Voces y fuentes

Harris (2006:559) in a review of the literature on ‘restorative justice’ and ‘transformative justice’, makes links between the two when she writes, “it is especially common for changes of heart or of perspective, or in the roles and relationships that result from participation in restorative justice processes, to be described as examples of

83 transformation” (Harris, 2006). Some writers have articulated a set of ‘stages’ participants go through as part of this transformation in restorative justice, “We could not well explain the regular tangible, visible progression through clearly marked stages of tension, anger, shame, remorse, apology, forgiveness, relief, and cooperation” (Moore and O’Connell, 1994: 70). Although this pathway description by Moore and O’Connell may not be realistic for every participant in restorative justice (see criticism by Daly, 2002:70)—it might be the ‘ideal’ hoped for by those who run restorative justice programs and, therefore, of interest to researchers. Whether or not an individual has had a “change of heart” as Harris (2006:559) describes above—and to what extent—is, however, much more difficult to measure than the more clear-cut methods of studying recidivism. Instead, the sorts of questions which probe the ‘change’ tend to be found within the surveys or interviews discussed in the ‘satisfaction’ section. These questions, of course, never directly mention a ‘transformation’ but instead query whether participants have experienced ‘more’ or ‘less’ of something or whether their ‘attitude’ or ‘feelings’ toward something or someone has become ‘better’ or ‘worse.’ The following are some examples of ‘transformative’ questions for both victims and offenders:

 Questions for victims: “Did the conference/court case make you feel more or less settled emotionally about the offence?” “Before the conference/court case how angry did you feel with the offender(s)?” “After the conference/court case how angry did you feel with the offender(s)?” (Strang et al, 2002: 229, 230).  Questions for victims: “Were you surprised by anything that occurred in the

conference session?” “How likely do you think it is that the offender will commit a similar offence against somebody?” (McCold and Wachtel, 1998: 120)

 Questions for offenders: “Did your views on what you wanted to come out of the meeting change at any point?”/ “Did the meeting make you feel ashamed of what you’d done or not?” Hoyle (2002: 75)

 Questions for offenders: “Which of the following best describes your attitude toward the victim now?”; “How likely do you think it is that you will commit another similar offence?” (McCold and Watchel, 1998: 118).

As can be seen above, the questions sometimes ask the respondents to evaluate whether someone else in the conference might have transformed. In a way the work involved with these interpretations—especially of other people—is similar to the way the work

84 of restorative justice has been described by Roche (2003:79-80), “meetings where participants provide verbal accounts which are scrutinized and assessed by other participants, whose own accounts are in turn scrutinized.”

Victims might have to evaluate the offender’s remorse or judge the sincerity of the offender’s apology in order to determine what type of agreement they are happy with. Offenders will have to explain themselves and control their own emotions in the face of a victim’s anger or hostility, the offenders’ own parents’ reactions, and, as has been described above, potentially a police officer’s tendency to be harsh. As chapter one demonstrated, young offenders who have experienced difficulties in their backgrounds, struggle with exactly these skills (Snow, 2009; Gilmour et al, 2004; Bryan et al, 2007), and some have suggested that it is for these reasons that restorative justice is not an appropriate intervention (Snow and Powell, 2011; Snow and Sanger, 2011). As with satisfaction, whether or not participants have transformed is sometimes supplemented with researcher observations who focus on the offenders. Researchers, for example, look for “whether they [offenders] were defiant or remorseful, took responsibility for their actions, understood the impact of their offending, gave a clear story of the offence, were actively involved in the conference discussion, offered an apology or assured the victim that the offence would not happen again” (Hayes and Daly, 2003: 740).

This section reviews offenders’, young female offenders’, victims’, and community members’ thoughts on whether they, or the other participants in RJ, have undergone a transformation as a result.

Offenders

In terms of outcomes to surveys and interviews, offenders in restorative justice schemes as diverse as in the US, United Kingdom, Northern Ireland, and Canada have suggested that the conferences have brought about transformations for them (Chatterjee, August 10 2010, McCold and Wachtel, 1998, O'Mahony and Doak, 2004, Miers et al., 2001). In the Bethlehem, PA scheme, for example, researchers found that offenders had improved views of their victims (McCold and Wachtel, 1998: 59). In Canada, nearly all said they were “helped them in their understanding of the consequences of their actions and their willingness to take responsibility for the same” (Chatterjee, 2010:3). Similar findings occurred in the Thames and Valley scheme evaluated by Hoyle et al

85 (2002). In pilot schemes in Northern Ireland and in the UK schemes evaluated by the Home Office in 2001, offenders felt that participation in the restorative justice would lead them towards a prosocial life (O’Mahony and Doak, 2004:16; Miers et al, 2001: 38).

These perceived transformations, described by offenders, however, have not always been echoed by the police officers who facilitated the conferences. While police officers in Canada and Northern Ireland felt offenders got something out of it (Chatterjee, 2010; O’Mahony and Doak, 2004), Hoyle et al (2002:43) found that “in a third of the cases where the offender(s) thought that the process had gone well the facilitator either thought that it had gone badly or had made no impact at all.” These contradictory views might mean that police facilitators did not pick up on positive changes in offenders or it could mean that police officers’ were unable to distance themselves from their preconceived notions of young offenders, as suggested by Hoyle (2002:68).

Some researchers have cautioned that restorative justice alone is unlikely to cause a permanent change (Hoyle et al, 2002, Daly, 2002, etc) but that good conferencing may begin good things for participants (Maxwell et al, 2004). More in-depth interviews with offenders in the UK and in New Zealand, for example, have shown that desires to transform for other reasons, “family support, wanting to get a job, staying employed and the threat of the court” (Miers et al, 2001: 38) are critical as are “events subsequent to the conferences” (Maxwell et al, 2004: 15). Without this type of in-depth information and longer follow-up with participants (Maxwell et al, 2004, for example followed up with participants several years after restorative justice), offenders’ enthusiasm and initially positive recidivism rates may give a false impression of conferences, as Hayes and Daly (2004) have suggested. It might suggest that a transformation is a result of the meeting between victim and offender rather than a positive occurrence not related to restorative justice (Hoyle et al, 2002) or perhaps a positive occurrence that came about through the gathering of professionals and family members in support of the young offender who could perhaps help address needs he/she might have (Maxwell et al, 2004).

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Young female offenders

As frequently mentioned in this chapter, offenders’ experiences are seldom separated out by gender, except in the case of recidivism. For that reason, whether young male or young female offenders differ on the survey measures described above in terms of any ‘transformative’ aspect is unknown. What we do know is how young offenders perceive their own transformation as a whole group, and the evidence is promising.

The results of more in-depth qualitative research, however, tell a very different tale about young female offenders’ transformation—or rather suggest an absence of transformation. In two of the studies discussed in this review (Maxwell et al, 2004 and Daly 2008), researchers in New Zealand and Australia through observations or interviews with participants found that young women in restorative justice behaved badly. Maxwell et al (2004: 21) in New Zealand discovered through interviews that girls did not believe they would desist as a result of restorative justice and lacked empathy for their victims: “boys were more likely than girls to report that having a family group conference had helped them to stop or reduce their offending….boys were also more likely to report being able to see the victims’ viewpoint and that now, as young men, they felt that what they had done was wrong.”

The lack of empathy for young female offenders’ victims was also discovered by Daly (2008) in researcher observations of young female offenders’ conferences and follow- up interviews with both the young women offenders and their victims. Observers in the study noted that the young women were “‘defensive and a bit hostile’” with “‘little understanding of the consequence of the violence or the trauma to the victim’” (Daly, 2008: 118), and as a whole, young women were observed to be “less often remorseful…more defiant and less likely to apologise spontaneously to victims (Daly, 2008: 114). The failure to take responsibility continued in the conferences with the young women offenders identifying that the victim either began the conflict or helped escalate it and that they, together with the victims, were only mutually culpable (Daly, 2008).

Daly selected a team of all female researchers who both made the observations of the young women and interviewed them afterwards. The young women’s “bad attitudes” continued in interviews post restorative justice with interviewer notes reading, “’a

87 nightmare interview. She is a nasty, angry kid…extremely uncooperative and disinterested, rude and offhand” (Daly, 2008: 124). Daly (2008) suggested that rather than being due to their gender, these orientations toward their victims were more due to the type of conflicts the young women were frequently involved in. Sometimes due to the relationships the young women had had with their victim previous to the assault, the young women identified as offenders by the police did not fully agree that they were to blame for the incident (Daly, 2008).

The contrast between the general findings based on survey data that most young offenders rated themselves as having participated positively with these more in-depth qualitative findings suggest a few things. First, it suggests the need for survey data to be explored by gender to see if differences between offenders’ sense of their own transformations differ by gender (Elis, 2005). Secondly, it suggests that survey data might not offer offenders or victims enough of an opportunity to express their views of a conference.

The discrepancies could also, of course, be due to the type of offences young women are sent to restorative justice for. In Maxwell et al’s (2004) study, the young women had for the most part committed shoplifting offences. One of the studies reviewed here suggested that restorative justice was used excessively for small offences that should not have received a significant criminal justice response at all (O’Mahony and Doak, 2004). As a result of these insignificant offences being processed through restorative justice, some participants—mainly parents—expressed concerns and objections to the process (O’Mahony and Doak, 2004). The young women’s lack of enthusiasm for restorative justice in Maxwell et al’s (2004) study might have been due to the non serious offences they had committed—and perhaps even the lack of a ‘real’ victim in the process to feel truly sorry towards.

McCold and Wachtel (1998); Hayes (2005); Sherman et al (2000) Sherman and Strang (2007) have all suggested that conflicts involving violence, especially when the victims and offenders know each other, might be resolved more easily in restorative justice than other types of offences. These studies for the most part, however, involved samples that were dominated by men. Daly (2008: 116) concluded that “offending girls may not be more ‘difficult’ than boys, but the dynamics of their offences that go to conference may

88 be more difficult to resolve.” Research in the first chapter has echoed these sentiments in highlighting the complex social interactions and power dynamics between girls and women (Björkqvist, 1994, Björkqvist et al., 1992, Crick and Grotpeter, 1995, Batchelor et al., 2001). It is possible that once these already complex situations reach a physical interaction, they have grown almost impossible for both victim and offender. However, it must be acknowledged that the majority of criticisms involving young women’s abilities to have transformed stem from researcher observations. Researchers might view self-protecting behaviour in the conferences (Alder, 2000) and misinterpret them as a lack of remorse/empathy (Daly, 2008; Maxwell et al, 2004).

Victims

The types of questions for victims listed in the introduction to this section attempted to capture whether the victims’ sense of self had altered through meeting the offender (Strang et al, 2002) as well as whether the victim believed the offender had undergone a transformation in terms of behaviour as a result of meeting the victim (see McCold and Wachtel, 1998).

In regards to the former, Sherman and Strang’s (2007) review of 36 restorative justice programs; Strang’s (2002) evaluation of victims responses after the RISE project in Canberra, Australia, Hoyle et al’s (2002) reviews of the Thames Valley project in the UK; Chatterjee’s (2010) evaluation of a Canadian police restorative justice experiment, and Shapland et al’s (2011) evaluation of three restorative justice schemes in the UK all found that victims felt better after restorative justice. Many victims also “were significantly less likely to say they felt like retaliating against the offender” in the UK studies evaluated by Shapland et al (2011: 146).

The latter type of questions asked of victims—whether they think the offender has changed—involve a different type of work. Victims have been described as actively studying offenders during conferences, “particularly attentive to the tone of offenders’ communications, whether made indirectly or during face-to-face meetings… relying on them to assess whether the offender seemed ‘genuine or not’” (Miers et al, 2001: 33). As was mentioned in the introduction, such evaluations might be difficult for victims and offenders, especially in an emotional setting.

89 For example, multiple studies have shown evidence that victims have felt the conference offered something to the offender (Miers et al, 2001; Chatterjee, 2003, 2010; McCold and Wachtel, 1998; Hoyle et al, 2002), but such sentiments sometimes match research findings and sometimes do not. Miers et al (2001: 35), who in the evaluation of seven restorative programs in the UK did not find much evidence of lowered recidivism, reported that over 60% of victims “felt that the intervention had made an impact on the offender.” In Bethlehem, PA, 46% of victims who came to a conference because of a violent incident thought “the offenders’ participation was insincere” (McCold and Wachtel, 1998: 55), while victims of acquisitive crimes were generally more positive about their offenders with only 18% believing “the offenders’ participation was insincere” (McCold and Wachtel, 1998:55). These victim reports, however, are contrary to McCold and Wachtel’s (1998: 78) discoveries about recidivism: offenders who had committed violent offences were actually more likely to desist after RJ. In response to such contradictions, however, researchers have cautioned “it would be native to assume that a restorative process, even one carried out perfectly could dramatically change offending in every case in which it is deployed,” (Hoyle et al, 2002: 56). It also does not preclude that offenders have not benefitted in other ways.

Community

Finally, a “transformation” of the community through RJ could, theoretically, occur through getting everyone “with a stake in a particular offence,” which could include community members “to resolve collectively how to deal with the aftermath of the offence” (Marshall, 1996: 37). Christie (1977:12), in particular had visions of community members uniting in support of victims. In reality, however, most of the community members present—aside from the three studies discussed in this chapter, which used persons from the community not related to the offence (O'Mahony and Doak, 2004, Rodriguez, 2007, Bergseth and Bouffard, 2007)—seem to be those with close relationships to the victims and offenders as Ashworth (2002:582) has suggested. None of the studies reviewed here mention supporters other than parents for young offenders, and indeed, this absence has been criticised by Hoyle et al (2002), Maxwell et al (2004), and Alder (2000). How then is the community transformed through restorative justice?

90 When it comes to police-facilitated RJ, it has been suggested that the uses of restorative justice may transform the community through the police (Bazemore and Griffiths, 2003; McCold and Stahr, 1996) as well as change the police itself (McCold, 2003; Alarid and Montemayor, 2012; McCold and Wachtel, 1998). This may especially occur as a police force with trained facilitators gradually begin to use their skills of reflective listening and improved communication in more “informal” way in their day to day activities (Bazemore and Grittiths, 2003: 338).

Several programs have found that at least some police, in interviews or surveys, spoke about/rated restorative justice positively (Chatterjee, August 10 2010, McCold and Wachtel, 1998, O'Mahony and Doak, 2004). Police officers’ positivity in some of these studies, however, was not matched by the researchers who observed the police officers. For example, in O’Mahony and Doak’s (2004) evaluation of the pilots in Northern Ireland, the researchers raised several criticisms from the police’s use of restorative justice to contribute to ‘net-widening’ to the police officers’ awkward facilitation techniques. Police officers, however, in interviews after their conferences, “felt they had received adequate training and that the programmes were being properly supported and resourced” (O’Mahony and Doak, 2004: 16). The same was found in McCold and Wachtel’s (1998) evaluation of the Bethlehem, PA RJ program where police officers believed they were performing well even though researchers rated them poorly. It is possible that police officers underestimate the training and skills that go into facilitating restorative justice conferences well.

Not surprisingly, although several studies involving police facilitated restorative justice have attempted to capture police ‘transformations’ (McCold and Wachtel, 1998, Hoyle et al., 2002), few have succeeded (McCold, 2003). According to McCold (2003: 386) the only evidence of a “culture shift” among police officers seems to have occurred in the Wagga Wagga police-facilitated restorative justice project (as found by Moore, 1995, cited in McCold, 2003). The Bethlehem, PA program investigated the results of police survey data which police answered prior to and post being trained in restorative justice for similar changes but did not find them (McCold and Wachtel, 1998; McCold, 2003). Instead they found “a moderate increase in how police perceived the community’s support of their department” (McCold and Wachtel, 1998:45) and “a decrease in their orientation toward the use of force” (McCold, 2003: 385).

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Conclusion

This chapter demonstrated that police facilitated restorative justice conferences have been shown to lower recidivism in multiple countries involving several groups of offenders: young and old, violent and acquisitive, male and female. The evidence that is available shows that young women might especially benefit (Rodriguez, 2007; Hayes, 2005; Sherman and Strang, 2007; Hayes and Daly, 2004; Maxwell et al, 2004). But other things beside gender also have a strong effect. According to several studies the events leading up to offence and the relationship between the victim and the offender are crucial (see Daly, 2008, McCold and Wachtel, 1998; Hayes, 2005). Ironically, however, while prior knowledge of a victim has often helped young male