New Zealand Law Society - Restorative Justice: Chance to help clients turn their lives around

Restorative Justice: Chance to help clients turn their lives around

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Defence lawyers throughout the country now have an opportunity where they may be able to help their clients turn their lives around.

From 1 October, restorative justice has been rolled out to every court in New Zealand. Along with this has come Government funding that will see a big boost in the number of restorative justice conferences that can take place.

A restorative justice conference brings together victims and offenders, often with support people also present. It gives victims the opportunity to talk about how the offending has affected them. And it gives offenders the opportunity to be accountable for the harm and “front up” to the impacts of that harm.

Currently, only a small number of people are becoming involved in restorative justice, says Geoffrey Roberts, general manager of Community Law Wellington and Hutt Valley, which has the RJ provider contract for the Wellington, Hutt and Porirua courts.

“It would be great to give more people the option. One of the things we’d like to see more of is people erring on the side of a referral.

“What’s the harm in seeing if it will work? If it doesn’t, it doesn’t. And if it does, it could turn a life around,” Mr Roberts says.

These words are echoed by Associate Professor Chris Marshall, who holds the newly established chair in restorative justice at Victoria University.

By providing restorative justice “at worst you are providing an opportunity and at best you are enabling a person to go through a life-changing experience. It can be truly remarkable,” he says.

“If you were a lawyer, why would you not suggest it to your client?” asks Mike Hinton, general manager of Restorative Justice Aotearoa, the association of New Zealand’s restorative justice providers.

“Bear in mind, your client has pleaded guilty. If your client was about take responsibility for his action, it could be the spark that will ignite the flame of change.

“Restorative justice is not going to be the change, but it can be the ignition point of change.”

Mr Hinton has seen that happen hundreds of times in the restorative conferences he has organised.

“We’ve also spoken to people who’ve experienced restorative justice, both as victims and offenders,” says JustSpeak spokesperson Danielle Kelly.

“To hear from people who cite it as being their trigger for personal change, to change offending behaviour, is an extremely powerful testimony.”

The real value of a restorative justice conference, Mr Roberts says, is in the participants being able to talk with each other.

“It helps both sides to move down a path wherever they are at on that path. For example, a victim may tell an offender in a safe but angry way they don’t accept the apology and come back to the harm to them; or an apology might be well received – either response is acceptable.

“From our perspective, the most important people to make the decisions about taking part in restorative justice are the victim and the offender, rather than others involved in the criminal justice process,” Mr Roberts says.

“We want to make sure that they have the option and that they are aware of what it is.

“Maybe there are some people who would see it as a soft option. But I can tell you, when that person gets into a conference, even if the offender were to approach it entirely cynically in a self-interested way, the process itself can still knock that out of him pretty quick. Even if it doesn’t, what have you lost?

“Then again, it may happen that the offender goes cynically into the conference, but it might be a healing process for the victim just to state their piece.

“I know a lot of people who have significant facilitation experience with restorative justice conferences and they will all tell you that it’s far from a soft option.

“People staunch out the system all the time, but when you’re face to face with a person on a personal level it is much harder to just minimise or discount your own behaviour and the effect that it has had.

“It is a powerful tool for change, I think,” Mr Roberts says.

“A lot of people think restorative justice is a soft option for the offender,” Mr Hinton says.

“Ask the offender.” They are the ones who have to “front up” to the people they have hurt. They are the ones who have to “front up” about the hurt they have caused. They are the ones who have to “front up” to the effects of their offending.

And they have to do this face to face with the people they have hurt, and often with other family members present.

“I think the message we have on restorative justice is that we need all the help we can get,” Mr Roberts says.

“There’s the need for everybody to do what they can to make sure that people – both victims and offenders – are aware of the availability of restorative justice conferences for one, and also their benefits.

“There’s all sorts of evidence, lots of anecdotal evidence from the actual participants but also lots of academic research on the benefits of restorative justice for all participants.

“The obvious ones for the victims are the ability to have a voice, to confront the offender and to personally hold the offender to account.

“And there’s the possibility for them to have their needs addressed by the offender, which is not something that is available to them in the same way through the normal criminal justice process,” Mr Roberts says.

That can include compensation. Mr Hinton gives some examples of victims benefitting in this way. “I’ve seen $100,000 compensation paid to the victim at a restorative justice conference,” he says.

A conference, Mr Roberts says, is not just an opportunity for people who want to confront the offender, but also if they want to forgive.

“It can be a very powerful experience for both parties. That’s not to say that [forgiving the offender] is in any way obligatory but when it does happen it is quite magical and transformative and restorative in terms of restoring relations.

“From an offender’s point of view, they are confronted with the personal impact that their behaviour has had – the very real face of their offending. That can be quite a powerful motivator for them to change their behaviour.

“From both sides, I think the advantages of restorative justice are quite clear.

“From our perspective, it is really important that people know both of the availability and the benefits of restorative justice.

“Our experience has been that the majority of judges will allow time for restorative justice to occur pre-sentence. But we really would like, and I think restorative justice providers across the country would really like lawyers and sitting judges to really think about it and to perhaps broaden their sense of what is appropriate for restorative justice.”

Some people involved in the court may think that restorative justice was not appropriate in a particular instance. Or they may take the view that they don’t want to wait six weeks more for it to happen.

What the providers would like to see is that if there is any doubt, even in cases they think it might not be appropriate, that restorative justice is put to the parties and that they make the decision. If one key person wants to put the brakes on it then, because it is entirely optional for both victim and offender, it won’t go ahead. The restorative justice facilitator can also decide that a conference is not appropriate.

“We’d like to see more people erring on the side of a referral, because what’s the harm in seeing if it will work?”

“Restorative justice is going from strength to strength in New Zealand, and the Government’s big injection of more funding could not have come at a better time,” Associate Professor Marshall says.

“I think restorative justice in New Zealand is poised for quite significant growth.

“It is pretty remarkable what the government has done. It appears that we no longer need to persuade people in power that this is a useful thing to promote and develop.”

Restorative justice, Associate Professor Marshall says, is probably one of the most researched interventions in the criminal justice system.

Thousands of studies have been done around the world. In 2007, a meta study of available studies was conducted by two Cambridge scholars.

That showed that the results of research around the world were pretty consistent. And they lined up with results of research conducted in New Zealand by the Ministry of Justice (see story RJ available throughout NZ).

Interestingly, and perhaps a little counter intuitively, research has shown that the greater the injury suffered, the more potential restorative justice has for making a difference both for offenders and for victims.

Research has also shown that victims who have been involved in restorative justice have quite a significant drop in desires for vengeance and that they experience a lot of emotional healing.

“That can come through telling their story, asking the questions that need to be asked and having a sense of acknowledgement from people that they have suffered, that they have been hurt,” Associate Professor Marshall says.

His appointment as the inaugural holder of the Restorative Justice chair at Victoria University was announced the week before Labour weekend, and the chair will be formally launched in March next year.

This, he says, “will help to put some academic foundations around the restorative justice movement and strengthen research. It will add some intellectual muscle into the movement.”

Despite the fact that this area has been the subject of a great deal of research, there is still need for quite a lot more, particularly in the areas of understanding why it works and how to improve the way it works.

It is a process that can also lead to unexpected benefits. Mr Hinton gave one example. It came during a conference where the offender had desecrated Jewish graves in Auckland.

“During the restorative justice conference, it provided the opportunity for a member of the community, a victim of that crime, to come forward and say that 30 years ago he had committed a crime of similar ilk which had weighed heavily on his mind for 30 years.

“He said to the offender at the conference that to pay for his crime, he would like to pay for the young offender’s university tuition.

“So there was a man carrying around a burden of 30 years who was provided the opportunity at a restorative justice conference. It was a huge sense of relief for him,” he said.

“Why would a lawyer refer his or her client to restorative justice?

“With restorative justice there is hope – hope that the person can change, hope that the victim can heal, hope that relationships can be restored. And that hope is realised,” Mr Hinton said.

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