Does restorative justice work

Restorative Justice Restorative Justice Basics and examples from practice

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1 1 Restorative Justice Restorative Justice Basics and examples from practice Script for the lecture in the context of the lecture series on peace building at the University of Hamburg on What is Restorative Justice? A look at your lecture schedule reveals: At the beginning of the semester you dealt with areas of conflict and dynamics, then with conflict prevention and mediation in conflicts, and with this lecture the section on conflict resolution begins. Restorative justice describes certain methods of dealing with conflicts and dealing with them, but goes far beyond that. Restorative justice is a philosophy of social peace. It is about a horizontally applied model of understanding. This means that social peace is achieved when a balance, an atmosphere of regained trust and the restoration of disturbed relationships have been achieved between those involved and these efforts are supported by the immediate environment (cf. Sessar 2014). This is compatible with Johann Galtung's concept of positive peace, which, unlike negative peace, which is about the absence of violence, goes further, actively connects people with one another and creates a culture of dialogue (cf. Galtung & Fischer 2013: 173ff.) . This corresponds to the concern of restorative justice to establish social peace (cf. Zehr 2002: 37/38; Marshall 1999: 6). Restorative justice is initially a conceivable model for dealing with conflicts in many areas: in school and at work, in health care and politics. However, the original area of ​​RJ lies in criminology. So in dealing with criminal behavior. Historical derivation of our current handling of criminal law breaches In the late Middle Ages, a significant process took place for this. With the differentiation of European societies, numerous sets of rules for dealing with undesirable behavior have also developed. This undesirable behavior was redefined as a breach of the norm, which became the social unrest caused by this undesirable behavior.

2 2 de redefined in a legal discord the interpersonal conflict in injustice. As a result, an increasingly differentiated set of instruments for assessing injustice (legal technique, dogmatics) and an increasingly differentiated reaction system (penalties) to restore legal peace (cf. Sessar 2014) developed. The state has taken the place of the specific victim who disappeared from the process. It is not the participants themselves who find a solution, but a judge speaks a verdict. With a judgment, social peace is restored in addition to legal peace because both are congruent according to the logic of the criminal justice system. The state has the monopoly of force, which has succeeded in curbing vigilante justice and arbitrariness and creating a humane system. Over the centuries, the criminal law (system) has become an integral part of society, which, along with its logic of injustice, is firmly anchored in people's minds. Restorative justice criticizes the criminal justice system, namely that it treats social problems as legal problems and tries to neutralize them in a backward-looking, repressive way. The thesis is that the initial conflict remains unsolved with such a deal. Basic principles based on a definition Restorative Justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished when the parties themselves meet cooperatively to decide how to do this. This can lead to the transformation of people, relationships and communities. (Center for Justice and Reconciliation at Prison Fellowship International 2005) Based on this definition I would like to introduce core elements of restorative justice. Theory of justice: Restorative justice is a theory, so others say philosophy is not just a method, but a whole theoretical framework, the cornerstones of which I will go into below (cf. Johnstone 2003: 5/6). Repairing the harm: Crimes are primarily not understood as abstract breaches of the state catalog of norms, but damage and injuries occur as injuries to people and relationships through criminal offenses.These are the focus of the interest of Restorative Justice and its aim is to repair damage make and heal injuries. It is not punished in the guise of the past, but looking into the future to see what needs to be done to make amends. Justice is represented here as a subjective moral

3 3 understood, not as objectively based on legality and produced from outside (cf. Zehr 2002: 19/20). The parties themselves: The people actually involved in the conflict are at the center of this type of conflict resolution. This leads us to one of the theoretical foundations of restorative justice. An essay by the Norwegian criminologist and abolitionist Nils Christie. In 1977 the article Conflicts as Property was published. In it, Christie describes how professional thieves steal their conflicts from people in modern western societies. In particular, the criminal justice system with its actors is such a thief. If there is a criminal conflict, public prosecutors and lawyers act on behalf of those actually involved. This is already visible in the presence and activity in court. Victims are rarely present, often only to be heard and seen as a witness in their own case (exception: collateral crime) because the state has taken their place, represented by the public prosecutor. The offense is not understood as a violation of the person who has suffered the damage, but rather the catalog of criminal law norms. The event is translated into legal vocabulary and only what can be used in court is presented. This means that the criminal investigation loses its relevance to everyday life and those involved in the process. What do you think: can the needs of the injured party be addressed in this way? And assumption of responsibility for the accused can be achieved? Representatives of restorative justice assume that this basic constellation is unsuitable for this. In restorative justice, conflicts are seen as the property of those involved and the aim is to involve them in dealing with the conflict and to trust them to find a solution (cf. Christie 1977). Meet cooperatively: The core of restorative justice is personal encounters between the injured and the accused. Restorative justice, however, is very important voluntarily, i.e. encounters do not always take place. There are also procedures in which no meeting takes place and there is indirect communication with one another (e.g. via mediators or video messages) (see Rossner 2013: 8ff.). This can lead to transformation: Conflicts are not seen primarily as something negative or bad. Conflicts and their processing can have a positive benefit for the individual, but also for the wider community. Coping can be stimulated, norms clarify-

4 4 light, forms of dealing with one another are practiced, grievances in the community are addressed and change initiated (cf. Christie 1977). People, relationships and communities: These are the stakeholders of Restorative Justice: Restorative Justicee always includes injured parties, accused persons and their community. Relationships exist between all of them and these have been strained by the conflict. The aim of restorative justice is to reintegrate both injured and accused into the community (cf. Braithwaite 1989 & 2002). Only when all three poles are involved in a process is it completely restorative (cf. McCold & Wachtel 2003). The situation and the legal framework in Germany In the 1980s, the crisis of the criminal sanction system in response to the findings of empirical research on sanctions in Germany formed the breeding ground for a reception of restorative justice and its adoption in the criminal justice system. This crisis was caused by disappointment that high expectations of the concepts of treatment and rehabilitation were not met, as well as indications of the harmful effects of custodial measures. On the one hand, this resulted in a criminal policy debate on alternative forms of reaction to crime, the main focus of which was on diversion, reparation and the TOA (cf. Meier 2007: 197/198; Bals 2010: 83/84). On the other hand, in this climate the person concerned was rediscovered, who for a long time only played a minor role as a complainant or a witness. It became clear that those affected are of central importance with regard to the offense and criminal proceedings and that they have interests and needs after the offense, which must (also) be addressed by the state and the judiciary (cf. Meier 2007: 198). In Germany, the offender-victim reconciliation is the dominant procedure for putting restorative justice into practice (cf. Lummer et al. 2011: 7; Hartmann 2010: 207). The offender-victim compensation for young people has been anchored in the Youth Courts Act (JGG) since 1990 (cf. 10, 45 and 47 JGG), and since 1994 also for adults with the 46a Criminal Code (StGB). 136 para. 1, sentence 4 of the Code of Criminal Procedure (StPO) stipulates that a suspect, if there is a suitable case, should be made aware of the possibility of a TOA at the first interrogation. 155a StPO regulates (and you can read along): The public prosecutor's office and the court should examine the possibilities of achieving a balance between the accused and the injured at every stage of the proceedings. In appropriate cases, they should

5 5 work towards this. Suitability may not be assumed against the express will of the injured party. Despite these regulations, the TOA plays a marginal role in the processing of criminal proceedings in Germany. Since TOA and reparation are not shown separately in the administration of justice statistics, their scope can only be estimated. In 2002, Bannenberg and Rösser assumed that up to almost five million completed criminal proceedings were processed within the framework of a TOA (cf. Bannenberg & Rössner 2002:). There is a voluntary TOA statistic, the first survey of which took place in 1993. In 2012, only 45 institutions across Germany transmitted their data for the TOA statistics (cf. Hartmann et al. 2014) How is RJ implemented in practice? The perpetrator-victim compensation (TOA) is e.g. the most popular restorative procedure in Germany and many other European countries. In Germany, it usually takes place during the preliminary investigation and is encouraged by the public prosecutor's office, which passes the case on to an agency (judicial assistance or independent agency). There are essentially three parties involved: the injured party, the accused and the mediator. Ideally, injured parties and accused come together for a balancing discussion and solutions are worked out with the help of the mediator. Family Group Conferences are mainly e.g. deployed in New Zealand and there mainly with young people. Accused, injured party, relatives or supporters and a facilitator come together. The procedure is therefore more extensive than a TOA based on the number of participants alone. This expands communication and engages community. The idea is that the supporters help with communication during the conversation and the development of solution ideas and that they can informally support the implementation of the solution later (cf. Zehr 2002: 47-50; Marshall 1999: 14/15 ). Healing and Peacemaking Circles come from the tradition of the Indian peoples of North America. They are similar to the Family Group Conferences, but are open to all parishioners, so they once again expand the number of participants and use rituals and spiritual elements (e.g. talking piece) (cf. Zehr 2002: 50-52; Marshall 1999: 15). Truth and reconciliation commissions serve to come to terms with serious crimes and human rights violations at the transition from authoritarian regimes to democratic states. Probably the best known was launched in 1995 in South Africa after the end of apartheid (other examples are Chile and Sierra Leone). All variations are about the injured party

6 6 To give them the opportunity to report on their experiences, to give them a voice, to take them seriously. Accused get the opportunity to report honestly about their crimes and thus receive mitigation or amnesty. The aim is to uncover the truth and to find a way how we can live together in the future (cf. Llewellyn 2007). Truth and reconciliation commissions are also discussed under the term transitional justice (see Bonacker / Buckley-Zistel 2013). Finally, a reference to methods that are sometimes included but are not restorative justice: Charitable work or pure restitution programs do not belong to restorative justice for two reasons. On the one hand, they are repressively decreed and not decided by consensus, and on the other hand, injured parties, accused and community are not involved. A diagram by McCold and Wachtel (2003) helps to assess restorative procedures according to the degree of their restorativity. There are three circles that overlap: one for injured parties, one for accused and one for the community. There are completely restorative, predominantly restorative and only partially restorative procedures depending on whether the injured party, the accused and the community are involved. Our TOA is only predominantly restorative as it does not involve the community. FGCs and HPCs, on the other hand, are completely restorative. A TOA runs like this as an example. The procedure in the investigation is shown here. Also in other process stages, e.g. A TOA is possible after the opening of the main hearing and after conviction. The public prosecutor's office forwards a suitable case to an institution or judicial assistance (requirement: the accused admits the offense). Mediators contact the injured party. You will be informed about the possibility of a TOA. This is usually done by letter. It also explains what the TOA is. The mediators also contact the accused and inform them. If you are interested, separate preliminary discussions will take place. Both parties have the opportunity to express their point of view. You will also be further informed about the TOA and its process and also prepared for the joint conversation. When the preliminary discussions have been concluded and both parties are still interested, an appointment will be made for the compensation discussion. The participants come together for a conversation and the mediator introduces the conversation. The injured party is given space to describe the effects of the act. The accused comment on what they did. Questions from the injured party are clarified. In a second step we will talk about how the

7 7 damage suffered by the injured party can be compensated. The regulations are recorded in writing. The carrier reports back to the public prosecutor how the TOA went. This may then lead to a suspension or a reduction in punishment. Case study from the South African Truth and Reconciliation Commission The case of Gugulethu seven: On 7 young black men between the ages of 16 and 23 were shot dead by the police. The young men were members of the armed arm of the African National Congress and were infiltrated by a special unit of the security police. They were planning an attack. On the morning of the planned attack, police units ambushed them and shot them dead. There was an investigation into the incident, which concluded that the police had acted lawfully and proportionately. There were conflicting accounts of what happened (police, witnesses, relatives). The case was reopened in the Truth and Reconciliation Commission (TRC) (1997). Relatives, especially the mothers of those killed, testified several times before the commission. Three of the police officers involved also testified before the amnesty commission. After one of the hearings with the mothers, one of the police officers involved, Thapelo Mbelo, asked to meet with them. The meeting was chaired by Pumla Gobodo-Madikizela. She is a clinical psychologist and professor at the University of the Free State. She also worked in the TRC as coordinator of victim hearings. Gobodo-Madikizela prepared the relatives intensively for the meeting and possible emotional reactions over a period of one week. Her research deals with trauma and its processing in the context of the South African Truth and Reconciliation Commission (Gobodo-Madikizela 2006 & 2013). The Unexpected and the State of Research Healing and forgiveness are possible even in cases where we do not expect it. And that's not all that unexpected when you look at the state of research: Rossner (2013) summarizes that both injured and accused feel fairer and are more satisfied with restorative justice than with traditional criminal law. The feeling that the conference was helpful is more pronounced among those whose act was more serious. All studies indicate that restorative justice works best for moderately serious and serious crimes (cf. ibid .: 16ff.).

8 8 Recidivism is partly caused by restorative justice. significantly reduced. Restorative justice works better in violent crimes than in property crimes (cf. Sherman & Strang 2007: 4).Strang states that the post-traumatic stress as well as the desire for revenge is reduced by participating in restorative justice and that the needs of injured parties can be better addressed. What do they want? More information on how to proceed with your case, involvement in your case, treated with respect and fairness, material recovery, emotional recovery, and an apology. 90% of all victims of a crime want an apology; in restorative justice proceedings 90% receive an apology, in traditional criminal proceedings only 10% (cf. Strang 2002 & 2013). There are always small groups of participants who are dissatisfied with restorative justice. This is connected with the fact that the process is not fair, one feels not involved and taken seriously. That is, it is important to take a look at the restorative justice process / trial in order to understand it (Sherman & Strang 2007: 4; Walgrave 2009; Weitekamp 2000). For my master's thesis, I conducted narrative interviews with people who had experienced a crime and participated in a TOA. In addition to the interviews, I also had the participants make a drawing of one aspect of their story. My research question was how the victims experience the TOA. What is important, helpful, and annoying to them about it. And then the question emerged as to how the TOA influences the management of victimization. I would like to present a selection of my results to you here. The principles of the TOA: Encounters and exchanges are perceived as early as the information about the TOA or during the conversation and the special logic is appreciated. The principles play a key role, because they prepare the injured party for the conversation or get them in the mood and set the framework for the interactions. The mediator has an important role to play because he provides this framework and maintains it. The attribution of roles as victims and perpetrators can be very important for some victims, at least temporarily, in order to give them a feeling of security so that they can get involved in the TOA process.

9 9 The verbal acts of acknowledging misconduct and apologizing by the accused were central to the injured party. They have a symbolic value for injured parties that is good for them. At the same time, victims describe a feeling of empathy towards the accused. This ranges from understanding the motives for the misconduct to the question of how it should be for the accused to participate in the TOA. The aforementioned elements result in a closeness between the participants that goes far beyond the spatial area. In the quote from Mr. Deuter it becomes clear that the feeling of closeness goes hand in hand with a change in attitudes towards the accused. The accused are no longer somewhere else, but they are sitting at the same table and the victims have something to do with them. The accused are no longer representatives of the abstract label of perpetrators, but become concrete and personal: they are given a name, a face, a story. Attitudes towards the accused and the image of you changes as a result of participating in the TOA. A semantic reassignment of meaning is carried out, the perpetrator becomes, for example, Yilmaz or Mr. Bender. Participation also changes the image of one's self. And finally, the relationship with the accused also changes. Aggrieved parties can now determine for themselves whether they want to maintain a relationship with the accused and how this should be structured. I would now like to briefly draw the bow in order to answer the question of how the TOA can support coping. Everyone develops subjective theories about themselves and the world. The aspects of identity are also included in these subjective theories. People experience and act on the basis of subjective theories; they are the tools with which daily life is mastered. They are relatively stable and hardly change or only change very slowly. Certain life events call subjective theories into question. These experiences throw people off balance; Identity or specific aspects of identity are also questioned (cf. Folkman & Lazarus 1988a & b). Victimization can be experienced in this way (cf. Janoff-Bulman & Timko 1987). Coping means the recurring attribution of meaning and thus a reorganization of the subjective theories / identity in order to regain a personal equilibrium (cf. ibid.).

10 10 And the last three points: changing the image of the perpetrator, changing the image of oneself and changing the relationship with the accused describe precisely this process of transformation or reorganization of subjective theories. Ultimately, after participating in the TOA, feelings of graduation, pride and strength emerge. The aspects of the framework / logic of the TOA and the empathy that victims feel towards the accused appear particularly important, as they make the difference between a positive / neutral / negative experience of the TOA. When victims perceive and appreciate the special features of the TOA and feel empathy with the accused, the interactions become meaningful and can enable coping. There are also victims who the TOA does not support in coping with them. More research is needed to better understand this. Some recommendations result from the results. The TOA has great potential to support victims in coping with their victimization. However, he cannot always develop this. It is important to note first that the TOA is not appropriate at every point in the coping process. Immediately after the conflict, needs e.g. for medical care or security for injured parties, while wishes e.g. after giving the accused one's opinion or learning from him why he did this, may emerge in the further course of the process (cf. Hagemann 2011: 56ff.). From the point of view of the injured party, it is desirable to shorten the waiting time between a complaint and an offer for the TOA or, in view of the fact that a willingness to participate can only be given after some time, at least to make it transparent and to inform the injured party about the progress of the To inform processing. During the TOA it can be important for certain victims that the roles of perpetrator and victim are clearly assigned, because this conveys security. This assignment of roles is a necessary step for this group of victims on the way to overcoming them. Although participation in the TOA can make an important contribution to coping, aspects of victimization are described that are not resolved by this and that must be further processed. This means that the support of the injured party in coping with it should be varied and not limited to the TOA. Because of the support that the TOA can provide in managing victimization, information about the TOA should be more widely disseminated. Only in this way can injured parties come to you

11 11 Make informed decisions about possible participation at a time that is appropriate for them in their coping process. Further research is necessary to investigate these aspects. Outlook There is a lot going on in the area of ​​Restrative Justice: not only nationally in Germany, but also in Europe and worldwide. Here are some important documents that span the international framework for RJ and show that the importance of restorative justice has been recognized by the UN and the EU. Recommendation No (99) 19 of the European Council of September 1999 concerning mediation in penal matters United Nations: ECOSOC Resolution 2002/12 Basic principles on the use of restorative justice programs in criminal matters Framework decision of the Council of the European Union of on the position of the victim in the Criminal proceedings (2001/220 / JI) Directive 2012/29 / EU of the European Parliament and of the Council of the minimum standards for the rights, support and protection of victims of crime (replaces RB 2001/220 / JI) In Germany there are related on Restorative Justice strong regional differences. Despite legal regulations, restorative justice is heavily dependent on (supraregional) politics and people in certain positions (e.g. public prosecutors and judges). In Schleswig-Holstein there is a steering group for restorative justice in the Ministry of Justice. There is also a qualification campaign to train mediators in criminal matters on site and to conduct research on the subject at Kiel University of Applied Sciences. As a result of the last research project and in order to implement the above-mentioned Directive 2012/29 / EU, restorative procedures were included in the new youth arrest law in Schleswig-Holstein. I close with a personal comment: Certainly not all questions have been clarified, but there is also a turn in politics towards restorative justice, so that, from my point of view, further changes will be made. The evidence on RJ is far more extensive, and positive, than it has been for many other policies that have been rolled out nationally. RJ is ready to be put to far broader use. (Sherman & Strang 2007: 4) Recommended film: Beyond Punishment by Hubertus Siegert.

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