender mediation – have reported high levels of satisfaction by victims and offenders. We also indicated some of the concerns with the lack of methodological rigor of many studies. Rigorous and relevant evaluation remains to be done. Bazemore and Umbreit (1999) argue that potential restorative justice models should be assessed on the basis of whether they create or strengthen positive relationships, increase community skills in problem-solving and constructive dispute resolution, increase the community's sense of its capacity to solve problems, "increase individual awareness of and commitment to the common good" and create informal support systems and safety nets for both victims and offenders. These may be praiseworthy goals, but they are also difficult to measure. Since restorative justice objectives "may encompass macro-level dimensions such as cultural and community revitalization and empowerment, as well as community, family and individual healing," evaluation is difficult and requires distinct measures (Griffiths and Corrado 1999: 252).

We indicated in Chapter 3.0 that studies of victim-offender mediation and family conferencing show high level of victim and offender satisfaction and lower rates of recidivism compared to the traditional system and higher rates of compliance with restitution agreements than with restitution orders. After reviewing the evaluations of a number of projects which generally show high levels of victim satisfaction, Immarigeon (1999:321) concluded that "they only touch lightly on the myriad concerns and questions of interest to crime victims" and fail to address what long-term impact participation may have on victims' attitudes towards crime and themselves. Schiff (1999) similarly finds that the research shows "encouraging" results with respect to offenders' involvement in restorative justice initiatives, but cautions that it is important to identify when restorative justice processes are coupled with retributive sanctions labelled "restorative" and more generally, "the extent to which a program is truly restorative in nature and not simply a transmogrified retributive approach." She refers, as well, to the potential for discrimination in the selection of offenders who are directed to restorative initiatives and for net widening (Schiff 1999: 344). Bonta et al (1998) report a lack of consistency in the apparent impact of restorative justice approaches on recidivism, coupled with methodological problems in the evaluations of the programs. Some studies have shown that recidivism is only delayed (Kurki 2000: 272).

It is important to measure restorative justice projects using criteria which reflect the particular goals of restorative justice, both with respect to process and outcome. Bazemore and Umbreit (1999), speaking primarily in the juvenile context, conclude that there has been inadequate evaluation of many restorative justice programs. They point out that evaluation involves different criteria from that of recidivism rates usually used to evaluate the traditional system; these criteria include outcomes of community empowerment and solidarity, victim interests and crime prevention. Braithwaite (1999: 1749) maintains that the "science of evidence-based crime prevention used to inform restorative justice must be rigorous and strong on statistical power, using randomized controlled trials when possible (combined with rich ethnographic engagement with the phenomenon." Kurki (2000: 285) complains that "[t]here have been too few efforts to estimate traditional measures, such as recidivism, crime, and victimization rates, and to create new measures to estimate community involvement, empowerment, and crime prevention."

A review of the literature suggests a number of aspects of restorative justice which need evaluation. There are insufficient data to explain why victims choose to participate or not and what the long-term effects on victims are; or how important a face-to-face encounter is compared to indirect mediation (Marshall 1998). Marshall (1998) also maintains that it is important to know whether mediation "offer[s] a significantly better deal to victims to warrant the cost" of victim offender mediation, for example.

In Chapter 1.0, we identified the degree to which the current and "new" approaches satisfy or enhance equality principles as one of the important issues to be addressed. One serious gap in the discussion of restorative justice is the extent to which it actually either enhances or diminishes equality. We know little about whether equality is achieved more in restorative justice processes, for both offenders and victims, than in other practices. If we knew whether these practices are "fairer" than criminal trials, it might be possible to use information about restorative justice processes to make criminal trials fairer (Braithwaite 1999: 1750). Apart from that possibility, however, we should expect restorative justice initiatives to have a positive impact on the development of equality. Yet while there is some theoretical discussion about this (although not a great deal in the main restorative justice literature), there is almost no evaluation of how practices measure up on this dimension. Studies usually do not report findings on dimensions of equality (Kurki 2000: 268). Accordingly, we suggest three studies which could help develop some empirical analysis on this point.

One of the great appeals about mainstream adoption of restorative justice principles is the opportunity for Aboriginal communities with a tradition of these practices (and, as we have noted, not all Aboriginal communities did follow these practices) to revive them. At the same time, one of the great challenges facing restorative justice is to ensure that its promise is realized; there has been inadequate evaluation to determine whether it has. This would be best accomplished by an ethnographic study of the application of restorative justice practices in a number of Aboriginal communities where restorative justice has been in place for longer periods to assess, among other things, the values reflected in the application of the practices, the treatment of the participants (for example, is there pressure on victims to participate?), the efficacy of monitoring of the sanctions applied to the offender and the long term impact on participants in these practices (for example, has the offender become successfully reintegrated into the community?). It is also necessary to establish definitely the consequences of involvement by or lack of involvement by state officials in circles, taking into account whether officials are (or can be) adequately trained to participate. The role of Aboriginal community circles and other practices as a form of self-government or as a variation on mainstream practices relies on information about the efficacy and other effects of the programs, as well as the nature and accountability for funding.

There has been inadequate consideration of the gender implications of restorative justice practices more generally. Therefore a pilot project comparing the attitudes and behaviours of female victims and male offenders who have committed gendered crimes (such as sexual assault and domestic abuse) with the attitudes and behaviours of female victims and male offenders who have committed non-gendered crimes (such as break and enter or property vandalism) would be helpful in determining the appropriateness of restorative justice programs for gendered crimes or the "protections" for victims which must accompany victims in these cases. We want to be clear that we have concern about the use of restorative justice practices in connection with crimes such as sexual assault and domestic abuse and suggest that it would be preferable to identify existing projects that already include these crimes, as well as establishing a distinct project with carefully developed protections for the victims.

A third equality concern relates to the diversion of offenders into privatized criminal justice: which offenders are more likely to be diverted with what consequences? For example, it is very different for a poor offender to be diverted and be required to perform services for a community or victim than for an economically advantaged offender to be diverted and be able to pay compensation or restitution as the main sanction. A study of a number of existing programs to identify the background characteristics of offenders, the reasons they agree to participate in restorative justice measures, the sanction imposed, whether the offender failed to satisfy the sanction and the consequences for non-compliance would help to show whether restorative justice is beneficial for disadvantaged and minority offenders. As we have indicated, a study of conditional sentencing has already indicated that Aboriginal offenders are disproportionately incarcerated for breach of conditions. We need to determine whether there are similar patterns arising from the broader application of restorative justice measures.


[61] In this context, the "community" is likely to be defined as, for a example, a judicial district or municipality or an aboriginal community or reserve. Community is likely to be determined on the basis of convenience for instituting government programs.

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