New Zealand has run its entire youth justice system in a nonadversarial manner since 1989. It provides the world’s strongest example to date of how a national juvenile system can transition to something incorporating restorative justice. It has also inspired restorative approaches in New Zealand’s adult system, resulting in less reliance on prisons and a far better deal for victims. Importantly, it supports indigenous ways of dealing with conflict and builds on the strengths of indigenous Maori people.
The first full year of operation of the new youth court system for dealing with young offenders was 1990 -- the year of my appointment as a youth court judge. By then, I had found my feet as a district court judge (a position to which I was appointed in 1988). I continued in this role, dealing with adult offenders, and thereby observed the two different systems in operation simultaneously. One was the English-based, adversarial system of criminal justice for people aged seventeen and over. The other was a homegrown system centered on family group conferences, which, along with youth courts, had been introduced by the Children, Young Persons and their Families Act of 1989.
The family group conference model quickly came to be seen as essentially restorative in nature, although it had not been designed with “restorative justice” in mind. Indeed that term did not circulate in New Zealand until 1993, which was after the distinctive nature of the new youth court system had been recognized. I use the term restorative justice here to mean an approach to wrongdoing that brings together those most affected by the wrong -- both victims and offenders -- preferably in a face-to-face meeting, to acknowledge the harm done and consider how best to redress that harm and prevent similar harm in the future. Restorative justice is not a single technique or procedure, and it has application beyond the criminal justice system. Different restorative techniques include family group conferences, adult restorative conferences, victim-offender mediation, healing circles, and a variety of other “restorative practices.” Outside the criminal justice system, restorative justice is applied in some schools, workplaces, and even in dealing with infringing trade practices.
How the System Has Worked for Young People
As I look back over the last twenty years, the following aspects of the family group conference system stand out as being both innovative and of potential value to adult systems as well:
- A real attempt was made to divert offenders away from the court system altogether. This was achieved by making diversionary conferences the default option -- i.e., charges could not be laid in court unless certain criteria were met. As a result, almost half of all family group conferences have not been court-directed, and the matter has been handled without any court appearance whatsoever. In addition, other diversionary practices adopted by the police, who have used their discretion as to whether to prosecute, have helped reduce the use of courts.
- There are no gatekeepers deciding which cases go to a conference, and no limit on the seriousness of offenses that can be dealt with. Other countries have limited family group conferences to first offenders, or to property offenses, or to cases approved by the police or a judge. The comprehensive nature of the New Zealand system was fundamental to its success. As a result we can speak from considerable experience: there have been over 75,000 family group conferences in the last ten years, so well over 100,000 in the last two decades.
- There was a deliberate move away from the notion that therapeutic experts “know best,” thereby enabling family and community-based knowledge to guide outcomes.
- The legislation strongly encouraged accountability measures mixed with community-based, remedial outcomes, rather than punishment for the sake of punishment. This resulted in a massive reduction in custodial outcomes, and in custodial remands pending sentencing.
- One result of these first four features was that many expensive institutions were able to be closed, and court sittings dealing with young people were greatly reduced. The changes produced unquantified but substantial savings -- not only in dollar terms, but also in terms of the unintended damage that those institutions can cause.
- State-paid officials, called youth justice coordinators, arranged and facilitated family group conferences. Volunteer input was limited to those assisting conferences by attending as community or family members. The professionalism of the coordinators, grounded in a strong set of statutory principles, was essential to making the system work. (Over the years the battle has been to retain that special youth justice or “accountability” focus when the coordinators have been organized within the largely “welfare” culture of social workers in what was the Social Welfare Department and is now the Child Youth and Family service of the Ministry of Social Development.)
- Related to this, specialist police officers called youth aid officers handle all cases involving children or young people, and specialist lawyers called youth advocates are provided for all alleged offenders in youth courts. In my view, both groups have been highly effective in their different roles and have really entered into and implemented the principles of the 1989 Act, but the general body of police and lawyers have failed to embrace the principles governing family group conferences because of their training in a more adversarial and punitive model of justice.
- The family group conference model has only been truly restorative when it has involved victims and treated them as of equal importance to offenders. Unfortunately victim involvement in conferences -- which, of course, is entirely voluntary -- has been variable, ranging from 80 percent of family group conferences down to around 40 percent, and currently around 50 percent. Further, even when victims attend conferences, it is difficult for a system to treat offenders and victims equally when it is designed and funded to deal with offenders. Widespread attendance and participation of victims at family group conferences depend entirely on the good practice of youth justice coordinators; without further legislative change, and proper training, good practice goes only so far in overcoming this imbalance.
- Young offenders retain the right to elect trial by jury on offenses carrying more than three months’ imprisonment but have hardly ever exercised that right. Clearly they and their advisers saw it as more beneficial to remain within the youth court jurisdiction, where punishment played a part but the main emphasis was on remedial and rehabilitative outcomes.
- The family group conference model is receptive to different cultural influences and can accommodate indigenous, European, and immigrant cultures with little difficulty. Maori and Pacific Island communities in New Zealand had argued for a model that empowered families and communities, and they were both influential in the shaping of the l989 legislation. However, I have never heard it said that family group conferences work only for those cultures -- on the contrary, the process can be adapted to all cultures, and where different cultures are involved (e.g., as family or supporters of victim and offender), the conference process can be an important agent in building a sense of community across cultures.
- It is important for all involved and for the credibility of the system that the implementation of family group conference decisions be monitored. An example of the adaptation of the general family group conference model to the values of Maori communities is the establishment of “Rangatahi courts.” These are special youth court sittings convened on Maori marae (meeting places), and using Maori language and customs. They discuss how family group conference plans will be implemented and monitored. Local elders and other knowledgeable community leaders sit with the judge as advisers to bring specific Maori cultural perspectives into the process. Maori judges preside in these courts, and the young people are encouraged to appreciate fully the connectedness of their lives and actions to their ancestors and natural surroundings, as well as to their whanau (family) and wider community.
- Finally, the 1989 Act avoided the formalities of “pleading” to charges, something inherently linked to the adversary model. Under section 246 of the 1989 Act, where a young person is brought before a youth court, he is asked, after he has had the opportunity of taking legal advice, whether he denies the charge. If he does, the matter goes straight to a defended hearing (with all the protection of due process). In any other case, the matter must be referred to a family group conference, where the first issue to be dealt with will be whether the charge is admitted. Nearly all charges are admitted. The use of this language (“denied” or “admitted”), rather than the pleader’s equivalents (“Not Guilty” or “Guilty”), has helped change the focus from legal technicalities to accountability, encouraging participants to take responsibility for the harm done to victims and to the wider community. This has been achieved while preserving a defendant’s right to defend the charges in court in the usual way.
Restorative Justice For Adults
New Zealand’s experience of the new youth court model strongly influenced the development of restorative justice for adults, not only in the criminal justice arena but also in educational institutions and other spheres.
In 1994 I saw the first adult case using the family group conference model, which proceeded with the consent of victim and offender. That year saw the establishment of the first of many community groups of volunteers trained in conference facilitation. These groups provided reports on individual cases to sentencing courts where judges had granted adjournments for a restorative conference to be held. In each case, the presiding judge had simply used his or her discretion to grant an adjournment so that information that might be relevant to sentencing could be put before the court. No commitment was made that the process would affect the outcome, and future judges were not obliged to consider the conference report.
The positive experience of these cases then encouraged the Ministry of Justice (as it now is) to fund a three-year pilot scheme for restorative justice in four district courts, with a positive evaluation later ensuing. This in turn led to the extension of Ministry of Justice funding of restorative justice cases beyond the four “pilot” courts and to various restorative principles and procedures being incorporated into New Zealand’s first full codification of sentencing law, the Sentencing Act of 2002.
While family group conferences deal with all manner of cases, some relatively trivial and some extremely serious, adult conferences have in the most part been for moderately serious offenses: assaults (including assaults with a weapon), burglary, robbery, embezzlement, and careless or dangerous driving causing death. Nonetheless, the more serious the harm, the greater the need for healing on the victim’s part and the greater the potential for restorative justice.
So what sort of difference does restorative justice make to sentencing? It can make the difference between a term of imprisonment and some other outcome; between longer and shorter sentences of imprisonment; or it may influence the type of noncustodial sentence to be imposed.
A number of the innovative attributes of family group conferences are characteristic of restorative justice as it has developed in the adult courts. These include an emphasis on putting right the wrong, rather than punishment for punishment’s sake; the avoidance of adversarial procedures and attitudes but the retention of adversarial procedures for dealing with defended cases; the empowerment of those victims directly affected by wrongdoing to consider meaningful ways of dealing with the wrongdoing; an openness to adapting procedures to accommodate cultural differences; and the pursuit of consensus about outcomes among those affected, rather than the imposition of outcomes “from above.” However, the process for adults differed from family group conferences in that it was entirely voluntary (attendance at family group conferences by victims but not young offenders was voluntary). This difference has had both advantages and disadvantages.
One advantage was that restorative justice for adults could get underway without any enabling legislation. A second advantage is that conferences only occur where both victim and offender agree to meet, which must lead to a better commitment to the process and the outcome than if adult offenders were forced into it. The situation with young people is slightly different in that young offenders -- in my experience -- are generally prepared to be held accountable and nearly always admit their offending; hearings where liability is denied are very much the exception. This willingness to “own up” is perhaps more common in a family setting (including a family group conference), and may not carry through to an adult setting dominated by an adversarial culture and legal advice that the defendant can (or should) “put the prosecution to the proof.”
As denials are unusual among young offenders, making the process compulsory (even for those cases proved after a defended hearing) has little impact overall from a victim’s perspective. This would probably not be true in the adult system, where offenders are more likely to be “in denial” and worthwhile meetings would be less common.
However, we should not make the opposite mistake of thinking that feelings of remorse by an offender are a prerequisite to a restorative conference. “Owning up” and feeling remorseful are different experiences. The latter is commonly the outcome of a well-facilitated conference -- something felt because of empathy with the victim’s plight, personally experienced in a face-to-face setting (or sometimes more remotely, as when a victim sends a representative to the conference). But there may be no remorse present beforehand. Of course, in some types of case, such as accidental injury or death through a work accident or careless driving of a motor vehicle, remorse at a pre-conference stage is quite common, and those cases make for good conferencing because the opportunity (and need) for apology, reparation, and mutual support is present.
Resistance to Restorative Justice in Adult Cases
A major disadvantage of a fully voluntary system is that restorative justice can easily remain on the fringe of the criminal justice system. Despite the good work done by many people over two decades, restorative justice for adults is still very much the exception in New Zealand. My estimate is that the total number of cases where restorative conferences are held for criminal wrongdoing by adults is less than 2,000 per year -- only about five percent of cases that meet the criteria for state funding.
Why is the usage of restorative justice for adults so low, despite supportive legislation? Lack of funding is obviously one factor. This is frustrating, because reduced reoffending rates, and reduced use of imprisonment in restorative justice cases, make the economics compelling. In the United Kingdom, politicians are starting to confront the advantages of a less punitive and more preventive and victim-friendly approach -- even if only for fiscal reasons. Until recently there was little sign of that in New Zealand, where an unholy alliance between the media and most politicians promoted the illusion that punitive reactions promote community safety -- despite all the evidence to the contrary. The Ministry of Justice evaluation of the New Zealand pilot scheme showed a 17 percent reduction in the use of imprisonment coupled with a 9 percent reduction in reoffending measured after two years, and a 50 percent reduction in the seriousness of offenses where participants did reoffend. High rates of victim satisfaction were recorded, as has been shown in youth justice studies as well. So the second reason is the political climate just described. But, amazingly, there are signs of change, driven it seems by the global financial crisis. New Zealand’s Minister of Finance recently described prisons as a “moral and fiscal failure,” adding that they are “the fastest rising cost in government in the last decade and my view is that we shouldn’t build any more of them.” Soon after that, the Ministry of Justice announced extra funding for restorative justice, at a time when most budgets are being cut back. So our politicians are making real progress!
The third reason is that so long as restorative justice is a voluntary process for offenders, key professionals such as police, lawyers, and judges are able to ignore it or (as anecdotal evidence suggests of some police) actively to discourage its use. The complete opposite is true of the family group conference, where the model is mandated for virtually all cases. In a paper presented at the Fourth International Winchester Restorative Justice Conference in 2007, I offered an explanation for the attitude of these professionals in adult courts in terms of the domination of the adversary system:
The adversary ethos is so deeply imbedded in our legal structures, the legal profession, and the judges, who (in common law countries) are drawn from the profession, that restorative justice is continually pushed to the margins, despite the encouragement of the legislators.
Does this mean that restorative justice for adults will flourish only if it is compulsory? That is one option, but it is not the only one. The alternative is that restorative justice is given a noncourt setting in which to operate, just as diversionary family group conferences were available from the outset under the 1989 Act. This may require some state funding, which I suggest should be under the control of the Ministry of Social Development, as officials in the Ministry of Justice are just as likely to be wedded to a court-based system as the professionals operating in the courts. Such a system could be fully voluntary, or could be by law the default way for dealing with the same range of offenses as are handled in youth courts, with the existing adult courts handling the remaining cases and those where agreement cannot be reached, or the outcome is not implemented after a conference.
For those seeking a more satisfying, less damaging, and cheaper form of justice, the way forward, in my view, is clear. It is not suitable in all cases, but with some principled support and seed funding, restorative justice could easily change the landscape of the criminal justice system in most common law jurisdictions.
(Click here to read more free online articles associated with Tikkun's Winter 2012 print issue on restorative justice. Don't miss the print issue's twelve inspiring, heartbreaking, and thought-provoking subscriber-only articles on this topic: subscribe now to read them on the web via the Winter 2012 Table of Contents or order a single copy in the mail.)