Paul McCold presents a broad overview of restorative justice practice during the last 30 years. Presented at the "Building Strong Partnerships for Restorative Practices" Conference, August 5-7, 1999, Burlington, Vermont.
This paper presents a broad overview of restorative justice practice during the last 30 years. The historical evolution of the three primary restorative justice models–mediation, conferencing and circles–are summarized and differences between "youth justice" and "child welfare" conferences are highlighted. A chronology of significant restorative justice programs is presented and the general trends in practice are discussed.
Tony Marshall of the Restorative Justice Consortium (UK) proposed a useful working definition of restorative justice: "Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future" (Marshall 1996; McCold 1998a). Marshall’s "process" definition provides a necessary but not sufficient theoretical definition of restorative justice (McCold 1998b; Walgrave & Bazemore 1999).1 However, as a working definition, it does provide a clear minimum requirement for restorative programs. At a minimum, restorative programs must involve:
1. victims and their offenders in face-to-face meetings, where
2. they determine the outcome.
Under the Marshall criteria of restorative justice, only three models of restorative justice–mediation, conferencing, and circles–meet these requirements.2
Each branch of restorative practice emerged independently and all have influenced each other. The specific practices to be described in this paper are:
1. mediation models:
• community mediation (CM),
• victim offender reconciliation programs (VORP)
• victim offender mediation (VOM)
2. child welfare conferencing models:
• social welfare family group conferences (WFGC)
• family group decision-making (FGDM)
3. community justice conferencing models (CJC):
• New Zealand’s youth justice conference (JFGC)
• the Wagga Wagga police conferences
• Canberra’s victimless conferences
• Real Justice community conferences
4. circle models:
• peace circles
• sentencing circles
• healing circles
After describing and distinguishing these models, this paper reviews the development of restorative justice practice since 1970, placing current practice in chronological context.
Core Model of Restorative Justice
In an ideal society where people behave with integrity and mutual respect, when wrongdoing occurs, the injured person confronts the wrongdoer about the offensive behavior. The offending person listens respectfully to gain a clear understanding of the nature of the wrong and its consequences so he/she can accept responsibility for the behavior, apologize and make amends, including a plan to prevent a reoccurence. The offender is then forgiven, trust is restored and the relationship is repaired.
This ideal interaction illustrates the core restorative justice model, where only victim and offender are involved.3 No third-party intervention is necessary since both parties want to be responsible and maintain "right relationship" with the other. The process has four steps:
1. Acknowledgment of the wrong (facts discussed)
2. Sharing and understanding of the harmful effects (feelings expressed)
3. Agreement on terms of reparation (reparation agreed)
4. Reaching an understanding about future behavior (reform implemented).
The core restorative model of right relationships is shown in Figure 1.
The question is "how can relations be restored when offenders are not responsible and victims are fearful or angry?" All pure restorative justice models seek to have the victim and offender move through these four steps. The models differ in the structure each uses to enable the process– who facilitates, how participation is encouraged, who is involved in the process, and the scope of the issues to be addressed.
Figure 2 respresents models using mediation to facilitate the core restorative process. A neutral third party (usually a trained community volunteer or social work specialist) mediates a dialogue between victim and offender who 1) talk about how the crime affected them, 2) share information, 3) develop a mutually satisfactory written restitution agreement, and 4) develop a follow-up plan, thus enabling the victim and offender to complete the core restorative process.
Generally only the victim, offender and mediator are present, although there may be multiple victims. Parents of juvenile offenders sometimes observe the mediation. Criminal case mediations generally only determine the restitution amount, not case disposition. Restitution agreements may be enforcable by the courts. The courts indirectly influence the process by retaining jurisdiction over the offender.
The Institute for Mediation and Conflict Resolution in Manhattan (IMCR) established the standard for mediation practice in 1971, well before theoretical work on restorative justice (McGillis 1997).4 In the IMCR model, mediators visit or call parties to explain the process and elicit participation. Mediation sessions follow these steps:
1. Mediator establishes ground rules–remain seated, do not interrupt, do not use abusive language, work toward agreement.
2. Mediator makes a notification of confidentiality.
3. Mediator describes consequences if mediation fails–return to court for adjudication or to arbitrator.
4. Parties give their versions of the dispute without interruption.
5. Parties participate in general discussion.
6. Mediator encourages parties to make an agreement about their future conduct toward each other. (Mediators should not make suggestions unless negotiations are stuck.) If necessary, mediators then caucus with each party separately.
Mediators are trained to use listening skills, such as maintaining eye contact, summarizing what participants say, identifying points of agreements and encouraging further discussion. Ideally, mediators follow up after about two months to check whether the agreement is holding.
Community mediation (CM), victim-offender reconciliation programs (VORP), and victim-offender mediation (VOM) all follow essentially the same process. They differ on who runs the programs, how cases are referred, who conducts the mediations, how much pre-mediation counseling is involved, and what the primary goal of the process is.
Community mediation models. Community mediation (CM) programs are operated by community dispute resolution centers as adjuncts to law schools or court services and may be publicly funded. They receive cases from police, prosecutors and probation, or as walk-ins, and offer a range of dispute resolution services. Many criminal cases are referred because they involve parties with an ongoing relationship.
CM is part of a continuum of civil dispute resolution mechanisms, ranging from formal adjudication and litigation, binding arbitration, nonbinding arbitration (mini-trials) and mediation. CM programs believe mediators can contribute substantially to dispute settlement by clarifying issues, defining and containing areas of disagreement, offering suggestions and serving as intermediaries. The mediator cannot impose a decision but helps keep negotiations from breaking down by seeking multiple paths to an agreement (Rush 1994:214). Modern mediation practice is rooted in civil law labor-relations practice and viewed primarily as an alternative to litigation.
CM programs seek primarily to arrive at an agreement, leading to accusations of being "settlement-driven." Pre-mediation contact is limited to explaining the process and eliciting participation. The issue in the mediation is viewed as a dispute between parties with relatively equal moral standing, and the mediator must be impartial for the process to be successful.
The community mediation field has been largely professionalized–only half of the mediators and arbitrators are volunteers and laypeople according to the American Bar Association (1990). With professionalization has come a growing concern for quality control and establishing qualifications for mediators (Bonafe-Schmitt 1992; Filner, Ostermeyer & Bethel 1995), with some bar associations seeking to reserve certain classes of cases solely for lawyer mediators (McGillis 1997).
The community mediation programs have also become more specialized in their services, offering family mediation, divorce mediation, custody mediation, landlord/tenant mediation, consumer mediation, court-annexed arbitration, labor mediation, victim-offender mediation, school-based dispute resolution, intergroup dispute resolution, public policy dispute resolution mechanisms, peer mediation and other specialized efforts (ABA 1990). Many programs have begun to assist various types of institutions to develop in-house dispute resolution mechanisms and have increasingly provided training in conflict resolution skills and strategies for developing mediation programs (McGillis 1997:14).
Community mediation is a legal model, intended to divert lesser cases from formal adjudication. While CM is a secular model in theory, it has not been secular in practice. Frances Wright Henderson, director of the Orange County NC Dispute Settlement Center, noted, "What our mediators often observe during a mediation ... is a transformative moment" (McGillis 1997:14).
The outcome of such mediation is quite unpredictable. Most times it is quite prosaic. Occasionally the right conditions occur at the right time between the right people for something quite considerable to occur. There have been sea-changes in attitudes on either side; some victims have been inspired to become volunteer mediators themselves, and long term friendships have been formed. (Marshall 1991)
Mediations can transform victim-offender relationships in a manner not predicted by alternative dispute resolution or legal theory. It is this potential for transformation which continues to attract volunteer mediators (McGillis 1997). It was also this non-secular characteristic of the victim-offender encounter which attracted the attention of a faith-based effort that was developing a paradigm of justice that could explain these "transformations."
Victim Offender Reconciliation (VORP). The victim offender reconciliation movement began in Kitchener, Ontario in 1974 in what has been called the "Kitchener experiment" (Peachey 1989). The transformative results of having two teenagers meet directly with their victims following a vandalism spree and agree to restitution became the impetus for the Kitchener Victim Offender Reconciliation Program. The Community Justice Initiatives Association began the first VORP in 1975 with support and encouragement from the Mennonite Central Committee and collaboration with the local probation department (Peachey 1989; Victim Offender Reconciliation Resource Center 1984).
VORP and restorative justice are rooted in the experience of Mennonite communities (Cordella 1991; Merry & Milner 1995:Part III), whose understanding of mediation dynamics is faith-centered (Claassen & Zehr 1989). VORP uses biblical language–such as shalom (right relationships), atonement, reconciliation, obligation, responsibility, accountability, forgiveness and justification–to describe and understand the restorative justice process (Northey 1989; Zehr 1980), rather than using the language of conflict resolution or civil dispute litigation.
Mennonites in the US and Canada first articulated the principles of restorative justice (Zehr 1985; Wright 1996:100-103), culminating in Howard Zehr’s (1990) seminal book Changing Lenses. In VORP, reconciliation– involving healing of injuries and restoring right relationship–is the purpose. Direct mediation between victim and offender is the process wherever "relationships have been broken" by the criminal act.
VORP essentially uses the IMCR model. The mediator motivates the parties to participate and regulates their interactions by helping them communicate and monitoring their safety (Peachey, Snyder & Teichroeb 1983). VORP advocates believe that church-based restorative justice programs–operating from a Christian peacemaking perspective–are the best guard against program cooptation (Ruth-Heffelbower 1996).
Victim Offender Meditation (VOM). Some victim advocates raised concerns about crime victims participating in a process to reconcile with offenders and could not support any program advocating forgiveness of offenders (Young 1995, Van Ness & Strong 1997:70). People were sometimes turned off by the Christian nature of VORPs. Some community mediation programs felt reconciliation was too high a goal and believed a "satisfactory mutual agreement rather than a complete reconciliation" was a better option (Kerner, Marks & Schreckling 1992:30).
The faith-based concepts underlying VORP further became secularized by attempts to combine training techniques broad enough to encompass both CM and VORP (CJIA 1983) and because of VORPs dependence on a secular justice system for access to cases.
When we began there was no VOM. It was all VORP and we were all coming at the subject from a Christian faith perspective. It was actually a shock when at one yearly gathering there were several in attendance who were unaware of the spiritual foundations of VORP and even more disconcerting when the numbers of those grew and became vocal in the meetings [saying] that being Church-based was not acceptable. The Annual VORP gatherings changed to VOM annual conferences. Our VORP continues to see as part of our mission to activate the Christian church to be involved in the ministry of reconciliation with victims and offenders of crime. (Claassen 1999b)
VOM distinguishes itself from community mediation which it sees as largely "settlement driven." VOM is primarily "dialogue driven," de-emphasizing reconciliation and emphasizing victim healing, offender accountability and restoration of losses. VOM is also distinctive in advocating a "humanistic" model of mediation, a "social work case development approach" (Umbreit 1996, 1997a, 1997b, 1998; Umbreit & Bradshaw 1999).5
In VOM the mediator facilitates dialogue and mutual aid; schedules separate pre-mediation sessions with each party; builds rapport and trust while not taking sides; identifies the strengths of each party; uses a non-directive style of mediation that creates a safe space for dialogue and accessing the strengths of participants; and recognizes and uses the power of silence. Most sessions result in a signed restitution agreement. However, this agreement is secondary to the initial dialogue between the parties (Umbreit 1998).
VOM emphasizes building relationships between parties and establishing trust with the mediator. Generally only the victim and offender may participate because of concern that parents and others may inhibit young offenders from genuinely expressing themselves (Umbreit 1994). VOM also seeks to enhance the problem-solving skills of the parties so they can resolve future disputes through direct negotiations, if possible (McGillis 1997:21).
Victim Offender Conferencing (VOC). Because of the development of family group conferencing models (see conferencing models below), VORP and VOM are experimenting with including victim and offender supporters in mediations (Stutzman-Amstutz & Zehr 1998; Claassen 1999a).
It is too early to tell whether mediation-based "conferencing" programs will retain their mediation orientation or actually become conferencing models. The distinction between CM, VORP, and VOM–and now conferencing–continues to blur. Program labels do not necessarily correspond with the model being used.
Bush and Folger (1994) use "stories" to account for variations in the mediation movement–the satisfaction story, the social justice story and the transformation story. Each leads to a different mediation style. Satisfaction proponents emphasize achieving settlements (CM), social justice proponents emphasize self-empowerment (VORP) and transformation advocates focus on the personal growth of disputants (VOM). The types of mediators, the length of the process, the types of offenses addressed and program auspices vary according to which perspective is emphasized (Bush & Folger 1994).
Figure 3 depicts the evolution of the mediation models. Primary philosophical influences on development are shown in italics on the right. VORP evolved as an effort to repair relationships and inspired the initial elaboration of restorative justice principles (Zehr 1985). Humanistic social work practices applied to the VORP model created the criminal victim-offender mediation model (VOM). The development of conferencing models in the early 1990’s influenced both VORP and VOM, which now may include families in the process.
Conferencing is a process in which any group of individuals connected and affected by some past action come together to discuss any issues that have arisen (Warner-Roberts & Masters 1999). Conferencing is similar to mediation in involving key parties, including offenders and victims, in resolving disputes in a non-professional setting. However, conferencing is not mediation. Conferencing advocates believe mediation is inappropriate for cases of criminal victimization because it is based on a civil law process offering "morally equivalent" disputants an opportunity to reach a negotiated compromise. "Mediation is to conferencing as civil law is to criminal law" (Moore 1995b:40).
Because mediation is a facilitated dialogue between two parties, the process must rely upon the mediator to regulate the interaction between parties. Conferencing utilizes the normative effect of group process to regulate behavior–the facilitator setting the group focus serves the purpose of mediation’s ground rules and is thought to be more respectful of participants.
Heavy criticism of mediation as an approach to domestic violence (Rowe 1985) has led to a decline in its use for those issues. The American Bar Association (1990) identified that in 1987-88, 66 of 400 responding CM programs indicated they mediate domestic violence cases; by 1990 only 16 programs indicated this. Conferencing addresses power imbalances between the victim and offender by including additional supporters where needed. Therefore, conferencing is more powerful than mediation in addressing domestic violence (Braithwaite 1997).
Conferencing advocates view the direct inclusion of community members most affected by the offense as the mechanism for community involvement. In mediation community involvement is limited to having trained volunteers serve as facilitators (McCold 1996).
Restorative justice conferencing models vary in the involvement of the victim, victim supporters and offender supporters, including family members and significant others. They also vary in who facilitates, whether the whole group or a family caucus negotiates outcomes, and who approves the agreements. Generally professionals facilitate conferences, either as part of a full-time position (e.g., police/school resource officer, school counselor, social case worker) or as a consultant (Marsh & Crow 1998; Warner-Roberts & Masters 1999).
Current conferencing models include the New Zealand care-and-protection, social welfare model (WFGC), the modified New Zealand youth justice model (JFGC), and a variety of community justice conferencing models (CJC) derived from police conferencing in Wagga Wagga, Australia (Warner-Roberts & Masters 1999). Differentiating conferencing models is confusing because all three models are sometimes called "family group conferencing." For example, South Australia has widely implemented the NZ model in their youth courts (Wundersitz & Hetzel 1996; Sobey 1998), New Zealand is experimenting with the Wagga model (Wachtel 1998), and Great Britain and the US are experimenting with all three models (Warner-Roberts & Masters 1999).
NZ-style family welfare conferencing (WFGC). The New Zealand Children, Young Persons and their Families Act of 1989 required that young people who came to the attention of authorities–either for care-and-protection issues or for offending behavior–participate in a family group conference (FGC) with their immediate and extended family members. FGCs empower the extended family group to determine a plan of action while professionals act as facilitators rather than directors (Warner-Roberts & Masters 1999).
The principles of the WFGC model are: 1) focusing on family strengths, 2) involving the family as partners with professionals and 3) engaging extended family members and individual family member supporters in the process (Connolly & McKenzie 1999; Marsh & Crow 1998).
The themes behind the development of New Zealand’s two FGC models include 1) concern about child abuse, 2) importance of encouraging parental accountability and responsibility, 3) increasing young people’s involvement and accountability, 4) concern about youth crime (Marsh & Crow 1998:37-8). FGCs also developed in an attempt to minimize out-of-home placements, especially among the minority Maori population, by partnering extended family and clan members with social workers. FGCs are similar to traditional aboriginal problem-solving approaches (Consedine 1995; Hassall 1996).
Conferencing programs using the WFGC model view the family as partners with system professionals in developing an intervention. The "restorative" change in child welfare practice might be described as moving from professional case conferences to family conferences in which the information is frankly shared with the family so family members themselves can play the principal role in monitoring the case. The family group conference even constitutes a forum in which the thoughts and activities of the social worker are subject to examination and questions from the family (Hardin 1996).
Restorative justice principles are not of primary importance in the WFGC process because conferences do not focus explicitly on crime or wrongdoing, but instead focus on child safety and supervision issues, which may not involve clear offenders and victims (Marsh & Crow 1998). The model is "restorative" because it opens up communication and empowers families–those most affected by intimate violence and care-and-protection issues–to solve their own problems.
Family group decision-making (FGDM). The Canadian family group decision-making model was designed specifically to address family violence. FGDM as modified by Pennell and Burford is perhaps the finest manifestation of the New Zealand model applied to child welfare cases (Burford & Pennell 1994a, 1994b, 1995a, 1995b, 1996, 1997; Burford, Pennell & MacLeod 1995; Burford, Pennell, MacLeod, et al. 1996; Pennell & Burford 1994, 1995a, 1995b, 1996).
The principles guiding the FGDM projects are that family violence does not stop by itself and requires intervention by mandated authorities, and the best long-range solutions are those which give the affected parties the opportunity to develop a plan tailored to their family and cultural situation. FGDM is very deliberate in developing an invitation list with the family such that sufficient social/emotional support is provided for the most vulnerable members of the family (including the offender).
To participate in this way, it is understood that families and community members must be given protection so they can participate in the decision-making without fear of reprisal from the offender and that they must have the tools and supports available to them to work through the solutions they come up with. Hence, the project sought to bring the immediate family with other kin who were expected to have life-long concern with the safety of their family members and to give them the opportunity to have a say in what should happen under conditions of support, safety and providing the resources needed to aid decision-making. (Pennell & Burford 1996:207)
FGDM adopted the NZ WFGC model by including aspects of an aboriginal response to domestic violence (Ma Mawi 1987), feminist caring labor theory (Baines, Evans & Neysmith 1991) and reintegrative shaming theory (Braithwaite 1989). "Caring labour theory helps to clarify the structural context in which reintegrative shaming occurs and how this empowerment process spreads around the responsibility for caring. The family group conference makes it possible to listen to the voices of all participants and design culturally sound plans for meeting public standards" (Pennell & Burford 1996:209).
As shown in Figure 4, WFGC and FGDM coordinators convene conferences with immediate and extended family members (f), supporters for the immediate family (s), community resource information providers and caseworkers.
The conference follows these steps:
1. Coordinator overviews purpose and rules of conference.
2. Referring agency worker(s) gives report on abuse/offense.
3. Referring agency expresses formal system’s concerns and expectations.
4. Presentation of resource information.
5. Expectations and questions, then professionals depart.
6. Plan drafted in private family caucus.
7. When plan is completed, coordinator recommends revision or approves plan.
8. Caseworker/police recommend revision or approve plan.
Practitioners in the US, Canada, England and Australia have widely replicated the New Zealand welfare model (Marshall 1996). Family group decision-making has set a new standard for empowering, restorative social work. The WFGC and FGDM models continue to evolve as they are adopted into a variety of social welfare and child protection practices (Marsh & Crow 1998) as shown in Figure 5.
Community justice conferencing
Community justice conferencing (CJC) differs from VORP in that, while conferencing generally achieves reconciliation between victim and offender, reconciliation is only one of several positive outcomes of conferencing. CJC is guided by philosophies of restoration and community transformation. Other restorative justice models tend to focus on the psychology of victim and offender rather than on the social psychology of all parties affected by the incident. CJCs are neither "informal" nor do they divert cases from court processing for the sake of diversion–they are convened as much for the sake of the families and friends, the communities of care of both victim and offender, as for victim or offender. The two major branches of CJCs are those derived from the New Zealand model and those derived from the Wagga Wagga (Australia) model.
NZ-style youth justice conferencing (JFGC). The Children, Young Persons and their Families Act of 1989 also revolutionized how New Zealand manages youth justice proceedings. Under political pressure to "indigenize" the legal system (Olsen, Maxwell & Morris 1995; Maxwell 1996; Hassall 1998), New Zealand mandated family group conferencing for nearly all young offenders. The act established a new youth court incorporating a family group conference model similar to the welfare model. FGCs for youth justice provide an alternative to court proceedings and provide a means of "involving families in deciding what would be the most appropriate response to their young people’s offending" (Maxwell & Morris 1993, p. v). All but the most serious juvenile offenses are now dealt with by JFGCs in New Zealand (Pratt 1996).
JFGCs are facilitated by court-appointed youth justice coordinators who are trained social workers. In order to safeguard young offenders’ rights, New Zealand JFGCs now include a youth legal advocate, and the government retains judicial oversight over conference agreements (McElrea 1996).
JFGCs convene at a time and place chosen by the family and are attended by the young offender, the family (including extended family) (o), the victim, victim supporters (v), the police, the youth advocate6 and others whom the family wishes to be present as shown in Figure 6. The youth justice coordinator (YJC) acts as facilitator and mediator between the family and police, although others may act as facilitator if culturally important.
After introductions and greetings, the police describe the offense and the young person admits or denies involvement. If there is no denial, the conference proceeds with the victim describing the impact of the offense. The group shares views about how to set matters right. The family deliberates privately to develop a proposed plan. When the family finishes, the meeting reconvenes with the professionals and victim who can agree or object to the family’s recommendations and plans (Hudson, et al. 1996; Consedine & Bowen 1999). Agreements often include reparative sanctions such as apologies, restitution and community service.
Through legislative mandate, New Zealand has launched a nationwide natural experiment in conferencing. New Zealand’s early attempts at implementing JFGCs, however, were often controlled by professionals and overly offender-focused. Crime victims were treated as little more than information providers and were not encouraged to bring supporters. Early research by Maxwell and Morris (1993) found victims rarely attended, and when they did, many felt re-victimized by the process. As a result, JFGCs have now been modified to explicitly include restorative justice principles. Nonetheless, the centerpiece of JFGCs continues to be the family caucus, which excludes victims from active participation in the entire process.
Police conferencing (Wagga model). Conferencing was substantially revised and pioneered as a community policing technique in Wagga Wagga, New South Wales, Australia, in 1991 (Moore and McDonald, 1995) by Terry O’Connell, based loosely on the idea of New Zealand’s JFGCs (O’Connell 1998; O’Connell, Wachtel & Wachtel 1999).
Conferencing was a natural extension of the formal police cautioning used in countries with British-style policing. It is a viable mechanism for accomplishing the tenets of problem-oriented policing (Goldstein 1990). Braithwaite’s (1989) reintegrative shaming theory influenced O’Connell’s understanding of conferencing, and the police model later developed in Canberra was specfically based upon Braithwaite’s theory. Braithwaite asserts that societies that use "reintegrative shaming" have lower levels of crime and violence. Reintegrative shaming involves encouraging wrongdoers to experience shame for their offending behavior while allowing them to maintain their dignity. This is accomplished by holding wrongdoers accountable for their actions and providing them with an opportunity to make things right. The Wagga model of conferencing was designed to facilitate this process of reintegrative shaming.
The conference protocols were basic: have the offenders talk about what happened, what they were thinking and who was affected; followed by the victims and supporters; and finally, the offenders’ family and supporters. Discussion then focused on what needed to happen to make things right. Refreshments are provided immediately after the conference to provide an informal opportunity for participants to talk while the facilitator prepared the written agreement. This sequence appeared to work and within a short period, conference processes and outcomes had a certain predictability about them. Ultimately the conference protocols were converted into a script, with the key statements and questions written out for the convenience of the facilitator. Apart from one small alteration, the original conference protocols for the Wagga Wagga scripted model remain unchanged in the many jurisdictions in which they are now in use. (O’Connell 1998:8)
Wagga-style police conferences involve the perpetrator(s) of an offense and the victim(s) of that offense, together with the families and friends of victims and offenders, and any others significantly affected by that offense (Figure 7). The conference is facilitated by a police officer, whose role is to encourage participants to reach some collective agreement about how best to minimize the ongoing harm resulting from the offending behavior. Agreements usually involve some arrangements for appropriate restitution and reparation.
The program has several aims. One is to give victims of offending behavior an opportunity to participate in the official response to that behavior. Another aim is to provide offenders with an opportunity to understand the consequences of their actions. Yet another is to involve the broader community of people who have been adversely affected by those actions. In practice, these three aims cannot be separated from one another. Involving a broader community of people encourages and supports the involvement of victims and both of these factors help young offenders to understand how far reaching the ramifications of their actions have been. (Moore, 1994, p. 5)
Police-based conferencing provides a forum for the police to bring together juvenile offenders and their victims with their respective families and supporters. This micro-community of citizens directly affected by the crime collectively seeks resolution of the injuries, which may include apology, reparation to the victim, and reintegration of the offender (McCold & Wachtel 1998a). Solutions are not imposed by the facilitator, but instead result from the dynamic interaction of participants. Goals of the conference are: to encourage young offenders to achieve empathy toward their victims and take responsibility for their crimes, allow victims to move toward forgiveness and healing, and empower citizens to appropriately address their own local problems (McCold 1996; Moore and O’Connell 1994).
The conferencing model developed in Wagga Wagga received widespread support from front-line police personnel and local community members (Graham, 1993; Moore 1995a, 1993; Moore and McDonald, 1995; Moore and O’Connell, 1994). The Wagga model has been the source of script-based conferences conducted in Queensland schools (Hyndman, Moore & Thorsborne 1995, Cameron & Thorsborne 1999), and a series of later non-police models would develop from the original Wagga model, heavily influenced by David Moore’s interest in Silvan Tomkins’ "affect theory." This psychological theory was combined with Braithwaite’s (1989) sociological theory and together they explain why CJCs work so well, including that regularly occurring "transformative moment" that was of so much interest to early mediators (Moore 1997, 1996a, 1996b, 1996c, 1996d).
Now clearly incorporating notions of restorative justice (Braithwaite 1996), police conferences have spread to a number of countries around the world. The Royal Canadian Mounted Police now conduct their own training of officers in conferencing (Warner-Roberts & Masters 1999) and more than 150 police departments in the US and Canada have officers trained by Real Justice.7 Following visits by O’Connell, the Thames Valley Police in England began experimenting with Wagga-style conferences as a form of formal police cautioning in 1996, and a research evaluation is currently underway by Oxford University (O’Connell 1996, 1998; Warner-Roberts & Masters 1999; Nicholl 1998).
Police conferencing (Canberra model). In a well-funded project to evaluate Braithwaite’s (1989) theory, the Australian National University began the Re-Integrative Shaming Experiment (RISE). Referred juvenile property offenders and young adult violent offenders have been randomly assigned to a police-facilitated conference or to court.
RISE was also funded to test the effects of police conferences as a deterrent to adult drunk-driving offenses. The Canberra "drink-driving" conferences are adult diversionary conferences limited to "over-the-limit" driving violations in cases where there is no accident and thus no direct victim. Offenders are required to bring at least six supporters. Volunteer community representatives, ideally from the locale of the offense, serve as stand-in victims as shown in Figure 8. Police also provide educational materials on the dangers of driving while impaired, again working from a scripted process. The faculty and staff at ANU modified the Wagga model and developed the "Canberra model" specifically for cases with no direct victim, using Braithwaite’s (1989) reintegration theory (Braithwaite & Mugford 1994; Inkpen 1999).8
No other model of restorative justice process has been subjected to as intensive evaluation as police-based conferencing models. Since Moore’s (1995a) original pre-post evaluation of the Wagga program, two randomized trials of police-facilitated conferences have been conducted (Sherman et al. 1998; McCold & Wachtel 1998b). RISE is now in its fourth year of experimental trials. The Australian National Police expect to have conferenced more than 500 juvenile and 800 adult drunk-driving cases when they release their results in the next year or so.9 The Baltimore (Md.) Police Department may begin a large-scale project replicating RISE in the US.10 Additional evaluations are planned for Indianapolis (Ind.)11 and Charlotte (N.C.) police departments.12 The National Institute of Justice reports similar experiments are underway in Florida and Illinois, with more planned in the future.13
Community conferencing. Community conferencing (also known as Real Justice conferencing and community accountability conferencing) are forums for people to deal with wrongdoing throughout society, and providing peacemaking possibilities in a wide range of circumstances, including schools, workplaces, communities, youth organizations and college campuses. Community conferences are also scripted, using a version of the original Wagga Wagga script developed by Terry O’Connell (1998). This revised Wagga model explicitly includes principles of restorative justice and incorporates Braithwaite’s (1989) reintegration shaming theory and Silvan Tomkin’s affect theory (Nathanson 1996; Retzinger & Scheff 1996) to explain and understand the conference dynamics. All of the participants have a chance to speak, express their feelings and have a say in the outcomes. It is a fundamentally democratic experience in which those most affected by a problem decide how to deal with it (O’Connell, Wachtel & Wachtel 1999).
Rather than being victim-focused as in VOM, or offender-family focused as in New Zealand’s WFGCs, community conferences are incident-focused, limited to repairing the damage caused by a specific offense. Conferences are not a mechanism for uncovering all of the needs for rehabilitative and other social services (Moore 1995b), and are not intended to provide counseling to the affected parties nor to develop the social competencies of offenders, per se. The model assumes that the social bonds that develop through a conference will have positive effects in this regard without external efforts by the facilitator. Thus community conferencing derived from the Wagga model is not a "humanistic social work" model of restorative justice.
Initial contact is by phone or in person where appropriate and is limited to explaining the process and eliciting participation. This contact is not intended to provide counseling services beyond sympathetic listening. Offenders are encouraged to take clean responsibility without shifting blame–to "own" their behavior. Victims are encouraged to think about what they would like to say to the offender and what they would like to get out of the conference. Both are expected to nominate personal supporters to attend the conference, who are also contacted by the facilitator. The facilitator then schedules the conference, giving priority to victims’ preferences.
The community conference model (Figure 9), and most conferencing models evolving from the Wagga model, use a facilitator script. The conference begins with the facilitator reading a preamble that sets the focus of the conference–to understand how everyone has been affected by the specific incident of wrongdoing and agree on how best to repair the harm. Facilitators explain how the consequences of failing to satisfy the agreement and remind participants their participation is voluntary. Normally, the formal response system remains an option should the offender fail to comply with the agreement.
The conference has three parts. In the first part participants answer a specific series of open-ended questions. The offender must explain how she/he became involved in the incident, who they think was affected and how others were affected. Victims explain their reaction to the incident and how they have been affected. Then the victim supporters and offender supporters explain their reactions and what they think are the main issues. The offender is then asked if she/he has anything to say to anyone–providing the opportunity for, but not requiring, an apology.
The second part of the conference involves negotiatng a reparation agreement. Facilitators ask the victim "What do you want from today’s conference?" which provides an open-ended consideration of possibilities not limited to restitution or "restorative sanction." Every suggestion made during this agreement phase must be agreed to by the both victim and offender, but consensus is usually easily reached.
The third part of the conference, beginning when the agreement is complete, is an informal social period when refreshments are served. This informal "reintegration" period is an important part of the conference and is one distinguishing feature of community conferences.
Community conferences are not necessarily police-based and may be facilitated by any official with the authority to divert the case from formal processing (e.g., police, probation, teachers, workplace supervisor, etc.) or by trained community volunteers receiving referrals from the authority. Community conferences encourage the participation of families, friends, by-standers, indirectly affected parties, and anyone else with a direct stake in the issue. Only circles offer a more open and accessible format for direct community participation than community conferences.
Because of the generic problem-solving nature of community conferences, the scripted process is now being implemented in a number of non-criminal contexts, including school misbehavior. Over 1,200 of the 3,300 conference facilitators trained by Real Justice since 1995 are school personnel. The lessons learned about group and intrapersonal dynamics in conferences have implications for restoratively responding to all forms and degrees of wrongdoing (Wachtel 1998, 1999). It is possible to conduct "instant mini-conferences" by pulling together the affected parties and asking how each was affected by the behavior. Other conference dynamics can be used to respectfully hold offending individuals accountable–for example, by sharing feelings honestly, by "separating deed and doer," by focusing on strengths and encouraging responsible reparative actions, by focusing on solutions rather than sanctions, etc. Restorative practices are also being used to develop internal organizational discipline practices (workplace conferencing) in corporations, police administration and not-for-profit organizations (O’Connell 1998; Wachtel 1998).
Thus, as shown in Figure 10, community conferences have evolved from a community policing model, to a school and organizational model of discipline, to informal restorative practices in everyday interpersonal interactions. Both the Wagga-style and Canberra conferencing models were directly influenced by Braithwaite’s 1989 reintegration theory.
The circle is central to traditional aboriginal cultures and social processes. Circle processes for handling crime and wrongdoing originate with traditional concepts of freedom and individuality–one person cannot impose a decision upon another. Native cultures around the world have developed a variety of processes for responding to wrongdoing. The restorative justice circle models have evolved along two general paths: a healing paradigm (healing circles) to dispose of situations and a co-judging paradigm (sentencing circles) limited to making recommendations to judicial authority for actual case disposition (Ross, 1994). Whether used as a pre-adjudicatory alternative or for determining post-adjudicatory disposition, the circle models tend to follow similar structural processes (Van Ness & Strong 1997, Cutshall & McCold, 1983).
I think that when I describe what we call "peacemaking" in English, I am describing the traditional justice of many aboriginal groups of people. I have been to the South Pacific, Norway and across the US and Canada to talk with aboriginal leaders. Others of the Navajo Nation court system have visited Australia, New Zealand, Bolivia, and South Africa to do the same. Often, when we describe peacemaking, other aboriginal leaders nod their heads with approval and tell us that it is the same as their traditional justice methods. (Yazzie 1998:129)
There has always been much about ancient intra-tribal practice which is restorative of community (La Prairie & Diamond 1992; Consedine 1995; La Prairie 1995). It may be as some have suggested that the "Indian nations and the other indigenous nations of the world have practiced restorative justice for centuries. Whether denominated as ‘traditional Indian law,’ ‘native law,’ ‘customary law,’ ‘peacemaking’ or some other name, restorative justice is in fact the original, pre-state form of law" (Zion 1998:141).
The recent re-emergence of tribal sovereignty on North American reservations has spawned a series of circle models of restorative practice (Dickson-Gilmore 1992). There are many circle processes, differing on the purpose of the circle, who participates and the role of participants. Healing and talking circles focus on a particular concern common to all parties (men or women’s healing circles, substance abuse groups) or are constituted to help someone with their healing journey (support groups for victims or for offenders). Such circles rarely involve justice professionals but may include professional counselors.
This paper describes three North American circle processes: the peacemaking courts of the Navajo of Arizona (Yazzie & Zion, 1996; Yazzie 1994), the sentencing circles in native communities in the Yukon (Stuart 1996), and the elaborate circle model developed in the aboriginal community of Hollow Water, Manitoba, Canada (Bushie 1997).
Navajo justice. Traditional Navajo custom to resolve conflict involves the idea of Hozhooji (living in "right relationship"). If one person believes they’ve been wronged by another they first make a demand for the perpetrator to put things right. The term for it is nalyeeh, which is a demand for compensation. It is also a demand to readjust the relationship so that the proper thing is done (Yazzie & Zion 1996). If this is unsuccessful, the wronged person may turn to a respected community leader to facilitate and organize a peacemaking process. The process is not confrontational but involves family and clan members of victims and perpetrators talking through matters to arrive at a solution.
When we started putting rules for traditional Navajo justice into English in 1982, we used words like "mediation" and "arbitration" to describe what Navajos do. That was a mistake. First of all Navajo peacemaking is not "mediation." In general American practice, "mediation" is a process where a person called a "neutral" works with parties to get them to reach an agreement. In our system a naat’aanil or peacemaker is not "neutral." That is, a peacemaker is a community leader who has very definite points of view about problems. Peacemakers use traditional teachings to clarify false values and correct untrue assumptions about behavior. (Yazzie 1998:123-4)
The process (Figure 11) opens with a prayer to seek supernatural assistance. Following prayer, the parties have an opportunity to lay out their grievances. Feelings are vented, the victim has an opportunity to disclose not only the facts, but their impact. People have an opportunity to say how they feel about the event and make a strong demand that something be done about it. Relatives also have an opportunity to express their feelings and opinions about the dispute.
The person who is the focus of the discussion is provided an opportunity to explain his or her behavior in full. Denial and excuses are exposed by the people who know the wrongdoer best–his spouse, parents, siblings, other relatives and neighbors. The process is designed to clarify the situation and get to the root of the problem.
The peacemaker will then give reality therapy and do values clarification in a talk to the parties designed to guide them. This talk focuses on the nature of the problem and uses traditional precedent to guide a decision. The peacemaker has persuasive authority and draws on the traditions and stories of the culture to offer practical advice. The parties then return to a discussion of the nature of the problem and what needs to be done to resolve it.
Often, the action taken is in the form of nalyeeh, which also translates as restitution or reparation. Payments can be in the form of money, horses, jewelry, or other goods. The payment can be symbolic only. The focus is not upon adequate compensation, but upon a holistic kind of remedy. The feelings and relationships of the parties are what is most important. The process ends in an action plan to solve the problem.
A person who agrees to pay nalyeeh may not have the personal means, so it is traditional for family and clan members to help make payment on their relative’s behalf. The tradition isn’t simply that relatives assume obligations for others, but when an individual commits a wrong against another, it shames the person’s relatives–"He acts as if he had no relatives." The family agrees to keep an eye on the offender to assure there will be no future transgressions. "Peacemaking is designed to resolve problems among people and is not concerned about imposing punishment" (Yazzie & Zion 1996).
Sentencing Circles (SC). A sentencing circle is a community directed process, in partnership with the criminal justice system, for developing consensus on an appropriate sentencing plan which addresses the concerns of all interested parties. SCs use traditional circle ritual and structure to create a respectful space in which all interested community members, victim, victim supporters, offender, offender supporters, judge, prosecutor, defense counsel, police and court workers can speak from the heart in a shared search for understanding of the event and to identify the steps necessary to assist in healing all affected parties and prevent future occurrences (Pranis 1997). Sentencing circles not only involve all the players found in traditional court–they are often held in a courtroom.
These circles may be organized in one large circle or split into an inner and outer circle, as shown in Figure 12. The inner circle is composed of the victim, the offender, supporters or members of their respective families, and justice professionals normally involved in court. The outer circle includes professionals who may be called upon for specific information and interested members of the community.
Pre-requisites for offenders include an acceptance of responsibility, a plea of guilty, a connection to the community, a desire for rehabilitation, concrete steps toward rehabilitation, support within the community for the offender, and the input of the victim. Acceptance into the circle is decided by a community justice committee or circle support group. Work undertaken in preparation for a SC is believed to be critical to the success of the hearing. Communities are increasingly investing more time and effort into pre-hearing work with the offender, the victim, and with families and support groups. Pre-hearing work includes exchanging information, developing plans, and preparing all parties to participate. With proper pre-hearing preparation, a circle sentence hearing will take from one to two hours. Without proper pre-hearing preparation the case may often require two hearings; the first sometimes over two hours, the second significantly less (Stuart 1996).
In the first circles, the judge primarily facilitated the circle hearing. Now some communities select one or two local people to act as keepers of the circle. They act as facilitators, ensuring respect for the teachings of the circle, mediating differences and guiding the circle towards a consensus.
Opening the circle with a prayer, the keepers of the circle welcome everyone to the circle and then introduce themselves by explaining who they are, what they do, where they are from and why they are in the circle today. The keeper then asks others to similarly introduce themselves, as an eagle feather or other sacred object used as a "talking" token is passed around the circle.
During the first round many express concern for victims, offenders and their families, and speak of their hope for the circle to find a way to heal all who share in the circle. Introductions help set the tone for the circle and begin to identify the pain, anger and hope of different participants.
Keepers discuss the teachings of the circle and explain the guidelines extracted from the teachings. Questions from participants can generate changes or additions to the guidelines. Most guidelines–such as speaking from the heart, remaining until the end in the circle, allowing others to speak by speaking briefly, respecting others by not interrupting and by recognizing the value of their contribution–are common to most communities. The closing rituals include summarizing what has or has not been agreed, outlining next steps, thanking everyone for their participation, passing the feather for closing comments by all participants, and a closing prayer.
The sacred eagle feather travels around the circle four times during a SC session.
The first circle is people stating why they’re there.
The second circle is people speaking to the victim, absolving the victim of guilt and shame. They praise her or him for their courage for bringing this out, saying that what happened to them was not their fault.
The third circle is to speak to the offender because the crime that the offender has committed has not only touched the victim, it has also touched the family and the kinship system. The third round is people speaking directly to the offender, saying how it’s made them feel and what their expectations are for that person.
The fourth circle is to give recommendations to the judge saying what should happen to this person.
The SC process is inclusive. Everyone in the community has a stake in the outcome, and thereby a reason to participate. Everyone may not participate, but it is important for everyone to know they can and are encouraged to do so.
The value of sentencing circles derives not as much from its impact upon the offender, or upon the victim, but with its impact on the community. Helping others helps oneself. Participating makes one feel belonging. Being acknowledged and respected engenders respect and acknowledgment from others. Contributions to the circle are respected, built upon by others, and quickly become not the idea of the contributor but of the circle. Above all sentencing circles are about community building (Stuart 1996; Pranis 1997).
Healing Circles (HC). One of the most important of the circle models of restorative justice is the Community Holistic Circle Healing developed in Hollow Water, Manitoba, by the Ojibwa tribe of the Anishnaabe people (Sivell-Ferri 1997).
The Hollow Water Healing Program began as a program to respond to incest and sexual assault by seeking to heal not only the intimate connections and the human dignity that was destroyed but also addressing the social arrangements that enabled this violence to flourish (Bushie 1997; Taraschi 1998:117).
We made another mistake in setting up a traditional Indian method of justice in a Western adjudication system. It is another mistake based on assumptions. That is, are there certain kinds of cases you "can" or "cannot" handle in traditional justice? They tell us that we "can’t" handle murder in peacemaking. We do. .. They tell us we "can’t" handle domestic violence cases in peacemaking. We do. ... The point I am making here is that it is a mistake to classify problems. We shouldn’t label people to make assumptions about them, and we must not assume that there are things you "can" or "cannot" do in restorative justice process. (Yazzie 1998:112)
Like many aboriginal communities, Hollow Water had fallen into deep patterns of alcoholism and a culture of violence and were in danger of losing their culture entirely. Joyce Bushie (1997) describes what led Hollow Water to develop their healing circles.
The beginnings were in the community in the early eighties. Back then, what we were faced with was alcohol abuse at its highest point. You could find a party in the community any time of the day and any day of the week. There was violence between men. ... There was also violence against women, both physically, sexually, mentally and psychologically. But the physical violence and sexual assaults were the most visible...
In the early eighties a few of us decided to sober up. Our community was in crisis, and the question was where to start? It was such a big problem in all areas and just a very few people were talking about what was happening and trying to address the problems. In the early eighties we did a lot of talking, did a lot of crying, and slowly, over time, more and more people came together. ...
Over time, when I look back, it just feels like someone was leading us down this road. It was very much felt in the circles that we used. We didn’t plan to start using our traditional ways, we just kind of stumbled and my impression of what happened to us is we were being led, being shown, what methods to use. People were brought into our path to help us, and so each year we were moving closer and closer to the core of the problem. At first we were saying alcoholism was the problem; suicide was the problem; child neglect was the problem; kids dropping out of school was the problem. The more we learned about ourselves, the more we learned about our community. Those were awesome times that sent us deeper.
Then we started touching on sexual abuse. I always remember one workshop where there were sixty people. ... It was there that we couldn’t ignore the problem any more because we were faced with actual numbers. For the first time we were able to talk about the sexual victimization of our past as children, and as young people in this community. It was not one incident. There were multiple incidents, multiple abusers. Many of us started off as victims, as children. ...
Breaking that silence for the first time was very shocking, and I think we all knew it was a crisis. People disclosed because of all the work we had been doing and because people had sobered up. ... A lot of us have gone down that road of abusing alcohol to numb the pain. Thoughts of suicide were never far away from our minds, so we had traveled that road, and we knew what the symptoms were. We came to realize that a lot of the stuff we had to deal with goes back to our childhood. It was a journey that took probably four or five years.
What happened here on a small scale was one person disclosed and gave courage to the next person, and to the next person, so that over time, you begin to share the burden. It’s your own pain, but it’s shared because you’re telling more and more people that this is what happened to you and you’re giving hope to other people. As they begin to deal with their own stuff, then it comes back. You get so much back in return.
That is how it works. That’s how I see healing in the community–it’s that web, making those connections. That’s exactly what has happened amongst the women here. (Bushie 1997)
The complete Community Holistic Circle Healing (CHCH) process as developed in Hollow Water involves thirteen phases:
2. Establish safety for the victim
3. Confront the victimizer
4. Support the spouse/parent/child
5. Support the family(ies)/community
6. Meeting of assessment team with RCMP
7. Circles with victimizer (one to two hours at least two times a week)
8. Circles with victim separately (one to two hours at least two times a week)
9. Circles with victimizer’s family (gradually brings in family, until all join)
10. Circles with victim’s family (gradually brings in family, until all join)
11. Sentencing circle with all present to recommend disposition (with judge)
12. Sentencing review circle with community (w/o judge every six months for 5 years)
13. Cleansing circle
According to Bushie, following disclosure, the assessment team arranges for the safety of the victim and confronts the offender. The offender is encouraged to admit responsibility and seek support in changing their behavior. The offender is assigned a case worker and must begin weekly sessions with a counselor. They are then brought into an "offender circle" with the team, which may be joined by recovered offenders. This circle continues until the offender can disclose all the details. "With each circle they add on and add on as they begin to feel the support. They begin to understand that they are not being judged, that we’re here to help them, that we want the crimes to stop and we want them to go from this place to the place where they become productive balanced people. That is the first thing they have to do, the first circle."
The second circle that offenders have to do is to start working with their nuclear family. They have to bring their partners and their children to a healing circle. It’s their responsibility to tell their families what they’ve done. Those circles are also ongoing. In the third circle they have to start working with their families of origin–their mothers and fathers, their sisters and brothers. Again, they have to tell what they’ve done.
Simultaneously, the assessment team begins healing circles with the victim ("victim circles"), and gradually brings in the victim’s family. Finally the two healing circles come together. In this third circle, the offender does not speak. The victim speaks to the offender, saying "this is what you did to me, and this how it affected me," and the offender sits in silence and listens.
The fourth circle is the "sentencing circle." Here the offender must tell the whole community what they’re being charged with and what they’ve done so far. The community will make its recommendation and the judge passes sentence. "We feel if a person can go through those four circles, then we’re convinced that he’s committed to his own healing and will do everything in his power to continue. If that person is not able to complete the circles then we will honour the courts."
Six months following sentencing, the offender is called to a fifth circle, this time without the court party–just the community is present. "Community circles" provide the whole community a chance to get a report on the offender’s and victim’s progress. What was said in court is reviewed and a report as to healing work in the past six months is given. The offender is required to answer back to their community, "because their community had spoken on their behalf. We’re finding that this really keeps people on track when they realize that every so often we’re going to go back to the community to report."
The sixth circle is called the "bonding circle," where both victim and victimizer meet once a week; these often last all day. The seventh circle, called "cleansing circles," is where the victim and the victimizer and both families get together. The victim and victimizer usually pull this circle together because of the work they have done on all the other six circles so everyone can see how much both have dealt with their pain together. The cleansing circle is a community event for both families as a celebration of their growth, and a beginning of their new journey of peace (Bushie 1997).
As I see it now, part of the genius of Hollow Water–and of the traditional teachings that shaped it–is that each person who comes to them for help finds himself in a circle composed of people who have already built relationships of honesty and openness with each other and who consistently demonstrate their respect and care for each other in every thing they do. In other words, they get to sit, perhaps for the first time in their lives, in a "safe" place, "hope" place and a "learning" place. (Ross 1996:148-149)
Hollow Water continues using circles to transform social dysfunction in their community within more Holistic circles. Victims of domestic violence are thus protected by much more than a restraining order from court.
Instead of coming out with a piece of paper, they’re coming out after an opportunity to put their problem and their feelings on the table. They are coming out with their relatives understanding what is going on and a new commitment from those relatives to help. They are coming out after an opportunity to reach into the minds and the hearts of their relatives in the "talking things out" process. (Yazzie 1998:129)
Unlike the other restorative justice models, the circle models did not follow as linear a path in their evolution. The diagram shown in Figure 13 can only be considered a very rough approximation of the development of circle models since 1982.
CHRONOLOGY OF RESTORATIVE PRACTICE DEVELOPMENTS 1970-1995
US: The Institute for Mediation and Conflict Resolution (IMCR) Dispute Center used 53 community volunteer mediators and received 1,657 referrals during their first 10 months. By 1983 32-33,000 cases were referred and screened yearly (Wright 1996, McGillis 1997).
US: In an experimental evaluation of restitution as a sanction, the Minnesota Restitution Center developed a residential program as a diversion for adult male property offenders sentenced to prison. The program’s central focus was the active collaboration of the offender and his victims in the development of a restitution agreement. Center staff mediated restitution negotiations in direct victim/offender meetings (Fogel, Hudson & Galaway 1972; Hudson & Galaway 1974).
US: Night Prosecutor Program in Columbus, Ohio, diverted 3,992 cases from cjs sept 72-3, then accepted bad checks cases and referrals went to 7,800 annually (Wright 1996:67).
CAN: VORP The Kitchener experiment Kitchener, Ontario (Peachey 1989)
CAN: Community Diversion Centre of Victoria, British Columbia, Canada (Aubuchon 1978)
NOR: Nils Christie "conflicts as property"
US: Randy Barnett Harvard Law proposes a paradigm based on "pure" restitution without punitive intent. "Our goal is not the suppression of crime; it is doing justice to victims" (Barnett 1977:296). Barnett recognizes that this would involve major shifts of perspective in favor of the victim. For one thing, the offense would be seen as primarily against the individual victim, not the State. The distinction between tort and crime would collapse (Wright 1996:60).
US: Elkhart, Indiana begins VORP (Gehm & Umbreit, 1985).
US: Department of Justice developed three experimental neighborhood justice centers (all still operating): Justice Center of Atlanta - 40,000 cases, 70% settlement rate; community, civil and criminal matters; Dispute Resolution Services in Los Angeles - civil, community & peer mediation - now $1.3 million budget; Dispute Resolution Program, in Kansas City Missouri. - 15,000 disputes, community, civil, and criminal.
US: inauguration of the Makiki Neighborhood Justice Center Hawaii (Barnes & Adler 1983)
UK: Reparation Scheme UK Devon, Exeter juvenile court cases (Marshall 1992:16)
CAN: Victim-offender mediation Winnipeg established (Perry, Lajeunesse & Woods 1987)
US: Funding from LEAA, American Bar Association, American Arbitration Association, Institute for Mediation and Conflict Resolution, US DOJ’s Community Relations Service and NIJ provided national leadership in developing community mediation centers.
AUS: Established three experimental community justice centers in New South Wales (Anderson 1982).
NOR: Justice mediation - Child Welfare Conflict Councils Norway 90% referrals from police (Falck 1992)
NZ: National Advisory Committee on the Prevention of Child Abuse by Minister of social welfare.
US: New York State-funded network of community-based dispute resolution centers
US: 200 mediation services in US all of which take at least a proportion of criminal cases, where there is a relationship between victim and the offender (Ray 1982 1983).
US: Fresno VORP begins.
UK: first community mediation service UK Newham Conflict and Change Project (Wright 1996:83)
US: the Navajo Nation established Navajo Peacemaker Courts (Yazzie & Zion 1996)
NZ: child protection teams - not uncommon for families to be a part of the decision-making meeting or "case conference" (Hassall 1996:21)
FIN: youth justice mediation–social welfare approach using resident population as mediators in Vantaa Finland.(Iivari, 1992:137)
GER: first generation of CM models begun as effort to implement restitution more effectively in criminal justice practice. (Kerner, Marks & Schreckling 1992)
US: 400 programs provide mediation to a diverse caseloads of disputes.
SCOT: minor crimes (all) Scotland SACRO reparation and mediation feasibility study Edinburgh using trained volunteer mediators (Warner, 1992)
US: national survey located 32 victim-offender mediation (VOM) programs (Umbreit 1985)
NZ: Criminal Justice Act - reparation as preferred sentence for property offenders (Galaway 1992)
FRN: Paralegal community mediation Valence France (Bonafe-Schmitt, 1992: 182)
US: Zehr published "Retributive Justice, Restorative Justice." Mennonite Central Committee. Office of Criminal Justice.
NZ: Children and Young Persons Bill introduced - proposing child protection multi-disciplinary teams of professionals and requiring involvement of parents and family groups in developing solutions in care and protection cases (not proposed for youth justice). (Hassall 1996:25)
FRN: Community mediation experiment Lyon, France (Bonafe-Schmitt, 1992: 183)
NZ: Dept of Social Welfare pilots 2 child protection teams regularly inviting families and their supporters to meetings and to involve them in the decision-making (Hassall 1996:22).
CAN: Healing Circles initiated by Hollow Water First Nation (Ojibwa) in Manitoba
NZ: PUAP-TE-ATA-TU Ministerial committee report. (Hardin 1996)
UK: VOM with adults offenders in Northants Kettering (Marshall 1992:16)
NZ: Victim-offender mediation by New Zealand probation officers (Galaway 1995)
NZ: Whakakpakiri Whanau! Family Decision Making, report of Dept of Social Welfare on FGC pilots in child protection (Hardin 1996)
US: Family Unity Meetings. Children’s Services Department Oregon (Marsh & Crow 1998:40, citing Graber, et al., 1996)
NZ: Children, Young Persons, and Their Families Act New Zealand requiring family group conferences by care and protection coordinators and youth justice both under Dept. of Social Welfare - purpose to advance the well-being of families, minimize out of home placements, engage extended family (Hardin 1996).
US: more than 400 dispute resolution services in US responded to ABA questionnaire.
AUS: Wagga Police model piloted (Moore 1995a)
UK: Child Welfare FGCs piloted Family Rights Group London (Marsh & Crow 1998)
US: Fresno VORP develops scripted Community Justice Conferences
NZ: mandatory training modules for social worker FGC facilitators (Hardin 1996)
US: National survey located 123 VOM programs in US (Umbreit 1994)
US & Canada: Real Justice begins standardized training of conference facilitators.
South Africa: Truth and Reconciliation Commission established.
US: States with the largest numbers of community mediation programs are New York, Michigan, North Carolina, Massachusetts, California, Florida, Ohio, Texas and New Jersey (McGillis 1997).
US: Experimental evaluation of police conferencing begins in Bethlehem PA (McCold & Wachtel 1998).
AUS: Reintegrative Shaming Experiment (RISE) begins in Canberra.
Welfare FGCs and justice conferencing pilot projects underway in Australia, New Zealand, United States, Great Britain, South Africa, Singapore and Israel (Braithwaite 1999). A greater number of projects now include evaluation instruments.
It was demonstrated how all of the restorative justice models accomplish the core restorative process between victims and offenders. All of the models reviewed in this paper are currently operating in both their original and revised versions. The fact that restorative programs often continue to operate, some for as long as thirty years, is a testament to the deep need in society for respectful and healing approaches to wrongdoing. The spread of these models in countries around the world assures that a great many will still be operating thirty years from now.
An overall review of the development of the three branches of restorative models demonstrates some consistent trends in the evolution of restorative practice. These trends are related to the role of community, the role of the facilitator, and the types of human conflicts the models are intended to address.
The concept of "community" has evolved in the practice of restorative justice. Early models included only victim and offender, with the community represented by the volunteer mediator. Conference and circle models distinguish the role of the facilitator from the representation of "community" and explicitly recognize the families and personal supporters of victims and offenders as an important micro-community of concern. Circle models and some conferencing models also encourage participation of individuals specifically as representatives of the wider community.
The role of the facilitator is evolving in two distinct directions. Some restorative justice programs, especially those with a "humanistic social work" perspective expect the facilitator to provide active counseling and place great emphasis on the interpersonal skills and training of the facilitator. Thus, these models are increasingly moving toward establishing standards and minimum training requirements, thereby creating an "expert model" approach.
Conferencing and circle models rely much more on the micro-communities of care and existing local social programs to provide social work services for individual victims, offenders and their families. In these restorative models, the role of the facilitator is limited to determining who should participate, preparing the parties for their participation and organizing the restorative process. Facilitators are expected to facilitate, not run the encounter, and therefore do not require special expertise beyond a clear understanding of the purpose of the process. Thus, these models are increasingly moving toward an "everybody can do it" and a "for almost any reason" approach.
Because the core restorative process has broad implications for resolving conflicts and restoring relationships, conferencing models are applying restorative processes and principles to internal organizational relations and to integrating ongoing formal and informal restorative practices in everyday relationships. Restorative practices have evolved from a narrow focus on the amount of restitution in juvenile property cases to broadly applied practices that continuously engage affected microcommunities. The exploration of the potential of these practices has only just begun. From negotiating restitution agreements to transforming conflict into cooperation (McDonald & Moore, 1999), restorative justice practice have moved into its adolescence at the beginning of the 21st century.
1 Bazemore and Walgrave (1999) take issue with Marshall’s definition as being too restrictive, and advocate including programs which meet neither of the Marshall criteria–i.e., judicially-imposed community service–as long as the intent is to bring "healing" to victims and the offended "community." Nonetheless they also concede "Input from victims and community affected by crime provided in face-to-face, non-adversarial, informal and voluntary meetings with offenders in safe settings will almost always provide the best process to determine restorative obligations" (pp. 51-52). They then proceed to outline a systemic reform based upon community service as a restorative sanction (Walgrave 1999) and rehabilitative programs to increase offender competencies (Bazemore 1999).
2 South Africa’s Truth and Reconciliation Commission may be thought of as a variant of a restorative process–at a higher level of aggregation. When the "offense" at issue is wide-spread social atrocities institutionalized for generations, the victims, offenders, and communities are all aggregate "entities" and are collectively affected (see McCold 1998b).
3 For simplicity, consideration about multiple victims and secondary victims are omitted.
4 There was theoretical work on restitution as a basis for justice, which may have encouraged the use of mediation in criminal cases (Laster 1970; Korn 1971; Barnett 1977; Galaway 1977; Evarts 1990).
5 Compare to Umbreit 1978.
6 Maxwell & Morris (1993) reported only 59% of court-ordered family group conferences (FGC) were attended by the youth’s lawyer and only 41% of victims attended.
7 Real Justice is a private not-for-profit training and technical assistance program dedicated to the spread of community conferences and related restorative practices. It was founded by Ted Wachtel and the Community Service Foundation in 1994 in Pipersville, Pa. Real Justice had trained more than 3,000 conference facilitators and nearly a hundred trainers in North America by the end of 1998. See "community conferences" below.
8 Conversation with Nova Inkpen, Australian National University, 11/25/98. The author also observed this model and discussed its origins with Stephen Mugford during a visit sponsored by ANU in November 1995.
9 Conversation with John Braithwaite, ANU Canberra, 1/12/98.
10 Conversation with Lawrence Sherman, University of Maryland, 6/1/98.
11 Conversation with Ed McGarrell, Indiana University, 7/1/98.
12 Conversation David Doi, Coalition for Juvenile Justice, 6/28/98.
13 Conversation with Winifred Reed, National Institute of Justice, 6/11/98.
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