Reflection 1, Feb 2008
“True justice emerges from conversation”
-Howard Zehr, The Little Book of Restorative Justice, pg. 62
I’m here in New Zealand to study the youth justice system through an emic lens colored by the values of restorative justice. From the beginning I have intended to actively observe the system dynamics in place here on a variety of organizational levels, beginning of course with the most tangible: the capacity of family group conferences to achieve restorative outcomes. Beyond that, however, I have been interested in the larger scale complexities of implementing an indigenous-informed restorative youth justice process within the context of the Pakeha state and legal apparatus.
My conversations with youth justice practitioners, social workers, members of the public, and my own experience here have reinforced my inherent belief in the value of the family group conferencing model. But while the model has much to recommend it, there are both structural and practice issues which seem to mitigate is restorative potential.
As much of the literature on the subject points out, the success of the family group conference depends heavily on the youth justice coordinator. This is a demanding position, requiring a great deal of legal knowledge, community and individual engagement skills, organizational skills, and an aptitude for conflict resolution. The coordinator is a sort of liaison between the community and the world of courts, lawyers and judges. Yet while the job description is inspiring, it is immediately apparent that there is a wide variance in the style and competence of youth justice coordinators. Indeed this inconsistency in practice led Child, Youth and Family Services (CYFS) in recent months to undertake a massive restructuring of the youth justice organizational hierarchy that increased the number of YJ managers in the nation from 4 to 24. The intention was to implement standards of accountability for coordinators; but since many of the new changes were reportedly implemented by managers foreign to New Zealand youth justice, there is controversy over whether the increase in managerial “activity drivers” and other measures to ensure quality of practice have been successful. Regardless, the problem of inconsistent practice standards that these measures were to address is un-controversially real.
A friend whose job is to observe deficiencies within youth justice and make recommendations to the Child Youth and Family Regional Manager in Wellington, tells me that quality of FGC plans across the region is wildly divergent. Many coordinators appear not to place an emphasis on connecting the plan with the offending behavior, instead falling into the trap of tokenism and court appeasement. He gives the example that youth who are found offending under the influence of drugs and alcohol are frequently tasked with undergoing lengthy treatment, even when there is no certainty on the part of professionals that substance abuse issues are in any way central to the offending. Anger management courses may be used in a similar fashion, in the crafting of FGC plans that appear to ‘cover all the bases’ but are not necessarily meaningful to the life of the young person in question. Community work hours, too, are often entirely disconnected from the nature of the offence and serve primarily as punishment rather than education or meaningful service.
It also seems that coordinators are sometimes prone to impotence when faced with the common scenario of young people not meeting timeframes agreed to in FGC plans. When reparations, work, educational programs or other components of a plan are not completed on time, coordinators may fail to reconvene the conference because of the demands of their caseload, or even because of a lack of commitment to the work. Meanwhile, supervision roles are often blurry as to whose responsibility it is monitor the young person’s progress on their plan and refocus them if necessary, especially where there are multiple professionals involved. This unfortunately leads to a lack of accountability on the part of the young person—according to my friend’s account, extensions are too frequently granted for the completion of plans, for no other reason than that the plan is incomplete.
While this problem would clearly point to the responsibility of the coordinator to effectively monitor and follow up with FGC plans, it also raises what I think is a central issue faced by restorative justice. Restorative processes are known to be effective at fostering a felt sense of accountability within offenders and supporting the offender toward tangible accountability by way of reparations, work, education and other means. Yet current restorative justice thinking and literature does not seem to deal effectively with the question of how to serve justice when, despite the richness of the process, offenders do not take accountability either in their attitude or in their actions. Where is the ‘end of the line’ for offenders who continually refuse to live respectfully and cooperatively within their communities? In New Zealand, as I imagine in all other countries operating a restorative justice system of any scale within or alongside the court system, the ‘backdrop’ behind the restorative initiatives is punitive restraint. Jail. In other words, restorative programs are embedded in punitive systems aimed at catching all the bad seeds that fall through the restorative approach. New Zealand is no different from the US and Canada in its essence; the difference is that its restorative option (for young people) is vastly more robust, and that young people have many more opportunities to succeed within the restorative context, than within these other countries. However, the punitive backdrop is the same. If you can’t be dealt with by restorative means, you will eventually find yourself behind bars.
I have written previously about this theme, arguing that restraint should be conceived of restoratively if we are to move toward a more restorative society.The character of a system is most evident not on the basis of how it deals with minor offences, but on its treatment of the most serious cases. Thinking restoratively, restraint, in the form of a secure environment, should be reserved for “people we are afraid of, not people we are mad at” (this was a catchy quote I once heard on National Public Radio). I have also questioned the efficacy of rehabilitation efforts within an environment designed for coercive restraint. I find that youth prison system in New Zealand (‘supervision with residence’) leans more toward the rehabilitation end of the spectrum with overtones of punishment, while the adult prison system leans toward punishment with an overtone of rehabilitation. The view I have taken is that these aims, at whichever end of the spectrum, are often frivolous and even counterproductive—and that restraint should be undertaken solely for the sake of victim, community and offender safety and until such time as the individual is ready (in terms of felt accountability) to voluntarily seriously and rigorously examine the underlying causes of their offending. Offending behavior should be dealt with directly within a community context unless it is not only a nuisance, but a real and present danger.
Yet while this approach may begin to address violent offending from a restorative standpoint, it offers nothing on what to do with those relatively minor offenders who consistently fail to respond to even the best laid community-based interventions. I’m dealing with one now. None of his offending is truly dangerous to the degree that I would want to see him removed from the community for safety reasons. However, his offending is consistent and seemingly immune to the strategies developed in his FGC. He has shown no ability or willingness to stick with a plan of any sort, to keep his word or his appointments. I want to provide him with a shock that is sufficiently intense to break the pattern of his behavior and rewire his entrenched, unconscious decision-making processes. He is in dire need of boundaries, since his own decisions are leading him toward chaos. A line must be drawn in the sand. I can see no existing means of drawing this line, providing this shock, short of incarceration—yet that approach would fly in the face of my stated values with regard to restraint. A fixed boundary needs to be created, but how do we do this without punishment?
The youth justice system in New Zealand is structured around the tension between punishment and restoration. Family group conferencing exists as a kind of enclave within a punitive context which provides the line in the sand for those who fail to respond to restorative measures. But this enclave is not composed merely of alternative methods; it is composed of an alternative paradigm with regard to the meaning and objectives of justice. These two paradigms are expected to interact meaningfully and cohesively. Yet while some degree of functional harmony is often achieved between the adversarial and restorative systems here, I think the philosophical dissonance therein is apparent not only to me but also to the clients moving through the system. I expect this dissonance is subconsciously confusing for many clients, whether or not they are aware of it.
One way of articulating this paradigmatic tension is in asking the question, “who is the real victim?” The New Zealand youth justice system is designed in such a way that the state remains a victim of crime alongside the direct victim. The role of the police, who are present at each conference, is to advocate for a plan that addresses not only the needs of the victim but of the state. Thus for example, police may advocate for penalties of community service, the character of which is not necessarily geared toward giving back or “making things right” with those effected by the crime, but more as a means of punishment. Incidentally, as my supervisor Paul Hapeta has pointed out on a few occasions, community service penalties may also detract directly from the reparations received by the victim.
The competing interests of the state and the victim—or rather competing versions of justice—was apparent in my first FGC, recently completed. This involved a young person who had commit a series of burglaries several months ago, is currently serving a sentence for them, and then was recently caught for an additional burglary committed around the same time. Though the victims of this burglary chose not to pursue reparations, they were deeply affected by the incident. If they had chosen to seek justice, it would seem that the financial reparations, even in conjunction with an apology, would not adequately compensate them for their losses in terms of privacy, security and emotional wellbeing. Yet from the court’s perspective, such measures were all that could be expected, on the grounds that had the court been aware of this latest burglary at the time of sentencing for the other burglaries, it would have simply added reparation amounts to Sam’s sentence of curfew, counseling, and other measures. Our FGC was thus constrained by the court not to add a raft of other sanctions in addition to the ones Sam was already serving. From the offender’s and the state’s perspective, I understand this outcome. Yet from the victim’s perspective, was justice achieved? As the attached FGC plan would suggest, perhaps some measure of restoration did manage to emerge because of the way the conference unfolded. Yet the case raised important questions for me with regard to the tension between the interests of the state and the interests of the victim. Again there is a dissonance: is justice about paying dues to the state, or making it right with the victim?
The dissonance I am describing can also be conceived, albeit with some complexity, in cultural terms. Family group conferencing for young offenders is mandated by the Children, Young Persons and their Families Act 1989. This Act was a direct outcome of Puaoteatatu, a document produced by the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare. In response to major shortcomings of the Department in working effectively with Maori clients, this document was composed in 1985-6 as the consensual voice of sixty-nine meetings held among 2954 Maori leaders across New Zealand. Puaoteatatu made a series of recommendations that would shape new legislation for social services. At the core of these recommendations was the principle of reconnecting young people with their immediate and extended families. The document gave rise to legislation which was nothing short of transformative; while the Act was drafted in a way that is sometimes unnecessarily complex, I have spoken to no one in the social services who disagrees with its basic tenets. Yet the provisions of the Maori-informed Act remain couched within a legal system that is purely Pakeha in nature and origin.
To say that traditional Maori systems of justice and youth welfare are ‘restorative’ while Pakeha ways are ‘retributive’ would be an oversimplification on both counts. The final sanction in Maori traditional justice is utu, which can denote ‘price,’ ‘revenge’ or ‘punishment’ and which traditionally included banishment from the tribe and death. Yet this was a last resort within an otherwise robust system of reintegrating transgressors back into their whanau, hapu and iwi. In my current understanding, Maori traditional justice is restorative in the sense of stakeholder (victim, offender, family and community) engagement, more than in terms of a pacifist or non-punitive paradigm. In that respect the traditional escalation of sanctions from the restorative end of the spectrum toward the more punitive end can be seen to be replicated within the youth justice system here. The primary difference is between traditional and modern format is that rather than iwi ordinances toward banishment or death, we have court ordinances toward jail—perhaps banishment’s modern equivalent.
This difference is of course very significant when considering the history of colonization in New Zealand. European cultural imperialism followed similarly to that of Canada and the USA, including the confiscation of Maori lands and coercive prohibition against speaking Te Reo (Maori language). While the signing of the treaty of Waitangi substantially lifted the status of Maoris in relation to other indigenous peoples, the power dynamics inherent in a colonial relationship have not dissolved easily. Despite the reforms of 1989, Maoris remain the dominant justice clientele in both youth and adult systems. Within the CYFS and court organizational structures, the higher up the chain of command one looks, the higher percentage of Pakehas one will find. The bureaucracy of CYFS is immense and top-heavy, employing more managers than front line social workers and youth justice coordinators; the organizational structure is essentially Pakeha. All the hard requirements necessary for management positions are academic requirements designed according to Pakeha social logic, rather than Maori collectivist requirements for positions of responsibility. In the final analysis, the institutions comprising the justice system are a Pakeha institutions with Maori input, rather than bicultural institutions. While Puaoteatatu succeeded in revamping the legislature governing Child, Youth and Family Services, it did not and could not transform the institutional structure of the organization, nor did it transform the institutional and legal context within which these services resides.
These observations have relevance to restorative justice on two levels of analysis. On one level, the restorative element of New Zealand youth justice—the treatment of young people within their family and community context—will be limited in its scope if Maori insights on justice are subordinate to Pakeha bureaucracy. On yet another level, however, the pursuit of biculturalism within the justice system should be viewed as a form of post-colonial peacebuilding, and a natural extension of the values of restorative justice. Peacebuilding, in the deepest sense of the word, requires a paradigm shift born of intercultural dialogue. My experience so far suggests that New Zealand has come far in the pursuit of post-colonial reconciliation, and that the dialogue surrounding youth justice has been at the forefront of this pursuit. Yet it is clear that in the work of dislodging old power dynamics, there is still a great distance to travel.
By Aaron Lyons
- As I draw nearer to the end of my time here, the question of how to translate the New Zealand youth justice experience into Canadian terms grows stronger on my mind. I get the impression that the formation of the 1989 Act was slipped under the radar to some degree, in that the conservative public was not aware enough of what was happening to resist it in any sort of concerted way. This will probably not be the case in British Columbia, and the ideological struggles will need to take place above ground. That is exciting and positive, firstly because a genuine society-wide dialogue may be possible, with all of the benefits of dialogue in terms of depth and sustainability. On the other hand, this fact requires that anyone advocating for a more restorative system in BC will need to deal head-on with the content of the debate—and this requires a very frank look into the positions that challenge restorative justice.
- This first requires that we clarify what restorative justice is, and what it isn’t. Restorative justice, to my mind, has two major components. First, it’s about stakeholder involvement in justice: redefining the “offence” as “harm” and involving the people who have a direct stake in the harm—victim, offender, family and community—in putting it right. So on one level it’s about removing justice out of the hands of state control and into the hands of the people immediately affected by crime. Secondly, restorative justice has been presented to me as a non-violent, non-punitive response to harm. It’s a response based on respect, and if we approach people with respect, we don’t want to see them suffer more. We acknowledge that their harmful actions already emerge from suffering and shame, and we seek to alleviate that suffering and shame while also providing space for the healing and well-being of the victim.
- The first of these aspects—what I’m calling stakeholder engagement—is alive and kicking in New Zealand. This strength can clearly be attributed to the Maori influence on youth justice here. Matt Hakiaha, during our breakfast meeting on a rainy Auckland morning, told me “the weaknesses of one culture are the strengths of another,” and that for him the central strength of the Maori culture is family. The Act is permeated with the imperative of reconnecting youth people with their extended families to the greatest extent possible. With regard to the engagement of victims, there is surely room for improvement—but there is plenty of space within the Act to do so.
- The issue of punishment is more complex. The idea of fostering accountability without the use of punishment—pain for pain’s sake—is nowhere to be found in the Act. Nor is that idea to be found within the youth justice system in practice. In fact, Judge Fred McElrea tells me that he doesn’t see punishment as necessarily antithetical to restorative justice, and that it may continue to serve a useful function within the youth justice system. When he promotes youth justice, he doesn’t promote it on a non-punitive basis; he merely stands by the notion that it should be the victim, whanau and community along with the young person to make decisions regarding the sanctions—which could include punitive measures—rather than a judge such as himself.
- This orientation toward stakeholder engagement with an underlying reliance on punishment if deemed necessary—either by decision of the conference, or in the absence of a conference agreement—is congruent with the origins of New Zealand youth justice as we now know it. In my limited understanding traditional Maori justice, which formed much of the value-base for the changes of 1989, operates on similar principles with regard to punishment. Talking about a conflict was nearly always the first step, and family/tribal intervention nearly always an outcome. But in the failure of discourse, punishment by death or banishment was always an option. Such movement toward more punitive measures as ‘restorative’ measures fail is seems to be a widely accepted assumption underlying both tribal justice and the practice of much of what is called restorative justice. New Zealand youth justice, like much of restorative practice, operates on the premise that ‘we’ll carry on without punishment unless it doesn’t work, then we’ll use punishment if the going gets tough.’ This setup inadvertently positions punishment as the foundational element of the system. Howard observes that “restorative justice is being practiced within a culture of punishment,” and that “this culture can co-opt and divert restorative justice from its course” (Julich, 2003, pg. 6). I argue that restorative justice, at present, would not know what to do if it didn’t find itself within a culture of punishment, because it currently offers no real avenues for those who don’t respond to restorative dialogue.
- I find myself questioning whether or not a non-punitive disposition is truly essential to restorative justice. What is the inherent connection between reclaiming the justice process back from the state, and a shift away from punishment? The most obvious connection is that when the victim and the tangible (as opposed to abstract) community are involved in the justice process, they will naturally advocate for an outcome from which they can actually benefit. They may be less likely to advocate for a purely ritualistic outcome of justice as state punishment seems to represent. They will likely want things put right with them—such as tangible or symbolic reparation—more than the redress, through punishment, of some abstract (and perhaps imaginary) cosmic order or balance.
- Obviously the retributive impulse is not confined to the state, and is commonly (though perhaps less commonly than many assume) expressed by victims as well. Is there a difference, then, in the nature of retribution when it is invoked by a victim, family, or community, as opposed to by the state? In such a case, can retribution be considered ‘restorative?’ In the Little Book on Restorative Justice, Howard suggests that retribution and restorative justice are not necessarily polar opposites. But can retribution ever be based on the value of respect?
- I think Howard said somewhere that justice is primarily about meaning, and I find this compelling. Serving jail time, we might say, is not restorative because it does nothing to repair the harm that has been done. Yet we do acknowledge that sometimes symbolic gestures of repair, such as apologies, can be restorative. So what’s the difference? The satisfaction of seeing an offender do hard prison time may be more than a simple knee-jerk vengeance response for a victim; it may be truly meaningful. It may even be meaningful to some offenders.
- I’m reminded of the timeless symbol for justice, the scales. Restorative justice grabbed me early on, because it said ‘yes, there must be balance for there to be justice. Yet the re-balancing act need not further disempower anyone. Justice should empower and uplift both victim and offender, not leave the victim down and push the offender down to match that.’ But imagine a murder. If we were to imagine the victim and offender as the two sides of a scale, in the case of someone who has lost a loved-one to murder, the victim’s side is so desperately low. There has been such a tearing in that person’s life, such a destruction. Now, the offender may be able to take steps to help rebuild some of what has been lost. They may, for example, make themselves vulnerable to the victim and show their remorse. They may do a service to the victim. If there is real creativity involved, the victim may have some of their sense of security and order restored to them—but they will never get their loved one back. They will always be ‘lower’ in the scales than they began. Given that, might justice then require that the perpetrator be made to feel a measure of pain that would bring them ‘down’ to the level of the victim? I am not referring to the pain of looking that victim in the eyes and hearing that victim’s experience, or the pain of living with what they have done. I mean additional pain, pain for the sake of finishing the rebalancing of the scales that the restorative and empowering measures couldn’t completely achieve.
- Matt Hakiaha said, “you can never adopt things in their purest form: we’re an evolutionary race.” Maybe the question of punishment needs to be seen in evolutionary terms. That is, punishment “works” within the context of the specific evolutionary state in which we find ourselves (I’m speaking of evolution in terms of consciousness, not biology). From this perspective, punishment is not the ‘right’ or ‘wrong’ response to crime, but merely one that matches with a certain evolutionary state, and one that will give rise to more restorative responses as human consciousness continues to evolve. This line of thought would suggest that the ripeness of society as a whole for non-punitive thinking will increase with time, but also that individuals who have made more progress with regard to their conscious state would be less influenced by punishment and more responsive toward purely ‘restorative’ processes than their less ‘conscious’ peers.
- The obvious problem with this line of thought is that restorative justice takes its inspiration largely from the past. To the degree that restorative justice is a product of the past, it cannot be framed as something we are evolving toward, but rather something we are remembering.
- Yet restorative justice is not just something we are remembering; it is a mixture of memory and imagination. It remembers when we solved our difficulties democratically and within the community, without state intervention. Yet it imagines a time when we will move beyond retribution—or more precisely, when the meaning we attach to retribution will be gradually be replaced by a healing vision of justice.
- Matt’s statement that “you can never adopt things in their purest form” will be a valuable—and potentially risky—mantra in trying to implement restorative ideals in Canada. There will always be some stumbling around in the dark.
- Fred McElrea considers his advice regarding the implementation of restorative youth justice in Canada. “Start by engaging the victim support community,” he tells me over a court cafeteria lunch, “and go from there.” His advice is well received.
- What does “victim-centered” really mean? Mike Hinton, who facilitates Marae-based restorative justice conferences in South Auckland, is wary of the phrase. For him, restorative justice should be “offence centered.” My supervisor Paul Hapeta agrees; it is the ‘triangle’ of justice, including the victim, offender and community, to which we should be attending. Sometimes in defining a term, it is useful to first define its opposite. What is the opposite of victim centered? Is it “offender-centered?” Or is it “state-centered?” I find myself resonating much more with “victim-centered” terminology when its antonym is the latter. But a move away from state-centered justice is, I believe, easier said than done. We’ve developed a learned dependence on the state, and to try to re-work the community/state relationship will demand the utmost creativity.
- Fred McElrea’s other main recommendation: engage First Nations, as Maoris were engaged in New Zealand youth justice reforms. I have visions of a large room, somewhere in the BC rainforest, full of people of all stripes—first nations, victim support, offenders, survivors, youth workers, academics, judges, lawyers, social workers, probation officers, addictions professionals, mental health workers, minority groups, elected officials, community leaders—engaged in a massive hui (what will we call such a meeting in BC?) which will not only help shape the future of youth justice, but will provide fertile ground for all other manner of new growth.