Paper 5: Restorative Justice
Proposal
1 This paper outlines four proposals to expand the availability of restorative justice processes in the criminal justice system and to develop a national performance framework. s.9(2)(f)(iv)
Executive summary
2 Restorative justice processes can complement and reinforce other options in this suite of Cabinet papers by requiring offenders to face their victims, redress the harm caused to victims and the community, and address the causes of their offending.
3 Restorative justice gives victims a voice in the criminal justice system and enables them to receive reparation, apologies, and answers. Good quality restorative justice processes can reduce the number of offenders sentenced to imprisonment, shorten their sentences, and reduce re-offending. Quality is the key to these impacts: processes must be properly designed; providers must be skilled; and programmes must be monitored for performance.
4 Four complementary proposals will enhance the current use of restorative justice processes at different stages of the criminal justice system. They should have a small but positive impact on the prison population. The proposals are:
- staged national provision of restorative justice processes for less-serious offending, as an option within the existing Police Adult Diversion Scheme (this will reinforce the diversion process, and help offenders address the causes of their offending);
- staged national provision of restorative justice processes for more-serious offending (this may avoid 20 to 25 prison beds when fully implemented);
- staged increase in provision of restorative justice in conjunction with prisoners' re-integration into the community (this will reinforce re-integration processes, and may help reduce re-offending); and
- development of a national performance framework to ensure restorative justice processes are consistent with best practice principles and enable better co-ordination of service provision across regions.
5 Together, these proposals will:
- enhance victim satisfaction with, and confidence in, the criminal justice system;
- enable victims and offenders to access restorative justice throughout the criminal justice system;
- result in fewer and shorter sentences of imprisonment;
- reinforce existing processes in the criminal justice system, helping offenders to address the causes of their offending and refrain from re-offending;
- be consistent with the Sentencing, Parole, and Victims Rights Acts 2002 and the Corrections Act 2004, which encourage the use of restorative justice processes wherever appropriate; and
- reinstate New Zealand as an international leader in restorative justice development across the criminal justice sector.
6 Participation by Māori in current restorative justice processes shows positive results in terms of victim satisfaction and reduced re-offending. Māori offenders' participation in diversion-related restorative justice can reduce the likelihood of convictions for further offences and can reduce the seriousness of subsequent offending. Restorative justice can reduce the entry of Māori into the criminal justice system, and help actively manage their exit from the system. It can help identify wrap-around services to help Māori offenders address the causes of their offending.
7 s.9(2)(f)(iv)
8 Officials are also investigating the concept of community justice centres in New Zealand, based on the Red Hook Community Justice Centre in New York and other models in the United Kingdom and Australia. Officials will report directly to the Minister for Courts by s.9(2)(f)(iv).
Background
9 Restorative justice aims to hold offenders accountable for their offending and, to the extent possible, repair the harm caused to the victim and community. It gives victims a voice in the criminal justice system and enables them to receive reparation, apologies, and answers.
10 Good quality restorative justice processes can reduce the number of offenders sentenced to imprisonment, shorten sentences, and reduce re-offending. Quality is the key to these impacts: processes must be properly designed; providers must be skilled; and programmes must be monitored for performance.
11 The Sentencing, Parole, and Victims' Rights Acts 2002 and the Corrections Act 2004 encourage the use of restorative justice processes wherever appropriate. Offenders' participation in such processes is taken into account in their sentencing and parole. Restorative justice is already used in New Zealand, but access by offenders and victims is limited. Not all regions have restorative justice providers.
Evaluations of restorative justice processes have shown high levels of victim satisfaction. Victims who have been through the process do not view it as a "soft option", and view the criminal justice system more positively as a result of their experience.
12 Evaluation of the Ministry of Justice's court-referred restorative justice pilot found that offenders who faced their victims through restorative justice processes were more likely to be discharged without conviction than matched comparison offenders. If convicted, offenders from the pilot were: more likely to receive a community sentence and pay reparation; and less likely to receive a prison sentence (13.7 percent received a prison sentence as against 19 percent of matched comparison offenders). Prison sentences imposed were shorter: 444 days as against 533 days for matched comparison offenders. Offenders from the pilot were more likely to be granted leave to apply for home detention. A two-year follow-up of offenders from the pilot also found a small reduction in re-offending.
Restorative justice
14 Restorative justice can complement and reinforce other options in this suite of Cabinet papers by requiring offenders to face their victims, redress the harm caused to victims and the community, and address the causes of their offending.
15 Four complementary proposals will enhance the current use of restorative justice at different stages of the criminal justice system and have a small but positive impact on the prison population. The proposals will increase victims' rights by giving victims a greater voice at all stages of the criminal justice system.
16 The four proposals are:
- Proposal 1 : staged national provision of restorative justice processes for less-serious offending , as an option within the existing Police Adult Diversion Scheme (this will reinforce the diversion process, and help offenders address the causes of their offending).
- Proposal 2 : staged national provision of restorative justice processes for more-serious offending (this may avoid 20 to 25 prison beds when fully implemented).
- Proposal 3 : staged increase in provision of restorative justice in conjunction with prisoners' re-integration into the community (this will reinforce re-integration processes, and may help reduce re-offending).
- Proposal 4 : development of a national performance framework to ensure restorative justice processes are consistent with best practice principles and enable better co-ordination of service provision across regions.
17 Together, these proposals will:
- enhance victim satisfaction with, and confidence in, the criminal justice system;
- enable victims and offenders to access restorative justice throughout the criminal justice system;
- result in fewer and shorter sentences of imprisonment;
- reinforce existing processes in the criminal justice system that help offenders to address the causes of their offending and refrain from re-offending;
- be consistent with the Sentencing, Parole, and Victims Rights Acts 2002 and the Corrections Act 2004, which encourage the use of restorative justice processes wherever appropriate; and
- reinstate New Zealand as an international leader in restorative justice development across the criminal justice sector.
18 None of the proposals require legislative change. s.9(2)(f)(iv)
19 The proposals are supported by the Ministry of Justice, Department of Corrections, the New Zealand Parole Board, New Zealand Police, and Victim Support, subject to resolution of the implementation details.
20 s.9(2)(f)(iv)
Impact of restorative justice on Māori
21 Participation by Māori in current restorative justice processes shows positive results in terms of impacts on re-offending and victim satisfaction. Evaluation of urban Māori offenders' participation in diversion-related restorative justice processes (see proposal 1 below) showed that offenders were less likely to be convicted of further offences and that subsequent offending tended to be less serious. Other evaluations found high levels of victim satisfaction with the process, and high levels of compliance by offenders with restorative justice plans. In these ways, restorative justice can reduce Māori entry into the criminal justice system, and help actively manage their exit from the system. It can identify wrap-around services to help Māori offenders address the causes of their offending.
22 The impact of restorative justice will be limited if Māori do not access the process, or do not find it relevant. So far, Māori offenders' access seems reasonably high, but is slightly lower than their conviction rate (38 percent access Ministry of Justice-funded restorative justice processes; 42 percent of convicted offenders are Māori). Comparable rates for New Zealand European offenders are 49 percent and 47 percent respectively. Providers in West Auckland and the central North Island have a Māori participation rate that appears proportionate to the background population. Care needs to be taken to ensure that Māori participation rates are not reduced as the coverage of restorative justice expands. This will be monitored as the projects are rolled out.
23 International research suggests services developed and delivered by indigenous communities are more likely to be successful for offenders from those communities. Currently, only four of the 32 providers funded by the Ministry of Justice are Māori Service Providers. Workforce development will be needed to increase the availability of suitably skilled providers offering services relevant to Māori offenders and victims, particularly the availability of restorative justice processes utilising Tikanga Māori practices.
The proposals
24 The four proposals are described below in more detail. Proposals 1 to 3 share some common risks, including:
- The availability of appropriately skilled restorative justice providers in sufficient numbers to cover all regions. Workforce development can be managed until 2008 through the Ministry of Justice restorative justice service improvement project, to ensure that service delivery conforms with the restorative justice best practice principles.
- Expansion of existing restorative justice processes may result in reduced quality. International evaluations have found that restorative justice processes reduce re-offending rates only where the processes are of high quality and are well-funded: intensive monitoring of negotiated agreements is crucial to their success. Growth will be managed through a staged increase in service provision to mitigate the risk to quality. Performance management plans and monitoring will form part of each proposal, to allow proper evaluations against the desired outcomes.
- Expanded restorative justice processes may not reduce re-offending rates. Restorative justice processes are currently delivered on a small scale, and the court-referred pilot covered a small sample of offenders. There is a risk that national provision will not achieve similar results. Monitoring for results will ensure decisions on expansion andor ongoing funding will be based on good information.
Restorative justice for less-serious offending
25 This is a three-year project to make restorative justice processes available nationally as an option within the existing Police Adult Diversion Scheme. The project will ensure that offenders who are eligible for diversion can be referred to community-based restorative justice providers by the Police Prosecution Service (PPS), where appropriate. These offenders will have the opportunity to address the causes of their offending and make appropriate reparation. If satisfied with the process and outcome, the PPS will have the discretion to withdraw the charge(s).
26 Currently, this form of restorative justice is provided by nine community-based providers. National coverage will require an additional 23 providers. s.9(2)(f)(iv) An initial focus for coverage will be providers in areas with a high proportion of Māori offenders, including the far north, to enhance Māori access to restorative justice processes. Research, monitoring and evaluation will be used to assess Māori participation and outcomes.
27 When all providers are in place, restorative justice processes will be available for up to 2,240 offenders annually. This proposal has a number of benefits. It will:
- slow the acquisition of a criminal history that results in prison sentences for later offending, thus delaying entry into the prison system;
- enable offenders to access services and therapeutic programmes likely to reduce future offending;
- increase victim participation and satisfaction at an earlier stage of the criminal justice system;
- provide greater equity of access to restorative justice processes through national coverage and funding; and
- increase opportunities for restorative justice processes to be provided by Māori providers, which may enhance relevance of the process to Māori offenders.
28 s.9(2)(f)(iv)
29 s.9(2)(g)(i) Robust monitoring and evaluation against these desired outcomes will ensure that decisions on future spending are well-informed.
Restorative justice processes for more-serious offending
30 This is a three-year project to provide restorative justice processes for more-serious offending to cover up to one percent of guilty pleas in the District Court (1,000 offenders annually). The project will seek to replicate the results of the Ministry of Justice's court-referred restorative justice pilot, which had three criteria for entry: a guilty plea; consent by victim and offender; and the offender had committed an eligible offence (most criminal offences with maximum penalties between two and seven years inclusive, excluding domestic violence and sexual offending). The project will establish another nine restorative justice providers over three years to complete national coverage.
31 This proposal is founded on New Zealand-based evidence. Evaluation of the court-referred restorative justice pilot showed high levels of victim satisfaction with the process. Fewer and shorter sentences of imprisonment were imposed on offenders who participated in the pilot than on matched comparison groups. Participating offenders were more likely to be granted leave to apply for home detention. There was also a small reduction in re-offending over a two-year evaluation period.
32 This proposal shares the benefits identified in paragraph 27 above. If it replicates results from the court-referred pilot, it should also avoid 20 to 25 prison beds when fully implemented through:
- fewer and shorter sentences of imprisonment;
- enhanced uptake of home detention; and
- a small reduction in re-offending.
33 s.9(2)(f)(iv)
34 s.9(2)(g)(i)
Restorative justice processes in conjunction with prisoner re-integration
35 This proposal involves funding restorative justice processes in prisons as part of prisoner re-integration. Initially, it would involve funding 100 restorative justice conferences in two prisons for three years. The two most suitable prisons for this project will be identified before implementation. The project will be evaluated against the desired outcomes of victim satisfaction and reduced re-offending (based on 12-month and 2-year follow-up). If successful, the project would be rolled out to all prisons over a three-year period.
36 Although the implementation details are yet to be worked through, it is likely that restorative justice co-ordinators will be located in each prison as part of the Department of Corrections' re-integration team. Those co-ordinators will raise awareness of restorative justice processes and assess whether offenders wishing to participate are genuinely remorseful. A victim-oriented group will be used to contact victims and ensure they are properly consulted and their interests protected. The restorative justice conference will be conducted by an independent facilitator, to avoid perceptions of bias. Conference outcomes and compliance with restorative justice agreements will be monitored by the Department of Corrections.
37 The benefits of this proposal include the following:
- Creating a strongly victim-based activity at a time when offenders are nearing re-entry into the community can assist victims to prepare for the offender's release. This may reduce the risk of adverse comment and publicity about impending release and assist the offender's re-settlement.
- Information from a restorative justice conference will assist the Parole Board's assessment of an offender's suitability for parole and the impact on victims of granting parole.
- Facing the victim, and the causes and consequences of their offending, may enhance offenders' effective re-integration into the community.
- The framework's design includes support mechanisms for both parties and an independent facilitator, so parties are more likely to see the process as fair and robust, and the outcome as compelling.
38 s.9(2)(f)(iv) The costs also include a fee per conference for the restorative justice facilitator and victim advisers, who will ensure victims are protected and properly consulted. Allowance will be made for the cost of venue, travel, and security, if conferences are to be held outside the prison. Finally, the costs include a three-year evaluation of the programme, linked to its outcomes.
39 The key risk from this proposal is that restorative justice processes will not result in reduced re-offending. Robust monitoring and evaluation against this desired outcome will ensure that decisions on further roll-out are well-informed.
National performance framework
40This proposal involves developing a national performance framework for restorative justice, to ensure quality, consistency and integration in the provision of restorative justice in New Zealand. The Ministry of Justice has developed quality standards, but longer-term investment and developmental support is needed to ensure sustained quality and compliance. The framework will ensure that restorative justice processes deliver credible and fair outcome agreements for victims and offenders, backed up by effective monitoring to ensure offenders comply with the agreements. It will also enable the Ministry to better co-ordinate service provision across New Zealand to optimise coverage.
41 The benefits of this proposal include:
- improved consistency in the quality of service delivery, which is more likely to lead to victim satisfaction and confidence in the criminal justice system, and reduced re-offending and shorter prison sentences; and
- the ability to optimise the coverage of restorative justice providers across the country. An overview will identify gaps and overlaps and enable some re-deployment to fill gaps.
42 This proposal requires additional staff to be located in the Ministry's national office and in the regions, together with an operating budget enabling domestic and international travel, and an information and communication strategy for providers and participants. s.9(2)(f)(iv)
Community justice centres
43 The Minister for Courts has asked officials to further investigate the concept of community justice centres in New Zealand, based on the Red Hook Community Justice Centre in New York and other models in the United Kingdom and Australia. s.9(2)(f)(iv)
Financial implications
44 s.9(2)(f)(iv)
45 s.9(2)(f)(iv)
Recommendations
46 It is recommended that the Cabinet Policy Committee:
1 note that high quality restorative justice processes enhance victims' satisfaction with the criminal justice system, and can reduce the number and duration of sentences of imprisonment, even for more serious offending.
2 s.9(2)(f)(iv)
2.1 s.9(2)(f)(iv);
2.2 s.9(2)(f)(iv)
2.3 s.9(2)(f)(iv)
2.4 s.9(2)(f)(iv)
3 s.9(2)(f)(iv)
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4 s.9(2)(f)(iv)
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5 s.9(2)(f)(iv)
6 note that officials will report to the Minister for Courts by s.9(2)(f)(iv) on their investigation of the concept of community justice centres for New Zealand.
Hon Mark Burton
Minister of Justice
On behalf of:
Hon Annette King, Minister of Police
Hon Rick Barker, Minister for Courts
Hon Damien O'Connor, Minister of Corrections