Restoring Community

These articles were formerly posted on our Restorative Works website.

By IIRP

The IIRP's fifth international conference, "Building a Global Alliance for Restorative Practices and Family Empowerment, Part 2," in Vancouver, British Columbia, Canada, was a tremendous success, thanks to the many dedicated participants who journeyed from far and wide to contribute their wisdom and experience to the event.A delegation from the Thailand Ministry of Justice, including Kittapong Kittayarak, director general of the Department of Probation (seated middle), and Wanchai Roujanavong, director general of the Department of Juvenile Observation and Protection (seated right)

Attendees came from such countries as Australia, Belgium, China, England, Hungary, Ireland, Japan, the Netherlands, Scotland, South Africa, Spain, Sweden, Thailand; seven provinces and two territories of Canada; and 26 states and the District of Columbia in the United States. There were representatives of such First Nations and Native American nations as the Akwesasne, Aleut, Champagne and Aishihik, Couchiching, Flying Dust, Heiltsuk, Inuvik, Kahnawake, Liard, Mi'kmaw, Ojibway, Peguis and Wet'suwet'en.

 

By Laura Mirsky

“A Survey of Assessment Research on Mediation and Restorative Justice,” by International Institute for Restorative Practices director of research Paul McCold, has been published as a chapter in the book Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context. The paper provides an overview of 30 years of evaluation research of restorative justice programs from 1971 to 2001. The survey is limited to program assessments available in English and is representative of mediation and conferencing programs that have conducted and published the results of those assessments.Paul McCold Director of Research, IIRP

Said McCold, “This is one of a series of very informative articles published as a result of the Fifth Conference of the International Network for Research on Restorative Justice [held September 2001] and available from Willan Publishing [in Devon, England].” The book can be ordered through the website for Willan Publishing: http://www.willanpublishing.co.uk/reposrj.html.

By Laura Mirsky
Mija Bergman
Manager, Bostallet
The Stockholm City Mission

 

Annelie Edren
Head, Social Department
The Stockholm City Mission

 

The homeless people of Stockholm, Sweden, are benefiting from restorative practices, thanks to the Stockholm City Mission, a 150-year-old nonprofit institution. At the City Mission, “everyone is welcome, no matter the state a person might find himself or herself in. In the near term, we work to relieve acute need. In the long term, we give people themselves the strength necessary to take control of their own lives” (from the City Mission website).

Mija Bergman and Annelie Edren, and their supervisor, Eva Fahlstrom, have worked with the City Mission for many years. Edren is head of the City Mission social department; Bergman is manager of Bostallet (the Homestead), a halfway house for homeless men and women; and Fahlstrom is an outside consultant. The women were trained by the International Institute for Restorative Practices (IIRP). They have successfully implemented restorative practices at Bostallet and Klaragården, a day center for homeless women.

City Mission programs are funded by a mix of private and public monies, with by far the larger share coming from private donations.

Bergman described how the City Mission came to implement restorative practices. “Sweden is a very social democratic country. We thought we had social security, that the state would always take care of its citizens.” Then, she explained, a massive financial crisis in the late 1980s changed the economic structure of Swedish society.

“Even though we had the highest taxes in the world, we didn’t have the resources to fund hospitals and schools or take care of the elderly, and the homeless population started to turn up on the streets.” At the same time, the state closed down the mental hospitals. The plan was to integrate the mentally ill back into society, with the cities taking responsibility, but suddenly no money was available. Consequently, many of the mentally ill became homeless and sick, and many died.

Bergman said that she and Edren had been in search of new methods in their work with the homeless for a long time. “There were many problems caused by the old ways of trying to solve things,” she said, including a phenomenon occurring with the staff known as “parallel processing.” Working with homeless people for many hours a day created a great deal of emotional stress for the staff. Said Bergman, “A lot of the staff started to act like they were homeless people themselves. When our ‘guests’ [as the staff refer to them] come to us, they have been violated and abused. They have a black hole that you can’t fill up. They want more and more and more all the time.” But the staff also began feeling violated and abused. “Over the years we have seen a lot of the staff become quite ill and bitter,” said Bergman. The staff needs began getting in the way of fulfilling the guests’ needs.

“We have a big empathy issue in Sweden,” said Bergman. “We are so understanding. It’s in our self-image and our culture and in our history as a social welfare state. The problem is that we feel so sorry for these poor homeless people, so we figure out very good plans of how they should deal with their problems, and then we inform them, ‘you should do this and you should do that,’ and they get furious! And we say, ‘but we are just trying to help you!’ We want to do everything for them. And it will eat you alive.” Eventually, Bergman realized that they needed “something with much more structure.”

Bergman and Edren’s supervisor, Eva Fahlstrom, had been looking for a method to help them. She heard about people in Australia who were practicing something called restorative justice. Through them, Fahlstrom contacted Real Justice (now a program of the IIRP) in the United States. She attended the first Real Justice restorative practices facilitator training in Europe, in Amsterdam, Netherlands, in February 2000.

“When I came back from the training, I was so enthusiastic that Mija and Annelie were contaminated by my enthusiasm!” said Fahlstrom. She invited the IIRP’s Beth Rodman and Paul McCold to train people in Sweden, including Bergman and Edren, who then traveled to Bethlehem, Pennsylvania, to pursue further training.

Eva Fahlstrom
Supervisor, Consultant
The Stockholm City Mission

 

“Mija and Annelie became our greatest ambassadors,” said Fahlstrom. “They immediately started to use restorative practices at the City Mission. Like hurricanes, Mija and Annelie trained 120 staff members. Altogether in Sweden we have 140 trained Real Justice facilitators.” City Mission managing director Staffan Hellgren took the Real Justice training and decided to associate the Mission with Svenska Real Justice, the Real Justice-licensed organization initiated and directed by Fahlstrom.

Bergman said that at first she was “very suspicious” about restorative practices, because of her “Swedish culture baggage.” An obstacle to Swedish acceptance of restorative practices, she said, is also one of the big differences between America and Sweden. “You have a much stricter way of bringing up children. In Sweden it’s actually illegal to hit your child. You can’t slap them on the bottom; it’s a felony.”

Bergman talked about seeing a film during restorative practices training about a restorative conference held for two girls who had been caught shoplifting. “I was really upset, because I could see in the film that the mother and father of one of the girls had issues, and I thought that they should be on trial instead, because the girls were just children,” she said. “This is very Swedish: How can one hold children responsible for their behavior? But then it started to dawn on me—OK, they have this background, and they have parents who have their own issues, but when are these children going to meet grown-ups who will hold them accountable for their behavior?”

In 2000, it was decided that restorative practices would be tried at Klaragården, the day center for homeless women. Bergman and Edren began working with small impromptu conferences and more structured, formal conferences.

The structure at Klaragården was clearly established. Said Bergman: “As soon as you do something that violates the cardinal rules—if you are threatening, use violence, if you’ve taken any drugs—you have to leave. But you can book an appointment to come back.” The process is about reintegrating people into a community, instead of excluding them.

“No matter how mentally ill they are, we always hold clients accountable for their behavior and their actions,” said Bergman, “but we always separate between the deed and the doer. This is very new to the way we do things in Sweden. But in the staff groups that I have worked with, it soon becomes integrated. This is very hot stuff in Sweden.”

When Bergman and Edren began restorative practices training, they told Klaragården’s guests about it. (They inform guests about all trainings and conferences.) Guests would no longer be cut off from Klaragården permanently or long term if they had used drugs or alcohol, as had previously been the case. (The old policy had been “a disaster,” said Bergman.)

Klaragården’s guests were thrilled. They thought, said Bergman, “‘So that means, anything goes! We can do anything, as long as we say we’re sorry!’ And I was like, hmm, you just wait and see!”

Before long, two women stole about $50 to $60 in cash from Klaragården and bought drugs with it. Said Bergman, “They showed up drunk and said, ‘We would like to make an appointment, please!’”

A restorative meeting was held. The women told their story: “We were going to buy flowers, but we wanted drugs. So we thought we would buy some drugs, and then we could sell some drugs, and we could make a lot of money, and then we could buy some flowers. And then we got drunk. And we’re so sorry! We won’t do it again!”

“I thought, hmm, OK,” said Bergman. Then she told them how offended she was that they had violated Klaragården’s trust: “We are a community working together, trying to have a sanctuary just for homeless women, a place for you and all of your sisters to come to, and you have pissed on our building! You have violated everything.”

Then Bergman asked the women how they were going to repair the harm they had caused. The women were shocked, because they hadn’t expected to have to do anything. But Bergman was very firm.

Finally, the women offered to clean Klaragården’s radiators, and Bergman agreed. “I think it took them the whole summer,” she said. “I knew how many radiators there were, and they didn’t!

“When they had done it, I told them, ‘You have repaired it. This is beautiful. You have restored my faith in you.’ And this was really something, because these women are regarded as very borderline characters. They have been living in this subculture for so many years. I still meet them sometimes. Sometimes they are doing OK and sometimes they are not doing OK. But every time, they will say, ‘Do you remember the radiators? I cleaned them the whole summer!’ And I will say, ‘Yes, you did very good reparative work.’

“I think it was the first time that they had actually been able to repair something, and it made them feel good. It’s about pride, I think. They restored my faith in them and my trust in them. But they also restored their own pride in taking responsibility for what they had done.”

When the staff began implementing restorative practices at Klaragården, they decided, “when you do it, you do it with everyone,” said Bergman. She told a story about a long-term client, a schizophrenic woman who was very hard to make contact with. “She walked up to one of my staff and slapped her in the face. The staff member was totally shocked. She was crying and felt abused and violated. It was a very severe situation.”

Bergman told the schizophrenic woman that she had physically abused a staff member. “And this is important,” she said, “We make no difference between staff and clients. We would have done the same if [the person who got slapped] was a client.”

Bergman told the woman, “You have to leave now, but you can make an appointment to come back, and we can have a restorative meeting. Do you want to do that?” The woman agreed to return for the meeting at 2 p.m. the next Tuesday.

“When she left us, it was the middle of the winter and she was barefoot and hallucinating, talking with her voices. I said, ‘Oh God, what have we done? She doesn’t know what planet she’s on, and I told her to come back on Tuesday at 2!’”

When Tuesday arrived, Bergman was very anxious about the schizophrenic woman. Then, she said, “at one minute to 2, she knocked on my door.” During the meeting, Bergman, the woman and the staff member who’d been slapped talked about the incident.

The schizophrenic woman explained that, in her world, all the staff members had evil twins, invisible to anyone but her. They called her bad names, pinched, slapped, kicked and abused her. On the afternoon of the incident, one of the twins had been giving her a really hard time, so she got fed up and slapped her. To her surprise, she slapped a real person! But that hadn’t been her intention. “That was the first time that she told us anything about how she experienced reality,” said Bergman.

Then the staff member told the schizophrenic woman how she had been affected and how upset she was. “You don’t try to smooth things over because you are talking to someone who is mentally ill,” said Bergman. “You are actually respecting them by telling them, ‘When you hit me, I was in shock. It was very painful and I had your finger marks on my cheek. And I went home and my husband said, “Do you get beat up at work? What kind of work is that?” And he didn’t want me to come back here.’” They also discussed how other people had been affected. Guests had left the center because it was uncomfortable to be there; staff members had been anxious about the schizophrenic woman’s welfare.

They then discussed how the woman could fix what had happened. First, she apologized. Then Bergman told the woman that she could repair the harm she’d done by telling them how they could help her, so that she would not repeat her bad behavior.

Said Bergman, “She told us, ‘In my world, the Russian tanks are coming down the streets. I’m in a war situation all the time. And all the people have scaffolding around them, like buildings. And my scaffolding is coming down. And when this happens, I get so afraid.’

“She was actually describing her mental defenses and how she emotionally fell to bits and how she lost her sense of self. And she said, ‘When I get really scared, I want to be able to grab you on the arm and say, “I’m scared.” And I want you to tell me, “It’s OK, there will be no war today. There are no tanks on the streets.”’ And then she said, ‘I want you to put your arms around me to hold my scaffolding.’”

The restorative meeting gave Klaragården’s staff new knowledge about the world in which the schizophrenic woman lives, as well as tools to help her avoid violent incidents, so she could remain at the center. “Now she has a much better relationship with the staff at Klaragården,” said Bergman. “As soon as she started to talk about war and how scared she is, all the people who work there could help her.”

Bostallet, Homeless
Halfway House

 

After Klaragården, the City Mission opened Bostallet, the first halfway house for homeless people in Scandinavia. The house is in the center of Stockholm, “next to the square where all the drugs are sold,” said Bergman. “It’s a huge challenge,” she added.

The notion of community was central to Bostallet’s success from its inception. But, said Bergman, “We have no word for community in Sweden. ‘Society,’ that is our translation.” Nonetheless, she said, a crucial part of the process at Bostallet is “the concept of being in a community, about reintegrating people instead of shutting them out.”

As Scandinavia’s first homeless halfway house, Bostallet got a lot of media attention. Said Bergman, “There was a lot of debate in Sweden about it not being possible to have homeless people living in the center of Stockholm. The house is situated in the poshest, most attractive part of town. We were expecting a lot of very negative reaction: ‘Not in my backyard.’”

Bergman took advantage of the publicity. “When we were on television and in the papers, we said, ‘We have such fantastic neighbors! They have been so supportive!’ And we hadn’t even met them!”

The optimism paid off. “I think it’s because we introduced the concept of community to them,” said Bergman. “Even before we opened, people rang the doorbell—that’s very un-Swedish—and said, ‘I have made you a cake! I have brought you some towels!’ So we’re getting huge support from the community where we live.”

Bostallet has also put a lot of emphasis on being good neighbors themselves. Said Bergman, “We have the best-looking house on the street. In the summer we have flowers everywhere. You would never think that it’s a halfway house.”

“We are trying to integrate the halfway house into the community in every aspect we can,” said Bergman. Two major art exhibitions were held at Bostallet recently. “We sold some very famous painters’ paintings, along with pieces created by our tenants, as we call them. So they can show that they are not just homeless, drug addicts, freaks, dangerous people, but that there is something exciting going on here. The art studio is at street level, so everyone who walks by can see it.”

Restorative practices are in constant use at Bostallet. “We work first on the individual level,” said Bergman. “We have seven counselors who work on a daily basis with the clients. You have to support clients to clean messes up all the time themselves, and support them to communicate with their neighbors in the house. We have community meetings on the different floors every week.”

“It’s a deadly sin to let anything pass,” said Bergman. “You must confront the person at once, within 24 hours, when it’s still fresh, because otherwise it will not make sense. Everyone knows that as soon as you violate one rule, you will have a talk, at once.”

Bostallet has eight floors, which provide four progressive levels of improvement for tenants, from basic shelter to semi-independent “training apartments.”

Men can come right off the street into the first level, the shelter. “We give them a contract when they come in, to become a member of our club,” said Bergman. “We want them to realize that they are members of this community. They have to sign their name, their social security number. It’s like they are assuring us that they will behave in a good manner when they are with us.”

The men are welcome in any state, as long as they do not violate the house cardinal rules, like taking or selling drugs. If they break the rules, said Bergman, “We will tear the contract, and they are no longer members, they will have to leave at once.”

But the men can make an appointment for a restorative meeting to come back and talk about what happened, who was affected, what they can do to make sure such an incident doesn’t happen again and what they need from the staff in order to make sure it doesn’t recur. “This is quite successful,” said Bergman.

Her Majesty Queen Silvia and His Majesty King Carl XVI Gustaf of Sweden (left), visit the art studio at Bostallet, hosted by Stockholm City Mission managing director Staffan Hellgren and art therapist Helena Fredriksson (right).

 

The needs of the men in the shelter are addressed according to the Maslow model. (Abraham Maslow, 1908-1970, was an American psychologist who developed a personality theory based on a hierarchy of needs.) The first step in the hierarchy is individual needs, said Bergman: “personal security, not to be cold, to have someplace to stay, to have food to eat, to take care of your hygiene.” The next step is relationships with other people. The highest step is self-actualization: fulfillment of one’s visions, goals and dreams.

In the shelter, the focus is on basic needs. “When they have eaten and slept and they feel secure, then we can start to relate,” said Bergman. “We talk to them, ask them: What do you want, what can we do to help you now? Also, do they need rehabilitation, do they need therapy, do they need medication? A lot of the people come to us severely physically ill. They have multi-resistant bacteria, cancer, AIDS, hepatitis, you name it.”

When the men start to want to change, to work on their problems and on quitting drugs, they can move up to the short-term living floor. “We accept a lot of stuff that goes on there,” said Bergman. “You have to want to change, but we accept that change will not happen at once. Everyone who lives in our house messes things up eventually, and they should, because if they do it when they are staying with us, we can help them. We can say, ‘Oh, so you decided to relapse now,’ and that’s interesting, because you can ask what had happened before—try to make things out together with them, and bring the professional network in and talk about it and try to support the individual in finding alternative strategies and new ways of solving things.”

Bostallet has introduced “network packages,” involving psychologists, therapists, rehab centers and hospitals, to bring resources together for their tenants. Many of Bostallet’s tenants attend Narcotics Anonymous meetings.

One of the biggest issues for Bostallet’s tenants is their children and families. Bostallet collaborates with the Meeting Place, a City Mission unit inspired by the New Zealand family group conference (FGC) method. FGC facilitators “support our tenants and find different ways to communicate and repair the history of the family,” said Bergman, adding, “We work in a very similar way, and we can communicate very easily because we share the same approach.” (For more information about family group conferencing-—also called family group decision making—available in the IIRP online library, go to:
http://www.familypower.org.)

When tenants want to quit drugs completely, they move up to the drug-free level: long-term living. “It’s at this level that the tenants do their own big work,” said Bergman. “They get tested, they have to try things out, they have to relapse, they have to mess things up and sort things out.”

When a tenant relapses, a meeting is held, bringing a group together to talk about what happened. The person who has relapsed will tell his or her story, everyone else will say how they have been affected—staff and tenants alike—and they will discuss what repair work needs to be done.

“It’s always the same,” said Bergman, “At first, people will be angry at this individual, because he has brought in drugs and shown up under the influence of drugs on their floor. And also because they do not want to sit in a meeting! But then they hear what has happened: ‘My 15-year-old son called me yesterday and said that I had destroyed his life and that I’m a bad mother and he doesn’t want to talk to me again. So I needed to go out and get drunk.’ Or ‘I got the diagnosis from the HIV clinic and I’m positive. So I went out and took heroin.’

“It always makes sense, and it’s always something that the others can identify with and feel very sympathetic with. They will give support and say, ‘Our main concern is that you are slipping away from us and that you need to get support from us. We have noticed that you have been avoiding us. I will feel that you have repaired what happened if you come with me to a meeting, if you go out for coffee with me twice a week, if you join me in the art studio and we do some work for the exhibition.’”

Bostallet’s fourth level has 38 training apartments, each with a kitchen and bathroom. Here, tenants are expected to take care of themselves but still belong to the community. They go to work or school during the week but participate in community activities on weekends.

Fourth-level tenants also begin to try to find another living situation because Bostallet is not a permanent solution. To that end, they begin to repair their economic history. Because of their debts, they would be unable to have an apartment outside Bostallet, said Bergman.

“When you have debts, the tax authorities bar you from everything. You can’t get a job. You can’t get an apartment, a loan or anything. So together with them, we start to track down what kind of debts they have.” She compared the process to detective work: “Usually they have a big plastic bag full of unopened bills. You have to map it out, contact all their creditors and ask them to write off their old debts or make some kind of deal. We support them in trying to pay back whatever they can.”

The staff also helps tenants find occupations, said Bergman, “but the tenants have to be involved in the process. We don’t do it for them.” The City Mission has a school for adults, and when tenants are clear of drugs and have their situation under control, they can apply there. The Mission also runs a chain of secondhand stores where tenants can receive job training. “It’s the same there as it is at the halfway house. If you show up at the secondhand store under the influence of drugs, you will be asked to leave,” said Bergman.

Bostallet has fewer places for women than men. (The seventh floor has short-term living for women only, and the eighth has some training apartments for women.) Many more men apply to live in Bostallet than women.

“We have succeeded much better with men than with women,” said Bergman, adding, “Women have a lot more to deal with when starting the process of change. Women’s issues tend to be about relationships: being a good mother, girlfriend or daughter. Many women have great difficulty with guilt and shame. Men’s issues are more about how to be seen as a man of power and position.”

Women find it painful to be in an institution, said Bergman, “because they have been on drugs for the last 10, 20, 30 years. Their faces are scarred, they have no teeth, their children are in their late teens and they haven’t seen them for many years, and there is a lot of anxiety, acting out and being self-destructive.”

Bergman said she thinks that many women need something that’s more focused on them as individuals. (There is a shelter, on the island of Kungsholmen, in central Stockholm, exclusively for women.) “When they move into the house,” she said, “they mother people and take care of them because they don’t want to feel what they are feeling themselves.” It’s sad, she said. “We are constantly telling them not to worry about the other people because we are here for them.

“This may seem like we simplify or that we see women as more complex than men, which is not true,” said Bergman. “We just recognize that we need different strategies working with women than with men. At the end of the day, all the men and women we meet are persons who have been abused in their lives and need a lot of support—and boundaries—to be able to dare to change.”

Mija Bergman and Annelie Edren will be plenary speakers at the upcoming IIRP conference, “Building a Global Alliance for Restorative Practices and Family Empowerment, Part 2,” to be held August 5-7, 2004, in Vancouver, British Columbia, Canada.

To access the Stockholm City Mission website, go to:
http://www.stadsmissionen.se (in Swedish).

For information in English, go to:
http://www.stadsmissionen.se/Information-in-English/.

By Laura Mirsky
Lauren Abramson
Executive Director
Community Conferencing Center

 

 

The Community Conferencing Center (CCC) is bringing restorative practices to Baltimore, Maryland. Dr. Lauren Abramson, executive director of the CCC and assistant professor of child psychiatry at Johns Hopkins University School of Medicine, believes the work that the CCC is doing is making a difference in Baltimore. Said Abramson, “I think one of the important things about what we’re doing is that this is being done in some of the most disinvested and distressed neighborhoods in Baltimore, the second most violent city in the United States.”

The CCC has facilitated over 500 conferences: as court diversion for juvenile nonviolent offenders and juvenile first-time felony offenders, as an alternative to school suspension, to heal ongoing neighborhood conflicts and as an aid in re-entry into family and community after incarceration. The process used by the CCC, said Abramson, is “basically the three-part restorative conference structure: hearing what happened, letting everybody say how they’ve been affected by the situation and then having the group come up with ways to repair the harm and prevent it from happening again.”

Community conferences are always voluntary. In a diversion case, the offender must admit to wrongdoing and all parties must agree to go through the conferencing process instead of sending the case to court. If the case is resolved by community conferencing, the offender won’t have a court record. CCC does do conferences with adults, but not yet with adult court-diversion cases, said Abramson.

The CCC has conducted about a hundred conferences in schools, involving students in all grades, from kindergarten through high school and college, along with parents, teachers and administrators. Said Abramson, “The conferences not only result in suspended students being returned to school and staying in school, but we have reports from teachers that it has boosted morale.”

Abramson thinks that one issue in school that has been ignored is gossiping. There has been a lot of emphasis on bullying in schools, she said, and although a lot of schools still don’t know what to do about bullying, gossiping also creates major problems, “not only in really deteriorating the quality of life for a lot of students in that school, but resulting in a lot of violent incidents that come out of gossiping.”

Abramson termed prison re-entry into neighborhoods and families “a huge issue.” Many re-entry programs, she said, emphasize obtaining housing, education, employment, and substance abuse and mental health treatment for people coming out of prison. This is all really important, she said, “but it’s hard to do all that unless a person has support in their lives. So we use conferencing as a way for people coming out of prison to have a conversation with the people in their lives who have been affected by their incarceration. What we find is that it’s a safe place and a structured way for people to have that conversation, which normally they would not do.”

Abramson said that she is also interested in using conferencing for serious crimes “to provide a sense of healing and learning.” She is preparing a case with a man serving a life term in prison for murder. “This is the first one I’ve done,” said Abramson. “It came through one of our partners in the re-entry program who’s working with a lot of ‘lifers.’ Since I’ve been doing this, I have wanted to do this kind of thing, but I felt that it had to come from them, not from me.”

Referrals to the CCC come from a wide variety of sources. Said Abramson, “We get referrals from schools directly, from the Baltimore City School Police, which is its own separate police force, from the Baltimore City Police, from the Department of Juvenile Services and from neighborhoods. At this point, any resident can call us if there’s a situation.” This was the case with a conference that Abramson regards as a great success.

In one neighborhood, Southeast Baltimore, young people had been a source of hundreds of calls to the police over a two-year period. The adults in the neighborhood were irate and frightened due to the youth playing on the streets, making noise and damaging property; the youth were frustrated because they had nowhere else to play. Matters came to a head in the fall of 2001 and the local neighborhood association asked the CCC to hold a conference, which was attended by 44 people, including 13 kids. At first, the adults just yelled at the children, but then the kids began to express themselves, protesting that they had no safe place to play.

One neighborhood resident, Don Ferges, a former high school football star, offered to supervise the children’s play at a nearby park. More and more kids showed up to play football in the park every day. Ultimately the children, Ferges and other adult volunteers formed their own full-blown neighborhood football league, which continues to grow and thrive every year. The quality of life in the neighborhood has improved immensely due to the league. Children are playing football instead of taking or selling drugs. As one neighborhood resident put it, the league has saved kids from a life—or death—on the streets. Another resident said he’s seen a major change in the neighborhood kids’ behavior overall: more cooperation and respect and less bullying. Said Abramson, “For two years now, 150 young people have been engaged four days a week after school in this league, based on all-volunteer time, and that came about from a conference.”

Baltimore residents participate in a community conference.

Abramson first brought the idea of community conferencing to Baltimore in 1995, after working in communities with young people and families for about 20 years. “I’ve always been interested in ways that people can deal with each other on an emotional level in more healthy ways,” she said, adding, “My degree is in biopsychology, so I studied neuroscience and animal behavior. I’ve taken what people think of as being a circuitous route, but it’s all very much connected to me, because I studied the neurobiology of emotion and how emotions affect health and illness and emotional development through the life span.”

Abramson said she was introduced to the concept of restorative conferencing in 1994 by David Moore, John McDonald, Terry O’Connell and Margaret Thorsborne of the former Transformative Justice Australia. Said Abramson, “I saw this process as an excellent way for people to have a safe place to express affect with each other, keeping the experts out of it and honoring the capacity that we have to work things out, if we’re given a place to do that on an emotional level.”

Abramson believes that the process lets people express their negative and often toxic affect, such as anger, to each other and in so doing, provides a way for that affect to be transformed into distress and other less toxic negative emotions. “Then, at that moment, which can be called collective vulnerability, or shame,” she said, the dynamic changes so that everybody feels responsible. “That’s really a critical emotional turning point for the group,” said Abramson. “Then they can begin to get interested in: How can we move forward in a better way?” Abramson sees the emotional component as the basis of the power of the process. “It’s just been fantastic for me to marry my interest in healthy emotional development and working in distressed communities and to be able to offer this in Baltimore,” she said.

“I really got a lot of flak when I started this,” said Abramson: “It’s not going to work in a big city; it’s not going to work in inner-city neighborhoods. The implication of that was offensive to me. Not only that, it just goes against what I understand the process to be about. We have seen hundreds of times now, that whatever people’s image and thought is about this city and what the statistics are, there are still human beings who live here who are capable of resolving their own conflicts and their own criminal cases in really effective ways, just with each other. I think it’s a really important message to get out.”

Funding for the CCC comes from a variety of private and public sources. Monies from the state of Maryland helped the program get going initially in 1998. The state provided funds for four separate neighborhoods to do their own programs, with Abramson supplying technical assistance. “What we learned is that it was the wrong way to do it,” said Abramson, adding, “For a variety of reasons, neighborhoods don’t always have the capacity to really promote a new way of doing justice. It’s not a part-time thing, and you need people who are very clear about the principles and articulate about promoting those principles in institutions.” When separate neighborhoods ran their own programs, said Abramson, they weren’t able to get referrals, and there was no way to institute quality assurance.

In response to these concerns, the Community Conferencing Center was born in 2000. Said Abramson, “We realized that we had not separated the program implementation from the process, and that the process always needed to be community-based and in the neighborhoods where these conflicts and incidents occurred, but the program piece, which included getting referrals, setting up quality assurance, promoting the program and doing education about the program was better served from a centralized location where that capacity was very well-developed.” Abramson stressed that the CCC is a community-based organization with “strong relationships with the police, juvenile justice, the state’s attorney’s office, schools and literally hundreds of community organizations, agencies and faith-based organizations.”

The CCC has a small core staff of three people who facilitate most of the program’s conferences. They also train numerous volunteers from the community, many of whom come forward after participating in a conference. Abramson told a story about how one conference engendered a volunteer facilitator: the father of a girl who had been sexually harassed in school.

A 12-year-old boy put his friend’s hand on a girl’s breast in the cafeteria line. Her father wanted to press charges but he agreed to participate in a community conference instead. At the conference, the man learned that the boy hadn’t planned the act against his daughter; “it was just a spur of the moment act of idiocy,” said Abramson. “In the middle of the conference the young man was sobbing. And the girl’s father leaned toward this kid and said, ‘Son, you’re not thinking about what you’re doing and what effect it’s going to have on your life. There are too many young black men in prison, and you need to start thinking about what you’re doing. I love you and care about you. And I want you to make the best of your life.’”

The father asked that the boys be returned to school. (They had gotten a 25-day suspension.) He suggested that their role should be to protect the girls in the school. A woman from suspension services who was attending the conference got the boys back in school the next day. The father volunteered to work for the CCC, and now he’s a facilitator. Said Abramson, CCC volunteers are “people who have been through it, social workers, lawyers, police officers, residents—anybody who wants to be part of what we’re doing.”

Abramson related another story about a criminal case, which, she said, “has both great success and great tragedy in it.” A boy stole a car and picked up two of his friends. The CCC organized a conference, attended by the woman whose car had been stolen and her supporters, as well as a lawyer from the insurance company. (The insurance company was also considered a victim of the auto theft.) One of the three boys had already been rearrested and was in jail, so he couldn’t attend the conference. The other boys, who were 15 and 16 years old, related how the theft had happened. The woman whose car had been stolen said that she was upset about some irreplaceable things that had disappeared along with her car. What she was really concerned about, however, was the boys and what they were doing with their lives. (At the conference, one boy revealed that he was raising himself. He had a job and was paying for his own apartment.)

The boys apologized to the woman and she didn’t want anything else from them. But the lawyer said that each boy had to pay $500. The mother of the boy who stole the car immediately offered to pay that amount, but the lawyer wouldn’t accept her money; he thought her son ought to pay. The boy said he didn’t have a job and didn’t know how he would come up with the money. At this point, said Abramson, the woman whose car had been stolen reached into her purse, handed the boy her card and said, “I know where you can get a job. You need to contact me.” The lawyer gave the boys a month to begin saving money, then worked out a payment schedule to begin the following month.

“So everything was really worked out in an amazing way,” said Abramson, “but the next thing we heard was that the court had decided that the case had been inappropriately marked for diversion to us. So it went to court, and it was dismissed.” Everything that had been worked out at the conference fell apart. “It really shows how the current system fails kids,” said Abramson, adding, “There are so many instances where they’re not held accountable for what they’ve done. We see kids with 15 priors, and then they become adults and they get slammed. And of course, there’s also kids in detention who really don’t need to be there and shouldn’t be there. It works both ways.”

Research has confirmed the success of community conferencing. Said Abramson, “Out of over 500 conferences, 99 percent have resulted in agreements, with over 90 percent in compliance with those agreements.” Abramson said that the CCC is also working on qualitative analyses of the “collateral impact” of conferences. “So much of the research is about recidivism and participant satisfaction,” she said. Collateral impact refers to the effect conferences have on communities. Said Abramson, “We can list a hundred different kinds of impacts that we have seen come out of community conferences.” She continued, “I think it’s really all about relationships and building social capital. That’s where the incredible benefit comes from this process. What we’re faced with in this world is that the final frontier is probably human relationships—how we figure out to get along with each other. This process is amazingly powerful at giving people a way to realize that if they work together they can do amazing things. Very specific things come out of conferences that people do work on collectively. Social scientists talk about the importance of collective efficacy and social capital and that’s what this is really about: it’s using conflict to build communities.”

Asked what she hoped for the future of the program, Abramson said that the CCC has a contract pending with the State of Maryland Department of Juvenile Services that will allow them to handle a significant number of juvenile diversion cases in Baltimore. This “represents that the system is recognizing and providing this community-based response as part of what they do (as opposed to trying out a pilot of the program),” she said. The contract also will allow the CCC to establish other community conferencing programs in Maryland and functions as a hub for evaluation, training and technical assistance.

Abramson’s expectation is that the public institutions that benefit from the CCC will soon provide stable funding. “Our private-foundation funders have been very generous in helping us get going and also very clear that public institutions need to kick in, which means changing the way public institutions do what they do, and fund what they do, so that’s a long fight,” she said, adding, “It’s been a struggle, but it’s been very worth it. People come out of a conference and they are just thrilled with the outcome. Most of the people that attend conferences have been to court before and they’re pretty amazed at what they’ve been able to do. My big thing is that it’s about the people—the participants making it happen—and it wouldn’t happen unless there’s a structure and a process for that to happen. Community conferencing is, I think, one very effective way to provide that structure.”

For more information about the Community Conferencing Center, visit their website, at http://www.communityconferencing.org.

By Lorenn Walker
Introduction

Lorenn Walker

“Shut up or I’ll kill you!” shouted the man as he shoved the hard barrel of a 9 mm handgun into the young woman’s stomach. She was a store clerk. The robber wanted her to open the store safe. “I don’t have the whole combination,” she sobbed. “Where’s your purse?” he demanded. He took the $32 out of her wallet along with her car keys. Then he wrapped duct tape around her mouth, hands and feet. He left her face down on the ground and ran from the store. Until she was rescued and untied by a co-worker about an hour later, she imagined him returning and shooting her. She kept thinking about her two young children, whose father was already gone, and what they would do without their mother.

The robber stole her car, which ran out of gas a few miles from the store. The police found the car and impounded it. She was stunned when she had to pay $92 for towing and storage fees to get her car back. Her boss later reimbursed her.

The robber was apprehended in another holdup. She was subpoenaed to testify at his trial. She waited outside the courtroom for an hour and a half while she was taunted and threatened by the robber’s family. Although she was afraid, she still testified.

Her experience in court was brief and painful. The robber’s lawyer acted like she had done something wrong and was lying. “Isn’t it true you never saw his teeth clearly? You don’t even know if he had gold caps on his teeth or not, do you?” he sneered, raising his eyebrows at the jury. She left the courtroom feeling dreadful and dirty. She longed for a hot shower.

Ten years later the woman was still haunted by the experience. Why did the robber pick her store to rob that day? Why did she risk her life and lie to him about not having the combination to the safe? What would her children have done if she had been killed? What happened to the robber after the trial? Was he convicted or acquitted? She had talked only briefly with her husband about the experience and remained deeply troubled by it.

The woman later learned about the experimental restorative justice program reported in this paper. The program provided two trained facilitators who came and met with her at her home. For the first time, she had a detailed conversation about the effects that the crime had had on her life. Six months after this restorative process, she reported, “It helped me a lot. I used to think about the robbery all the time.” The conversation “helped me to not worry about it anymore.” Today, she is working toward a bachelor’s degree in criminal justice.

Program Development

The Hawai’i Friends of Civic and Law Related Education (Hawai’i Friends), collaborated with the International Institute for Restorative Practices (IIRP), on the Restorative Justice Without Offender Participation Project, beginning in June 2002. At a meeting in August 2002 and through subsequent email exchanges, IIRP staff assisted in designing the restorative processes, and in planning how to obtain cooperation from government and other agencies and how to engage the public.

In addition, a group interested in victim services in Honolulu, including representatives from the Honolulu Police Department, the State Department of the Attorney General, the U.S. Attorney General’s offices, the City and County of Honolulu Prosecutor’s Office, Mothers Against Drunk Driving (MADD), Kapiolani Sex Abuse Treatment Center, Community Alliance on Prisons and the State Crime Victim Compensation Commission, helped develop and guide this experimental program through a series of three meetings, beginning in September 2002.

Restorative Justice

Restorative justice is a response to crime that considers the needs of victims, offenders and the community (Zehr, 2002). While the modern restorative justice movement began in the 1970s, some believe that “restorative justice has been the dominant model of criminal justice throughout most of human history for perhaps all the world’s peoples” (Braithwaite, 2002). Restorative justice in Europe was largely abandoned at the time of the Norman Conquest (Van Ness, 1986). However, many indigenous cultures worldwide have never stopped using it (Braithwaite, 2002 and Zehr, 2002).

The general goal of modern restorative justice is to create a process for reconciliation between defendants who accept responsibility for their wrongdoing, their victims, and their community, family and friends, who are affected by the crimes (Zehr, 1990). Usually, restorative justice happens after a defendant has admitted guilt, and if the victim agrees to participate in a restorative process, it brings both parties together. There are many situations, however, where a shared victim and offender process is not possible, but where a restorative response can provide important benefits for the victim or offender, even without the other’s presence.

Some complain that a shortcoming of restorative justice is its failure to address the needs of victims when they do not meet with offenders (Roche, 2003). However, there are many reasons why meetings between victims and offenders are not possible. First, in most criminal cases the offenders are unknown. Less than 20 percent of all crime results in an arrest (FBI, 2003). Therefore, even if victims want to meet with offenders in a restorative process, often no offender has been identified and arrested, making such a meeting impossible.

Second, many offenders fail to take responsibility for their crimes. Although over 90 percent of all charged defendants eventually admit that they committed a crime, by means of a plea bargain (Hall, 1996), many maintain that they were not responsible for the crime. Restorative justice meetings between victims and offenders are about potential reconciliation. Meetings with victims and offenders, when offenders deny responsibility, usually create further hardship to victims, although under certain conditions these meetings may have some benefit (Walker, 2002).

Finally, many victims simply do not want to meet with the offenders. Eight restorative justice programs collected data on the percentage of victims unwilling to meet with offenders (Kerner, Marks & Schreckling, 1992; Moore & McDonald, 1994; Maxwell & Morris, 1996; McCold & Wachtel, 1996; Strang, 2000; Trimboli, 2000; Braithwaite, 2002; and Hoyle, 2002). Analysis of these studies showed that an average of 47 percent of victims, when offered the opportunity to participate in a restorative process with the offenders, declined the invitation.

Howard Zehr, a recognized leader of the modern restorative justice movement has written:

In a restorative system, services would start immediately after a crime to address victim needs and to involve the victims, regardless of whether an offender is apprehended. Thus victim assistance, while it cannot be seen as fully restorative, is an important component of a restorative system and should be seen at least as partially restorative.

(Zehr, pp. 55-56, 2002)

John Braithwaite, a well-known Australian criminologist and proponent of restorative justice, agrees that providing a restorative response for victims not meeting with offenders can assist them and should be pursued even without the offender’s participation (personal correspondence, November and December 2003). Indeed, “partially restorative” processes can be beneficial for anyone who participates.

Partially Restorative Practices

There are ranges of restorative justice practices, from “fully restorative” to “mostly restorative” to “partially restorative” (McCold & Wachtel, 2002). The main criterion for determining where a particular practice fits in the restorative gauge is based on who participates in the process. A fully restorative practice includes the participation of all direct stakeholders: the victim, offender and their family and friends. A restorative practice with only the victim or offender is a “partially restorative” practice. For reconciliation purposes, a partially restorative practice is not as ideal as a fully restorative practice, but still offers important benefits.

While offenders have the opportunity to participate in restorative programs without victim participation, usually victims do not. Although there are counseling, compensation and support-group programs for victims of particular types of crimes, such as sexual abuse, drunk driving and violent crimes, most crime victims are on their own to meet their needs, both materially and psychologically. Ironically, our justice system provides more resources for criminal offenders than for the people they harm.

The National Center for Victims of Crime (NCVC) has undertaken the “Parallel Justice” project, which seeks to “revolutionize our response to crime victims” (NCVC, 2003). Parallel Justice is being conducted at four sites in the United States, with the aim of assisting crime victims in a variety of ways, including “establishing non-adversarial forums where victims have an opportunity to explain what happened to them, what the impact on their lives was, and what resources they need to get their lives on track.” The experimental restorative justice program reported in this paper coincides with the goal of the Parallel Justice project.

Influences and Related Thinking

The work of many individuals was applied in developing this restorative practice, including Howard Zehr, John Braithwaite, Kay Pranis, Paul McCold, Ted Wachtel and Daniel Van Ness.

Terry O’Connell, an Australian who is largely responsible for introducing restorative conferencing to the American criminal justice system (Pranis, 1998 and Wachtel, 1997), and Insoo Kim Berg, a co-founder of solution-focused brief therapy (Nichols & Schwartz, 2001), were consulted in the development of the questions that form the general outline of the practice.

Solution-focused brief therapy (SFBT) was originally developed by Insoo Kim Berg and Steve de Shazer “as a quiet revolt against the prevailing view of what is helpful to people with problems of living” (Berg & Steiner, 2003). SFBT represents a radical departure from traditional psychological therapy. “In SFBT the therapist’s role is more like a facilitator than a counselor” (DeJong & Berg, 2002), empowering people to solve their own problems, which is consistent with restorative justice.

In a more general way, others who have dealt with surviving trauma and suffering, and whose thinking is consistent with the goal of restorative justice, have influenced the project. Viktor Frankl, who suffered in Nazi concentration camps, has written, “Life ultimately means taking responsibility to find the right answer to its problems and to fulfill the tasks, which it constantly sets for each individual” (Frankl, 1984, p. 85). The Dalai Lama, Tibet’s exiled leader, advises that “our confidence and self-reliance can grow and our courage become strengthened as a result of suffering.” This, he says, can be achieved by “examining it, analyzing it, determining its causes, and finding out how to deal with them” (The Dalai Lama, Ethics for the New Millennium, p. 140).

Finally, Desmond Tutu, the 1984 Nobel Peace Laureate and chairperson of South Africa’s Truth and Reconciliation Commission (TRC), says:

It is ultimately in our best interest to be repentant, reconciling and reconciled people because without forgiveness, without reconciliation we have no future. …

In forgiving, people are not being asked to forget. On the contrary, it is important to remember, so that we should not let such atrocities happen again. Forgiveness does not mean we condone what has been done. It means taking what happened seriously and not minimizing it; drawing out the string in the memory that threatens to poison our entire existence. It involves trying to understand the perpetrators and so have empathy to try to stand in their shoes and appreciate the sort of pressures and influences that might have conditioned them.

(Tutu, 1999, pp. 165 & 206)

Hate is like rust. It eats away at our core. A restorative response can provide crime victims with the opportunity to address the harm they have suffered and let go of their hate. A restorative response can be an effective method for victims to find meaning from their suffering and to move from being a victim to becoming a survivor. Here is the story of an artist who used the serious harm he suffered to create something beautiful out of garbage.

The Creation of the Shattered Heart

“What are you doing!” the man yelled. He had just returned home and found a stranger in his house rummaging through some desk drawers. The apparent thief turned around and made a wailing sound as he moved his lips. He was deaf and mute. He grabbed a piece of paper on the desk and scribbled out a message: “Can you help me? I was robbed of all my money. I’m hungry. I need a clean shirt.” He was disheveled and looked desperate, but he was also young and seemed innocent. The man decided to help him. He gave him clean clothes and some food, and let him sleep on his couch for the night. The intruder told him his name.

It was 1975 and the helpful man was 26 years old. He was an artist who had just received his master’s degree in fine arts from the University of Hawaii. He had struggled himself in life and the intruder seemed harmless. It was natural for him to be kind.

Later that night, the artist woke up choking on smoke billowing up from the bottom story of his house. The place was on fire. He rushed downstairs, looking for the intruder, but he was gone. The roar of sirens got louder. As he ran out of his house, two fire trucks screeched into his driveway. But it was too late. His house went up in flames. All his artwork was gone, work that he had spent years on. His home and all his belongings were destroyed. The firemen said the fire had been started by arson.

Later that night, wrapped in a blanket, the artist gave a statement to the police. He told them about the intruder, who must have started the fire. But the artist was arrested. A man with the same name as the intruder’s had been found dead earlier that day. The artist was no longer an arson victim but a murder suspect. After spending hours at the police station, the artist was able to convince the police that his story was true. The police finally recognized the intruder as the suspect in a string of other crimes. The artist was released.

The artist not only lost his home that night—he lost his job. Some of his employer’s property that had been stored in his house was lost in the fire. “How could you be so stupid as to help some criminal? You’re too stupid to work for me,” said his boss when she fired him.

Losing everything that grim night put the artist on a path that led to a successful career 25 years later. Because he had no money to buy art supplies, he was forced to become creative with what he could find for free to make his art. He found his supplies in the garbage. Over the years he developed high-level assemblage art skills. One type of garbage he found, and still works with today, is broken glass.

The artist has a studio in downtown Honolulu. His “shattered hearts” are popular art pieces. These stunning, three-dimensional hearts are made from broken pieces of colored glass glued together. Shattered hearts are in art galleries and museums and are collected by other artists and individuals.

After meeting for several hours as a participant in this restorative project, the artist said, “Looking back on it, losing everything turned out to be a good thing. It was important for me as an artist. If I hadn’t lost my house, my job and all my work that night, I wouldn’t have gotten into the work I do now,” he said.

Description of Practice

The restorative practice developed for this project simply gives victims an opportunity to tell their stories in a small group setting. They can talk about how they have been affected by the crime and what might assist them in repairing the harm.

The victim of a violent crime myself 27 years ago, I conceived of the idea for this practice because I recognized the need to provide a forum like this for victims, without an offender’s participation. As coordinator of the program, I work with a co-facilitator, another former crime victim who recognized the need for this program. Our combined experience in therapy, public health and the law provided us with the ideal background to develop the practice.

Working as two facilitators together on the cases gave us the opportunity to discuss the practice, its effectiveness for victims and ways to improve it. While two facilitators are not necessary to conduct restorative practices, in this case having co-facilitators provided a serendipitous effect. Working together and discussing the cases of other victims gave us the opportunity to reaffirm how our own suffering, resulting from the crimes committed against us, made our lives more meaningful.

An eventual goal of the pilot program is that the crime victims who participate in the program become facilitators of the practice and benefit from this service role. Having prior crime victims co-facilitate the practice can provide a positive benefit for them, as well as for the victims they are assisting. Several victims who participated in the pilot have indicated an interest in becoming facilitators themselves in the future.

When the practice includes only the victim and the facilitators, it is called a restorative conversation, and when the victim brings one or more supporters to the meeting, it is called a circle of care.

Before the restorative event, a facilitator talks with victims about what to expect in the meeting, which is held at a place and time convenient for them. The facilitator asks victims if they want to bring supporters with them to the meeting. Most of the victims in this project chose to meet alone with the facilitators. Most meetings were held at the victims’ homes.

Victims are asked a series of open-ended questions, presented below. The questions are not followed in every case. The list of questions is still a work in progress. The initial questions address the issue of how the victims have coped with the aftermath of the crime:

    • How have you managed to get through this so far?
    • Who or what has been most helpful in dealing with this terrible situation?

Subsequent questions facilitators may use to help the victims tell their stories:

    • What happened?
    • How has the crime or crisis affected you?
    • What has been the hardest thing about what happened?
    • How have others who are close to you been affected?
    • How have they responded?
    • What would you want those responsible for what happened to you to know about your experience?
    • What is needed to help you deal with some of your hurt and pain?
    • How might others help?
    • What things can you do that might also help?
    • What can others learn from your experience?
    • Can you think of anyone else who also has experienced the same or a similar event?
    • How have others dealt with the same or similar crises or crimes?
    • What other crises or crimes have you experienced in the past?
    • How did you deal with those crimes or crises in the past?

A written plan may be developed as a result of the meeting. The plan states the goal or goals the victim may develop as a result of the meeting. After the initial meeting, the victims are offered the option of additional meetings. Most victims in this project chose to meet only once.

Cases Referred

Sixteen crime victims have participated in the program to date, and three are scheduled for future meetings. Four victims received services over the telephone and did not need to meet personally. Crimes included harassment, assault, attempted rape, robbery, arson, negligent homicide, fraud, burglary and car theft. The length of time from the occurrence of the date of the crime to the date of participation in the program varied from a crime that occurred one week earlier to two cases that involved crimes that occurred 20 years before.

Most restorative conversation meetings lasted about 90 minutes. One restorative conversation, with a victim traumatized by a death that occurred the month before, lasted well over three hours.

Another restorative conversation with a victim led to holding a formal restorative conference with the offender and other key stakeholders. A group of ten participants, including supporters for both the victim and offender, met and came to an agreement about how to repair the harm caused by the crime.

In another case where the victim expressed a strong desire to meet with the offender, it was ultimately decided that it was best not to contact the offender, who had denied committing sexual abuse for many years. The victim in that case, however, benefited from two restorative conversations with the facilitators.

Over 500 brochures were distributed by several of the collaborators (MADD and the Crime Compensation Commission) to three hospital emergency rooms and a mental health clinic, but only one of the 16 victims who participated learned of the program this way. Most cases were referred to the program by word-of-mouth through the two facilitators or a collaborating organization. A short newspaper article describing the program provided five victims with information about the program.

Participant Satisfaction with Program

The victims surveyed about their participation indicated high levels of satisfaction with the practice. Many indicated that the practice greatly surpassed their expectations of what it might accomplish. “Thank you so much! I never thought this could have been so helpful!” said one victim as she hugged the facilitator.

Quotes from victims about what they found most useful included:

    • “I could tell my story and be listened to and look for positive outcomes.”
    • “Realizing that my own reactions (or non-reactions) are my strength.”
    • “Closure. Identifying things that we can do.”
Future Goals
    • Continue the pilot program for 12 more months.
    • Work to recruit and train victim participants to become facilitators in the program.
    • Work with the City and County of Honolulu Prosecutor’s Office, which plans to select negligent homicide cases that will not be prosecuted and refer them to MADD, which may then refer them to this program.
    • Continue working with the other Honolulu collaborators in distributing the brochures, including the police department, which has resisted referring crime victims to the program for “liability reasons.” This is unfortunate because the police are the ideal outlet for informing victims about the program.
    • Continue collecting and telling the stories of victims about the benefits of a restorative approach to crime, so that they may share them with others.
    • Finally, remember that it took over 2000 years to create our current criminal justice system, and recognize that it may take some time to return to restorative justice.
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Walker, L. (2002). Conferencing: A New Approach for Juvenile Justice in Honolulu, Federal Probation, Vol. 66(1), pp. pp. 38-43.

Zehr, H. (1990). Changing Lenses. Scottdale, Pa.: Herald Press.

Zehr, H. (2002). The Little Book of Restorative Justice. Intercourse, Pa.: Good Books.

By Laura Mirsky

 The concept of creative restitution was developed by psychologist Dr. Albert Eglash in the 1950s. While working with adults and youths who were involved in the criminal justice system, Eglash found that the system lacked both humanity and effectiveness. As a proposed alternative to that system, he developed and promoted the concept of creative restitution. In creative restitution, “an offender, under appropriate supervision, is helped to find some way to make amends to those he has hurt by his offense, and to ‘walk a second mile’ by helping other offenders.”[1]

Some of the basic tenets of restorative justice can be found in the principles of creative restitution, as can the philosophical heart of a variety of restorative practices programs. For this reason, Eglash’s work on creative restitution has been acknowledged by some as one of the foundations of the restorative justice movement.

Dr. Albert Eglash (left), with his son, Ronald, his grandson, Isaac, and his wife, Evelyn.

Eglash was interviewed in August 2003. Asked what had inspired the concept of creative restitution, he said, “The concept of restitution had been around a long time, but in a very narrow sense. It simply meant paying money. I just expanded it.” Asked if he saw a connection between creative restitution and restorative justice, Eglash said, “Yes, I think they’re the same thing. I think the restorative justice movement has moved my concept in a very constructive direction, far beyond what I had conceived.”

In the 1950s, in Detroit, Michigan, U.S.A., while working with the Mayor’s Rehabilitation Committee on Skid Row Problems and the Commission on Children and Youth, Eglash counseled destitute alcoholics and attended Alcoholics Anonymous (A.A.) meetings. He was very impressed with the fellowship he saw among A.A. members, and their practices provided inspiration for the idea of creative restitution. “A.A.’s Twelve Steps program includes two steps about making amends,” he said.

At the same time, Eglash met “Tip,” an alcoholic with an extensive criminal and prison background who wanted to find a way to make amends for the things that he had done. Eglash and Tip provided leadership to a Twelve Steps program for delinquent teenagers called Youth Anonymous, and Eglash performed a follow-up study of the youths who had participated in the program. He also co-conducted meetings of Adults Anonymous, a support group program for prisoners, based on the tenets of A.A. He promoted the use of creative restitution with prisoners and parolees, discussed the concept among them and recorded their comments.

In an early article, Eglash spelled out the characteristics of the restitutional act:

“1. It is an active, effortful role on the part of an offender. On New York’s Riker’s Island, inmates of the city penitentiary risked their lives to rescue passengers of a plane which crashed and burst into flames during a snowstorm. Restitution is something an inmate does, not something done for him, or to him. …

2. This activity has socially constructive consequences. … From prison labor wages and savings, Ionia (Michigan) inmates sent money to foster parents. Being constructive, restitution may contribute to an offender’s self-esteem.

3. These constructive consequences are related to the offense. … Being offense related, creative restitution may redirect in a constructive manner those same conscious or unconscious thoughts, emotions or conflicts which motivated the offense.

4. The relationship between offense and restitution may be reparative, restorative. In San Quentin, Jim asked to earn the $50 necessary to make good a bad check. Being reparative, restitution can alleviate guilt and anxiety, which can otherwise precipitate further offenses.

 5. The reparation may leave the situation better than before the offense was committed. A youngster destroyed a neighbor’s rural mailbox; police turned him over to his parents. Boy and father together replaced the box on its post. The next day, the boy asked for paint and brush, left the box in better condition than before the offense occurred.”[2]

Eglash listed further attributes of creative restitution, which “distinguishes it from reparations or indemnity:

1. It is any constructive act.

2. It is creative and unlimited

3. It is guided, self-determined behavior.

 4. It can have a group basis.”[3]

 After discussing creative restitution with adults in a county jail, youths in a correctional facility, adult pre-parolees in a house of corrections and other juveniles and adults involved in criminal circumstances, Eglash concluded that the concept: “makes sense to adult offenders and is more acceptable to them than is mandatory restitution. They believe that incarceration discourages restitutional effort, since it provides a codified (ritual) restitution. They are leery about approaching the victim, who may be vengeful, and welcome the help of a parole officer in this matter. Restitution occurred to many before incarceration. Juveniles are even more frightened of facing their victims. … [They] seem not to have been made aware—by parents, school, police or court—that making amends to those we hurt is part of our growth.”[4]

  Eglash addressed some of the basic elements of restorative justice in his thoughts on creative restitution. On the importance of restoring the relationship between the offender and the victim, he wrote, “At present, offenders are not encouraged to make contact with their victim at any time, either on probation, in prison, on parole or after discharge, but experience with creative restitution suggests that a victim may become an offender’s best friend, an important human resource for help in reestablishing self-respect and in reintegrating with society.”[5] Eglash was optimistic that creative restitution might help with the stigma felt by prisoners after they had been released from confinement. He hoped that reconciliation with the victim would “provide a gateway to comfortable relations with others.”[6]

  Another important component of creative restitution is the idea of the renewal of self-respect. “Certainly one of the first objectives for the offender … is the bolstering of his feelings of self-worth,” wrote Eglash (with Paul Keve[7], then director of Hennepin County Probation Department, Minneapolis, Minnesota, U.S.A.), adding, “So much has happened to [an offender] to weaken or destroy that sense of worth. In the beginning, perhaps, a rejecting parent; then problems in school that added to feelings of inferiority; then failures in jobs, discord in marriage, or a variety of other sources of trouble. … And now to have been arrested, jailed, tried and found guilty seems to say to the defendant all over again, in the most concrete ways, that he is an inferior object with no right to look at himself with pride or hope.”[8]

  The article quoted above tells a story about an instance of unplanned creative restitution. “Steve” had a juvenile court record but had gone on to become a successful plumber and family man. Then one day he fell back into his old ways, when he stole some copper tubing and was caught. At this point, Steve “felt disgraced and discouraged nearly to the point of just not caring anymore.”[9]Per court order, Steve began making payments to the complainant for the tubing, but the act of paying monetary restitution did nothing to end his despair. One day while waiting to meet with the victim of the theft, “McCormick,” to make a payment, Steve overheard him saying he needed volunteers to build a playground and offered his help. As Steve became involved with the playground project, “his feeling of being a pariah was rapidly dispelled. …”[10]and his relationship with McCormick was repaired. Eglash envisioned creative restitution as a way to provide a deliberate opportunity for offender and victim to restore their relationship, along with a chance for the offender to come up with a means to repair the harm done to the victim, such as community service.

 Eglash also stressed the importance of an offender admitting his or her wrongdoing, along with the significance of a simple apology by the offender to the victim. Again, he said he drew inspiration from A.A.’s Twelve Steps, writing, “Step 10 of the Alcoholics Anonymous program suggests that ‘When we were wrong, we promptly admitted it.’ Steps 8 and 9 suggest that ‘We made a list of all persons we had harmed and became willing to make amends to them.’”[11]

   It was another A.A. practice that inspired Eglash to advocate the notion of mutual help. “One way of making restitution for the harm we have done is by helping others with the same problems as our own,”[12 ]he wrote. “At present, mutual association between offenders is discouraged or even prohibited, and may constitute a violation of probation or parole. But creative restitution encourages such mutual association: if alcoholics can help each other leave liquor alone one day at a time, perhaps offenders can help each other leave other things alone one day at a time. … Perhaps an offender is an effective person for getting through the defenses and resistances of another offender.”[13 ]

Eglash pointed out another benefit of mutual help. “Because restitution can be a group process, time demands on leadership, e.g., on probation officers, can be reduced. … Probationary guidance may be easier with a group than with an individual. In committing an offense, what a youth would not do alone he tackles when supported by his group.”[14]

  Eglash put the group process to work when he initiated the first meeting of Youth Anonymous, in January 1955, at Boys Republic, “a private training school for boys 13 to 16 who had failed to benefit from other corrective action.”[15]Eglash’s friend and coworker, Tip, ran the gathering along the lines of an A.A. meeting, beginning with telling his personal story of crime, imprisonment and alcoholism. Tip then asked the boys what they wanted to name their program, suggesting, “Delinquents Anonymous.” The boys didn’t like the idea. Tip asked them why not, explaining that alcoholics call their group “Alcoholics Anonymous.” “Yeah, but they don’t call themselves ‘Drunks Anonymous,’”[16]replied the boys. Rejecting the stigma of delinquency, the boys settled on “Teenagers Anonymous.” A second group, which met at the Michigan Department of Corrections Brighton Youth Camp, selected the name “Youth Anonymous” (Y.A.). Neighborhood Youth Anonymous groups formed as well, open to both boys and girls, as did a parents’ auxiliary. The program’s goal was to enable youths whose behavior had set them apart to rejoin their peers.

 The youths participated enthusiastically in the Y.A. groups. They heard speakers from A.A., as well as adults who had been in trouble, and helped each other deal with their problems, informed by discussion of some of A.A.’s Twelve Steps. In 1956, Eglash wrote, “In a high delinquency area of Detroit, concerned observers have commented that there has been a noticeable decrease in serious juvenile offenses since the establishment of a group there.”[17]

 In 1961, Eglash began follow-up interviews with as many former Y.A. participants as he was able to contact. Attendance at Y.A. meetings seemed to have had a lasting positive effect on many of them. He obtained the following comments from former members. Before Y.A.: “Before, somebody would say something, I’d belt him one.” “I was on probation for B&E (breaking and entering)—it was 33 B&Es. … I used to run away from home and steal cars.” About Y.A.: “It was something I was in, not just one person talking, everyone; if you wanted to say something, you could; you could even be a leader.” “It keeps you off the streets and out of gang fights. We’d talk and learn that you have to help other people keep out of trouble if you want to keep out of trouble yourself.” After Y.A.: “I walk down the street and think about crazy things to do, give people a hard time, then I think again, and now I don’t do it.” “The guys wanted to break into a house boat. I talked them out of it.”[18]

In the interview, Eglash referred to a new manuscript—a work in progress. “Armed Conflict as Fixation: Twenty-one Steps Toward Peace” applies concepts of creative restitution, which are closely related to restorative justice, to the ancient problem of how to end war.

Just as he advocates direct communication between offenders and victims to repair the harm between them, Eglash, recognizing the common humanity of the citizens of combating nations, proposes that those directly involved in the world’s conflicts have the opportunity to restore relations between them. Consequently, he suggests that peacemakers be chosen from among families of those who have been killed. He cites the example of an Israeli father whose son was killed by Palestinians and a Palestinian father whose son was killed by Israelis who organized a group called Pain for Peace. Furthermore, if ex-alcoholics are the best people to help alcoholics, and ex-offenders are effective in helping others avoid criminal behavior, Eglash suggests that ex-terrorists might be appropriate to lead others on the path to peace.

  Creative restitution stresses the importance of apology in restoring harm between offenders and victims, and Eglash sees the same value in nations apologizing to each other for the “brutal, cruel, savage things each side does to the other.”[19] The refusal by nations to make such apologies is, he believes, one reason that conflict endures. And, he thinks, as important as it is to apologize, it is equally imperative that apologies be accepted when they are offered. “Accepting apologies implies dropping grudges, resentments and revenge. Instead, it suggests forgiveness…”[20]The notion of making amends for harm done, another concept central to creative restitution, is also seen as a vital step toward peace.

 But perhaps the most important step toward peace, one that is fundamental to restorative justice, is the willingness to renounce retribution. Eglash cites the never-ending cycle of retaliation between Israel and Palestine and that between Catholics and Protestants in Northern Ireland as examples of the endless demand for retributive justice which must cease. This is where the notion of forgiveness comes into play. “In order to forgive,” writes Eglash, “we distinguish between people and their behavior, so that we can forgive the people, not their behavior.”[21]

 Finally, Eglash asserts that peace is a human right, and challenges those who maintain that people have a right to revenge. “Revenge—retributive justice—may be a strong emotion, a strongly desired goal, a universally bitter emotion,” he writes, “but none of this makes it a human right belonging to surviving victims. Enjoying the flavor of getting even pits individual satisfaction against a nation’s aspirations to live in peace with its neighbors.”[22]

 During the interview, Eglash talked about those who take a negative attitude toward restorative justice and believe in revenge. “They’re saying that one of the human rights is revenge; if you’re a victim, then you have a right to revenge. I’m not arguing whether you have a right to revenge or not, but to me, even if you have a right to it, revenge is a human wrong.”[23]

We are grateful to Dr. Eglash for taking the time to speak to us about his work on creative restitution. Begun nearly half a century ago, it remains as useful and important today.

REFERENCES

 [1] Eglash, A. (1958a). Creative Restitution: Some Suggestions for Prison Rehabilitation Programs. American Journal of Correction, 20, 20-34.

 [2] Ibid.

 [3] Eglash, A. (1958b). Creative Restitution: A Broader Meaning for an Old Term. Journal of Criminal Law, Criminology and Police Science, 48: 619-622. Reprinted in: Hudson, J. & Galaway, B. (Eds.). (1975). Considering the Victim: Readings in Restitution and Victim Compensation. Springfield, Illinois: Charles C. Thomas.

 [4] Eglash, A. (1959?). Offenders Comments on Creative Restitution. Journal Unknown.

 [5] Eglash, A. (1958a).

 [6] Ibid.

 [7] Keve went on to become Commissioner of Corrections for the states of Minnesota and Delaware, professor at Virginia Commonwealth University and author of several books on corrections.

 [8] Eglash, A. & Keve, P. (1957). Payments on “a Debt to Society.” N.P.P.A. News: A Publication of the National Probation and Parole Association, 36, (4).

 [9] Ibid.

 [10] Ibid.

 [11] Eglash, A. (1958a).

 [12] Ibid.

 [13] Ibid.

 [14] Eglash, A. (1958b).

 [15] Eglash, A. (1958c). Youth Anonymous. Federal Probation. 22: 47-49.

 [16] Ibid.

 [17] Ibid.

 [18] Eglash, A. (2000). Critical Incidents in Youth Anonymous. Unpublished manuscript.

 [19] Eglash, A. (2003). Armed Conflict as Fixation: Twenty-One Steps Toward Peace. Unpublished manuscript.

 [20] Ibid.

 [21] Ibid

 [22] Ibid.

 [23] Ibid.

By Laura Mirsky
 
 

Hampshire County, England, has been an important location for the development and use of family group conferencing (FGC), also known as family group decision making (FGDM). One of the largest nonmetropolitan counties in England, Hampshire has a population of 1.5 million and encompasses both urban and rural areas, with communities ranging from prosperous to economically depressed. There has been a wide variety of FGC activity in the county. Starting with child welfare, FGC has moved into youth justice, education and domestic violence applications, among others. This article explores a variety of FGC programs in Hampshire.

Steve Love, assistant director, Children and Families, Hampshire County Council, oversees FGC work in the county. Love said that he makes the decisions as to how FGCs are supported, awarding grants to NGOs (nongovernmental organizations). Five years ago, the county was doing more FGCs than all the other 150 regions in the UK combined, said Love, but now other areas are catching up. More than 600 FGCs per year are held in Hampshire. That is still a small percentage of the 6,000 cases where the FGC approach could potentially be utilized, he said. FGCs are not yet written into the law in the county. Love would like to see that happen but believes that it will take at least five years. He said he views FGCs as a means to an end. In Hampshire, he said, “We are not interested in FGCs just for the sake of doing FGCs, but to obtain as much family engagement as possible.”

FGC is a restorative process that empowers families to make decisions, normally made for them by public officials, concerning the care and support of their children and other family members. The practice began in New Zealand in youth justice and child welfare applications and has spread throughout the world. In New Zealand, FGC is built into law. The key features of the New Zealand FGC model are: Prior to the conference, a coordinator or facilitator does thorough preparation to engage and inform as many extended family members and friends as possible so that they will attend the conference. At the conference, professionals share information with the entire group about the case. Then, family and friends meet by themselves, without professionals present, to develop a plan concerning the case. Subsequently, professionals assess the family’s plan for safety and legal concerns. Post-conference, professionals monitor and review the plan’s progress and often one or more follow-up conferences are held. To learn more about FGC models and programs, consult the Restorative Practices eForum series of three articles, “Family Group Conferencing Worldwide,” click here.

Child welfare policy in the UK was affected recently by a major child care inquiry surrounding the Victoria Climbié case, he said. (Victoria Climbié was a young African girl who came to the UK and was tortured and beaten to death.) There was extensive criticism of social services following this tragedy, “that we didn’t use the powers available to protect a child,” said Love. However, a new green paper (a government consultation document), entitled “Every Child Matters,” seems to bode well for the future of FGC in the UK, in that it includes family group conferencing as part of its Universal Parenting Services initiative, said Love. The green paper is “by and large very positive,” he said. In any case, the Council will persist in its efforts to promote FGCs, said Love, adding, “FGCs are better able to engage the people involved and less expensive” than conventional statutory processes.

FGCs began in Hampshire when Paul Nixon, former commissioning officer for FGCs for the Hampshire County Council Social Services Department (now children’s services Manager, Children and Young People Directorate, West Berkshire Council), began to identify problems with Hampshire’s child welfare system. (In addition to a conversation with Nixon, this article references his paper, “Promoting Family Decision Making in Child Care Practice: An Overview of the Use of Family Group Conferences in Child Protection, Youth Justice, Schools and with Young Carers,” 1999.)

In 1992, Nixon found that Hampshire’s child welfare system lacked family involvement in the decision-making process. He had heard about FGCs and wanted to do a few conferences, but his manager would not permit it until he obtained proper training and support and pulled together a multidisciplinary partnership, including people in the health, education and police professions. Nixon ultimately found that his manager had been right about the need to lay preliminary groundwork prior to holding conferences. “We made a steering group and set up a pilot,” he said. They then wrote staff guidance and leaflets for families, established a training program and hired autonomous evaluators from the University of Sheffield, UK, to research the process. Public meetings were held to recruit coordinators from the community who were independent of statutory agencies. Coordinators came forward from a variety of backgrounds, including a marriage guidance counselor, an artist and designer, a retired head teacher, a typist, a nurse, a community worker and a biologist.

Asked what makes a good coordinator, Nixon said that the best were not professionally trained, but had “natural talent and values.” There is now a pool of 30 to 35 coordinators to draw from who attend regular training events and meet monthly for supervision, both as a group—to share what they’ve learned—and individually, with project managers. Hampshire is moving, however, toward posting full-time coordinators in various locations, to give them more credibility with “resistant statutory agency bureaucrats,” said Nixon.

During Hampshire’s first child welfare FGC pilot, 23 conferences were held, using the New Zealand FGC model. The results of the autonomous evaluations of the pilot were good, so the FGC program was introduced throughout the county. To read a research report on Hampshire child welfare FGCs, “Steering with the Current? Discovering the Family Perspective on FGC Outcomes, 2001,” by Martin Stevens, Social Services Research and Information Unit (SSRIU), University of Portsmouth, go to: www.hants.gov.uk/TC/sspm/steeringfgc.html [report no longer available on line]. The report focuses on the stories of eight families who experienced FGCs aimed at resolving child protection concerns.

The focus of youth justice FGCs is different from that of child welfare conferences, said Nixon, in that the former are a response to offenses committed by youths and directly involve victims. A key objective of youth justice FGCs is to make young people accountable for their actions in a context that also offers support and care. Interest in youth justice FGCs stemmed from concerns about the contemporary justice system—from court system delays and spiraling costs to a lack of meaningful involvement in the court process for victims, young offenders and their families. These problems produced inadequate accountability for young offenders and insufficient provision for reparation.

Hampshire’s youth justice FGC pilot was conducted from 1997-1999. Its aims: to provide an alternative to criminal proceedings for young people referred, to enable families to develop and implement a plan to support young people and keep them in their community, to encourage young people and their families to take responsibility for decisions, to prevent reoffending, to ensure that victims’ perspectives were fully heard and valued, to evaluate the process outcomes independently and to disseminate the findings. Referral criteria specified that FGCs would be used outside the court system for repeat offenders, who, based on local police research, were deemed unlikely to respond to further cautioning (formal warning by police). Twenty cases were randomly allocated either to an FGC or to processing in the usual manner in court.

The pilot produced promising results. Independent research found considerable reductions in recidivism rates in the FGC group and collected approving comments from youth and their families. Most family members in the study (90 percent) were positive about the FGC process and felt that the young person had not been put under inappropriate pressure at the conference, which is one of the concerns about FGCs, said Nixon. Most people involved in FGCs (80 percent) felt the process had decreased the likelihood of the young person reoffending. As one young offender explained, FGCs hold young people accountable within their family in a way the court system never does: “With this [FGC] it does show you how it affects the people around you. I think it’s better in that way because you don’t want to hurt the people you love.”

 

 

Overall, family members were more involved in FGCs than in court processes. However, said Nixon, there was greater difficulty getting families to attend youth justice FGCs than child welfare FGCs, even though the same coordinators were used. This might have been because of feelings of shame about the young people’s offenses, he said, or because families were not interested in the gathering or the food and just wanted to “get on with the job.” (Food-sharing time for family groups and professionals is usually part of an FGC.) At youth justice FGCs, participants “didn’t feel like eating,” said Nixon. However, he said, it was easier getting professionals to attend youth justice FGCs than child welfare FGCs.

The youth justice FGC project was committed to including victims’ perspectives in the decision-making process. Most victims were very positive about their inclusion, and their feedback about the process and the outcome was favorable. Seeing young people and their families in a different context often significantly changes the way a victim looks at an offender, said Nixon. FGCs transform the offender from an unseen and often feared individual to a young person seen in the context of his family, making him far more human. FGCs give offenders an opportunity to apologize for their actions firsthand to their victims, often leading to forgiveness and healing. As one victim commented, “He said sorry to me in the meeting. I could forgive him after that.” Nixon recollected the first youth justice FGC, which was about stealing a car. After the conference, he said, the victim drove the offender home in the car he’d stolen.

Victims are generally not included in private family time, when the family is left alone to discuss matters and make a plan, although “there are no hard and fast rules about this,” said Nixon. The thought behind holding private family time without victims, he said, is that the conference is about the young person, and that, left alone, the family will discuss concerns that they won’t discuss with non-family present. Victims don’t object to private family time, he said, because they know about it in advance. The key thing for victims is “having their say in the beginning,” said Nixon.

Another important aim of youth justice FGCs—reparation—was common in conferences but not in court. Again, this is likely a product of the face-to-face nature of the work between victims and families and the role families can take in helping the young person provide appropriate reparation to the victim. Agreed-upon actions in the pilot included paying back sums of money for damage done or items stolen, community service, or working directly or indirectly for the victim.

FGCs bring families together in unexpected ways, said Nixon. He recalled a conference in which a boy had smashed up a community cricket center. The family’s plan involved the youth and his father repairing the center together. The boy hadn’t seen his father in some time, and this plan helped them rebuild their relationship in a way no one had anticipated.

 

Ros Cassy, chief executive of the Hampton Trust, the NGO monitoring youth justice FGCs in Hampshire, is concerned about the present and future of the practice in the county. The Trust was commissioned to start youth justice FGCs in 1997. Initially, FGCs were done in the preventive phase—the first time a youth was cautioned. More recently, FGCs have been done as part of a court order. “It’s more difficult that way,” said Cassy. The plan developed in the FGC informs the sentence. “This has proved very complex,” she said.

“We had a different system before [Prime Minister] Blair,” said Cassy. Now, she said, “We’re in a punitive phase in the UK where youth justice is concerned.” The 1998 Crime and Disorder Act was a mixed blessing for FGCs, said Cassy. It was “good news in some ways,” because it mentioned FGCs. Also, local authorities were charged to work together and victims were addressed. Multiagency Youth Offender Teams (YOTs) were established, made up of police and probation officers, plus social services, health authority and education employees. There are 154 YOTs in the UK.

The establishment of YOTs was a critical change, said Cassy, in that it mandated that multiple local authorities have a say in managing every offending youth. Youth justice FGC referrals and funding now come from the YOTs. “We used to have fortnightly meetings with the police youth justice workers,” she said, “but that’s gone now, replaced by the YOTs, a more accountable system, much harsher, more punitive and ambivalent about restorative justice.” Far more children are being sent to prison now, she said, especially since the age of criminal responsibility (when a child can be prosecuted for a crime), has been lowered from 14 to 10. “An awful lot of what we do in this area seems to follow the United States,” added Cassy. Another problem is the powerful British tabloid press, with their “hang ’em and flog ’em attitude toward ‘evil’ young people,” which is “catching or leading the public mood,” she said.

The Hampton Trust is a voluntary, nonstatutory body. Since FGCs are not statutory, this “is a huge pressure for us,” said Cassy, “unlike in New Zealand.” Essex County, UK, has been more successful with youth justice FGCs, in that they have a cross-agency partnership of senior managers from social services, YOTs and the police dedicated to requiring people to use them, said Cassy, adding, “We would love to have a situation like that, where people must choose to opt out, not in” to the FGC process, and justify why they’re opting out. “Children have a right to this process,” she said, adding, “You won’t change behavior by sending kids to prison, but if you can help families address matters you will get a long-term result.”

A case study of a Hampshire youth justice FGC [formerly found at www.hamptontrust.org.uk/fgccasestudy.html] involved a 12-year-old boy who assaulted an ailing neighbor. The harm the boy caused was repaired with help from an FGC.

The Hampshire Family Group Conference Project in Education was established in 1998 to address the needs of young people who were experiencing serious problems in the education system. Hampshire is one of the largest counties in the UK, with 540 schools. The county has “an external image of leafy affluence, but pockets of extreme deprivation,” including an Educational Action Zone of high-priority need, said Liz Holton, project manager, Family Group Conferencing, Hampshire County Education Department. The FGC model is as valuable with well-off families as it is with those that are more deprived, she said. Holton called the project “an education-funded and based project using the New Zealand model to promote home-school partnerships.”

 

Children were referred to the project by staff within the education system. Referral could be for any problem relating to school, including behavioral difficulties, truancy, school phobia, bullying or being bullied and risk of temporary or permanent exclusion (also known as expulsion). Slightly less than half of the referrals were for truancy, slightly less than half for behavior problems, and the rest “a bit of both,” said Holton. Referral required a school’s full agreement, indicated by a head teacher signing a referral form, thereby showing a willingness to negotiate over the family’s plan and to participate in project evaluation.

In an evaluation of the first year of the pilot, in May of 1999, Gill Crow, University of Sheffield, who has written and researched extensively about family group conferencing in the UK, wrote that immediate outcomes of the conferences had been positive. Teachers were found to work well with the model, and coordinators were able to transfer skills they had learned in other types of FGCs and did not require additional training. The program, now no longer in the pilot stage, has been in progress for five years and is open to all Hampshire schools.

Holton did not note any significant difference between the child welfare and the education FGC models. Independent coordinators—the same ones who do child welfare and youth justice conferences—are used: a mix of social workers and those with other types of mediation and counseling backgrounds. The only difference in the models is in how to fit the conferences into the school day. Whether the FGC is held during the school day or after, both have implications for teachers. Still, teachers have responded positively to the process and welcomed the opportunity to involve the wider family group in the child’s difficulties at school. The project has helped with ongoing communication between schools and families, said Holton, and added that Crow’s research has indicated sustained improvement for six months to a year following an FGC.

One of the outstanding things about FGCs is the way they can effect small changes that have enormous impact, said Holton. She recounted the story of a 10-year-old boy on the verge of expulsion from school whose behavior problems took up five hours a week of his teacher’s time. The boy’s stepfather was terminally ill. An FGC was held, attended by the boy’s mother, his biological father, the father’s new partner, siblings, aunts, uncles, “the school dinner lady and even the postman,” said Holton. During the FGC, it was discovered that the boy, in addition to the rational fear of losing his dying father, had an irrational fear of losing his mother. The family came up with a plan for the boy to call his mother every day from the school office to allay his fears. The daily phone call had “a magical effect,” said Holton. More support from family members was also offered at the conference, as well as professional intervention, but it was the daily phone calls that turned the tide for the boy, who was able to cope when his father died.

Although a child may exhibit problems in school, it’s always the tip of the iceberg, said Holton. The child may be unwanted; there may be drug or alcohol issues at home. In school FGCs, parents bring their agendas to the meetings, just as they do in child welfare FGCs. And if one child is referred for a conference, there may be similar issues for his or her siblings. If a coordinator discovers this in conference preparations, the siblings’ issues will be addressed in the conference, too.

FGCs in education are becoming increasingly widespread in Hampshire. Holton hopes that they will eventually be used for children with special needs and disabilities, and that the child welfare, youth justice, domestic violence and education FGC projects will all be connected. She thinks it would make more sense to have a county FGC project instead of different projects, as there is a huge amount of overlap between them. She’d also like to see families make their own referrals.

Another important area for FGCs in Hampshire is in domestic violence cases. Although there has been apprehension about and resistance to FGC use in these situations, Hampshire’s program has been quite successful. Domestic violence FGCs in Hampshire are conducted in the towns of Basingstoke and Deane under the auspices of the Daybreak FGC Dove Project. Sharon Inglis was formerly manager of the project. (She is now coordinating a multiagency FGC project for the Children and Young People’s Directorate at West Berkshire County Council, UK)

Domestic violence FGCs had their origins in Hampshire in 1998, when Paul Nixon was commissioning officer for FGC. Nixon and Chief Inspector Paul Bright, of the Hampshire Constabulary Criminal Justice Department, were inspired by the work of the Family Group Decision Making Project of Newfoundland, Labrador and New Brunswick, co-directed by Joan Pennell and Gale Burford, which used an adaptation of New Zealand FGC to reduce domestic violence. It was clear from that project’s outcomes that FGC had been very successful with domestic violence in Canada, said Inglis.

Chief Inspector Bright conducted research into domestic violence and the use of FGCs in 2001-2002, comparing systems for dealing with domestic violence issues in the US with those in the UK, under the auspices of the Fulbright Scholarship for research into police issues. Bright found that domestic violence offenders are reluctant to change under the threat of punishment. His report concluded: “Placing men in prison separates couples and, if anything, can make the situation more volatile once the man is released.” [Report formerly at www.hampshire.police.uk/index.htm?Fulbright.htm]

Nixon asked for support for an FGC domestic violence project from the Basingstoke and Deane Borough Council on the basis that violence affects the entire community, said Inglis. Domestic violence was a high priority for the borough council, so it came up with money for the Dove Project pilot. Over a period of about a year-and-a-half, a pilot steering group was set up, which included representatives from the borough council, police, probation, social services, women’s refuges and various NGOs.

 

Inglis was appointed to run the two-year pilot in January 2001. Preliminary consulting work was done with the community, so as not to impose the program on them. Women’s and victims’ advocates were concerned about the safety aspects of putting victims and perpetrators together. Later on, after witnessing the success of FGCs, they became the project’s biggest supporters, said Inglis.

The pilot’s creators looked at the practice issue, asking how this project would differ from the usual FGC practice. One development was that all Dove Project coordinators took on an educative role in addition to a facilitative one. This takes skill, said Inglis. Dove Project coordinators are trained in domestic violence issues of power and control and their effect on relationship dynamics. They must be clear about what to look for, what’s OK and what’s not, and how to empower victims to leave abusive situations or stay in a way that keeps them safe.

The pilot’s creators had to decide whether to allow perpetrators in conferences. A strong case was made that this would be dangerous. What won in the end, said Inglis, was a “common sense argument.” Most of the female victims of domestic violence were living with these violent men, and it was felt that if the men didn’t attend the conference they would sabotage any outcome. Victims said, “Of course we want them to come. What’s the point of having a conference without them?” When most perpetrators were asked what their reaction would be if offered an FGC, they said they wouldn’t come—they wouldn’t want to hear themselves criticized. But, said Inglis, usually if they’re invited, they come. The only time a perpetrator is not invited to an FGC is when a woman has decided to leave an abusive situation. Those FGCs are about creating extended family support and safety for women to disengage from their partners, said Inglis.

Dove Project referral criteria included the presence of children in the family, residence in Basingstoke and Deane and an assurance that the conference would be safe. Project planners wondered how violent and manipulative men might try to influence or control women in the conferences, and this became part of the assessment process. “We needed to be convinced that the perpetrator would be willing to address his behavior,” said Inglis. “If he said, ‘Yeah, I hit her, she deserved it,’ then we had to face the woman and tell her an FGC was not going to happen.” Inglis emphasized that victims were not assessed vis-à-vis their suitability for an FGC, only perpetrators. Asked if she’s had cases where the woman is violent, Inglis said that a woman’s violence is generally retaliation—a reaction to a man’s violence—rather than about power and control, as is the case with a man’s violence. Little research has been done about women’s violence, she added.

Most Dove Project participants—both victims and perpetrators—come from violent families, said Inglis. There is a very high percentage of intergenerational violence, so victims are often adversely affected by well-meaning but very bad advice. For example, said Inglis, “We don’t want Granny saying: ‘I put up with it and we’re fine now.’” Accordingly, care must be taken in preparation. Family members are asked to talk about their views on domestic violence. Coordinators make it clear that violence is not acceptable and everyone who attends the FGC must be of the same mind.

Ensuring that the conference is safe is a major priority. Said Inglis, “At first we all thought that the perpetrators would blow their tops and storm out,” but this did not happen. Other family members might present dangers, she said, citing cases of victims’ brothers who want to “have a go at” perpetrators. But, she said, as with any FGC, preparation helps with these types of problems. Family members inform coordinators beforehand who is likely to explode so that trouble can be preempted. Inglis said that she had never seen any violence occur during a domestic violence-related FGC.

Pre-conference safety measures include spending time with the victim to learn the perpetrator’s characteristic manipulative behaviors, such as finger-tapping or certain kinds of looks. The coordinator builds strong relationships with both victims and perpetrators before the conference, treating both with respect. Said Inglis: “We may not like the fact that perpetrators are violent, but we treat them as vulnerable people and encourage their supporters to attend, along with the victims’ supporters.”

The police always know where and when a domestic violence FGC is being held, although it is preferable not to have a big police presence at the conference, said Inglis. The coordinator always has the police department on telephone speed-dial, but in two years, no coordinator has ever had to call the police during a domestic violence FGC. Police are also informed as to where participants will be after the conference, and are instructed to monitor the address for 36 hours. Police have never had to intervene post-conference.

In most cases, children attend FGCs with their parents. Some people were concerned that involving children in domestic violence FGCs might be abusive. But, said Inglis, the children said, “Listen, this is happening in my house,” and were glad for the chance to bring the facts into the open. A large proportion of families where domestic violence is a problem have many children. The first Dove Project FGC involved a family of eight children, ages three through 19. All the children wanted to have their say and tell their mother and father, “This is how it feels when you fight.” Older and younger children paired off and wrote things together. At the conference, older children read younger children’s words and everyone passed a talking stick. “It was immensely powerful,” said Inglis, adding: “That’s the emotional stuff that changes people’s behavior.”

At this family’s review conference several months later, said Inglis, the 10-year-old son, a “street-wise character,” told a story, tears in his eyes: “Last week we had a huge family row. People were hitting each other. I stood on the table and held up the plan [which the family had drawn up at the first conference] and said, ‘We need to do this!’ They told me, ‘He’s right. Let’s stop. Let’s meet ‘round the table and talk.’” The boy was describing a whole family learning how to behave together and heal, said Inglis, adding, “If we give children the feeling they have a place in the family, it has huge implications.”

As to conference outcomes, Inglis said, “I consider a conference a success if everybody feels safe and heard—I don’t care what the plan is.” Still, there has never been a Dove Project conference where the family didn’t devise some kind of plan. Moreover, Child Protective Services requires a safety plan if a child is on the protection register. Inglis noted that five children had been removed from the register post-FGC and considered that a huge success. Added Inglis, if a conference plan determines that a woman needs services, they’re easy to come by, because all the domestic violence services are involved via the project steering group.

Inglis hopes that domestic violence FGCs will begin all around the county and in other counties, as well. As an aside, Inglis said she thinks that domestic violence is much more dangerous in the United States than it is in the United Kingdom. “We don’t have guns,” she explained. Inglis believes that there are more domestic violence-related deaths in the US than there are in the UK because of the abundance of guns in the US. She said she thought it would be essential to establish weapon and gun rules for domestic violence FGCs in the US.

The overseer of the Dove Project, Daybreak FGC, an NGO founded in 1999, has been involved in many other FGC projects throughout Hampshire. A major priority for Daybreak is to expand community involvement, especially that of children, in their programs. Marilyn Taylor, director of Daybreak, and Melissa Hansen, manager of Daybreak’s Portsmouth Community Partnership FGC Project, addressed the issue of community involvement in their presentation at the IIRP's fourth international conference in Veldhoven, Netherlands, in August 2003. Taylor believes that the Dove Project’s lengthy period of consultation with the local community, particularly women’s groups, was essential to its success.

 

In Taylor and Hansen’s vision of community involvement: children of all ages are allowed to attend their own FGC; families are able to directly refer themselves for an FGC; children are able to directly refer themselves and their families for an FGC; families and communities may decide the criteria for access to an FGC program; and children and young people are part of the hiring process for FGC program staff. They realize that these notions are controversial. Hansen cited being hired in her current manager position as an example of the type of community involvement she and Taylor endorse; a young person who had participated in an FGC was on the interview panel that chose her. Hansen termed this: “progressive and wonderful.”

Said Taylor, “FGCs as a whole empower children and families, and the community involvement process takes that empowerment another step forward. It’s they who tell us right from the beginning how to shape and how to evaluate the program, telling us what questions we should be asking. We feel very passionately that any organization that delivers family group conferencing ought to have an organization culture that is in line with the values of family group conferencing. It should be about participation and democratic processes.”

Taylor discussed the difference between community-led FGCs and those led by the state. Most of the FGC programs in England and elsewhere across the world, she said, are set up by child welfare or youth justice agencies. Because they provide the money, they decide what the programs are like. In child welfare situations, she said, agencies decide when FGCs will be held, for example, when they perceive that a child is at risk, when a child protection situation has come into court, when a child might be taken into state care or when a child is making a transition from care back into the community. These are all highly appropriate situations for an FGC, said Taylor. “But in a community-led FGC process,” she said, “We don’t come in and dictate the terms under which FGCs are held.”

Instead, there’s an initial period of consultation with key people in the community, plus workshops in youth centers and schools, during which basic concepts of FGC are explained. People are then asked to talk about issues in their community and about how FGCs, often a scare resource, should be used. “We take referrals directly from families, and find that the nature of the problems that they want to address are different from referrals from the social services department,” said Taylor.

Asked what kinds of issues families want to see addressed, Taylor mentioned one example: parental access to children. She cited a situation in which a family with a small boy had been split up. The mother had a history of drug and alcohol abuse, so the father and his new wife were caring for the boy. Two years later, the mother had achieved sobriety and wanted more contact with her child. For the father and step-mother, how and if the boy’s biological mother should come back into his life was a real issue. There was fear about her drug and alcohol abuse. “The child was not being neglected, so there was no way that the department of social services would have taken this on. But the family really wanted the conference, and there were a number of similar situations,” said Taylor.

New government-funded programs have begun in England in the last five years with objectives very much in line with Daybreak’s philosophy: to involve children, families and communities in the delivery of local services, said Taylor. The Sure Start programs are aimed at children under four, Children’s Fund programs at children under 13, and Connexions programs at children over 13. Daybreak has had successful partnerships with these programs and is planning more. Its partnership with Sure Start in Somerstown, Portsmouth, has taken referrals directly from families in a minority community, with poor housing and high unemployment, and has worked really well, said Taylor. Other Sure Start and Children’s Fund programs in other deprived communities across Portsmouth were impressed by what Daybreak was doing. So Daybreak’s Portsmouth Community Partnership Family Group Conferencing Program was formed, involving several Sure Start and Children’s Fund programs, and the Portsmouth Social Services and Education departments.

 

As manager of this program, Hansen is dealing with a number of entities coming together. How, she asked, do you make sure that everyone gets a fair shake, that some entities don’t dominate the project, and how do you make it truly reflective of the community? This will be a challenge, as these diverse agencies may have different agendas, said Taylor, “but they are all committed to a community-led program and to working with Daybreak to achieve this. With this program we will make sure that young people will be involved with everything we do.”

Across the political spectrum in England, “There’s an idea that we should be diverting funds to enable citizen participation in services that are provided for them,” said Taylor. Sure Start and Children’s Fund programs are part of this initiative. “It’s such a high priority of the government now to involve communities in programs that if you don’t do it, you won’t get funded the next time around,” she said. The financial support that Daybreak recently obtained from the Children’s Fund will enable, indeed compel them, to make connections with schools and youth groups. “The first thing we’re going to do is have a community consultation with young people, using focus groups, to say to them: this is what this program is in the town, this is what it looks like. How do you think young people like yourselves might be enabled to have access to it?”

Taylor said she didn’t know what the outcome of this consultation would be, adding, “When we started the Dove Project, people said, ‘What do you mean, you’re going to put the perpetrator and the victim in the same room together? You’re mad!’ And we spent two years working with the community around that. And in a way it feels like we’re in the same position now. People are saying, ‘What do you mean you’ll take referrals directly from children?’ So we are exploring it with the children, with the people in the community, to try and sort out our policy. We haven’t got the answers. Maybe by next year we’ll be able to tell you a bit more.”

The Restorative Practices eForum will continue to report on FGDM and FGC programs in the future.

By Laura Mirsky

The Wet'suwet'en Unlocking Aboriginal Justice Program (WUAJ) is a community-driven restorative justice project initiated and operated by members of the Wet’suwet’en First Nation, in northwest British Columbia, Canada. The WUAJ was first developed in 1992, in response to the Wet’suwet’en people’s dissatisfaction with the Canadian judicial system and the disproportionate number of Aboriginal people involved in the federal and provincial court systems. The population of the Wet’suwet’en Nation is approximately 5,000. A matrilineal descent group, the Wet’suwet’en is made up of five clans: Laksilyu—Small Frog, Gilseyhu—Frog, Tsayu—Beaver, Gitdumden—Bear and Laksamishu—Fireweed, which are subdivided into 13 houses.

WUAJ Justice Coordinator Bonnie George and Youth Victim Advocate Lucy Glaim made a presentation about the program at the IIRP’s 4th International Conference on Conferencing, Circles and other Restorative Practices in August 2003, in Veldhoven, Netherlands.

George and Glaim work with a community of about 650 people. George articulated the program’s mission: “WUAJ means to achieve the alternative that will allow our traditional laws and practices as Aboriginal people to combine with the existing Canadian justice system.” She stressed that Aboriginal laws and practices had been in use “for thousands and thousands of years before contact” with non-natives. “For the Aboriginal people, justice is part of our life,” she said, adding, “Problems that occur are looked at holistically.”

WUAJ works with a board of elders, including hereditary chiefs, that meets on a regular monthly basis. “What we intend with their guidance,” said George, “is to build a healthy support network and reconnect our young people back to their culture and heritage—build their identity.” Continued George, “It’s not a matter of creating a new system, we’re not reinventing the wheel.” Instead, the goal is to uncover long-standing laws and practices and have them recognized.

The WUAJ is funded jointly by the federal government of Canada and the provincial government of British Columbia. “They gave us an opportunity 12 years ago to do research and development, but because of the demand we went to implementation right away. So we’re developing as we go along,” said George, adding, “We don’t sit back and wait for the government to provide services. We want self-sufficiency and that’s where our program comes in.”

Before helping to found WUAJ, George was a secretary-receptionist in the Smithers Legal Aid Office. (Smithers is the largest town within the Wet’suwet’en Territory.) She said that the experience helped her set up the WUAJ office. She obtained a certificate in human social services with a law component and did her practicum at a law firm in Smithers, then completed a probation officer course at the University of Northern British Columbia. “That helped me put everything in perspective,” said George. Previous to working with WUAJ, Glaim was an accountant. “I haven’t left my skills behind,” she said. It helps her when working with statistical data and analysis and writing proposals. She is now taking classes in developmental psychology.

George described the differences between the Wet’suwet’en and the Canadian (or Western) justice systems. In the Wet’suwet’en system, both the offender and the victim are drawn into the process. The Western justice system concentrates on the offender; usually the only victim involvement consists of providing a victim impact statement. In the Wet’suwet’en approach, decisions are made by consensus, aiming to restore balance and harmony in a fair, just way. The Western system is adversarial; strangers make decisions on behalf of others, without emotional involvement. “With our system,” said George, “because of our relationships and our kinship, we’re all connected to each other one way or another, and those are the people that are making the decisions. They know our strengths and weaknesses, and they know the dynamics of the families and what the issues are without trying to analyze it by justice system reports—criminal records, police reports and so on.”

The WUAJ’s focus on restoring balance and harmony within the community contrasts with the Western system’s crisis orientation. “They don’t act unless there’s criminal activity,” said George. “But we focus on support and prevention before an offense is committed. Lucy does a lot of work within the schools with children, building self-esteem and identity.” Other prevention initiatives include workshops addressing spousal abuse and traditional activities aimed at revitalizing Wet’suwet’en culture.

Within the 13 Wet’suwet’en houses are house chiefs—leaders groomed from childhood by the father clan. “They’re not just elected—that’s compared to the federal election system,” said George, adding, “Our board consists of members from each of the clans and houses, to ensure that everyone that we deal with is represented. Depending on the severity of the case, like if we’re dealing with a domestic violence situation and there’s a spouse involved, Lucy would take the victim and I would work with the offender and when we come to the table to try to develop a plan of action or a contract agreement all parties are involved. We’ll draw on all the individuals, and everyone knows what their role is.”

The majority of WUAJ files are related to family violence, alcohol or drugs. WUAJ accepts self-referrals, as well as referrals from Royal Canadian Mounted Police (RCMP), lawyers and Legal Aid, Crown Council and probation. Diversion referrals from RCMP include first-time offenses from youths or adults with no prior criminal record—minor offenses like shoplifting. If clients don’t meet the criteria for diversion, i.e., if they have a prior criminal record, the RCMP will recommend them to the Crown for alternative measures. Self-referrals may occur at any stage. Glaim said that the sooner a referral comes in after the problem occurs the better “because the significance tends to wear away. And it’s very important that the one who has caused the problem realize the consequences of their actions.”

Many WUAJ clients have fetal alcohol syndrome (FAS) and have difficulty understanding consequences, said Glaim. Fortunately, the WUAJ program provides the opportunity to track and follow up behavioral patterns. Glaim talked about a case where the client was involved first at a diversion level, then at an alternative measures level. The first time was a mischief case; the next one was a little more serious. After the first incident—throwing rocks—a circle was conducted. Glaim was the facilitator. The victim was the school principal, who acted on behalf of the school. The offender attended with his mother. The offender had FAS, said Glaim, “so the circle was effective and meaningful, and he understood the consequences because we acted upon it quickly. But he was 10 years old then. Now he’s 16 and he got into a bit more trouble.” It was important to recognize the boy’s patterns and needs and help him develop behaviors that will become habit rather than something that he has to remember, said Glaim, “like brushing your teeth at night is a habit rather than something you have to remember.” Added Glaim, “We were able to see his pattern develop and focus in on it. We’re just so lucky that we’re within the community and can recognize these things.” This circumstance, she said, is unlike the situation in the Canadian justice system, where the RCMP and the Crown are so separate that they know nothing about each other’s files.

All clients must be involved in the WUAJ program by voluntary consent and be willing to take responsibility for their actions. When all parties have accepted the referral, a house group meeting is scheduled for the development of adequate support and construction of a rehabilitation plan, or contract. All parties (offender, victim, clan and family) must reach a consensus as to the terms of the contract. An agreement for services is drawn and signed by all parties. Copies of the contract agreement of services are distributed to the members involved. If the participant is sentenced to serve a term of probation, the WUAJ justice worker supervises the court order. If the client re-offends, a house group meeting is scheduled to address the concerns, either by redesigning the plan of action or terminating the file. The advisory board determines if the file is closed and referred back to the referring agency.

The contract may require that the offender participate in a culture camp. Culture camps educate children, youth and adults about Wet’suwet’en culture and traditions through guidance and counsel by elders and hereditary chiefs, including instruction in legends, songs and dancing, as well as traditional hunting and food preparation.

Camps often have a therapeutic component, and George and Glaim can tailor-make men’s and women’s culture camps to accommodate clients’ needs. “Two years ago there was a murder in our community,” said George, “and Lucy and I focused on working with the families that were affected by the murder: the accused’s side of the family and the victim’s side of the family.” George and Glaim worked to eliminate the divisions that were developing in the community due to the murder. “It wasn’t healthy for the children,” said George. “Lucy worked with the victim’s family, looking at the stages of grief, and we found that very helpful, especially when it came down to the court’s decision, when they dismissed the charges. That was overwhelming for the family members. Both Lucy and I were in the courtroom the day the decision was handed down. Looking around the room that day at the family members that we had prepared, that we had invested the time and energy in, compared to some of the family members that didn’t participate, there was a huge difference. We helped them build their coping skills for what was going to happen on that day.”

Youth activities at a Wet'suwet'en culture camp.

 

An important component of Wet’suwet’en justice is the denii ne’aas, or potlatch (feast), “a powerful traditional governing system for us,” said George. At a potlatch, which is sometimes attended by hundreds of people, all the clans and chiefs come together and a public apology is made. “It’s a time-consuming process and there’s a lot of work that leads up to it,” said George, “working with the elders and learning about your culture and your traditions and your identity as a Wet’suwet’en person. This is where the camp comes in. Once we accomplish that, everything else comes easy. That’s where we come to a healthy conclusion and everyone agrees with it.” George contrasted this process to the Western justice system, in which some form of punishment is imposed—jail, fines or probation.

The Wet’suwet’en justice system is decentralized, addressing all individuals—male and female, chiefs and children, said George. This is unlike the centralized Canadian system, which is controlled by RCMP, Crown Council, lawyers and judges. Moreover, said George, Wet’suwet’en laws can’t be codified. Decisions are made according to the nature of the offense, the relationship between the victim and the offender and the ties and kinship connection. “What I do affects my family, affects Lucy,” said George. “Because she’s my father clan and I’m her father clan, we have a responsibility to each other. If I get into trouble, I’m not only shaming myself, I’m shaming my family. It’s my family that’s going to come together at a feast, and where it’s going to hit people the hardest is their pocket book. When you have a feast you have to feed your guests, and you’re feeding 200 people. You have to make sure everyone is fed and comfortable, and then the business starts. And you also have to have gifts to give to everyone, and when you’re doing it for 200 people it costs an awful lot.”

Asked to tell a WUAJ success story, Glaim talked about a family violence case—a self-referral by a woman who stabbed her husband after a night of drinking and fighting. At first the woman wouldn’t accept responsibility for her actions, minimized the situation and denied her problems with alcohol, anger and past unresolved issues. She came to the elders’ advisory board to make an oral application, still in denial. One board member was able to share a story of a similar problem in his past and relate how he overcame it. He confronted her denial, and, said Glaim, “at the end of the day, she was ready and willing to work on her issues because they became reality. The elder, without a Ph.D. in counseling, just broke through that wall that she was hiding behind. He related how he had been in denial and shared his experience. He didn’t look at her like she was a bad person; he recognized her victimhood. That’s when she broke down and accepted that she was a victim as well and realized that she had to work on it and go on from there.”

A plan of action was developed, based on consensus. The victim and offender had to agree to each condition. The biggest stipulation was that the offender had to publicly apologize in a feast, hosted by her clan. The couple still lived together. “Rather than having a no-contact order,” said Glaim, “the couple wanted to work it out and we were there to guide the process. They just needed the support.”

The feast was really emotional and opened up the community, said Glaim. “A lot of people in the community still don’t know what WUAJ is about, but seeing that part of the process in a public forum … The offender was walked back in by her father clan, and her father clan spoke about how she was working to better herself and make the positive changes in the past year-and-a-half. So her work bettering herself was validated publicly, and she presented the gift to her father clan. Then she presented the gift to her husband as well and publicly apologized to him. It was really emotional.”

Said George, “You saw a lot of tears, but they were happy tears, because they had witnessed a public apology. That’s a perfect example of taking full responsibility for her actions and understanding their severity. She talked about being that close to taking her husband’s life and how it could have ended differently. Even his mother, who was reluctant about the process—I was watching her, because that’s the same clan I belong to—Small Frog—even she was in tears. After she went to present her gifts, everyone was huddled in the corner holding one another, so grateful about what had just happened, taking a look at life differently. It was a very powerful experience.”

Asked how the community as a whole feels about their work, George said that there’s a misconception that WUAJ selects and favors certain clients. But, said George, “We accept clients who will take responsibility for their actions.” Also, some offenders at first might regard the WUAJ program as an easy way out, “so we make sure they figure out what they want out of it and why they’re coming there,” said Glaim. Offenders meet with the advisory board and make oral application to go through the screening process to see if they’re eligible. Usually, said Glaim, due to their wide-ranging life experiences, the chiefs can tell what’s really at issue for the person. “Even though the offender may come there with the notion that we’re an easy way out, they often get turned around and see the benefits of the program.”

In fact, said George, the program is the opposite of an easy way out, because it doesn’t enable self-destructive behavior. “People are used to having that enabler,” she said, “because of the dysfunction of the community and the limited resources that we do have: support workers in the community with limited training, hired by the Canadian government’s Department of Indian Affairs. Those workers end up enabling, keeping the level of denial where it is.”

A long-term WUAJ goal is to help reverse the damage done to the Wet’suwet’en people by the residential school program. Residential schools were the primary mechanism by which non-native Canadians sought to assimilate First Nation people. The Anglican Church administered 26 such schools between 1820 and 1969. Children were taken from their parents and virtually enslaved at the schools, forced to renounce their language and customs and often sexually abused. People who came out of these schools need to be helped to articulate their feelings, said Glaim. “There’s a whole set of skills we have to learn for that. It’s a difficult process, but it has to be done.” WUAJ, she said, recently had a proposal accepted for a parenting and life skills program. “Because of the residential schools, we’ve lost our parenting skills,” she said, adding, “We’ll be working with parents, relearning skills and teaching the teens so the next generation will have a stepping stone up.” Said George: “It’s going to take us multi-generations to undo what was done in one generation as a result of those residential schools.”

George stressed that any program needs to be community-driven. “You can’t look at it as a cookie cutter approach,” she said. “You can’t take a Wet’suwet’en program into Mohawk Territory and expect it to work, because that’s like fitting a circle into a square. When your community members feel like there’s something being imposed on them, there’s going to be some reluctance and they’re going to feel that the residential school era has repeated itself. So the advice that I would give to any kind of restorative approach is to keep that in mind, especially with First Nations communities. They have their guards up all the time because we’re overcoming that residential school era, and we are the only ones to say how much it impacted us. People can be empathetic to it, but we are the ones that are living in the community and see the harm that was done.”

Asked about the future of the WUAJ, George said that funding now comes from both the federal and the provincial government, but added, “Who knows what’s going to happen? We used to have multi-year agreements; now it’s just year-by-year.” George said that according to her experience working with the federal government, this is their way of weaning or cutting programs. “So we’re always working with our guard up,” she said, “wondering if we’re going to be funded for the following year.” But, she added, “I strongly feel that with our existing board the work’s not going to stop. If the funding stops, the work’s going to carry on. Because we’re clan and community members, we’re still going to carry on the work. It will come from my volunteer work and my obedience and respect as a hereditary chief and from my responsibility to the other members of my father clan. Family is very important to me—my father clan and the whole culture and tradition.” Added Glaim, “I think it’s all a community initiative. We’re the facilitators of the process, but we’re giving back to the community the skills they need to do it on their own. It’s going to take a few generations, but hopefully we’ll work ourselves out of a job.”

The Restorative Practices eForum will feature more information about First Nation and Native American justice practices in the coming months.

By Paul McCold, Ted Wachtel

Paper presented at the XIII World Congress of Criminology,
10-15 August 2003, Rio de Janeiro.

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Restorative justice is a new way of looking at criminal justice that focuses on repairing the harm done to people and relationships rather than on punishing offenders. Originating in the 1970s as mediation between victims and offenders, in the 1990s restorative justice broadened to include communities of care as well, with victims’ and offenders’ families and friends participating in collaborative processes called “conferences” and “circles.” This new focus on healing and the related empowerment of those affected by a crime seems to have great potential for enhancing social cohesion in our increasingly disconnected societies. Restorative justice and its emerging practices constitute a promising new area of study for social science.

In this paper, we propose a conceptual theory of restorative justice so that social scientists may test these theoretical concepts and their validity in explaining and predicting the effects of restorative justice practices. The foundational postulate of restorative justice is that crime harms people and relationships and that justice requires the healing of the harm as much as possible. Out of this basic premise arise key questions: who is harmed, what are their needs and how can those needs be met?
A CONCEPTUAL THEORY OF RESTORATIVE JUSTICE

Restorative justice is a collaborative process involving those most directly affected by a crime, called the “primary stakeholders,” in determining how best to repair the harm caused by the offense. But who are the primary stakeholders in restorative justice and how shall they be involved in the search for justice? Our proposed theory of restorative justice has three distinct but related conceptual structures: the Social Discipline Window (Wachtel, 1997, 2000; Wachtel & McCold, 2000), Stakeholder Roles (McCold, 1996, 2000) and the Restorative Practices Typology (McCold, 2000; McCold & Wachtel, 2002). Each of these, in turn, explains the how, what and who of restorative justice theory.

Social Discipline Window

Figure 1. Social Discipline Window 

Everyone with an authority role in society faces choices in deciding how to maintain social discipline: parents raising children, teachers in classrooms, employers supervising employees or justice professionals responding to criminal offences. Until recently, Western societies have relied on punishment, usually perceived as the only effective way to discipline those who misbehave or commit crimes.

Punishment and other choices are illustrated by the Social Discipline Window (Figure 1), which is created by combining two continuums: “control,” exercising restraint or directing influence over others, and “support,” nurturing, encouraging or assisting others. For simplicity, the combinations from each of the two continuums are limited to “high” and “low.” Clear limit-setting and diligent enforcement of behavioral standards characterize high social control. Vague or weak behavioral standards and lax or nonexistent regulation of behavior characterize low social control. Active assistance and concern for well-being characterize high social support. Lack of encouragement and minimal provision for physical and emotional needs characterize low social support. By combining a high or low level of control with a high or low level of support the Social Discipline Window defines four approaches to the regulation of behavior: punitive, permissive, neglectful and restorative.

The punitive approach, with high control and low support, is also called “retributive.” It tends to stigmatize people, indelibly marking them with a negative label. The permissive approach, with low control and high support, is also called “rehabilitative” and tends to protect people from experiencing the consequences of their wrongdoing. Low control and low support are simply neglectful, an approach characterized by indifference and passivity.

The restorative approach, with high control and high support, confronts and disapproves of wrongdoing while affirming the intrinsic worth of the offender. The essence of restorative justice is collaborative problem-solving. Restorative practices provide an opportunity for those who have been most affected by an incident to come together to share their feelings, describe how they were affected and develop a plan to repair the harm done or prevent a reoccurrence. The restorative approach is reintegrative, allowing the offender to make amends and shed the offender label.

Four words serve as a shorthand to distinguish the four approaches: NOT, FOR, TO and WITH. If neglectful, one would NOT do anything in response to offending behavior. If permissive, one would do everything FOR the offender, asking little in return and often making excuses for the wrongdoing. If punitive, one would respond by doing things TO the offender, admonishing and punishing, but asking little thoughtful or active involvement of the offender. If restorative, one engages WITH the offender and others, encouraging active and thoughtful involvement from the offender and inviting all others affected by the offense to participate directly in the process of healing and accountability. Cooperative engagement is a critical element of restorative justice.

Stakeholder Roles

Figure 2. Stakeholder Roles 

The second structure of our theory of restorative justice, the Stakeholder Roles (Figure 2), relates the harm caused by the offense to the specific needs of each stakeholder created by that offense, and to the restorative responses required to meet those needs. This causal structure distinguishes the interests of the primary stakeholders—those most affected by a specific offense—from those indirectly affected.

The primary stakeholders are, principally, the victims and offenders, because they are the most directly affected. But those who have a significant emotional connection with a victim or offender, such as parents, spouses, siblings, friends, teachers or co-workers, are also directly affected. They constitute the victims’ and offenders’ communities of care. The harm done, needs created and the restorative responses of primary stakeholders are specific to the particular offense and require active participation to achieve the greatest healing.

The secondary stakeholders include those who live nearby or those who belong to educational, religious, social or business organizations whose area of responsibility or participation includes the place or people affected by the incident. The whole of society, as represented by government officials, is also a secondary stakeholder. The harm to both sets of secondary stakeholders is vicarious and impersonal; their needs are aggregate, not specific, and their most restorative response is to support restorative processes in general.

All primary stakeholders need an opportunity to express their feelings and have a say in how to repair the harm. Victims are harmed by the loss of control they experience as a result of the offense. They need to regain a sense of personal power. This empowerment is what transforms victims into survivors. Offenders damage their relationships with their own communities of care by betraying trust. To regain that trust, they need to be empowered to take responsibility for their wrongdoing. Their communities of care meet their needs by ensuring that something is done about the incident, that its wrongfulness is acknowledged, that constructive steps are taken to prevent further offending and that victims and offenders are reintegrated into their respective communities.

The secondary stakeholders, those who are not emotionally connected to the specific victims and offenders, must not steal the conflict from those to whom it belongs by interfering with the opportunity for healing and reconciliation. The most restorative response for the secondary stakeholders is to support and facilitate processes in which the primary stakeholders determine for themselves the outcome of the case. Such processes will reintegrate both victims and offenders and simultaneously strengthen civil society by enhancing social cohesion and empowering and improving the citizenry’s ability to solve its own problems.

Restorative Practices Typology

Figure 3. Restorative Practices Typology 

Restorative justice is a process involving the primary stakeholders in determining how best to repair the harm done by an offense. The three primary stakeholders in restorative justice are victims, offenders and their communities of care, whose needs are, respectively, getting reparation, taking responsibility and achieving reconciliation. The degree to which all three are involved in meaningful emotional exchange and decision-making is the degree to which any form of social discipline can be termed fully “restorative.” These three sets of primary stakeholders are represented by the three overlapping circles in Figure 3. The very process of interacting is critical to meeting stakeholders’ emotional needs. The emotional exchange necessary for meeting the needs of all those directly affected cannot occur with only one set of stakeholders participating. The most restorative processes involve the active participation of all three sets of primary stakeholders.

When criminal justice practices involve only one group of primary stakeholders, as in the case of governmental financial compensation for victims, the process can only be called “partly restorative.” When a process such as victim-offender mediation includes two principal stakeholders but excludes their communities of care, the process is “mostly restorative.” Only when all three sets of primary stakeholders are actively involved, such as in conferences or circles, is a process “fully restorative.”
CONCLUSION

Crimes harm people and relationships. Justice requires that harm be repaired as much as possible. Restorative justice is not done because it is deserved, but because it is needed. Restorative justice is ideally achieved through a cooperative process involving all the primary stakeholders in determining how best to repair the harm done by the offense.

The conceptual theory presented here provides the framework for a comprehensive answer to the how, what and who of the restorative justice paradigm. The Social Discipline Window describes how conflict can be transformed into cooperation. The Stakeholder Roles structure demonstrates that repair of the emotional and relational harm necessitates the empowerment of the primary stakeholders, those most directly affected. The Restorative Practices Typology demonstrates why participation of the victims, offenders and their communities of care are all required to repair the harm caused by the criminal act.

A criminal justice system that merely doles out punishment to offenders and sidelines victims does not address the emotional or relational needs of those who have been affected by crime. In a world where people feel increasingly alienated, restorative justice restores and builds positive feelings and relationships. A restorative criminal justice system aims not just to reduce crime, but to reduce the impact of crime as well. The capacity of restorative justice to address these emotional and relational needs and engage the citizenry in doing so is the key to achieving and sustaining a healthy civil society.
REFERENCES

McCold, P. (1996). Restorative justice and the role of community. In B. Galaway & J. Hudson (Eds.), Restorative Justice: International Perspectives (pp. 85-102). Monsey, NY: Criminal Justice Press.

McCold, P. (2000). Toward a mid-range theory of restorative criminal justice: A reply to the Maximalist model. Contemporary Justice Review, 3(4), 357-414.

McCold, P., & Wachtel, T. (2002). Restorative justice theory validation. In E. Weitekamp and H-J. Kerner (Eds.), Restorative Justice: Theoretical Foundations (pp. 110-142). Devon, UK: Willan Publishing.

Wachtel, T. (1997). Real Justice: How to Revolutionize our Response to Wrongdoing. Pipersville, PA: Piper’s Press.

Wachtel, T. (2000). Restorative practices with high-risk youth. In G. Burford & J. Hudson (Eds.), Family Group Conferencing: New Directions in Community Centered Child & Family Practice (pp. 86-92). Hawthorne, NY: Aldine de Gruyter.

Wachtel, T., & McCold, P. (2000). Restorative justice in everyday life. In J. Braithwaite and H. Strang (Eds.), Restorative Justice in Civil Society (pp. 117-125). New York: Cambridge University Press.

By Paul McCold, Ted Wachtel

Ponencia presentada en el XIII Congreso Mundial sobre Criminología,
del 10 al 15 de agosto de 2003, en Rîo de Janeiro.

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La justicia restaurativa es una nueva manera de considerar a la justicia penal la cual se concentra en reparar el daño causado a las personas y a las relaciones más que en castigar a los delincuentes. La justicia restaurativa surgió en la década de los años 70 como una forma de mediación entre víctimas y delincuentes y en la década de los años 90 amplió su alcance para incluir también a las comunidades de apoyo, con la participación de familiares y amigos de las víctimas y los delincuentes en procedimientos de colaboración denominados “reuniones de restauración” y “círculos.” Este nuevo enfoque en el proceso de subsanación para las personas afectadas por un delito y la obtención de control personal asociado parece tener un gran potencial para optimizar la cohesión social en nuestras sociedades cada vez más indiferentes. La justicia restaurativa y sus prácticas emergentes constituyen una nueva y promisoria área de estudio para las ciencias sociales.

En la presente ponencia, proponemos una teoría conceptual sobre la justicia restaurativa para que los científicos sociales puedan evaluar estos conceptos teóricos y su validez para explicar y predecir los resultados de las prácticas de justicia restaurativa. El postulado fundamental de la justicia restaurativa es que el delito perjudica a las personas y las relaciones y que la justicia necesita la mayor subsanación del daño posible. De esta premisa básica surgen preguntas clave: ¿quién es el perjudicado, cuáles son sus necesidades y cómo se pueden satisfacer dichas necesidades?

UNA TEORÍA CONCEPTUAL SOBRE JUSTICIA RESTAURATIVA

La justicia restaurativa es un proceso de colaboración que involucra a las “partes interesadas primarias,” es decir, a las personas afectadas de forma más directa por un delito, en la determinación de la mejor manera de reparar el daño causado por el delito. Pero, ¿quiénes son las partes interesadas primarias en la justicia restaurativa y cómo deben participar en la búsqueda de la justicia? La teoría de justicia restaurativa que proponemos cuenta con tres estructuras conceptuales distintas pero relacionadas: la Ventana de la disciplina social (Wachtel 1997, 2000; Wachtel & McCold 2000), la Función de las partes interesadas (McCold 1996, 2000), y la Tipología de las prácticas restaurativas (McCold 2000; McCold & Wachtel, 2002). Cada una de ellas, a su vez, explica el cómo, qué y quién de la teoría de justicia restaurativa.

Ventana de la disciplina social

Figura 1. Ventana de la disciplina social 

Toda persona en la sociedad con un papel que suponga autoridad enfrenta opciones al decidir cómo mantener la disciplina social: los padres que educan a sus hijos, los maestros en las aulas, los empleadores que supervisan a los empleados o los profesionales de la justicia que actúan ante los delitos. Hasta hace poco las sociedades occidentales se basaban en el castigo, generalmente percibido como la única manera eficaz de disciplinar a aquellas personas que proceden mal o cometen un delito.

El castigo y otras opciones están ilustrados en la Ventana de la disciplina social (Figura 1), la cual se genera mediante la combinación de dos secuencias: “control,” imponer limitaciones o ejercer influencia sobre otros, y “apoyo,” enseñar, estimular o asistir a otros. Por razones de simplicidad, las combinaciones de cada una de las dos secuencias se limitan a “alto” y “bajo.” Un control social alto se caracteriza por la imposición de límites bien definidos y el pronto cumplimiento de los principios conductuales. Un control social bajo se caracteriza por principios conductuales imprecisos o débiles y normas de conducta poco estrictas o inexistentes. Un apoyo social alto se caracteriza por la asistencia activa y el interés por el bienestar. Un apoyo social bajo se caracteriza por la falta de estímulo y la mínima consideración por las necesidades físicas y emocionales. Mediante la combinación de un nivel alto o bajo de control con un nivel alto o bajo de apoyo la Ventana de la disciplina social define cuatro enfoques para la reglamentación de la conducta: punitivo, permisivo, negligente y restaurativo.

El enfoque punitivo, con control alto y apoyo bajo, se denomina también “retributivo.” Tiende a estigmatizar a las personas, marcándolas indeleblemente con una etiqueta negativa. El enfoque permisivo, con control bajo y apoyo alto, se denomina también “rehabilitativo” y tiende a proteger a las personas para que no sufran las consecuencias de sus delitos. Un control bajo y un apoyo bajo son simplemente negligentes, un enfoque caracterizado por la indeferencia y la pasividad.

El enfoque restaurativo, con control alto y apoyo alto, confronta y desaprueba los delitos al tiempo que ratifica el valor intrínseco de los delincuentes. La esencia de la justicia restaurativa es la resolución de problemas de manera colaboradora. Las prácticas restaurativas brindan una oportunidad para que aquellas personas que se hayan visto más afectadas por un incidente se reúnan para compartir sus sentimientos, describir cómo se han visto afectadas y desarrollar un plan para reparar el daño causado o evitar que ocurra nuevamente. El enfoque restaurativo es reintegrativo y permite que el delincuente se rectifique y se quite la etiqueta de delincuente.

Cuatro palabras sirven como referencia para distinguir los cuatro enfoques: NO, POR, AL y CON. Si el enfoque es negligente, NO se hará nada en respuesta a la conducta delictiva. Si es permisivo, se hará todo POR el delincuente, pidiendo poco a cambio y a menudo tratando de justificar el delito. Si es punitivo, se responderá haciéndole algo AL delincuente, amonestándolo y castigándolo, pero esperando poca participación reflexiva o activa por parte del delincuente. Si es restaurativo, se comprometerá CON el delincuente y otras personas, fomentando una participación activa y reflexiva por parte del delincuente e invitando a todas aquellas personas afectadas por el delito a participar directamente en el proceso de subsanación y de aceptación de responsabilidad. El compromiso cooperativo es un elemento fundamental de la justicia restaurativa.

Función de las partes interesadas.

Figura 2. Función de las partes interesadas 

La segunda estructura de nuestra teoría de justicia restaurativa, las Funciones de las partes interesadas (Figura 2), relaciona el daño ocasionado por el delito con las necesidades específicas de cada parte interesada que surgieron a partir de dicho delito y con las respuestas restaurativas necesarias para satisfacer dichas necesidades. Esta estructura causal diferencia los intereses de las partes interesadas primarias -aquellas personas más afectadas por un delito específico- de los de las personas indirectamente afectadas.

Las partes interesadas primarias son, principalmente, las víctimas y los delincuentes puesto que son las partes más afectadas directamente. Pero aquellos que tienen una conexión afectiva importante con la víctima o el delincuente, como por ejemplo, padres, cónyuges, hermanos, amigos, maestros o compañeros de trabajo, también se ven directamente afectados. Ellos constituyen las comunidades de apoyo de las víctimas y los delincuentes. El daño ocasionado, las necesidades creadas y las respuestas restaurativas de las partes interesadas primarias son específicas del delito en particular y exigen una participación activa para lograr el mayor nivel de subsanación.

Las partes interesadas secundarias incluyen a aquellas personas que viven cerca o a aquellas que pertenecen a organizaciones educativas, religiosas, sociales o comerciales cuya área de responsabilidad o participación abarca el lugar o las personas afectadas por el incidente. Toda la sociedad, representada por funcionarios del gobierno, constituye también una parte interesada secundaria. El daño causado a ambos grupos de partes interesadas secundarias es indirecto e impersonal, sus necesidades son colectivas e inespecíficas, y su mayor respuesta restaurativa es apoyar los procedimientos restaurativos en general.

Todas las partes interesadas primarias necesitan una oportunidad para expresar sus sentimientos y participar en la decisión sobre la manera de reparar el daño. Las víctimas se ven perjudicadas por la pérdida de control que sufren como consecuencia del delito. Necesitan recuperar un sentido de dominio personal. Esta obtención de control personal es lo que transforma a las víctimas en sobrevivientes. Los delincuentes dañan sus relaciones con sus propias comunidades de apoyo traicionando la confianza. Para recobrar esa confianza, necesitan obtener control personal para asumir la responsabilidad por el delito cometido. Sus comunidades de apoyo satisfacen sus necesidades asegurando que se haga algo con respecto al incidente, que se reconozca su carácter erróneo, que se tomen medidas constructivas para evitar que ocurran otros delitos y que las víctimas y los delincuentes se reintegren en sus respectivas comunidades.

Las partes interesadas secundarias, aquellas personas que no se encuentran emocionalmente vinculadas a las víctimas o los delincuentes específicos, no deben despojar del conflicto a aquellos a quienes les pertenece interfiriendo en la oportunidad de subsanación y reconciliación. La respuesta más restaurativa para las partes interesadas secundarias es apoyar y facilitar los procedimientos en los que las partes interesadas primarias deciden por ellas mismas el resultado del caso. Dichos procedimientos reinsertarán a las víctimas y los delincuentes y al mismo tiempo fortalecerán a la sociedad civil mediante la optimización de la cohesión social y la obtención de control personal y mejoramiento de la capacidad de los ciudadanos para resolver sus propios problemas.

Tipología de las prácticas restaurativas

Figura 3. Tipología de las prácticas restaurativas 

La justicia restaurativa es un proceso que involucra a las partes interesadas primarias en la decisión sobre la mejor manera de reparar el daño ocasionado por un delito. Las tres partes interesadas primarias en la justicia restaurativa son las víctimas, los delincuentes y sus comunidades de apoyo, cuyas necesidades son, respectivamente, lograr la reparación del daño, asumir la responsabilidad y llegar a un acuerdo. El grado en que las tres partes participan en intercambios emocionales significativos y la toma de decisiones es el grado según el cual toda forma de disciplina social puede ser calificada como completamente “restaurativa.” Estos tres grupos de partes interesadas primarias están representados por tres círculos superpuestos en la Figura 3. El propio proceso de interacción es fundamental para satisfacer las necesidades emocionales de las partes interesadas. El intercambio emocional necesario para satisfacer las necesidades de todas aquellas personas directamente afectadas no puede tener lugar con la participación de un solo grupo de partes interesadas. Los procesos más restaurativos incluyen la participación activa de los tres grupos de partes interesadas primarias.

Cuando las prácticas de la justicia penal incluyen sólo a un grupo de partes interesadas primarias, como en el caso del resarcimiento económico para las víctimas por parte del gobierno, el proceso sólo se puede llamar “parcialmente restaurativo.” Cuando un procedimiento como el de mediación entre víctimas y delincuentes incluye dos partes interesadas principales pero excluye a las comunidades de apoyo, el proceso es “mayormente restaurativo.” El proceso es “completamente restaurativo” sólo cuando los tres grupos de partes interesadas primarias participan activamente, como por ejemplo en reuniones de restauración o círculos.

CONCLUSIÓN

Los delitos dañan a las personas y las relaciones. La justicia exige que el daño se repare tanto como sea posible. La justicia restaurativa no se aplica porque es merecida, sino porque es necesaria. La justicia restaurativa se logra de manera ideal mediante un proceso cooperativo que involucra a todas las partes interesadas primarias en la decisión sobre la mejor manera de reparar el daño ocasionado por el delito.

La teoría conceptual aquí presentada proporciona el marco para una respuesta global al cómo, qué y quién del paradigma de justicia restaurativa. La Ventana de la disciplina social describe la manera en que el conflicto se puede transformar en colaboración. La estructura de las Funciones de las partes interesadas demuestra que la reparación del daño emocional y relacional requiere la obtención de control personal de las partes interesadas primarias, aquellas personas afectadas de forma más directa. La Tipología de las prácticas restaurativas demuestra el motivo por el cual la participación de las víctimas, los delincuentes y sus comunidades de apoyo es necesaria para reparar el daño causado por el acto delictivo.

Un sistema de justicia penal que solamente imparte castigos a los delincuentes y excluye a las víctimas no encara las necesidades emocionales y relacionales de aquellas personas que se vieron afectadas por el delito. En un mundo donde las personas se sienten cada vez más alienadas, la justicia restaurativa restablece y desarrolla sentimientos y relaciones positivos. Un sistema restaurativo de justicia penal apunta no sólo a reducir la cantidad de delitos, sino también a disminuir el impacto de los mismos. La capacidad de la justicia restaurativa de tratar estas necesidades emocionales y relacionales y de comprometer a los ciudadanos en el proceso es la clave para lograr y mantener una sociedad civil sana.

REFERENCIAS BIBLIOGRÁFICAS

McCold, P. (1996). Restorative justice and the role of community [La justicia restaurativa y la función de la comunidad]. En B. Galaway & J. Hudson (Eds.) Restorative Justice: International Perspectives (pp. 85-102). Monsey, NY: Criminal Justice Press.

McCold, P. (2000). Toward a mid-range theory of restorative criminal justice: A reply to the Maximalist model [Hacia una teoría de justicia restaurativa penal de alcance intermedio: Una respuesta al modelo Maximalista]. Contemporary Justice Review, 3(4), 357-414.

McCold, P., & Wachtel, T. (2002). Restorative justice theory validation [Validación de la teoría de justicia restaurativa]. En E. Weitekamp and H-J. Kerner (Eds.), Restorative Justice: Theoretical Foundations (pp. 110-142). Devon, UK: Willan Publishing.

Wachtel, T. (1997). Real Justice: How to Revolutionize our Response to Wrongdoing [La justicia verdadera: Cómo cambiar radicalmente nuestra respuesta ante los delitos]. Pipersville, PA: Piper’s Press.

Wachtel. T. (2000). Restorative practices with high-risk youth [Prácticas restaurativas con jóvenes de alto riesgo]. En G. Burford & J. Hudson (Eds.). Family Group Conferencing: New Directions in Community Centered Child & Family Practice (pp. 86-92). Hawthorne, NY: Aldine de Gruyter.

Wachtel, T., & McCold, P. (2000). Restorative justice in everyday life [La justicia restaurativa en la vida diaria]. En J. Braithwaite and H. Strang (Eds.), Restorative Justice in Civil Society (pp. 117-125). New York: Cambridge University Press.

By Paul McCold, Ted Wachtel

Trabalho apresentado no XIII Congresso Mundial de Criminologia,
10-15 Agosto de 2003, Rio de Janeiro.

English   Español   Português

 

A justiça restaurativa é uma nova maneira de abordar a justiça penal, que enfoca a reparação dos danos causados às pessoas e relacionamentos, ao invés de punir os transgressores. Tendo se originado nos anos 70 como uma mediação entre vítimas e transgressores, nos anos 90 a justiça restaurativa foi ampliada para incluir comunidades de assistência, com as famílias e amigos das vítimas e transgressores participando de processos colaborativos denominados “conferências” e “círculos”. Este novo enfoque na resolução de conflitos e o conseqüente fortalecimento daqueles afetados por uma transgressão parecem ter o potencial de aumentar a coesão social nas nossas sociedades, cada vez mais distantes umas das outras. A justiça restaurativa e suas práticas emergentes constituem uma nova e promissora área de estudo das ciências sociais.

Nesse trabalho propomos uma teoria conceptual de justiça restaurativa para que os cientistas sociais possam por à prova estes conceitos teóricos e sua validade na explicação e prognóstico das práticas de justiça restaurativa. O postulado fundamental da justiça restaurativa é que o crime causa danos às pessoas e relacionamentos e que a justiça exige que o dano seja reduzido ao mínimo possível. Dessa premissa resultam as seguintes questões chave: Quem foi prejudicado? Quais as suas necessidades? Como atender a essas necessidades?

UMA TEORIA CONCEPTUAL DE JUSTIÇA RESTAURATIVA

A justiça restaurativa é um processo colaborativo que envolve aqueles afetados mais diretamente por um crime, chamados de “partes interessadas principais”, para determinar qual a melhor forma de reparar o dano causado pela transgressão. Mas quem são as principais partes interessadas na justiça restaurativa e como devem se comprometer na busca pela justiça? Nossa proposta teoria de justiça restaurativa é composta de três estruturas conceituais distintas, porém relacionadas: Social Discipline Window - A Janela de Disciplina Social (Wachtel 1997, 2000; Wachtel & McCold 2000), Stakeholder Roles - O Papel das Partes Interessadas (McCold 1996, 2000) e Restorative Practices Typology - A Tipologia das Práticas Restaurativas (McCold 2000; McCold & Wachtel, 2002). Cada uma dessas explica o como, o por quê e o quem da teoria de justiça restaurativa.

A Janela de Disciplina Social

Figura 1. Janela de Disciplina Social

Todos aqueles que têm um cargo de autoridade na sociedade precisam tomar decisões sobre como manter a disciplina social: pais criando filhos, professores em salas de aula, empregadores supervisionando empregados ou profissionais da justiça respondendo a transgressões penais. Até pouco tempo, as sociedades ocidentais vinham utilizando punições, normalmente vistas como a única forma eficiente de disciplinar aqueles que se comportavam mal ou cometiam crimes.

Punição e outras opções estão ilustradas na Janela de Disciplina Social (Figura 1), que é criada pela combinação de dois continuums: “controle”, que limita ou influencia os outros, e “apoio”, cuidando, encorajando ou assistindo outros. Para simplificar, as combinações de cada um desses continuums foram limitadas a “alto” e “baixo”. A delimitação clara de limites e a imposição diligente de padrões de comportamento caracterizam um alto grau de controle social. Padrões vagos ou fracos de comportamento e regulamentos permissivos ou inexistentes caracterizam um baixo controle social. A assistência ativa e preocupação pelo bem-estar coletivo caracterizam o alto apoio social. A falta de encorajamento e uma provisão mínima para necessidades físicas e emocionais caracterizam o baixo apoio social. Combinando um nível alto ou baixo de controle com um nível alto ou baixo de apoio, a Janela de Disciplina Social define quatro abordagens à regulamentação do comportamento: punitiva, permissiva, negligente e restaurativa.

A abordagem punitiva, com alto controle e baixo apoio, também chamada de “retributiva”, tende a estigmatizar as pessoas rotulando-as indelevelmente de forma negativa. A abordagem permissiva, com baixo controle e alto apoio, também chamada “reabilitadora”, tende a proteger as pessoas das conseqüências de suas ações erradas. Baixo controle e baixo apoio são simplesmente negligentes, uma abordagem caracterizada pela indiferença e passividade.

A abordagem restaurativa, com alto controle e alto apoio, confronta e desaprova as transgressões enquanto afirmando o valor intrínseco do transgressor. A essência da justiça restaurativa é a resolução de problemas de forma colaborativa. Práticas restaurativas proporcionam, àqueles que foram prejudicados por um incidente, a oportunidade de reunião para expressar seus sentimentos, descrever como foram afetados e desenvolver um plano para reparar os danos ou evitar que aconteça de novo. A abordagem restaurativa é reintegradora e permite que o transgressor repare danos e não seja mais visto como tal.

Quatro palavras descrevem resumidamente as abordagens: NADA, PELO, AO e COM. Se negligente, NADA faz em resposta a uma transgressão. Se permissiva, tudo faz PELO (por o) transgressor, pedindo pouco em troca e criando desculpas para as transgressões. Se punitiva, as respostas são reações AO transgressor, punindo e reprovando, mas permitindo pouco envolvimento ponderado e ativo do mesmo. Se restaurativa, o transgressor encontra-se envolvido COM o transgressor e outras pessoas prejudicadas, encorajando um envolvimento consciente e ativo do transgressor, convidando outros lesados pela transgressão a participarem diretamente do processo de reparação e prestação de contas. O engajamento cooperativo é elemento essencial da justiça restaurativa.

O Papel das Partes Interessadas

Figura 2. Papéis das Partes Interessadas

A segunda estrutura de nossa teoria de justiça restaurativa, o papel das partes interessadas (Figura 2), relaciona o dano causado pela transgressão às necessidades específicas de cada parte interessada resultantes da mesma, e às respostas restaurativas necessárias ao atendimento destas necessidades. Essa estrutura causal distingue os interesses das partes interessadas principais—aqueles mais afetados pela transgressão—dos afetados indiretamente.

As partes interessadas principais são principalmente constituídas pelas vítimas e os transgressores porque são os mais diretamente afetados. No entanto, aqueles que têm uma relação emocional significativa com uma vítima ou transgressor, como os pais, esposos, irmãos, amigos, professores ou colegas, também são considerados diretamente afetados. Eles constituem as comunidades de assistência a vítimas e transgressores. O dano causado, as necessidades criadas e as atitudes restaurativas das partes interessadas principais são próprias de cada transgressão e precisam de participação ativa da comunidade para alcançar reparação máxima.

As partes interessadas secundárias (indiretas) incluem os vizinhos, aqueles que pertencem a organizações religiosas, educacionais, sociais ou empresas cujas áreas de responsabilidade incluem os lugares ou as pessoas afetadas pela transgressão. A sociedade como um todo, representada pelo governo, também é uma parte interessada secundária. O dano causado às duas partes interessadas secundárias é indireto e impessoal, suas necessidades são coletivas, não específicas, e sua resposta máxima é apoiar os processos restaurativos como um todo.

Todas partes interessadas principais precisam de uma oportunidade para expressar seus sentimentos e ter uma voz ativa no processo de reparação do dano. As vítimas são prejudicadas pela falta de controle que sentem em conseqüência da transgressão. Elas precisam readquirir seu sentimento de poder pessoal. Esse fortalecimento é o que transforma as vítimas em sobreviventes. Os transgressores prejudicam seu relacionamento com suas comunidades de assistência ao trair a confiança das mesmas. Para recriar essa confiança eles devem ser fortalecidos para poderem assumir responsabilidade por suas más ações. Suas comunidades de assistência preenchem suas necessidades garantindo que algo será feito sobre o incidente, que tomarão conhecimento do ato errado, que serão tomadas medidas para coibir novas transgressões e que vítimas e transgressores serão reintegrados às suas comunidades.

As partes interessadas secundárias, que não estão ligadas emocionalmente às vítimas e transgressores, não devem tomar para si o conflito daqueles a quem pertence, interferindo na oportunidade de reconciliação e reparação. A resposta restaurativa máxima para as partes interessadas secundárias deve ser a de apoiar e facilitar os processos em que as próprias partes interessadas principais determinam o que deve ser feito. Estes processos reintegrarão vítimas e transgressores, fortalecendo a comunidade, aumentando a coesão e fortalecendo e ampliando a capacidade dos cidadãos de solucionar seus próprios problemas.

Tipologia das Práticas Restaurativas

Figura 3. Tipologia das Práticas Restaurativas

A justiça restaurativa é um processo que envolve as partes interessadas principais na decisão de como reparar o dano causado por uma transgressão. As três partes interessadas principais na justiça restaurativa são as vítimas, os transgressores e suas comunidades de assistência, cujas necessidades são, respectivamente: obter a reparação, assumir a responsabilidade e conseguir a reconciliação. O grau de envolvimento das três numa troca emocional e decisões significativas determinará o grau em que qualquer forma de disciplina social poderá ser chamada apropriadamente de “restaurativa”. Esses três grupos de partes interessadas principais são representados pelos três círculos da Figura 3. O próprio processo de interação é crítico para preencher as necessidades emocionais das partes interessadas. O compartilhamento de emoções necessário para atingir os objetivos de todos os que foram diretamente afetados não pode ocorrer através de participação unilateral. O mais restaurativo dos processos requer a participação ativa dos três grupos.

Quando as práticas da justiça penal envolvem apenas um dos grupos de partes interessadas principais, como no caso de compensação financeira do governo às vitimas, o processo só pode ser chamado de “parcialmente restaurativo”. Quando a vítima e o transgressor participam de um processo de mediação sem a participação de suas comunidades, esse será “na maior parte restaurativo”. Apenas quando os três grupos participam ativamente, como em conferências ou círculos, pode ser dito que o processo é “totalmente restaurativo”.

CONCLUSÃO

Crimes causam danos a pessoas e relacionamentos. A justiça requer que o dano seja reparado ao máximo. A justiça restaurativa não é feita porque é merecida e sim porque é necessária. A justiça restaurativa é conseguida idealmente através de um processo cooperativo que envolve todas as partes interessadas principais na determinação da melhor solução para reparar o dano causado pela transgressão.

A teoria conceptual apresentada possibilita uma resposta abrangente que explica o como, o por quê e o quem do paradigma da justiça restaurativa. A Janela de Disciplina Social explica como o conflito pode se transformar em cooperação. A Estrutura de Papéis das Partes Interessadas Principais mostra que para reparar os danos aos sentimentos e relações requer o fortalecimento das partes interessadas principais, afetadas de forma mais direta. A Tipologia das Praticas Restaurativas explica porque a participação da vítima, do transgressor e das comunidades é necessária à reparação do dano causado pelo ato criminoso.

Um sistema de justiça penal que simplesmente pune os transgressores e desconsidera as vítimas não leva em consideração as necessidades emocionais e sociais daqueles afetados por um crime. Em um mundo onde as pessoas sentem-se cada vez mais alienadas, a justiça restaurativa procura restaurar sentimentos e relacionamentos positivos. O sistema de justiça restaurativa tem como objetivo não apenas reduzir a criminalidade, mas também o impacto dos crimes sobre os cidadãos. A capacidade da justiça restaurativa de preencher essas necessidades emocionais e de relacionamento é o ponto chave para a obtenção e manutenção de uma sociedade civil saudável.

REFERÊNCIAS BIBLIOGRÁFICAS

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McCold, P. (2000). Toward a mid-range theory of restorative criminal justice: A reply to the Maximalist model. Contemporary Justice Review, 3(4), 357-414.

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