Monday, 24 May 2010

A Different Kind of Justice

By Mike Nellis

This article orginally appeared in "The Abolitionist" The magazine of Radical Alternatives to Prison No 12 in 1982 (Pages 4-6)
Although controversy is endemic whenever criminal justice is discussed, it seems particularly acute at the present time, when opinions on the control of the police, on the undemocratic nature of much judicial thinking, and on the appropriateness or otherwise of custodial sentences are more polarised than they have been for many years. The forthcoming Criminal Justice Act will underwrite the demise of the rehabilitative ideal and the corresponding decline of social work's fortunes with offenders, especially juveniles; a traditional concern with deterrence and retribution will formally replace the commitment to the offender's welfare which, in theory at least, has been the hallmark of criminal legislation for the past twenty years. Parallel to this, however, are signs of an increasing interest in restitutive principles of justice and in a number of American schemes aimed at reconciling victims and offenders, schemes to which the social work profession could profitably turn its attention. Predictably, the American literature on the subject is already vast, but two English authors - ex-Howard League Director Martin Wright and Deputy Chief Probation Officer John Harding - have recently published concise arguments in favour of such schemes, in the hope of initiating a wider debate.


Restitution, and the associated principles of reparation: mediation and arbitration are not new to Western legal systems but they no longer have a major place within criminal law. The restitution and compensation orders which are available' to modern courts are always supplements to the main sentence and rarely, if ever, involve a meeting between the individuals concerned. Meetings, however, are precisely what restitution entailed in the past, and in many· mediaeval societies a variety of mechanisms existed for the settlement of community disputes (which encompassed much of what we would nowadays call crimes), and whose aim was the restoration of harmony between criminal and victim, rather than the mere punishment of one and the cursory compensation of the other. These mechanisms vanished not because they were ineffective but because local communities gradually lost power to a more central authority. The state, as the symbolic representation of the body politic, came to regard itself as the victim of crime. and also as the institution best suited to deal with it. An act of hostility against one, became, admittedly with some justification, an act of hostility against all, and the individual human being who had previously been regarded as the victim was reduced to no more than a walk-on part in judicial proceedings, either as witness for the prosecution, or simply as the complainant. Christmas Humphreys, now a retired judge, made this point more than forty years ago (The Menace in our Midst, Humphreys and Dummett, 1937), when he argued that we have gradually moved from a position in which the victim had pride of place, to the opposite extreme, where the victim is irrelevant. It is out of renewed concern for victims that interest in restitution has grown, initially in the somewhat limited form of providing financial compensation out of public funds. Nonetheless, Margery Fry's achievement in establishing the Criminal Injuries Compensation Scheme (now Board) in 1964, was a considerable step forward and this, combined with the publication a few years later of Stephen Schafer's Home Office inspired study, Compen-sation and Restitution to Victims of Crime, ensured that reparation regained its place - at least in principle - as a major issue in the criminal policy field.

The development in the seventies of the Victim Support Schemes and the formation in'1980 of a National Association to represent them increased the range of services which could be offered to victims of crime in certain parts of the country, but one significant gap remained, which the Howard League for Penal Reform had already highlighted in its pamphlet Making Amends (1977):
"Our law makes no provision for the making of personal amends by the offender to the victim. He gets no encouragement to apologise, to meet the victim, to see the harm he has done and to put it right and make up for it"
Roma Bannister, in an appendix to the report of Lord Longford's Working Party on Victims (1978) briefly elaborates the implications of such contact: "The idea of any confrontation with the assailant may fill many victims with revulsion, and for this reason the full consent of the victim would always be the first requirement. Time will be needed for the majority of us to accept this concept as a form of therapy; for the victim, to understand is to forgive, and to forgive is to forget for both".

It is important for the judicial process to consider the rights and needs of victims if only to ensure that they, or potential victims, are not tempted to take inappropriate action themselves. Although instances of vigilante activity are thankfully rare, the populist sentiments which lie behind them are more commonplace, particularly in areas of racial conflict or where sexual politics are involved. The police and the politicians, and certain sections of the general public are excessively sceptical of harnessing these feelings in crime prevention programmes, except in such token ways as requesting information about "suspicious behaviour". It is not as if the police are particularly successful at catching offenders, yet without capture there can be no possibility of reconciliation with victims. Their reservations suggest a very monopolistic attitude towards the control of crime, which reinforces the widely held view of the person-in-the-street as someone only interested in revenge, and whose bloodlust needs to be held in check by the appointed professionals. Vigilante activity need not, however, lead to lynch law, but although evidence of this is hard to come by in this country, a higher level/of co-operation has been achieved between such groups and the police in America, of whom the best known are the Guardian Angels in New York, the group of young people who voluntarily patrol the subways to ensure the greater safety of the passengers.


Quite why popular involvement in crime prevention has been more successful in America than here is difficult to explain, unless the stronger emphasis on the ordinary citizen's right of self-defence lies behind it. Whatever the reason, popular involvement in the administration of justice, after an offender has been caught, has also progressed more in America, and it is in that country that the best contemporary examples of victim-offender reconciliation schemes are to be found. Many different types have flourished (parallel, it must be said, to a vast and horrifying prison system in which the poor and unprivileged are massively over-represented). Some operate within the criminal justice system, some outside it and others in symbiosis with it. They tend to deal with the same kind of offences - assault, theft, vandalism, cheque forgery, telephone harassment and family disputes - but vary in the extent to which they emphasise the different principles involved - restitution, mediation or arbitration. In practice, these are often difficult to differentiate.

The Night Prosecutor Programme in Columbus, Ohio, was founded in 1971 by the city attorney and a local law professor, and is based in police headquarters. It aims to divert minor criminal cases and some traffic violations from the formal court process by arranging for the disputants to meet in a controlled setting and agree upon a settlement, which is then written down and signed by both of them. Practical help can be offered or arranged for either party, and if the prosecutor's office deems it appropriate, a Probation Officer can be used to monitor the settlement for some time afterwards. If agreement cannot be reached, or if the incident recurs, the offender can be prosecuted in the normal way. The Community Assistance Project in Chester, Pennsylvania, is organised more informally and relies on much greater community involvement. It was founded in 1970 by an activist in a tenants' association, mainly to serve the town's poor black neighbourhoods. It takes referrals from the courts, the police and direct from the community, arranges for both parties to meet and using the same local people who act as mediators between the parties, checks periodically to see that any agreements are being kept. More informal still is the House of Umoja (a Swahili word meaning "unity"), a self-help group founded in Philadelphia in 1969 by an Afro-American couple who wished to mediate between the rival street gangs, and to teach their young members a less violent lifestyle. The group's political unorthodoxy initially brought it into conflict with the Department of Public Welfare, but their proven success in reducing street violence led to a change of mind and the provision of some public funds.

Restitution itself is not an essential ingredient in any of these projects; all that they aim for is a solution which is acceptable to both parties, which mayor may not include the making of material amends, In the Victim Offender Reconciliation Programme (VORP) in Kitchener, Ontario, restitution is a key factor. It is organised by the Probation Department and originated in 1974 from the efforts of one officer who, with the consent of a Judge, ensured that two youngsters who had been on a spree of vandalism in a near-by town visited all their victims and made good most of their damage. This incident and its resolution became the VORP model; except where financial compensation is preferred. the victim, offender and Probation Officer agree on a number of hours work as restitution, and on the period over which it is to be undertaken. As in many other projects of this kind, both victim and offender were discovered to have other needs apart from those immediately at issue, and various means were developed to resolve them; in this case, a counselling group for the parents of young offenders, and a course on interpersonal conflict resolution at a local university.

Such brief details as these cannot fully convey the work of these projects (more information is available in Instead of Prisons, by the Prison Research Education Action Project, New York 1976) but predictably none of them were founded without first having to face the scepticism and hostility of those people who were content with existing arrangements for dealing with crime. There were failure~ as well as successes; not all victims wanted to meet their assailants, and vice versa; not everyone stuck to the agreements they made and some failed to carry out the restitution they had promised, just as clients in this country sometimes opt out of probation, or refuse to continue with a Community Service Order. But what is remarkable - apart from the proliferation of projects in North America - is the unanimity with which workers in them report the readiness of most victims to co-operate, the containability of the anger and emotion generated in first encounters, and the willingness of wrongdoers to apologise and make amends when the opportunity is provided. It suggests that even in a society like ours, where personal values tend "in the direction of combative self-assertiveness" (the words of Archbishop William Temple) a space can be created in which both compassion and contrition can still be expressed Without embarrassment or rancour.

Nonetheless, there are regrettably few projects of this kind in Britain. Only in Exeter and South Shields are there schemes in which personal reparation is officially included as a legitimate means of working with young offenders. It is heartening, therefore, that some interest in the general concepts of reconciliation and restitution has been expressed by key individuals in the social work field. In 1977 David Thorpe suggested to the annual conference of the Association of Community Home Schools that victims and juvenile offenders ought to meet each other in court, and negotiate on compensation, describing it as "a method of righting wrongs which does the least damage to both parties" (Community Care, 16.11.77). My own reasons for believing that these ideas warrant serious and urgent attention from social workers, stem, however, from the more expansive comments which Professor Martin Dayies has made on the profession's essential nature:
'It is about reconciliation and compromise - reconciling the personal and the political, reconciling the state and the individual, and different individuals with each other. Because of this commitment to reconciliation, trying to balance the interests of the person and the interests of the state, social work must become increasingly ill at ease, and eventually untenable in any society under absolute rule or in a state of anarchy' (Community Care 22.1.81).
The schemes outlined above fit very well into Professor Davies' philosophy and in a small, symbolic way they can offset the development of the very conditions he fears, by showing how agreement and harmony can be created in situation which have hitherto been regarded as conducive to neither.

If crime ever did get out of hand - and we have not yet reached this point - we would indeed be living in a state of anarchy, or worse. Such crime as we have is often harmful and sometimes lethal, and we cannot pretend that it will ever go away on its own, no matter how substantially social conditions are altered. If, however, we turn more and more to incarceration as a possible means of reducing and preventing it we turn our backs on the many humane alternatives which could be used instead, and in doing so we drift ever closer towards a totalitarian future. RAP has written elsewhere that:
"Imprisonment is used most in those societies which value freedom least, and the growth of the prison system is the sharpest indicator of the political direction which a society is taking".
Alternatives to prison are therefore vital, not only because they are more humane, but also because they endorse and support ' the view that mature, responsible behaviour is more likely to flourish in conditions of freedom than in conditions of constraint. This is not a popular credo at the present time but community-based restitution schemes could be a further illustration of its truth, and by making victims more central to the administration of justice, by insisting that forgiveness and regret are options which are still open to members of our selfish and acquisitive society, and in aiming to heal rather than to exacerbate rifts between people, they offer hope for a more balanced and tolerant way of life.

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