Would you comment on the move toward restorative justice in New Zealand?
We have found that the retributive system of justice, based on punishment and vengeance, is counterproductivethat it fails to rehabilitate, is expensive and leads people to re-offend very quickly. Instead of that approach, in New Zealand we have been moving increasingly toward a restorative system, one that aims at healing for both the victim and the offender. Our juvenile system is now 100 percent focused on restorative philosophy and practice.
The move toward juveniles began in the mid-1970’s, and continued over a trial-and-error period of 15 years until 1989, when a law was passed mandating that the restorative justice process would be the direction for dealing with offenders under 17while maintaining an ever-shrinking traditional system for those who plead not guilty. So it is a parallel system; it’s not the only way. But we have found a considerable reduction in most offending categories in the number of juveniles who re-offend. Very few youth now go to prison in New Zealand. When the legislation was passed in 1989, in fact, the government closed down all the juvenile institutions. A few have since re-opened to cope with juveniles who commit horrendous crimes, but in these a strong emphasis is placed on education, skill development and therapy when indicated.
In the restorative justice approach, what steps are taken when a juvenile breaks the law?
Consider the example of someone who becomes involved in an aggravated robbery with a weapona knife, say. After the arrest, a facilitator from the government’s Department of Youth Justice is contacted, and within days the offender, the offender’s family and the victims are notified in an effort to arrange what is called a family-group conference. At the conference, a police representative would also probably be present, and if it were a serious offense a lawyer too. The lawyer would most likely be a social worker who’s attached to the family, because often young offenders come from dysfunctional families. It is presumed that there is a willingness on the part of both parties to meet and that the offender is prepared to accept responsibility for what has taken place.
The process itself is simple. An acknowledgment on the part of the offender of what he has done would be forthcoming, with the offender explaining the background of what had happenedthat he was drunk or angry, or that he’d been kicked out of his home. Then the offender’s parent or friend or teacher, or maybe a football coach who would come along as a support person, would add anything that might clarify the situation further. Next, the victims are asked to express what they feel: anger, or grieving, or it may be an attitude of greater understanding. In being able to speak out about their feelings, both parties bring a human face to the situation. It’s this putting a human face on it that is one of the most crucial aspects of the process.
So the victim plays an important role in the restorative justice process?
The victim is absolutely central, and indeed, this is the only process developed thus far that gives victims a fair deal. In the retributive system, by way of contrast, there’s no place for them except as witnesses. But in the restorative system, the victims are placed in a situation where they are in control; so it’s about re-focusing the power and balance. Through the crime itself, they had been disempowered by the offender, but now the balance is restored and through the process the victims are to some degree re-empowered. It has also been found that under this restorative system, young offenders themselves take much more responsibility for their harmful actions. The key to lasting change and growth lies in the participation of the two parties, along with the dynamics of the whole group that provides the energy for the process. Anything that impedes this basic movement reduces the chances for responsibility being taken by the offender, which in turn inhibits the possibilities for real change and future accountability. That is why the professionals other than the facilitator need to take a back seat during the conference.
At the end of the conference, the matter goes to a judge, who makes a decision based on the recommendations that have come out of it. In 95 percent of the cases, the judge accepts the recommendation, which is usually both quite positive and also realistic, in that it includes sanctions. The state thereby maintains some control through the judge, but the community does the restorative part. The young person then signs a contract to fulfill whatever is required, such as paying some reparation, going back to school or taking part in an alcohol or drug treatment program. At the end of a set period of time, if the terms of the contract have been fulfilled, no conviction is entered into the offender’s record.
The vast majority of offenders willingly enter into the process. They have usually been caught outright doing something wrong, so there is incentive enough for them to engage in it, since in that way, they have a say in the outcome. It’s the carrot and stick approach. But if they claim, "I’m not guilty," then the case goes to a traditional court hearing. The incentive for victims is to have some basic questions answered, like "Why me?" and to have the opportunity to begin a healing process and to participate in the resolution of their trauma. The process does not always work, and it’s not a panacea for crime. All we say about the restorative justice philosophy is that it offers better opportunities than retributive justice for starting a healing process for the victim and the offender alike.
Is it true that this process comes to some extent from the native Maori people?
The Maoris used this approach exclusively until they were colonized, with crime being handled through the tribal elders. In modified form they have continued using it ever sinceas a way of bringing victims and offenders together in order that the harm could be repaired to whatever extent is possible. So the Maoris provided the seed for what developed into New Zealand’s present juvenile justice system, which represents a shift from looking at crime from the standpoint of vengeance and punishment, to looking at repairing the punishmentrealizing that the damage often cannot be fully repaired.
What was your role in the 1995 pastoral letter of the New Zealand bishops, Creating New Hearts: Moving from Retributive to Restorative Justice?
The bishops’ letter came about as a result of efforts on the part of the New Zealand prison chaplains. We felt that the church really needed to get on board this issue, especially in view of the proven success of restorative justice as applied to youthful offenders. So we approached the bishops to ask if they would be interested. They said, "Draft us something," which we did. They sent it around to a few experts, and eventually accepted the essence of what we had proposed in the draft. In the final version, they speak of "being mindful of the restorative justice processes as applied to youth justice." Toward the end of their pastoral letter, they also comment on the retributive system as having "little room for forgiveness or reconciliation," whereas a fair criminal justice system should reflect compassion, healing and forgivenesswith sanction where appropriateas mirroring Gospel values. Finally, in the conclusion of the letter they express a hope that the restorative justice process will be extended from juvenile to adult offenders.
Is the move to use the process for adult offenders making headway?
Progress has been made in that direction. In 1998, the minister of justice presented a paper to the cabinet requesting approval of funding for pilot restorative justice programs for adult offenders. The paper listed the potential benefits of moving toward a more restorative justice approach: reduced cost to the criminal justice system, a decrease in the use of incarceration together with a decrease in the lengths of sentences, less repeat offending and more meaningful victim and community participation. But so far funding has not been forthcoming. The Restorative Justice Network, for which I am the coordinator, has 600 members. They are the backbone of the move toward change. Through speaking out, lobbying, writing letters to members of Parliament and to the newspapers and trying to educate the public, we hope that funding for pilot programs focusing on adult offenders may come through in the year 2000. The process for adults would be basically the same as for juveniles, with conferencing that involves the offender, the victim and members of the community.
This is your third trip to the United States. What is your impression of criminal justice here?
Most New Zealanders are appalled at the length of sentences meted out in the United States, especially to people convicted of non-violent drug offenses. I am also struck by the over-representation of minorities in jails and prisons here. Recently I was with the chaplain at the District of Columbia’s jail as he celebrated Mass. I was stunned to see only African Americans, not just in the chapel, but in the corridors afterwards as well. There was not one white face. It is true that in New Zealand, the indigenous minorities are also over-represented in proportion to the whole population, but the figures are misleading because in all countries those who make up the bulk of the prison population are the poor, people on the bottom rung of society. One of the purposes for introducing the restorative justice process for adult offenders, in fact, is to reduce repeat offending by Maori and Pacific Islanders and to introduce processes more appropriate to their culture. That’s another of the potential benefits mentioned in the paper the Minister of Justice presented to the cabinet.
Do you see a connection between restorative justice and the jubilee year?
As part of the jubilee year’s focus, the church has strongly advocated debt reduction in developing countries. But we should see that the jubilee year, in a biblical sense, can also be thought of in terms of the release of captives. This past September, I was a keynote speaker at the World Congress of International Catholic Prison Pastoral Care Ministers in Mexico City, where there were delegates from 55 countries. In its final declaration, the delegates recognized restorative justice processes as biblically based and consistent with our own Catholic tradition. They overwhelmingly endorsed them as a way of dealing with offenders and giving victims a better deal.
In a wider context, the declaration also urged that prisons be perceived as exemplifying "structures of sin." Pope John Paul II used this phrase in Sollicitudo Rei Socialis (1988), and while he did not employ it specifically in regard to prisons, the delegates used it this way in speaking of what, in some of the rich nations, is increasingly being referred to as the prison-industrial complex. The financial interests of these complexes are what, in part, are driving the rush to build more and more prisons in the United States.
Restorative justice has been taking root more and more firmly in New Zealand; and from the response of the people who attended the October conference on it at the Washington Cathedral, I would say that a groundswell movement in favor of it may be starting in the United States, at least among faith-based communities. Victim-offender mediation programs are one aspect of it, and they are now not uncommon here, though the formal justice system does not necessarily accept them. More and more people in the United States seem to be wondering what it means that 2000 years after Christ, almost two million Americans are behind bars. That’s a sad sign of where things are. Restorative justice principles recognize that the dangerous few who are a threat to themselves and the community need to be kept out of circulation, in what we call humane containment. But the process also offers for many others an approach that enhances the possibility of healing for the victim, the offender and the community.