Realising the Potential of Restorative Justice

Daniel Clements Glen McCLure National Juvenile Justice Summit

25 March 2014

About Jesuit Social Services

Jesuit Social Services works to build a just society by advocating for social change and promoting the health

and wellbeing of disadvantaged people, families and communities.

Welcoming Discerning Courageous

National Juvenile Justice Summit

25 March 2014

Focus areas – services and advocacy

Our focus areas

People who are disadvantaged, have complex needs, who are

excluded

JUSTICE & CRIME PREVENTION

SETTLEMENT & COMMUNITY

BUILDING

MENTAL HEALTH & WELLBEING

EDUCATION, TRAINING & EMPLOYMENT

Justice Programs • Youth Justice Community Support Services (YJCSS) Metro-wide

• Leaving Care Mentoring/L2P

• Community Justice Group Conferencing (YJGC) Metro-wide

• Intensive Transitional Support Programs –Prison to Community

• African Visitation and Mentoring Program (AVAMP)

• Next Steps – accommodation and support

National Juvenile Justice Summit

25 March 2014

The central feature of our work is relationship: ..forming relationships as a basis for effective intervention – and that intervention is focused on building people’s capacity to be in relationship with others and to be able to participate in our community.

It means forming relationships that allow people to trust again and to imagine and realise other possibilities for themselves.

Restorative justice

–’it is through the process that the transformation of the victim-offender relationship can occur’ –dialogue-(relationship) at the heart of the process...

Restorative Justice:

Principles & Practice

National Juvenile Justice Summit

25 March 2014

Where did it start?

In New Zealand practice emerged in 1990s as a ‘better way of doing justice’. Introduced “family group conferences” to ensure the juvenile justice system was culturally sensitive to the Maori community:

Combined ‘justice’ and ‘welfare’ models, to incorporate:

• Acknowledgement of the crime with appropriate punishment • Seek to avoid a prison sentence -reduce expenditure and divert away from an ongoing trajectory into the criminal justice system • Break down the stigma around offending • Bring offender and victim together in a positive way • Involve their families –concensus decision making • Find a way to make amends and seek reconciliation

Principles of restorative justice •  Crime is a violation of social relationships –a conflict between individuals which results in harm to victims and communities...Not simply violating the law;

•  The goal of restorative justice is to repair the harm done by crime and repair as far as practicable the harm done to relationships;

•  Victims must have an opportunity to be part of the justice process and gain a renewed sense of security; and

• Offenders must feel accountable for the harm caused by their actions and grow from the experience of making reparation to the victim and the community. • It represents a departure from the passive roles offered by the traditional criminal justice system (Joudo Larson J 2014 AIC)

National Juvenile Justice Summit

25 March 2014

Restorative justice in practice

•  Marshall 1996:37): “ a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”

Throughout Australia:

• Until relatively recently all States and territories for young offenders • Adults in NSW and SA • Circle Sentencing in NSW and WA • Justice mediation QLD 17 + • administered variously by police, courts or youth justice agencies

National Juvenile Justice Summit

25 March 2014

How Group Conferencing works in Victoria -The program is delivered across the State by a number of NGOs & prescribed in legislation as a recognised diversionary option -Children Youth and Families Act (2005).

A Court may consider deferral of sentencing for the purpose of a child’s participation in a group conference if the Court is considering imposing a sentence of probation or a youth supervision order. [s415 (1)]

The structural characteristics of Group Conferencing give effect to the aims of restorative justice:

• Place victim and offender at centre of justice process within a structure for safe dialogue • Encourage offender to develop empathy for those affected

Group Conferencing in Victoria Victoria  

Nature  of  the  scheme   2007-­‐2011  target  680  conferences  2007-­‐2011  actual  763  conference  

Crimes  Conferencing  Applies  to  

Only  exclusions  in  legisla@on  are  for  murder,  homicide  and  sex  offences  

Referral   Children    (10-­‐17)  referred  from  courts  at  the  pre-­‐sentencing  stage  as  a  sentencing  deferral  mechanism  if  court  considering  proba@on  or  youth  

supervision  order.  

Time  limits   Deferral  period  is  3  months.  Group  Conference  occurs  during  this  @me  

Convenors   Community  service  organisa@ons  

Convenor  ac@vity   Up  to  40  hours  per  conference,  including  addi@onal  resources  allocated  to  following  up  outcome  plans  

Outcomes/  repor@ng  

Group  conference  report  filed  with  court  once  conference  completed.  Report  can  be  used  in  determining  sentence  outcome.      

Sentencing If a child has participated in a group conference and has agreed to the group conference outcome plan, the Court must impose a sentence less severe than it would have imposed had the child not participated in a group conference. [s362(3)]

If sentencing of a child is deferred for the purpose of the child’s participation in a group conference and the child has failed to participate in a group conference, the Court must not impose a sentence more severe that it would have. [s362(4)]

The punishment can’t be worse than if the child had not participated in the conference.

Key features of Group Conferencing in Victoria

Who must be involved

• the offender, his/her legal representative, the informant or another member of the police force and the convenor

Who may be involved

• the offender's family, guardian or close friends, the victim or the victim's representative, and any other person allowed by the convenor eg; ambulance officers, you or me…

Who is eligible to participate Young people aged 10 and up to 17 years of age appearing before the Children’s Court who have:

• Pleaded guilty or have been found guilty of offences that do not include homicide, manslaughter and sex offences; and • Committed offences serious enough for a probation or youth supervision order to be considered by the Court; and • Been referred to the group conferencing program within twelve months of the offence/s or under exceptional circumstances at the discretion of the court; and • Been assessed by Department of Human Services Youth Justice; and • Have consented to participate.

The most common offences committed that lead to a Youth Justice Group Conference are burglary, recklessly cause injury, unlawful assault, intentionally cause injury, criminal damage, armed robbery and theft of a motor vehicle.

Type of offending

What happens in a Group Conference

• Convenor explains everyone’s roles

• Offender is invited to speak about the offence

• Victim is invited to speak about the offence and its effect /s

• Other participants are invited to speak.

•  Focus shifts to considering the future and how the offender can make the victim feel better about the offence.

Does it work? The evidence on the impact of restorative justice on re-offending is mixed but research suggests positive impacts for both victims and offenders.

Thus, ‘a growing body of research indicates that restorative justice may: • Be more effective for more prolific offenders, • Prevent some offenders from further criminal activity; • More effective for more serious offenders; and

However, a focus on the reduction of reoffending fails to capture many of the other benefits:

• Victim satisfaction (reduced post-traumatic stress, improved mental healthy, sense of safety) • Increased offender responsibility for actions and offending • Increased compliance with orders • Increased remorse • Increased community understanding and breakdown of stigma • Economic Benefits (Joudo Larson. J. AIC Research & Public Policy Series 127)

Not just about reoffending or saving money:

• Aims to do justice to victims and offenders • Allows victim to have a say in how offenders dealt with – active participation in the justice process • Gives offender the opportunity to apologise and offer restitution • Closure and support • Active participation in the justice process; • Reduces the cost of follow-up counselling through facilitating a 'healing" resolution ; • Enables victims to benefit from reparation where appropriate; and • Consults victims in a respectful and non-adversarial manner.

Exploring The Use of Restorative Justice Practice in alternate settings:

Children in Out-of-Home-Care (OoHC)

• Three studies from NSW indicate 21-28% of males and 36-39% females on community based or custodial YJ orders had history of OoHC olacement • In Victoria 38 per cent of young people in custody had a previous child protection order (Youth Parole Board and Youth Residential Board Victoria, 2013). • Research shows OoHC placement instability is linked to offending (Cashmore, 2011). • We have seen children in OoHC arrested & remanded over weekend then released straight back to same care placement setting at next court sitting.

National Juvenile Justice Summit

25 March 2014

Children in Out-of-Home-Care (OoHC)

• Trial a restorative justice approach to address behavioural/offending/relational issues for children in OoHC

• Use a scripted restorative justice process drawing on the methodology of YJGC and inclusive of key parties eg care workers, residential staff, police, and others impacted by behaviour and/or offending

• Modified process to meet the needs of children involved

• Give everyone the chance to be part of the process and part of the solution

National Juvenile Justice Summit

25 March 2014

National Juvenile Justice Summit

25 March 2012

Appropriate  support  

Community  

OoHC  

Foster  

School  

Police  

Family  

Young Person

Two case studies

1.Out of Home Care setting 2. Behind the wall

National Juvenile Justice Summit

25 March 2014

Exploring The Use of Restorative Justice Practice in alternate settings: • In custody and/or prior to release –

• Structured RJ programs in custodial settings – eg Sycamore Tree

• Wider systemic approach in Belgian adult prison system – Each prison has a restorative justice counsellor, opportunities for victim involvement and reparations, intensive staff training

• Vulnerable 18-30yo in adult justice setting

National Juvenile Justice Summit

25 March 2014

Other contexts where Restorative Justice Practices has been used • Post-custody –

• Vermont (US) – prisoner transition programs use community panels, Circles of Support and Accountability, Mentors

• Victorian Youth Parole Board has expressed interest in group conferencing for young people on release –JSS experience in Parkville

National Juvenile Justice Summit

25 March 2014

Restorative justice with a cultural lens

• Circle Sentencing

• Family Conferencing

• Community Elders

• Port Lincoln adult conference pilot

National Juvenile Justice Summit

25 March 2014

Some last points • In an economic environment with limited funding to not consider an expansion of restorative justice approaches alongside traditional justice seems fiscally irresponsible -It is very hard to deny that, at worst, a restorative justice approach is no less effective than traditional approaches • Practice and theory don’t always work as one –we need to support additional research into what works and build evaluation into our current approaches • While there are any number of settings where a RJ approach could be built in, we need to approach each area as unique and in some instances to be cautious about the application of this approach eg gendered violence -given the power differentials between victim/offender that exist within a domestic violence relationship • Restorative Justice looks different in different settings with different groups, ages, ethnicity, gender –but in principle the process remains the same -reconciliation, reparation, healing, forgiveness... • 

National Juvenile Justice Summit

25 March 2014

“Restorative justice is forward looking – it operates from the perspective of ‘anticipatory justice’. It seeks the future reconstruction of a community by repairing relationships and reintegrating unjustly excluded persons into civic life. It guarantees that all members of society can actively participate in social life, both by contributing to the common good and sharing in the common good to the degree necessary to protect their human dignity.” Healing a Broken World, Promotio Iustitiae, 106, 2011/12 (Social Justice Secretariat –Society of Jesus)

National Juvenile Justice Summit

25 March 2014