On punitive restoration

Reducing reoffending and reassuring the public on crime need not be in conflict, argues Thom Brooks.

Within the criminal justice system, there is a tension between reducing reoffending and instilling greater public confidence in the system.

The problem is that improvements to one may contribute to undermining efforts for the other. Crime remains at historic lows. Yet public opinion polls regularly confirm citizens wildly overestimate crime rates and lenient sentences receive the blame. However, increasing the severity of punishments, as the public appear to want, can in fact make reducing crime more difficult.

A perfect example is California’s ‘Three Strikes and You’re Out’ law. It required offenders convicted of a third eligible criminal offence to receive a minimum 25 years prison sentence, and became law with widespread popular support from voters in a referendum. The results were not what California voters expected or were promised: a negligible deterrent effect of no more than two per cent, alongside an explosion in the prison population and its associated costs.

But do we have to choose between tackling crime more effectively and improving public confidence in the criminal justice system? Can we have our cake and eat it? I believe we can, through a model I call ‘punitive restoration’ – but first let me explore where our current system falls down.

Our Current Model isn’t Working

Our standard sentencing practices are routinely formal exercises directly focused on only a handful of persons. Criminal trials almost never happen. Instead, offenders admit guilt in at least 95 per cent of cases and so usually receive some discount from the court that is applied to their sentence for an early guilty plea. Criminal sentences are determined through generally formulaic procedures where the court proceeds step by step following guidelines set by the Sentencing Council for England and Wales where available.

The courtroom is a place where sentences are confirmed for uncontested cases and where offenders might not speak. Victims and witnesses are silenced, too. Neither will be able to confront the offender about a past crime and no one may know the difficulties they may have experienced.

So it is hardly surprising the standard model isn’t working well in many cases. Victims rarely have an opportunity to speak and so can feel alienated from the process, making it difficult for them to move on. Witnesses aren’t given the chance to confirm events in public that may live with them long after a sentencing decision has been made—and if they are, they are often uncomfortable doing so because of the adversarial nature of our trials. These problems have led Keir Starmer, the former Director of Public Prosecutions, to spearhead a new ‘Victims’ Taskforce’ to explore how victims and witnesses can be better supported within the standard model.

Offenders don’t benefit either. Their sentences are constructed from a formulaic procedure that restricts the ability of courts to make use of more effective punishments.

The public also doesn’t benefit. Arranging a sentencing hearing is expensive, with reoffending an even greater cost to bear. But our strict sentencing procedures have a limited ability to address any particular needs of offenders that may have contributed to their criminal behaviour and likely to do so again on release.

So the case for change is clear: it would benefit all parties. In its place we can develop a new model that avoids the problems outlined above by making greater use of restorative justice practices. But what is restorative justice, and if it achieves everything better outcomes for everyone involved, why isn’t it more widely spread?

Restorative Justice: A First Step

T. F. Marshall provides the best working definition of restorative justice: ‘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’.

This has important implications for sentencing policy, and takes two forms in particular: victim-offender mediation and restorative conferencing. Each is a distinctly informal approach to resolving conflict and ‘restoring’ persons from an offender to a lawful citizen. Restorative justice is a transformational process where there is healing between offenders and the public with the victim playing an integral role.

These meetings are led by a trained facilitator and only possible where the offender admits guilt. Restorative meetings provide an opportunity for victims and offenders to engage in a constructive dialogue within a safe and supportive environment. Victims and offenders must choose to participate without coercion.

The general meeting structure is relatively straightforward. The facilitator normally clarifies the parameters and purposes of the meeting with guidance and training available from the Restorative Justice Council. Facilitators may come from a variety of backgrounds and many come from a background in psychology or social work although the role is open to anyone that achieves accreditation—not entirely unlike magistrates. The victim has an opportunity to speak next, address the offender and explain how his crime impacted on them. Conferences also include friends, family and members of the public where they can comment on a crime’s impact on them. The offender speaks last to account for their crime. This typically includes an apology to the victim—an apology victims would likely never hear otherwise.

The meeting ends with the participants confirming a restorative contract for the offender to agree. The offender can reject this offer and, if so, they must endure conventional sentencing from which restorative justice offers sanctuary. But if they agree, then they must fulfil its terms in full to avoid the possibility of facing a courtroom.

Restorative justice is driven by two central ideas. The first is that understanding fosters healing. Many victims want to know why offenders engaged in their crimes. Likewise, offenders often express a desire to apologise to their victims. Neither is possible through conventional sentencing.

The second central idea of restorative justice is its effectiveness. All participants in restorative meetings confirm higher satisfaction in the process than alternatives, from victims to their families and friends, and even offenders.

This is unsurprising. Each plays only a passive role in our current model, and they could have no part at all in proceedings. Restorative justice promotes the opposite, where each participant actively engages with the others, allowing them to gain a better understanding.

But this is not all. Restorative justice is found to deliver up to 25 per cent less reoffending than alternatives—with savings of £9 for every £1 spent. This is also unsurprising. Sentencing outcomes are too inflexible in our current standard model: they focus on the category of the offence, not the offender.

Restorative justice exercises the flexibility we need in sentencing to tailor outcomes better to offenders. A restorative contract will often include a combination of requirements, including therapeutic programmes (such as drug and alcohol treatment, cognitive behavioural therapy (CBT), anger management courses, employability training), community sentencing (perhaps 50-200 hours of unpaid work) and some nominal form of compensation to victims.

This more diverse package of options provides persons involved in a restorative meeting with an improved ability to address the needs of offenders, victims and the public. The offender can receive access to therapeutic programmes to help overcome any issues and reduce the likelihood of their reoffending, victims get an opportunity to tell their side of the story and receive an apology from offenders and, finally, the public benefits through reduced re-offending and the associated cost savings.

Restorative justice offers a promising first step towards resolving the dilemma facing criminal justice. But is restorative justice the solution to our problems?

The Need for a New Model

Restorative justice can deliver improved results, but it is currently held back from wider application. Firstly, restorative meetings are almost always restricted to minor offences by minors and not more serious crimes by adults.

Secondly, it has a limited range of outcomes at its disposal: restorative justice cannot recommend imprisonment or even a suspended sentence. In fact, proponents of restorative justice have been called ‘abolitionists’ because its use is meant to lead to less prisoners. Some go further and argue that prison is ‘criminogenic’: if we want to reduce crime and its underlying causes, then prisons are counterproductive.

However, the absence of prison as an option limits the application of restorative justice to only a restricted set of criminal offences. The public would be unlikely to support the absence of any possibility of prison for persons committing some kinds of offences. This is because some offenders might represent a threat to public safety that could mandate incarceration. Furthermore, the public might expect some crimes to require imprisonment because of their perceived dangerousness. If restorative justice had greater flexibility in its range of options, then it could satisfy public concerns without sacrificing the many benefits it can yield.

The suggestion that restorative justice should expand its range of options to include hard treatment in any form will strike its proponents as pure heresy. But this is a belief we can challenge with evidence about how sentencing can enable sentencing highlighted in recent research.

Hard treatment comes in many forms—from time spent in secure and intensive treatment centres to suspended sentences and imprisonment—all of which are currently excluded by restorative justice as practiced. It is claimed that their use does not yield the benefits restorative justice shows can be possible. But the evidence is that restoration of offenders can be achieved through hard treatment if we are willing to look into how we can make these institutions work better.

Many restorative contracts include requirements that offenders attend programmes designed to develop their employability and life skills as well as undertake treatment for any drug and alcohol abuse. It is possible that prison may prove the best environment for some offenders where a more intensive intervention is necessary.

Prison should be transformed so that incarceration contributes to offender rehabilitation. It is well known that short-term imprisonment is associated with high rates of reoffending. This is a significant problem: most imprisoned offenders receive short-term sentences of less than 12 months and about 60 per cent may reoffend within weeks of their release. Offenders serving short-term prison sentences do not normally receive much, if any, rehabilitative treatment.

However, brief intensive interventions have improved results among offenders with problems associated with drug and alcohol abuse. Corrections-based treatment of moderate (30 outpatient group sessions three days per week) or high intensity (six-month residential treatment) is found to bring cost savings of 1.8 to 5.7 the cost of their implementation.

These illustrations highlight how prisons can more effectively enable offender rehabilitation. Current practices may underperform and prison should only be used as a last resort. But when it is used it can be run differently—and in ways that can expand options available for restorative justice.

Punitive Restoration

I call this new model punitive restoration. Current restorative justice practices are an improvement over our standard, formal model of courtroom justice. But they do not go far enough. The benefits of restorative justice are significant: higher satisfaction, lower reoffending and greater cost savings. The problem is that it is an approach restricted to a limited set of offences by youth offenders.

Punitive restoration would lift these restrictions to include short-term imprisonment and intensive interventions allowing the justice system to better tailor sentencing outcomes more closely to offenders. Some might object that punitive restoration could lead to a more punitive criminal justice. The opposite is true. Expanding restorative options to include a more punitive element can and should support their use across more cases, leading to a less punitive system overall.

Others might worry that giving victims a greater voice in criminal justice is a good thing in principle, but not when determining sentencing outcomes. Restorative practices currently permit victims to have a say on these outcomes and punitive restoration would allow it, too. However, this would be through constructive discussion with offenders and other stakeholders within the informal framework of restorative practice, which should be tightened to ensure that more punitive options are used appropriately.

I began this essay with the tension between ‘what works’ in reducing reoffending and overall crime rates, and what encourages the public to have confidence in the criminal justice system. I believe that a punitive restoration model of criminal justice could help to resolve this tension by enabling more widespread use of restorative justice techniques, while also reassuring the public that justice is being done.

In summary, restoration and hard treatment need not work against each other. Punitive restoration is a model for how this can be achieved.