newsletter of the court-referred restorative justice project - november/december 2001 - issue #6
Inside this issue
Focusing the justice debate on 'what works'
Restorative justice has immense advantages for all concerned, according to Judge McElrea
Exorcising the Ghosts
Sam had an uneasy feeling as he walked past the group of youths drinking on a busy city street.
But it wasn't until he turned a corner into a side street and the bottle flew past his head that he knew he was in danger. Running wasn't an option because of a torn ligament in his leg.
So the graduate student, with four years martial arts training under his belt, turned and confronted the aggressors. The fight - when it came - was five against one.
Sam's watch was stolen, his glasses broken and he came away battered and bruised. The bruises healed quickly. The emotional scars did not.
It took some time - and failing his exams - for Sam to realise just how deep the effect had been on him. But taking part in the court-referred restorative justice process after his exams were completed was the turning point in his recovery.
Sam (not his real name) agreed to take part in the process because the offenders were young and faced prison sentences. "In the beginning I was really against it. I didn't see any possible benefit for me. But I did want my money back for my glasses that were smashed, and one of them had taken my watch. Then I was told that they might be sent to prison for three years. Three years in jail can really change a person and I didn't want to make them into something even worse. The stories you hear about jails are a bit scary. When I heard that some of their mothers wanted to talk to me as well, I said 'fine, we'll do it.' I knew then they weren't just hoodlums, but had supportive parents. That gave me some hope."
Sam decided to take part in restorative justice conferences with each offender separately—a decision he is now adamant is the way to go.
"My view is if you are going to do something, do it properly. Each of them had different reasons and I had a different attitude to each one, depending on their level of involvement."
It took four days to work through them all. (One of the youths pleaded not guilty, so didn't take part).
Sam refused to take part if lawyers were present, because he felt they might inhibit the free flow of information.
Each conference was different. Some went more smoothly than others. The first meeting went well, with the offender turning up despite an acute illness that required him going to an emergency after-hours doctor in the middle of the night.
"It was very encouraging, so we went on to the next one." The second meeting was much more emotional, and Sam took several breaks outside the room to try to work through his anger.
"In the end it was all good - once we'd worked through all the misunderstandings of what had happened."
The third meeting went extremely well, with Sam and the offender reaching an understanding quickly.
The fourth was "really terrible. I was really angry with him. It was quite difficult for him because he had no idea how it had affected me. I'd been suppressing it and it all came out in a rush."
Sam was impressed with the way the meeting was handled by the facilitators and the offender: "He could have called it quits at any stage."
Sam was so angry that he said he would let the offender fall if he came across him hanging on the side of a cliff face. "By the end of the meeting I told him that I would definitely help him up. The facilitators did a really great job at keeping things calm."
All the offenders had been drinking and some claimed not to remember aspects of what had happened.
Sam believes that the lowering of the drinking age and easy access to alcohol were contributing factors to their actions.
He sent a message to the Judge that he didn't want them to go to prison, and in the end they were given suspended sentences of imprisonment. The offenders agreed to pay him reparation.
Restorative justice is "good, but not for everyone," says Sam. "People should look at it themselves before deciding whether to go through with it. For some people it may be healing. For me it was. I recommend that people should give it a try.
"The process is meant for victims and offenders. It is not meant to help the judges or the facilitators.
"The offender gets to see the victim as a human being. The victim gets to shake the skeletons and bury them - to exorcise the ghost.
"Give it a shot and go in with an open mind. Try not to hold grudges. One of the best things a victim and offender can do is to meet without the word of the law hanging over them. There is no smokescreen and they can be themselves. They all need that space, but they can't get that within a court room.
"Restorative justice is not a soft option. Some of the deepest scars that people can't see get dealt with at a meeting. It is not a soft option for a victim, and it is not a soft option for an offender."
Footnote: Sam later applied for, and was awarded, passes on the grounds that acute stress had affected his year's results.
Advantages Immense
Restorative justice has immense advantages for all concerned, according to the Judge who has been appointed by the Chief District Court Judge to co-ordinate judicial input to the court-referred restorative justice project.
"Parties from conferences usually come up with much more imaginative and satisfying outcomes than traditional courts," says Judge McElrea.
"And because plans have to be agreed to by all parties, they have a better chance of working than many court sentences."
He says that research overseas has shown that reparation agreed at a conference is paid more often than reparation imposed by a court.
However, that's not to say that the Judge believes that sentences should depend on the victim's attitude.
"The courts are there to impose a fair sentence, having regard to several factors. The conference outcome is never binding on the Court and is only one factor in sentencing."
Judge McElrea (pictured above) has been writing and speaking about restorative justice since 1992 -- first in relation to the Youth Court and then advocating its use with adults.
He saw the potential of the process after observing what happened in the Youth Court with conferencing. "It seemed to work so well. I asked the simple question: why wouldn't it work with adults?"
Judge McElrea worked closely with Te Oritenga's Rev. Douglas Mansill, who ran the country's first adult conference.
"The main advantage is to the victim," says Judge McElrea. "It gives the victim a much greater feeling of involvement and empowerment than the traditional court process.
"They can ask relevant questions of the offenders, and receive apologies. They can participate in discussions about the outcomes for the victim and offender.
"In my view all of these are essential parts of the process of healing the effects of criminal offending.
"But first the offender has to be prepared to take responsibility for what they have done and the effects of that on other people. And they have to be prepared to make real changes in their own lives. That is not an easy commitment to make."
Judge McElrea says that concerns about restorative justice often centre around a lack of familiarity with the process and the potential benefits to all parties.
"I would hope this (court-referred) pilot will establish that restorative justice is a suitable way of dealing with a wide range of offending, including very serious matters, providing of course that it is the desire of offender and victim to participate."
His message to the Judiciary and others involved in the courts: "Properly handled, restorative justice is far from a soft option."
Evaluation Critical Part of Process
The justice debate has focused almost obsessively on who is tough and who is soft on crime, when the question should be "what works?"
Restorative justice is a system that seeks to restore justice - to the victim, the victim's family and even the local community where the victim lives.
It is not an alternative to prison for serious offences that automatically carry a prison sentence.
It offers an opportunity to target re-offending in a far more effective way than is sometimes possible within the current criminal justice system.
New Zealand's reconviction rates are far too high - some of the highest in the world. Up to 80 percent of prison inmates reoffend within 24 months. That is an appalling figure.
For more than nine years, sentences have increased for more and more offences. And yet since 1990 violent crime is up by 90 percent.
In the financial year until June 2002, the court-referred restorative justice project hopes to have 800 cases referred by judges for investigation of restorative justice across the four pilot courts. We expect the number of referrals to increase year by year.
It is important to get the numbers, so that an evaluation can provide a clear picture of the results of the pilot.
Government needs robust information on which to base future decisions and planning in respect of restorative justice initiatives.
Victoria Link - the Criminology Unit of Victoria University - has been contracted to carry out an in-depth evaluation of the pilot. The three main evaluation questions are whether the pilot results in:
The evaluators will begin data collection for this evaluation in February next year, and the final evaluation report will be completed at the end of 2004. They will concentrate on interviewing the people who have taken part in restorative justice conferences, as well as statistical analysis of offending outcomes.
We do know that restorative justice offers an alternative way forward, and I am eager to see the pilot prove that restorative justice can be successfully incorporated into the criminal justice system.
Matt Robson
Minister for Courts
National Hui
Groups involved in the Government pilot of restorative justice are among those being encouraged to participate in a community-run national hui on restorative justice.
Te Ara Hou is being run in Auckland with support from the Restorative Justice Network, Restorative Justice Trust, Waipareira Trust and Massey University Centre for Justice and Peace Development (Albany) from March 8-10.
"This is a long awaited and much needed gathering to which all community-based restorative justice groups are invited, along with any other groups or people interested in the furtherance of RJ practices in Aotearoa," says the Restorative Justice Network newsletter Restore.
"It is not a conference in the usual sense where people are invited to come and deliver papers. It is a gathering where all groups will be invited to share a little of their experiences so far and be part of planning where we head in the future. Members of groups surrounding the Government pilots are encouraged to participate, as indeed are government officials, Members of Parliament, members of the Judiciary, court and probation officials and anyone else with a special interest in restorative justice.
We hope to make it a very inclusive meeting."
The hui will cost $110 for North Island participants and $85 for South Island and low wage participants. For more information write to W J Tie, Centre for Justice and Peace, Private Bag 102 904, North Shore Mail Centre, or email W.J.Tie@massey.ac.nz
Magic of Conferences
"It really works!"
That has been the message coming through from facilitators taking part in the court-referred restorative justice pilot in Auckland.
"It is the human element that happens between the offender and victim at a conference," says Islay Brown, the restorative justice co-ordinator for the Auckland District Court.
"It really is magic, and the facilitators have been quite blown away by it. There is a lot of forgiveness and a lot of taking responsibility and genuine apologies."
Cases are now steadily being referred to the co-ordinators. "We're getting a variety of offences. I have been impressed with the families that come in with the offenders. They are often older people, and in the Maori and Pacific communities they can relate to the (restorative justice) process very well."
Waitakere co-ordinator Garry Summers says that referrals in his region are spasmodic, but that things are progressing well. "The provider groups are learning from the experiences, and proving capable and competent in what they are doing."
Dunedin co-ordinator Cathy Brown has had some excellent conference outcomes, with victims and offenders speaking well of what has happened.
Some work is still needed to help lawyers realise that the process is victim centred. "It is a learning process. We are all learning to some extent as we go."
Hamilton co-ordinator Jim Berkett says that "even when conferences are not going ahead, there have been opportunities through pre-conferencing processes to understand more about the perspective of the 'other side,' and previously firmly held views have been softened as a result."
Te Ara Whakatika is produced by the Department for Courts to ensure the wide community of people who support the restorative justice movement are kept informed about the court-referred restorative justice project. The items in this newsletter do not necessarily reflect the views of the Department for Courts or official policies. Articles in this newsletter may be copied and reproduced, but Te Ara Whakatika must be acknowledged. Inquiries regarding the court-referred restorative justice project should be directed to: Alison Hill, Department for Courts, PO Box 2750, Wellington, Phone (04) 918 8839, Fax (04) 918 8820, email: alison.hill@courts.govt.nz; or to co-ordinators Islay Brown (Auckland) Phone 025 745 141, (09) 916 9000; Garry Summers (Waitakere) Phone 025 271 5148, (09) 916 5268; Jim Berkett (Hamilton) Phone 025 271 5203, (07) 957 7700; Cathy Brown (Dunedin) Phone 025 271 5164, (03) 471 5170. Te Ara Whakatika mailing list inquiries should be directed to: Abpost, PO Box 38756, Petone, Wellington Fax (04) 568 3400.
