restorative justice: the evidence

The Smith Institute

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at issues which flow from the changing relationship between social values and

economic imperatives.

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Designed and produced by Owen & Owen

By Lawrence W Sherman and Heather Strang

restorative justice:

the evidence

2007restorative justice: the evidence

THE SMITH INSTITUTE

By Lawrence W Sherman and Heather Strang

Jerry Lee Program of Randomized Trials in

Restorative Justice

In collaboration with

Geoffrey Barnes

Sarah Bennett

Caroline M Angel

Dorothy Newbury-Birch

Daniel J Woods

Charlotte E Gill

Please direct all correspondence to

Heather.Str[email protected]

A note on format

This report follows a modified UK Cabinet Office format of

unpacking the content like a website: a one-page abstract, a

three-page executive summary, and a detailed introductory section

that summarises the findings of the full report. This format enables

the users of the document to read – or circulate – either the

abstract alone, the abstract plus the three-page executive

summary, the abstract plus the introductory overview (section 1)

of the full report, or the entire document. This format is designed

to provide different levels of detail for different kinds of readers,

and to support the different ways in which information is digested

for different stages and levels of discussion and decision making.

Published by the Smith Institute

ISBN 1 905370 16 4

This report, like all Smith Institute monographs, represents the views

of the authors and not those of the Smith Institute.

The Smith Institute 2007

restorative justice:

the evidence

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THE SMITH INSTITUTE

Contents

Preface

By Wilf Stevenson, Director, Smith Institute

Abstract

About the authors

Foreword

By Jerry Lee, President of the Jerry Lee Foundation

Acknowledgements

Executive summary

1. Introduction and overview

Key findings: tables 1 to 5

2. A tale of three RJ conferences

3. Varieties of restorative justice

4. The process of restorative justice

5. Restorative justice and the rule of law

6. How we know what works – and what doesn't

7. Restorative justice in the UK: the four settings

• Adult justice

• Youth justice

• Schools

• Neighbourhood policing

8. Keeping promises versus following orders: how RJ compares

9. Reducing harm to victims

10. Reducing repeat offending

11. Rare events: when RJ backfires – and why

12. Other effects on crime

13. Getting cases brought to justice

14. Could RJ reduce the financial costs of justice?

15. More justice, less crime: a way forward

Bibliography

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THE SMITH INSTITUTE

Preface

Wilf Stevenson, Director, Smith Institute

The Smith Institute is an independent think tank which has

been set up to undertake research and education in issues that

flow from the changing relationship between social values and

economic imperatives. In recent years the institute has centred

its work on the policy implications arising from the interactions

of equality, enterprise and equity.

In 2004-05 the Smith Institute ran a highly successful series of

seminars looking at case studies of the use of restorative justice

techniques among criminals and their victims, in schools and

within communities and neighbourhoods. Building on the

impressive accounts of how powerful restorative justice

techniques could be, as a way both of changing behaviour and

of mitigating harm, this independent report was commissioned

by the Smith Institute in association with the Esmée Fairbairn

Foundation in order to examine the evidence on restorative

justice (RJ) from Britain and around the world.

The aim of the project was to bring together the results of

RJ trials in order to set out a definitive statement of what

constitutes good-quality RJ, as well as to draw conclusions both

as to its effectiveness with particular reference to reoffending

and as to the role that RJ might play in the future of Britain’s

youth and criminal justice systems.

The Smith Institute thanks Sir Charles Pollard, Rob Allen and

Professor Mike Hough for their hard work as members of the

steering committee convened to commission and oversee the

academic rigour of this report.

The Smith Institute gratefully acknowledges the support of the

Esmée Fairbairn Foundation towards this publication.

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THE SMITH INSTITUTE

Abstract

A review of research on restorative justice (RJ) in the UK and

abroad shows that across 36 direct comparisons to conventional

criminal justice (CJ), RJ has, in at least two tests each:

• substantially reduced repeat offending for some offenders,

but not all;

• doubled (or more) the offences brought to justice as diversion

from CJ;

• reduced crime victims’ post-traumatic stress symptoms and

related costs;

• provided both victims and offenders with more satisfaction

with justice than CJ;

• reduced crime victims’ desire for violent revenge against their

offenders;

• reduced the costs of criminal justice, when used as diversion

from CJ;

• reduced recidivism more than prison (adults) or as well as

prison (youths).

These conclusions are based largely on two forms of restorative

justice (RJ): face-to-face meetings among all parties connected

to a crime, including victims, offenders, their families and friends,

and court-ordered financial restitution. Most of the face-to-face

evidence is based on consistent use of police officers trained in

the same format for leading RJ discussions. These meetings

have been tested in comparison with conventional criminal

justice (CJ) without benefit of RJ, at several stages of CJ for

violence and theft:

• as diversion from prosecution altogether (Australia and US);

• as a pre-sentencing, post-conviction add-on to the

sentencing process;

• as a supplement to a community sentence (probation);

• as a preparation for release from long-term imprisonment to

resettlement;

• as a form of final warning to young offenders.

Violent crimes

Six rigorous field tests found RJ reduced recidivism after adult or

youth violence. Three of these were randomised controlled trials

(RCTs), conducted with youth under 30 in Canberra, females

under 18 in Northumbria, and (mostly) males under 14 in

Indianapolis. Reasonable comparisons also show effects for adult

males in West Yorkshire and the West Midlands, as well as for

violent families in Canada.

Property crimes

Five tests of RJ have found reductions in recidivism after

property crime. Four were RCTs done with youth: in Northumbria,

Georgia, Washington and Indianapolis. Diversion of property

offenders to RJ, however, increased arrest rates among a small

sample of Aboriginals in Canberra.

Victim benefits

Two RCTs in London show that RJ reduces post-traumatic stress;

in four RCTs RJ reduces desire for violent revenge; in four RCTs

victims prefer RJ over CJ.

RJ versus prison

In Idaho an RCT of RJ as court-ordered restitution did no worse

than short jail sentences for youth. In Canada adults diverted

from prison to RJ had lower reconviction rates than a matched

sample of inmates.

Offences brought to justice

Five RCTs in New York and Canberra show diversion to RJ yields

OBTJ (offences brought to justice) rates 100% to 400% higher

than CJ, including for robbery and assault, when offenders take

responsibility but need not sign full admission to crime.

A way forward

The evidence on RJ is far more extensive, and positive, than it has

been for many other policies that have been rolled out nationally.

RJ is ready to be put to far broader use, perhaps under a

“Restorative Justice Board” that would prime the pump and

overcome procedural obstacles limiting victim access to RJ.

Such a board could grow RJ rapidly as an evidence-based

policy, testing the general deterrent impact of RJ on crime, and

developing the potential benefits of “restorative communities”

that try RJ first.

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Criminology at the University of Pennsylvania, Director of the

Canberra RISE project (now in its 12th year), senior author of the

Campbell Collaboration Systematic Review of Restorative Justice,

Fellow of the Academy of Experimental Criminology and author

of the 2002 Oxford Press book, Repair or Revenge: Victims &

Restorative Justice.

For more information about the work of the authors on

restorative justice, see:

http://www.aic.gov.au/rjustice/rise/

http://www.sas.upenn.edu/jerrylee/research/rj.htm

THE SMITH INSTITUTE

About the authors

Lawrence W Sherman is the Wolfson Professor of Criminology at

the University of Cambridge,

Director of the Jerry Lee Center of

Criminology at the University of Pennsylvania, Past President of

the American Academy of Political and Social Science, the

American Society of Criminology and the International Society

of Criminology, and senior author of the 1997 report to the

US Congress Preventing Crime: What Works, What Doesn’t,

What’s Promising.

Dr Heather Strang is the Director of the Centre for Restorative

Justice at the Australian National University, Lecturer in

1 From Easter Term 2007

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THE SMITH INSTITUTE

The programme’s co-directors, Lawrence Sherman and Heather

Strang, are also undertaking a wider review of the evidence on

restorative justice for the International Campbell Collaboration, a

peer-reviewed network for the systematic review of the

effectiveness of public programmes.

No one is better qualified

than they are to prepare a crisp, readable assessment of the

evidence on RJ.

The evidence clearly suggests that RJ is a promising strategy for

addressing many of the current problems of the criminal justice

system. More important, it is a strategy that has been subjected

to rigorous testing, with more tests clearly implied by the results

so far. The development of RJ in the UK over the past decade is a

model in the evidence-based approach to innovations in public

policy. Like the old story of the tortoise and the hare, the

evidence on RJ cannot be gathered by rushing ahead. The

evidence so far suggests that sure and steady wins the race.

The race for all of us is to reach a world of less crime and more

justice. An endless increase in the prison population seems

unlikely to achieve those goals. This report points out ways to

bring more offences to justice, and perhaps reduce the cost of

justice, while reducing the personal cost of crime to victims.

No other policy I have seen would put the victim so clearly

“at the centre” of a larger community in which we are all

interdependent. How and when to use RJ most effectively is a

matter that evidence can help decide. With this report, that

evidence should now be more accessible to all.

Foreword

Jerry Lee, President of the Jerry Lee Foundation

It is almost 10 years since the Attorney General of the US, Janet

Reno, submitted an independent, scholarly report to the US

Congress entitled Preventing Crime: What Works, What Doesn’t,

What’s Promising (1997).

When I read that report shortly after it

was published, I immediately sensed a sea change in the way

democracies would talk about crime prevention. No longer would

we focus just on ideology. Evidence would soon take a much

larger role in the debate. Within a year, officials of at least 12

different nations would consider the report and its policy

implications, from Seoul to Stockholm, from Wellington to

London.

As a consumer of social science research in my business life for

over four decades, I brought as sceptical an eye to that report as

to any other. I came away extremely impressed with the rigour of

the framework, its 1-to-5 scientific methods scale, and its

comprehensive search for evidence on what works. The next day,

I contacted the senior author of both that report and the current

review of evidence on restorative justice, Lawrence Sherman.

Since then, the Jerry Lee Foundation has been pleased to support

many reviews and evaluations of crime prevention programmes.

By far the most comprehensive of these investments has been in

the Jerry Lee Program of Randomized Controlled Trials in

Restorative Justice, which began in 1995 with a multimillion-

dollar investment by the Australian government. With its

expansion into the UK with funding from the Home Office in

2001, the programme has now completed 12 rigorous tests of

restorative justice in a wide range of settings and populations.

2 http://www.ncjrs.gov/works/

3 http://www.campbellcollaboration.org/ and

http://www.campbellcollaboration.org/CCJG/index.asp

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Police, British Chief Constables Crispian Strachan, Peter Neyroud

and Michael Craik, Chief Inspector Jane Simmons and Inspector

Brian Dowling, and the many dedicated RJ facilitators they

recruited and led. The judiciary provided equal support from Lord

Chief Justice Woolf, Lord Justice John Kay, and Judges Shaun

Lyons and Shirley Anwyl, who helped recruit many of their

colleagues to the Crown Court experiments. Eithne Wallis and

Ray Fishbourne led the National Probation Service in support of

RJ tests across England, Phil Wheatley led HM Prison Service in

its support of RJ under even the most demanding conditions,

Lord Norman Warner and Professor Rod Morgan provided

steadfast Youth Justice Board support, and Dru Sharpling led

London’s valiant test of conditional cautioning.

The Smith Institute’s steering group for this report led by Sir

Charles Pollard, with members Rob Allen, Professor Mike Hough

and Peter Micklewright, provided clear and timely guidance.

Professor Paul Wiles and his colleagues at the Research

Development & Statistics Directorate provided invaluable advice

and support at many stages of this work, as did Professor

Joanna Shapland and her team at Sheffield, and Professor David

Farrington and Loraine Gelsthorpe at Cambridge. Finally, the

global evidence on RJ would not be where it is today without

the normative and scientific scholarship of our very special

colleague, Professor John Braithwaite.

Acknowledgements

Lawrence W Sherman and Heather Strang

The authors owe thanks to many people and institutions.

The report was made possible by Smith Institute Director Wilf

Stevenson, with his colleagues Ben Shimshon and Konrad

Caulkett, and by financial support from the Esmée Fairbairn

Foundation and its Director Dawn Austwick. That foundation also

supported our completion of the London tests of restorative

justice in crown courts. Much of the other material on which the

report is based would not have been possible without grants

from the Jerry Lee Foundation, the Smith Richardson Foundation,

the Home Office, the Australian Criminology Research Council,

the Australian Department of Health, the Australian Department

of Transport & Communications, the Australian National

University, the US National Institute of Justice, and the Albert M

Greenfield Endowment of the University of Pennsylvania. The

work these institutions supported is entirely the responsibility

of the authors, and is not intended to represent the position

of any of these sponsors.

Many people leading operating agencies in Australia, the UK and

the US made possible the research summarised here. From the

first RJ conference we saw in 1993, led by New South Wales

Police Sergeant Terry O’Connell, to the early support of

Metropolitan Police Commissioners John Stevens and Ian Blair in

mid-2000, research and development in RJ has depended on

innovative and visionary police professionals. These include

Canberra Police Chief Peter Dawson of the Australian Federal

THE SMITH INSTITUTE

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THE SMITH INSTITUTE

Executive summary

Purpose and scope

This is a non-governmental assessment of the evidence on

restorative justice in the UK and internationally, carried out by

the Jerry Lee Center of Criminology at the University of

Pennsylvania for the Smith Institute in London, with funding

from the Esmée Fairbairn Foundation. The purpose of this review

is to examine what constitutes good-quality restorative justice

practice, and to reach conclusions on its effectiveness, with

particular reference to reoffending.

Varieties of restorative justice

The review employs a broad definition of restorative justice (RJ),

including victim-offender mediation, indirect communication

through third parties, and restitution or reparation payments

ordered by courts or referral panels. Much of the available and

reasonably unbiased evidence of RJ effects on repeat offending

comes from tests of face-to-face conferences of victims,

offenders and others affected by a crime, most of them

organised and led by a police officer; other tests cited involve

court-ordered restitution and direct or indirect mediation.

What we found

Repeat offending

The most important conclusion is that RJ works differently on

different kinds of people. It can work very well as a general policy,

if a growing body of evidence on “what works for whom” can

become the basis for specifying when and when not to use it.

As tables 1 to 3 show, rigorous tests of RJ in diverse samples

have found substantial reductions in repeat offending for

both violence and property crime. Other tests have failed to find

such effects, but with different populations, interventions or

comparisons. In one rare circumstance, a small sample of

Aboriginals in Australia, an offer of face-to-face RJ (and its

partial completion) appears to have caused higher rates of repeat

offending than CJ. This very limited evidence of backfiring can be

balanced against the potential RJ may have as a full or partial

alternative to incarceration for young adult offenders, who had

much lower two-year reconviction rates (11%) in one Canadian

study (N =138) than a matched sample (37% reconviction) who

served their sentence in prison.

In general, RJ seems to reduce crime more effectively with more,

rather than less, serious crimes. The results below (tables 1 to 3)

suggest RJ works better with crimes involving personal victims

than for crimes without them. They also suggest that it works

with violent crimes more consistently than with property crimes,

the latter having the only evidence of crime increases. These

findings run counter to conventional wisdom, and could become

the basis for substantial inroads in demarcating when it is “in the

public interest” to seek RJ rather than CJ.

Victim effects

The evidence consistently suggests that victims benefit, on

average, from face-to-face RJ conferences. The evidence is less

clear about other forms of RJ, with no unbiased estimates of the

effects of indirect forms of RJ on victims. But when victims

willingly meet offenders face to face, they obtain short-term

benefits for their mental health by reduced post-traumatic stress

symptoms (PTSS). This may, in turn, reduce their lifetime risks of

coronary disease (which PTSS causes in military veterans), as well

as reducing health costs paid by taxpayers.

Offences brought to justice

When RJ has been offered to arrestees before charging in New

York and Canberra, RJ has always brought at least twice as many

offences to justice – and up to four times as many. Whether such

effects could be even greater with widespread take-up of RJ

across a community is a major question to be answered.

A way forward

There is far more evidence on RJ, with more positive results, than

there has been for most innovations in criminal justice that have

ever been rolled out across the country. The evidence now seems

more than adequate to support such a roll-out for RJ, especially

if that is done on a continue-to-learn-as-you-go basis. Such

an approach could be well supported by a “Restorative Justice

Board” (RJB), modelled on the Youth Justice Board but on a

smaller scale. An RJB could prime the pump for RJ, proposing

new statutes and funding new solutions to the obstacles that

now limit victim access to RJ. An RJB could monitor RJ practices,

design tests of new RJ strategies, and continue to recommend

systemic changes needed to make RJ as effective as possible. It

could, in effect, take RJ from the drawing board to its widespread

construction, while also remaining at the drawing board for

on-going improvements in design based on new evidence.

How we found it

Searching for evidence

The search process for this review built on the literature search

protocol approved by the International Campbell Collaboration

for the authors’ registered and on-going review of the effects

of face-to-face restorative justice for personal victim crimes.

The search has been expanded for this review to encompass

other forms of restorative justice and other kinds of crimes.

The following search strategies were used to identify evaluations

of the effectiveness of RJ at helping victims and reducing

reoffending:

• searches of online databases;

• searches of online library catalogues;

4 All opinions and conclusions in this document are those of the authors and not of

any governmental or private agencies that have funded any of the research the

document reviews.

5 http://www.campbellcollaboration.org/doc-pdf/strang_restorative_prot.pdf

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• searches of existing reviews of the literature on the

effectiveness of RJ;

• searches of bibliographies of publications;

• examination of publications already in our possession;

• referrals by experts in the field.

Both published and unpublished reports were considered in these

searches. The searches were international in scope, but were

limited to studies written in English.

Weighing the evidence

For all questions of the causal effect of RJ on such outcomes as

victim mental health and repeat offending, we restricted our

review to reasonably unbiased estimates of the difference that

RJ made in comparison to some form of CJ. We followed the

methods used by the National Institute of Health and Clinical

Excellence (NICE) to assess evidence on the effectiveness of

medical treatments. These methods (NICE, 2006) require us to use

the “PICO” principle (population, intervention, comparison and

outcome), asking, with every study examined, for exactly what

population the RJ intervention, in contrast to what comparison

group, produced what outcomes.

In assessing the strength of the evidence in each study that

offered a reasonably unbiased PICO analysis, we were able to

apply the Home Office (2004) standards for reconviction studies.

These standards are based in part on the Maryland scientific

methods scale (Sherman et al, 1997), which set a minimum

threshold of level 3 for the Maryland report to the US Congress,

Preventing Crime. Level 3 requires that the outcomes of at least

two relatively similar P and C (population and comparison)

groups are compared with (P) and without (C) the intervention.

This review adopts that threshold, so that all statements about

what works to reduce repeat offending or improve victim

outcomes are based on a comparison between reasonably similar

cases receiving RJ or not receiving RJ. For questions of

implementation and description, the report incorporates both

qualitative and before/after quantitative research designs.

Studies selected

The search process and eligibility criteria resulted in the

identification of 36 tests eligible for inclusion in our quantitative

review of the impact of RJ. These consisted of 25 reasonably

unbiased estimates of the impact of RJ on repeat offending, six

reasonably unbiased estimates of the effects of RJ on victims,

and five estimates of the effects of diversion from prosecution

to RJ on offences brought to justice. These studies and point

estimates are listed in tables 1 to 5 in the “Summary” section

below.

Synthesising the evidence

As the NICE (2006) manual for developing guidelines for

practice indicates, it is important to avoid over-mixing of results

from substantially heterogeneous populations, interventions,

comparisons or outcomes (“PICOs”). Equations that lump

together studies into “meta-analyses” with great differences on

these dimensions may yield an overall estimate of “effect”, but

remain unclear as to the effect of what variety of intervention on

which outcome for which population. A more conservative

approach is to limit combinations of studies into “average”

effects only when they share similar “PICOs”. Given the diverse

nature of the studies identified for this review, it is usually

necessary to treat each study as the only point estimate of its

particular PICO characteristics.

The review makes cautious exceptions to that rule on a limited

basis. We report the findings on repeat offending grouped

separately by property and violent crime, so that the reader may

look for patterns in relation to this basic distinction in the kind

of harm (physical or non-violent) that offenders do to victims.

What we do not do is “vote count” the studies, declaring a verdict

about whether RJ “works” or does not “work”, either in general

or in relation to specific characteristics of populations or

interventions. The reason for that rule is that the available tests

are by no means a fair “vote” from all possible tests. We do total

the numbers of findings in different directions within broad

domains, but this is merely for the convenience of the reader,

who will want to do it anyway. We provide it only to emphasise

the caution that is needed in interpreting the numbers.

THE SMITH INSTITUTE

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THE SMITH INSTITUTE

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THE SMITH INSTITUTE

1. Introduction and overview

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Introduction and overview

Fifteen years ago, Gordon Brown proposed that government

should be “tough on crime, tough on the causes of crime”.

That

proposal succinctly captured the complexity of the crime

problem, and thus the complexity of effective responses to crime.

It implied that any financial investment in crime prevention

strategy should be backed by good evidence of effectiveness,

something distinctly lacking in a simple call for being “tough”. By

even raising the issue of the causes of crime, the proposal opened

the door to inventing new ways to deal with those causes.

The search for causes of crime logically begins with criminal

justice policy itself. Three of every four new criminal convictions

in England and Wales are reconvictions of previously convicted

offenders.

At the least, this fact suggests a missed opportunity

for more effective and preventive sentencing practices when

offenders are convicted. At the worst, it suggests that the

criminal justice system itself is a cause of crime – a cause on

which government should be tough.

Many aspects of criminal justice have been blamed for causing

crime among convicted criminals. Inadequate or ineffective

rehabilitation programmes, lack of drug treatment, insufficient

funding for resettlement after prison, and other specific policies

have all been nominated as causes. Others have suggested

something far more fundamental: the way in which society and

government thinks about the actual and potential connections

between victims, criminals and society. A “war-on-crime” (or

team sports) mentality of “us versus them” recalls a classic

American cartoon that appeared on Earth Day 1970: “We have

met the enemy and he is us.”

This view blames our failure to see

how interdependent all members of our society are, with many

law-abiding people being criminals, victims or both at some

point in our lives.

Restorative justice is a way of thinking about what is best for the

many connections among crime victims, their offenders and the

criminal justice process. Restorative justice advocates suggest

that conventional assumptions about these connections may be

wrong: that victims should be at the centre rather than excluded

from the process, that victims and offenders are not natural

enemies, that victims are not primarily retributive in their view of

justice, that prison is not necessarily the best way to prevent

repeat crime. The erroneous assumptions of conventional justice,

the advocates suggest, contribute to rising public dissatisfaction

with justice across the common law countries. This report

considers whether restorative justice can do better, starting with

more realistic and factual premises.

Offenders and victims, for example, are often assumed to be

fundamentally different kinds of people. That assumption is

largely mistaken, and can have critical and potentially

devastating consequences for the administration of justice. It

may induce more desire to seek revenge against offenders, when

victims might prefer to evoke a sense of remorse for the wrong.

The mistaken premise obscures the reality that most criminals

have themselves been victims, some from an early age. Thus

criminals and victims often have much in common from which

to build closer social bonds.

Another assumption of conventional justice is that the

necessarily adversarial character of lawyers in court requires

adversarial relations between victims and offenders as well. This

adversarial assumption oversimplifies the roles played by citizen

participants in the justice system, or the roles victims and their

supporters would like to play. Restorative justice, at least in

principle, seeks ways for victims and offenders to co-operate in

preventing future crime and repairing past harms.

The classic mistaken assumption of conventional justice is to

punish criminals as if they will never come back from prison to

live among us. But with rare exceptions, they all come back.

When they do, we depend on them not to cause more harm in

the community. We are all interdependent in a shrinking world:

criminals, victims, and the wider society. High rates of

reconviction suggest that we are not doing what is needed to

support that interdependence.

The doctrine that tougher punishment deters crime by making

offenders fearful has been widely falsified for many kinds of

offenders (Sherman, 1993). The restorative justice theory is that

justice can prevent crime by making offenders feel more

sympathy for their victims. This premise may be just as plausible

as the deterrence doctrine, if just as unreliable. If restorative

justice can work to prevent crime and repair harm, it seems likely

to do so by fostering remorse, not fear. The emotions of anger,

shame, guilt and regret form a complex cocktail of feelings

associated with crime and justice. If we are to make progress in

achieving the crime prevention goals of justice, it may happen

from better understanding of how we can mobilise those

emotions more effectively.

Restorative justice (RJ) is the prime but not only example of the

recent trend towards a more “emotionally intelligent” approach

to criminal justice (Sherman, 2003). This report reviews what we

know, with some confidence, about the effects of different

approaches to RJ. It is distinctively contemporary in its emphasis

on feelings and bonds among people, both within offenders’

families and in their connections to victims and their families.

Whether RJ can serve the people emotionally connected to each

6 Anderson, Paul and Mann, Nyta Safety First: The Making of New Labour

(Granta Books, 1997), p243, footnote 23).

7 Home Office, Sentencing Statistics 2004, table 6.2 (available at

http://www.homeoffice.gov.uk/rds/pdfs05/hosb1505.pdf#search=%22sentencing%20st

atistics%202004%22.

8 Kelly, Walt Pogo (April 22, 1970) The cartoon satirises an 1813 battle report of

the US Navy.

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THE SMITH INSTITUTE

criminal incident remains to be seen. What is clear is that in a

large number of crimes, RJ facilitators can readily identify people

who care about the victims and offenders enough to try to deal

with the aftermath.

Two claims

Restorative justice is a strategy that many people have advocated

for responding to crime and intentional harm. Like many such

strategies, it embraces a variety of forms with a single list of

hypothesised outcomes. This report examines the available (and

reliable) evidence on those hypotheses that has been produced to

date, at least in the English language and within the scope of our

search. It begins by stating the hypotheses that the 36 tests we

found set out to examine.

These hypotheses can be summed up as two major claims, one

about procedures, and one about effectiveness. The procedural

claim is that restorative justice (RJ) is seen by victims and

offenders as a more humane and respectful way to process

crimes than conventional justice (CJ). The effectiveness claim is

that RJ is better than CJ in producing important results that we

want from justice: less repeat offending, more repair of harm

to victims, fewer crimes of vengeance by victims, more

reconciliation and social bonding among families and friends

affected by crime, and more offences brought to justice.

Promising evidence

A systematic review of tests of these hypotheses offers promising

evidence in support of both claims, although with caveats.

Victims and offenders who participate in RJ are generally quite

pleased with its procedures, more so than with CJ. Some of that

evidence may be due to self-selection bias, but other tests

eliminated that bias by giving participants little or no choice. This

preference is accompanied by strong evidence that RJ is at least

as effective in producing the desired results of justice as CJ, often

more so, and only rarely (if powerfully) counterproductive. There

are also indications of possible cost savings. This evidence is

highlighted in the sections that follow below.

Few advocates claim that RJ should ever be used when an

offender denies having committed a crime. Rather, the

effectiveness claim suggests that RJ will foster more offenders

agreeing to accept responsibility for having caused harm

criminally. The hypothesis is that RJ would thus help to bring

more offenders and offences to justice, since fewer offenders will

deny responsibility if offered the prospect of RJ than they do

with CJ. In fact, offenders in five controlled tests in New York City

and Canberra readily took responsibility for serious crimes and

“declined to deny” their guilt – choosing instead the prospect of

participation in deciding what should be done about their crimes.

Varieties of restorative justice

Most of the evidence we highlight (tables 1 to 5) is based on just

one of the many varieties of restorative justice (see section 3),

one that is possibly most consistent with the broad definition

referenced by the Home Office (2003) strategy document, as

quoted from Marshall (1999: 5): a process “whereby parties with

a stake in a specific offence collectively resolve how to deal with

the aftermath of the offence and its implications for the future”.

That variety is face-to-face conferences of offenders, victims

and their supporters.

This method can substantially reduce repeat offending for some

(but not all) kinds of crimes and offenders (tables 1 to 3 and

section 10). It can reduce victims’ desire for violent revenge

against the offender (table 4 and section 9). Victims also suffer

less intense post-traumatic stress symptoms after face-to-face

restorative justice (Angel, 2005), returning to work and normal

life sooner than they do without it – which should, in turn,

reduce the long-term severity and costs of such health problems

as coronary heart disease (Kubzansky et al, 2007).

Another “direct” form of restorative justice is victim-offender

mediation, at which both victim and offender are present,

often without other people affected by the crime, and where

a mediator negotiates between them.

“Indirect” restorative justice usually describes any process by

which offenders and victims communicate only through third

parties, but not face to face. These methods include “shuttle

communication”, in which a mediator or facilitator may carry

messages by phone or in person between victims (or victims’

representatives) and offenders (or their representatives). They

also include one-way communications such as letters of apology

from offender to victim, or letters describing a crime’s impact

from the victim to the offender. Perhaps the most indirect

form of RJ is court-ordered restitution (which has become

a substantial source of imprisonment in the US for offender

failure to pay). Youth referral panels in the UK may also order

restitution. When this form of RJ has been put to controlled tests,

it has reduced recidivism in both adult and juvenile samples, but

not consistently so (tables 1 to 2 and section 10).

Stages of the criminal process

Each of these forms of RJ has been employed in many different

stages of the criminal process, and in different venues, as well as

outside the CJ process altogether. RJ in schools, for example, can

be used as an alternative to formal processing of young people

involved in bullying. When arrests are made, RJ has been used as

a diversion from criminal prosecution, as in the Canberra

experiments. Prosecution in the UK has, under the Criminal

Justice Act 2003, on occasion been suspended pending a

“conditional caution” while the offender completes an RJ process

(but only after making full admissions). When prosecuted

offenders plead guilty, RJ before sentencing can provide evidence

of mitigation that should normally reduce the length of

imprisonment (R v Collins, 2003; R v Barci, 2003). When

offenders are sentenced to community (probation) supervision,

RJ can be used to determine conditions of that sentence and

possible reparation to the victim. When offenders are sentenced

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THE SMITH INSTITUTE

to long-term imprisonment, they can be invited to undertake

indirect or direct RJ in preparation for resettlement.

Offences and offenders

The modern use of RJ began primarily in the context of youth

justice, often for such minor offences as shoplifting and

vandalism. In recent years it has expanded into serious offences

by adults, including robbery, burglary and assault. From the

standpoint of the process, the largest distinction among offence

types is the “victimed” versus non-victim offences. The latter

include drink-driving or shoplifting, in which no individual who

was personally harmed can meet with the offender face to face.

Theories underlying RJ, such as Braithwaite (1989), logically

imply that RJ should work better at reducing reoffending with

victimed offences. Any interest in RJ as a policy to help victims

prefers victimed crimes by definition.

This review focuses not on a global assessment of whether RJ

“works” as a one-size-fits-all strategy, but rather what the

evidence suggests about what works for whom. There is only

limited evidence on the large number of possible combinations

of offence type, RJ method, stage of the criminal justice process,

and offender age/gender/race/prior record characteristics. The

vast scope of these specific circumstances limits the extent to

which any review can draw firm conclusions about “what works

best”. It is even possible that the differences in outcomes

observed in these different categories could be due to chance, or

to idiosyncratic aspects of sample selection or community

characteristics. All the more reason, then, for laying out the

sometimes conflicting evidence within offence types across

different types of offenders, different stages of the criminal

process, or different nations or cultures.

Searching for evidence

This review is based on a systematic search of the databases

below from 1986 through to 2005, since the terms “restorative

justice” and “conferencing” were not in use prior to 1986. Each

of these databases is readily accessible online:

• C2-SPECTR

• National Criminal Justice Reference Service (NCJRS)

• Criminal Justice Abstracts;

• Sociological Abstracts;

• Criminal Justice Periodicals Index;

• Dissertation Abstracts;

• Social Science Abstracts.

The search terms to be used were “restorative and justice or

conferenc/e/ing with reoffending, recidivism and evaluation”.

Weighing and summing up the evidence

The best methods of research synthesis for such a review are

subject to substantial scientific and policy debate. This review

cuts through some of that debate by relying on the Cabinet

Office’s “PICO” model adopted from the methods of the National

Institute for Health & Clinical Excellence (2006: 16): population,

intervention, comparison, outcomes. This model is used to weigh

and sum up large bodies of research evidence for guidance

to medical practitioners. It encourages greater specificity in

definitions of both populations and interventions. It also requires

comparisons with other treatments to be used as the basis for

assessing an outcome, with reasonably unbiased selection of the

comparison cases.

In weighing the evidence on RJ, this review follows the Home

Office (2004) adaptation of the University of Maryland’s

scientific methods scale (Sherman et al, 1997). This scale orders

the level of internal validity, or the control of bias in drawing

inferences of causation, on a five-point scale. Following the

precedent of the Maryland report to the US Congress (Sherman

et al, 1997) and the NICE (2006) standards, this review excludes

impact evaluations on crime and victim outcomes that fall below

level 3. That is, it does not consider research on RJ reasonably

unbiased if it lacks direct comparisons between cases given RJ

and similar cases given other treatments. Our review does,

however, consider direct comparisons made between the actual

recidivism of offenders given RJ to those offenders’ predicted

recidivism based on the OGRS2 scale, which has been validated

by Home Office research on samples other than the RJ cases

(see Miers et al, 2001). This method is arguably equivalent to

a level 4, as demonstrated in the evaluation methods literature

(eg Berk and Rossi, 1998).

Many of the UK evaluations of restorative justice compare cases

in which RJ was completed with cases in which it was offered but

refused, by either offenders or victims (see eg Miers et al, 2001).

While such comparisons may appear to be level 3 or 4 designs,

the treatment-related difference between the two groups makes

any estimate of the causal effect of treatment potentially quite

biased. It is not possible with such designs, no matter how many

cases they may include in their samples, to eliminate the key

alternative rival hypothesis: that there is something about those

cases that makes consent versus refusal a confounding predictor

of recidivism, in uncertain and unspecifiable ways. We excluded

studies in which that method is used for estimating either

offender or victim outcomes.

Similarly, many studies include only “completers” of RJ in their

samples, with no data on those who were offered or initiated RJ

but did not complete it (eg Vignaendra and Fitzgerald, 2006).

Except in very large samples with a valid model predicting

the reasons for non-completion that could be applied to

a comparison group (Angrist, Imbens and Rubin, 1996),

comparisons of completers with a control group not offered the

treatment are inherently biased (Gorman, 2005). This applies

equally to contemporary and historical controls (see eg Stone et

al, 1998, which is excluded for that reason). Such studies are thus

also excluded as evidence of the impact of RJ. For related reasons,

correlational studies comparing offenders who do and do not

get RJ (level 1) are also excluded, as well as before/after studies

RJ_Text_FINAL 5/2/07 10:51 Page 14

(level 2) that are vulnerable to regression-to-the-mean.

Our key findings, summarised in tables 1 to 5, rely on 23

reasonably unbiased point estimates of the impact of RJ on

repeat offending, six estimates of effects on victims, and five

estimates of effects of diversion from prosecution to RJ on

offences brought to justice. The studies and their key data are

listed in tables 1 to 5 below. While all level 5 studies employed

random assignment to determine whether or not a case received

RJ, some of the conclusions (or what statisticians call “point

estimates”) are derived from subgroups of the full sample that

was included in the random assignment sequence (Piantadosi,

1997: 211).

Missing evidence

In assessing the prospects for a major expansion in the use of RJ,

the review found no evidence of the kind that might be needed

to roll out a national policy. That evidence about the effects of

up-scaling RJ for widespread use – whether it would produce

“collateral benefits” or harms for entire communities beyond

those we can observe in studies limited to comparisons of

individual cases – would include the following questions:

• Would broader use of RJ encourage more witnesses to come

forward to help police solve more crimes, bringing more

offences and offenders to justice by more public confidence

in justice and the law?

• Would broader use of RJ encourage more offenders to accept

responsibility for their offences, increasing offences brought

to justice?

• If an entire community or basic command unit adopted RJ as

the initial response to most crimes, would that policy weaken

the general deterrent effects of the law – or strengthen

compliance with the law by increasing its legitimacy?

• If RJ became more widely known and understood by the

public through far more frequent use, would it attract even

more victim and offender consent to participate than the

substantial levels it has achieved in some pilot tests?

These and other questions about large-scale RJ could be

answered with evidence generated by the scientific method,

using communities as the unit of analysis. They cannot, however,

be answered with evidence generated solely at the individual or

case level in small-scale pilot tests. Thus the implication of this

conclusion is that progress in evidence-based restorative justice

is likely to depend on whether future testing of RJ is conducted

on a neighbourhood-wide or community-wide basis (section 15).

The reasons why

One key question the Smith Institute asked us to examine is why

RJ works when it does work. The short answer is that we cannot

tell much from the available evidence, but there are some

theories that could guide further analysis. The modern revival of

RJ has been long on theory, but shorter on tests of those theories.

Even when RJ itself is subjected to rigorous testing, the theories

that could explain its effects are often much harder to test. This

situation is not uncommon in science, as in the case of

antibiotics, which cure infections for reasons that are not fully

understood. Yet there is no doubt that understanding the reasons

why RJ works – or doesn’t – could help improve predictions and

policies about when to use it or not.

A central theory about RJ highlights a massive difference from

the theory of conventional justice – and also explains why

conventional justice fails to deter repeat convictions far more

often than not (see section 11). That theory, based on “defiance

theory” (Sherman, 1993), is that:

• People who commit crimes often believe, or convince

themselves, that they are not acting immorally.

• RJ engages such people in a moral discussion about whether

crime is wrong.

• An RJ discussion can lead offenders to redefine themselves as

law-abiders, and to agree that they are not the kind of people

who would do immoral things.

• That discussion would lead to the conclusion that what they

did was in fact immoral, and that they should therefore not

repeat such behaviour. (Whether they do anyway remains the

key empirical question about this theory.)

In contrast, criminal law doctrine presumes that people know

they are doing wrong, and that only fear of punishment can stop

them from repeating their crime. Thus punishment is required in

order to deter them (and others) from doing such wrongs. While

such neoclassical theory therefore centres on punishment, RJ

centres on persuasion. The aim of punishment is to enhance fear

of further punishment; the aim of persuasion is to enhance

moral support for voluntary obedience of the law (Braithwaite,

1989; Tyler, 1990; Sherman, 1993, 2003). A theory of obeying

the law by persuasion is thus the ultimate commitment to a

rule of law.

The rule of law

One frequent objection to RJ is that it may undermine the rule of

law, encouraging community abuses of individual rights at the

expense of universal principles and rights. This review finds no

evidence for this concern. As long as RJ is conducted under

the United Nations principles for RJ (see section 5), the major

issue for the rule of law will be one that has long plagued

conventional justice as well: disparity in severity of penalty. Both

RJ and CJ appear equally subject to challenges of disparities and

a wide variance of discretion, as former Lord Chief Justice Woolf

pointed out in his advice to judges on the testing of RJ in 2002.

THE SMITH INSTITUTE

9 As a report to the Canadian government has noted, “reasonably well-designed

studies of the impact of restorative justice programmes on recidivism are few” (Bonta

et al, 1998: 4). For example, McCold’s (1997) bibliography of 552 reports on restorative

justice identified only two reports that had a comparison group and provided

recidivism outcome data.

10 http://www.sas.upenn.edu/jerrylee/jrc/lordwoolf.pdf

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THE SMITH INSTITUTE

Place,

SMS (internal

validity) level

Bethlehem,

Pennsylvania, USA

Level 5

Canberra, Australia

Level 5

(subgroup analysis)

Sherman, Strang,

Barnes and Woods,

2006

Non-Aboriginal

defendants under 30

N = 97

Diversion to face-to-

face RJ conferences,

with consent of

offender prior to

victim consent

Conventional juvenile

prosecution

RJ-assigned had 84

fewer arrests per 100

offenders per year than

CJ-assigned

(P = .026)

Canberra, Australia

Level 5

(subgroup analysis)

Sherman, Strang,

Barnes and Woods,

2006

Aboriginal defendants

under 30

N = 14

Diversion to face-to-

face RJ conferences,

with consent of

offender prior to victim

consent

Conventional juvenile

prosecution

Subgroup sample size

too small for adequate

power to test effect

Indianapolis, USA

Level 5

McGarrell et al, 2000 Youth

N = 251

Face-to-face RJ

conferences

Conventional juvenile

diversion to a range of

other programmes

28% rearrest rate at six

months for RJ vs 34%

for CJ (P < .05);

effect decays by 12

months

Newfoundland

and Labrador, Canada

Level 4

Northumbria, UK

Level 5

(subgroup analysis)

Northumbria, UK

Level 5

(subgroup analysis)

West Yorkshire, UK

Level 4

West Midlands, UK

Level 4

Kings County

(Brooklyn), New York,

USA

Level 5

Total = 10 Reductions = 6

Increases = 0

No effect = 4

Davis et al, 1981 Adult felony

defendants (family =

50%; acquaintance =

40%; violent = 60%;

property 40%)

N = 465

Diversion from

prosecution to direct

mediation; 56%

completed

Prosecution as usual:

27% conviction rate;

72% dismissed or

absconded; jail

sentences = 2.5%

No difference in four-

month post-disposition

(control absconders

excepted!) rate of

calling police:

RJ =12%;

prosecution = 13%.

Arrests of victim OR

defendant = 4% in

both groups

Miers et al, 2001 Young adult violence

and property offenders

(52% given custodial

sentences)

N =147

Pre-sentence only;

offenders told

mediation would be

reported to court and

could help reduce

sentence

Offenders’ own

predicted recidivism

rate, based on external

model (OGRS2 score)

Two-year reconviction

rate 44% vs 57%

convicted

(P =.01)

Miers et al, 2001 Young adult violence

and property offenders

(58% given custodial

sentences)

N = 153

Pre-sentence indirect,

some direct mediation,

requiring victim

participation but

rarely face-to-face;

not reported to

sentencing court

Offenders’ own

predicted recidivism

rate, based on external

model (OGRS2 score)

Two-year reconviction

rate = 44% vs 58%

predicted

(P = .01)

Sherman, Strang,

Barnes and Newbury-

Birch, 2006

Male youth

N = 64

Face-to-face RJ

conferences in

addition to final

warnings by police

Conventional final

warnings by police

only

No RJ-CJ difference

Sherman, Strang,

Barnes and Newbury-

Birch, 2006

Female youth

N = 44

Face-to-face RJ

conferences in

addition to final

warnings by police

Conventional final

warnings by police

only

118 before/after fewer

arrests per 100

offenders in RJ group

vs 47 fewer arrests in

CJ group

(P =.012)

Pennell and Burford,

2000

Violent families

N = 32

Face-to-face RJ

conferences

Conventional criminal

justice and social

service response

N = 31

50% before/after

reduction in frequency

for RJ families vs 27%

increase for CJ families

(P = .005)

McCold and Wachtel,

1998

Hispanic (51%) and

white youth

N = 111

Diversion to face-to-

face RJ conferences,

prior to victim

or offender consent

Conventional juvenile

prosecution

No difference in

intention-to-treat

analysis; high refusal

rate post-random

assignment

Reference Population Intervention Comparison Outcome

Table 1: Reasonably unbiased tests of RJ effects on repeat offending after processing for violent crime

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Place,

SMS (internal

validity) level

Northumbria, UK

Level 5

(subgroup analysis)

Sherman, Strang,

Barnes and Newbury-

Birch, 2006

Male youth

N = 100

Face-to-face RJ

conferences in

addition to final

warnings by police

Conventional final

warnings by police

only

RJ = 88 fewer arrests

per 100 offenders per

year before/after vs 32

fewer for CJ

(P < .05)

Northumbria, UK

Level 5

(subgroup analysis)

Sherman, Strang,

Barnes and Newbury-

Birch, 2006

Female youth

N = 28

Face-to-face RJ

conferences in

addition to final

warnings by police

Conventional final

warnings by police

only

Subgroup sample size

too small for adequate

power to test effect

Canberra, Australia

Level 5

(subgroup analysis)

Sherman et al, 2006a White youth arrested

for crimes with

personal victims

N = 228

Face-to-face RJ

conferences

Conventional juvenile

prosecution

No difference

Canberra, Australia

Level 5

(subgroup analysis)

Sherman et al, 2006a Aboriginal youth

arrested for crimes

with personal victims

N = 23

Face-to-face RJ

conferences

Conventional juvenile

prosecution

Comparing two years

after to two years

before, RJ = 288 more

arrests per 100

offenders per year;

CJ = 66 fewer arrests

per 100 offenders per

year (P = .049)

Bethlehem,

Pennsylvania, USA

Level 5

McCold and Wachtel,

1998

Hispanic (51%) and

white youth

N = 181

Face-to-face RJ

conferences

Conventional juvenile

prosecution

Intention-to-treat

analysis shows

marginally significant

(P = .11) higher

offending in RJ

Indianapolis, USA

Level 5

McGarrell et al, 2000 Youth

N = 381

Face-to-face RJ

conferences, with

consent of offender

Conventional diversion

to a range of non-RJ

programmes

RJ = 15% repeat

offenders at six

months, vs CJ = 27%

(P <.05); difference

fades by 12 months

Clayton County,

Georgia, USA

Level 5

Schneider, 1986 Youth

N = 128

Court-ordered

restitution

Conventional

probation

RJ = 26% decline in

arrest frequency vs no

change in CJ (P value

not reported)

Boise, Idaho, USA

Level 5

Schneider, 1986 Youth

N = 181

Court-ordered

restitution

Eight days in jail on

weekends

No difference

Oklahoma City, USA

Level 5

Schneider, 1986 Youth

N = 182

Court-ordered

restitution

Conventional

probation

No difference

Washington, DC, USA

Level 5

Schneider, 1986 73% youth property

offenders; 27%

violent offenders

N = 411

Court-ordered

restitution, with

consent of offender

(40% dropout)

Conventional

probation

Intention-to treat case

RJ = 12% less arrest

frequency before/after;

CJ = 7% increase

(P < .05)

Winnipeg, Canada

Level 4

Bonta et al, 1998 Male adult property

(61%) and violence

(35%) offenders,

accepted at a 33% rate

from defence lawyer

referrals, all likely to

be sent to prison for

at least six months

N = 142

Court-ordered

financial restitution

and RJ face to face

(10%) or by letter of

apology

N = 75

Matched prison

inmates with similar

profiles

N = 67

Two-year reconviction

rate for 75 RJ = 11%,

for 67 ex-prison

inmates = 37%

(P < .05)

New Zealand

Level 4

Triggs, 2005 Court-referred

offenders who

completed RJ (25%)

N = 192

Face-to-face RJ

conference with

diverse participants

Offenders’ own

predicted recidivism

rate, based on

external model

No significant

difference in two-year

reconvictions between

RJ (41%) and predicted

(45%)

Reference Population Intervention Comparison Outcome

Table 2: Reasonably unbiased tests of RJ effects on repeat offending after processing for property crime

Total = 12 Reduction = 5

Increase = 2

Match or beat

custody = 2 of 2

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THE SMITH INSTITUTE

Place,

SMS (internal

validity) level

Canberra, Australia

Level 5

Sherman, Strang and

Woods, 2000

Drink-driving

offenders caught in

random breath tests

N = 900

Face-to-face RJ

conferences with

five family members

or supporters;

sometimes community

represented

Prosecution in court,

six months’ loss of

driver’s licence, name

published in

newspaper

No RJ-CJ difference in

before/after difference

of frequency in repeat

offending

Canberra, Australia

Level 5

Sherman, Strang and

Woods, 2000

Youth shoplifters

N = 143

Face-to-face RJ

conferences with five

family members or

supporters; sometimes

store represented

Conventional

prosecution in

juvenile court

No RJ-CJ difference in

before/after difference

of frequency in repeat

offending

Indianapolis, USA

Level 5

McGarrell et al, 2000 Youth public order

offenders

N = 143

Face-to-face RJ

conferences

Conventional diversion

to a range of non-RJ

programmes

RJ = 28% rearrest

after 12 months;

CJ = 45%

Total = 3 No difference = 2

RJ decrease = 1

RJ increase = 0

Reference Population Intervention Comparison Outcome

Table 3: Tests of the effects on repeat offending of RJ for samples of all or partially non-victim offences

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Place,

SMS (internal

validity) level

Canberra, Australia

Level 4.5

Strang, 2002 Victims of violent

crime by offenders

under 30, or of

property crime by

offenders under 18

N = 232

(Two separate RCTs

combined)

Diversion to face-to-

face RJ, with consent

of offender prior to

victim consent

Conventional

prosecution in

juvenile or adult court

Anger at justice

process:

CJ = 32%

RJ = 18%

Desire to harm

offender:

CJ = 20%

RJ = 7%

Preference for process:

RJ = 69%

CJ = 48%

Satisfaction with

outcome:

RJ = 60%

CJ = 46%

(All with P = .05 or less)

London, UK

Level 4.5

Angel, 2005 Victims of robbery or

burglary

N = 216

(Two separate RCTs

combined)

Face-to-face RJ in

addition to CJ, with

consent of offender

prior to victim consent

Conventional

prosecution in court

without RJ

Post-traumatic stress

symptoms scores for:

RJ = 9

CJ = 14

(P < .01)

London, UK

Level 4.5

Angel, 2005 Victims of robbery or

burglary

N = 207

(Two separate RCTs

combined)

Face-to-face RJ in

addition to CJ, with

consent of offender

prior to victim consent

Conventional

prosecution in court

without RJ

Post-crime impact on

employment scores for:

RJ = 16%

CJ = 25%

(P < .12)

Canberra, Australia,

and London, UK

Level 4.5

Sherman et al, 2005 Eight-point estimates

of male and female

victims of violent and

property crimes

Total N = 445

(Four RCTs

disaggregated by

gender)

Face-to-face RJ

conferences in

addition to or instead

of CJ, with consent

of offender prior to

victim consent

Conventional

prosecution in court

Mean proportions

desiring violent

revenge against

offender:

RJ = 4%

CJ = 14%

(P < .001)

Indianapolis

Level 4.5

McGarrell et al, 2000 Victims of youth

offenders, latter aged

seven to 14

N = 92

(Low response rates,

data “descriptive”)

Diversion to face-to-

face RJ

Any of 23 court-

ordered diversion

programmes

Satisfied with how

case was handled:

RJ = 90%

CJ = 68%

Would recommend to

other victims:

RJ = 98%

CJ = 25%

Bethlehem,

Pennsylvania, USA

Level 1

McCold and Wachtel,

1998

Victims of violent and

property crime by

offenders under 18

N = 180

Diversion to face-to-

face RJ before consent

of offender or victim

Conventional

prosecution in

juvenile court

Satisfied with the way

case was handled:

RJ = 96%

RJ decline = 73%

CJ = 79%

(P < .01)

Satisfied offender was

held accountable:

RJ = 93%

RJ decline = 77%

CJ = 74%

(P = .05)

Total six tests

summarised with 10-

point estimates

In 10 of 10 estimates,

victims favour RJ over

Reference Population Intervention Comparison Outcome

Table 4: Reasonably unbiased estimates of effects of RJ on crime victim outcomes

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THE SMITH INSTITUTE

Place,

SMS (internal

validity) level

Kings County

(Brooklyn), New York,

USA

Level 5

Davis et al, 1981 Adult violent and

property felony

defendants

N = 465

Diversion to

direct face-to-face

mediation

Conventional

prosecution

Offences brought to

justice:

RJ = 56%

CJ = 28%

Ratio 2:1

Canberra, Australia

Level 5

Strang et al, 1999 Defendants under age

30 charged with

violent offences

N = 65

Diversion to face-to-

face RJ, with consent

of offender prior to

victim consent

Conventional

prosecution

Offences brought to

justice:

RJ = 89%

CJ = 44%

Ratio 2:1

Canberra, Australia

Level 5

Strang et al, 1999 Youth under 18

charged with property

crimes against personal

victims

N = 126

Diversion to face-to-

face RJ, with consent

of offender prior to

victim consent

Conventional

prosecution

Offences brought to

justice:

RJ = 92%

CJ = 27%

Ratio 3:1

Canberra, Australia

Level 5

Strang et al, 1999 Licensed drivers

arrested for drink-

driving

N = 773

Diversion to face-to-

face RJ, with consent

of offender prior to

victim consent

Conventional

prosecution

Offences brought to

justice:

RJ = 99%

CJ = 87%

Ratio 1.1:1

Canberra, Australia

Level 5

Strang et al, 1999 Youth arrested for

shoplifting from large

stores

N = 87

Diversion to face-to-

face RJ, with consent

of offender prior to

victim consent

Conventional

prosecution

Offences brought to

justice:

RJ = 93%

CJ = 18%

Ratio 4:1

Summary

Five tests

Ratio 5:0

tests of RJ increases of

offences brought to

justice over CJ

Reference Population Intervention Comparison Outcome

Table 5: Reasonably unbiased estimates of effects of RJ on offences with victims brought to justice

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Any “balanced” perspective on criminal law is a subject of intense

academic and public debate. Adding victims’ benefits and crime

prevention into the mix of criminal law offends a purely

retributive view of “just desserts”, leading some scholars to find

RJ incompatible with traditional criminal justice (see section 5).

Yet those concerns are also present in CJ, with RJ seen by others

as a way to help rebalance CJ itself. The evidence shows that RJ

leads to more opportunities for offenders to help both victims

and themselves, posing a win-win scenario more often than the

zero-sum game assumed by RJ opponents (Strang, 2002: 155-191).

The major factor affecting disparity of severity is the problem of

victim refusal to participate when an offender is willing. That

problem, however, has been resolved in part by R v Barci. This

case requires judges to give offenders mitigation of time in

prison based on their willingness to participate in RJ, regardless

of any victim’s agreement to do so. Victim-absent conferences

are also possible under those circumstances, which could allow

the theory of RJ to be implemented in a similar fashion to what

happens when victims are present (see section 3).

Concerns about inconsistency in the severity of punishment

associated with RJ can also be dealt with in a variety of ways,

including judicial review (as in New Zealand) and good practice

for insuring compliance with outcome agreements, as

demonstrated by the Metropolitan and Northumbria police (see

section 7). It can also be managed by Crown Prosecution Service

oversight, under the Criminal Justice Act 2003. These and many

other solutions are possible if evidence continues to grow of the

benefits to be gained from making RJ more widely available. That

evidence, however, must distinguish between cases in which RJ is

likely to work, have no effect, or even cause more crime.

Reliance on evidence to decide when RJ is “appropriate” can yield

very different decisions from relying on theory or subjective bias.

One example is the usual proposal to limit the use of RJ to

“lesser” crimes, including juvenile offences, but not to allow it for

“serious” crimes. Yet the evidence suggests RJ may be most

effective when the crimes are most serious. For minor crimes,

RJ is no better than CJ in reducing repeat offending among

shoplifters, drink-drivers, and teenage property offenders in

Canberra. For major crimes RJ has succeeded better than CJ in

reducing repeat offending among felony defendants in New York

City, violent white people under 30 in Canberra, and violent

white girls under 18 in Northumbria. Banning RJ for serious

crimes would destroy the chance to prevent many thousands

more such offences. Nor is it clear that there is any principled

basis for selectively allowing, or banning, RJ – other than the

principle of harm reduction, which indicates its use with

serious crime.

Predicting RJ effects on repeat crime by offenders

The question of repeat offending is often thought to be a small

or limited part of the crime problem. UK evidence suggests

otherwise. According to Home Office data, 76% of all persons

sentenced for indictable offences in 2003 in England and Wales

were people with prior convictions.

If prior arrests had been

used, the percentage of convicted criminals who had indications

of prior crime would probably have been even higher. Based on

people either caught or actually punished, then, most crime is

repeat crime.

How can we tell how much crime RJ might prevent? A reliable

prediction of how RJ will affect repeat offending by offenders

attending conferences must first be based on unbiased evidence.

Much of the evidence about RJ, even with very large sample

sizes, is uninformative for this purpose because it is plagued with

the bias of self-selection (eg Vignaendra and Fitzgerald, 2006).

This means that the kinds of offenders who complete RJ may be

substantially different from those who do not, in ways that may

predict their risk of repeat offending regardless of RJ. If people

with lower risk of repeat offending are more likely to be offered,

accept or complete RJ than people with higher risks of repeat

offending, then the reason why RJ cases had less repeat

offending would not be the result of RJ. The correlation with RJ

would be what statisticians call a “spurious” association that

reflects some third, underlying cause, rather than the effect of

RJ. Much of the positive evidence on RJ suffers from this fatal

flaw, especially the direct comparisons between RJ completers

and RJ refusers (see section 6).

Much of the evidence claiming that RJ does not reduce crime

may suffer a different bias: the bias of measurement. Using

police records on thousands of cases, for example, as the sole

measure of the delivery of RJ may fail to detect an enormous

variability in the content and intensity of the RJ experience.

When RJ (or any programme) is rolled out quickly on a wide scale,

there is a risk that many conferences will just “go through the

motions” to “tick off a box”, rather than treating each case as a

kind of surgical procedure requiring careful advance planning,

preparation and follow-up. With such heterogeneity of the RJ

being delivered, the research is biased against finding any effect

of “good practice” RJ, because no measurement was taken of the

elements of good practice (see section 6).

Randomised controlled trials (RCTs) provide the best opportunity

to control both selection and measurement biases. RCTs generally

remove selection bias because they first obtain consent and then

assign RJ to some (but not all) of those consenting. RCTs also

measure consistency of delivery of RJ, so it is clearer just what is

being tested. Finally, the best RCTs analyse their data based on

assignment rather than completion of RJ, so that any self-

selection bias in completion is eliminated. While this procedure

dilutes the effects of RJ, it maintains the capacity of the research

to rule out spurious causes of a difference in repeat offending.

RCTs are not the only kind of evidence that can help predict the

effects of RJ on crime, but they are now available in greater

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11 Home Office, Sentencing Statistics 2004, table 6.2 (available at

http://www.homeoffice.gov.uk/rds/pdfs05/hosb1505.pdf#search=%22sentencing%20st

atistics%202004%22)

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abundance for RJ than for any other response to crime ever tested.

These controlled tests show that face-to-face RJ, consistently

delivered by facilitators (mostly police officers) trained by the

same Australian RJ training firm, has reduced repeat offending

on three continents, for highly specific populations, all of which

are identified by characteristics that existed before random

assignment and are therefore considered by statisticians to be

appropriate for subgroup analyses that produce statistically

significant within-group differences by treatment (see section 10):

• violent offenders under age 30 in Canberra (main effects);

• violent girls under 18 in Northumbria;

• male property offenders under 18 in Northumbria;

• property and violence offenders aged seven to 14 in

Indianapolis.

Tests of other varieties of RJ, primarily court-ordered restitution

or intervention of various descriptions, has also reduced crime

among:

• violent families in Newfoundland and Labrador;

• adult male property and violence offenders diverted from

prison in Winnipeg (and recidivism no worse than from jail

for youth in Idaho);

• youth property offenders in Clayton County, Georgia;

• youth violence and property offenders in Washington, DC.

The rigorous RCT methods, however, have also found evidence

that the same kind of RJ delivered by the same facilitators

made little or no difference in repeat offending rates among

police-selected samples of:

• property offenders under 18 in Canberra;

• violent males under 18 in Northumbria;

• property offenders under 18 in Bethlehem, Pennsylvania.

Most important, these same RCT methods have found that face-

to-face RJ offered as a diversion from court causes a substantial

increase in the frequency of arrests among a small sample of

Aboriginals under 18 in Canberra arrested for property crimes,

when compared with Aboriginals randomly assigned to court for

similar offences (see section 11). The Bethlehem findings, with

many Hispanics in the sample, also veer close to significance

(P = .11) in the same direction.

These findings raise important “reason why” questions about the

relationship between RJ and social “marginality”, with both

negative and positive implications (see section 11). One question

is whether offenders from deeply alienated social groups, such as

Australian Aboriginals or American Hispanics, will react very

badly to appeals for obedience to the laws of a government they

perceive as illegitimate, if they do not believe their crimes to be

wrong. The same question could be raised about Islamist radicals

(who believe murder in the name of God to be moral) or certain

Afro-Caribbean gangs (who may see violence as part of the moral

rules of a business enterprise).

The other question is whether the emotional power of RJ could

be customised to engage whatever authority structure may

be effective inside such alienated groups. Mobilising older

Aboriginal males to attend RJ conferences, for example, could

increase the perceived legitimacy of the process among such

offenders – changing their minds about the morality of obeying

the law more than a white police officer or white crime victim

might be able to.

Insight about other reasons RJ results, in general, vary widely

among different kinds of offenders can be gained from a quasi-

experimental (non-RCT) study of differences in repeat offending

among offenders under age 18 in South Australia. This found,

controlling for other predictors of recidivism, that the lowest

repeat offending rates followed conferences during which

offenders showed remorse, and in which agreements were

reached by a clearly consensual process among the people in the

room (Hayes and Daly, 2003). Similar findings (Morris and

Maxwell, 2005) have been reported in long-term follow-up of

juvenile cases in New Zealand (see section 10).

The large magnitude of the RJ effects in this evidence – both

good and bad – suggests that RJ is like a powerful drug that

needs to be carefully tested for specific kinds of cases before it is

put into general practice. Just as penicillin can cure infections,

but cannot cure cancer or diabetes, RJ can reduce crime for some

kinds of offenders but not others. And just as some people are so

allergic to penicillin that it can almost kill them, some offenders

may find RJ so enraging or humiliating that they are provoked

into committing even more crime than they would have done

without RJ. This evidence might be taken as a reason to ban RJ

altogether, but only one such very strong reaction has been

found to date, among a small sample of Australian youth.

All interventions in medicine, or agriculture, or public health

(such as vaccination programmes) cause harm under some circum-

stances. Yet that is rarely sufficient reason to impose a complete

ban on a treatment that offers benefits under some conditions.

Instead, the usual response is to predict as reliably as possible

when there will be harm, and then to apply limited prohibitions

of the intervention under those specific circumstances. That

approach has allowed antibiotics to save millions of lives. It could

also allow restorative justice to prevent millions of crimes.

Predicting RJ effects on victims

The evidence on victims is far more consistent than it is on

offenders. On average, in every test available, victims do better

when they participate in RJ than when they do not. Victims may

report dissatisfaction in the (very infrequent) cases when

offenders refuse to accept responsibility, or if offenders fail to

appear at a conference as agreed, or when offenders fail to

complete outcome agreements. Yet the very high rate of

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offender attendance, remorse and apologies in RJ conferences

far outweighs these exceptions, protecting victims from being

“re-victimised” during the RJ. Instead, from Canberra to London

to Indianapolis, victims who go to RJ conferences report that

they are glad they went. The benefits they describe include less

fear of the offender, less anger at the offender, and greater

ability to get on their lives (see section 9).

The reductions in anger at the offender extend to victims

admitting they have less desire for physical revenge against the

offender after RJ than before – a result confirmed in some tests

by far higher levels of desire for vengeance among victims assigned

to control group status than those assigned to an RJ conference.

In London, the effects of RJ on victims of burglary and robbery

include large reductions in their post-traumatic stress symptoms.

Compared with victims willing to meet with willing offenders but

who were not randomly assigned to RJ, victims who were

assigned to (and completed) RJ reported greater ability to return

to work, to resume normal daily activities, to sleep better at night

and to stop their “racing thoughts”. Long-term data on these

victims may reveal how much RJ has improved their health, given

other evidence that comparable levels of post-traumatic stress

elevate risks of coronary heart disease (Kubzansky et al, 2007).

That, in turn, could potentially reduce National Health Service

costs in an amount sufficient to justify spending on RJ as a

disease prevention strategy for crime victims.

Could RJ reduce government spending?

Healthcare for crime victims is only one of several possible

avenues by which RJ could reduce government spending (see

section 14). Perhaps the largest opportunity is in the reduction of

the prison population, especially (as Lord Woolf has suggested)

in the area of short sentences. Two cases in the Court of Appeal

(Collins and Barci) have already ruled that length of custody

should be reduced for offenders who offer to participate in RJ.

For somewhat less serious offences in which courts may be

inclined to give a short custodial sentence, the addition of RJ

could possibly tip the balance to keep them out of custody

altogether. Even in robbery cases, London Crown Court judges

have said that they had withheld a custodial sentence due to

offender participation in RJ (see sections 2 and 4).

The possible substitution of RJ for prison is even more attractive

if it would result in less crime. The reduction of reconvictions in

Winnipeg (Bonta et al, 1998) with RJ as an alternative to prison

provides evidence of that possibility. Even if there is merely no

increase in crime, the cost savings could be achieved with zero

impact on public safety. Evidence that in Boise, Idaho, youths did

no worse with RJ than they did with eight days in jail is especially

relevant to the debate over short sentences in the UK. At the pro

rata cost of some £35,000 per year for each UK prison sentence,

one offender kept out of prison for one year would cover the

costs of more than 50 RJ conferences (at £25 per hour of police

work for an average of 20 hours per conference, plus supervisory

and overhead costs). That would equal one week of custody for

each RJ conference.

Put another way, if only one in 50 RJ conferences prevented a

year in custody, that alone could cover the costs of the

conferences. The money for one year could thus be saved in one

of two ways: by reducing sentence length, or by reducing the

costs of repeat offending and reincarceration.

Another way that RJ could save money is in fees paid to lawyers

by the government for appearances in court and at police

stations. This would require many more defendants than at

present to admit guilt in anticipation of a conditional caution

involving RJ (see section 14). Each admission of guilt – and

diversion to RJ – could save thousands of pounds in legal fees for

both defence and prosecution.

How can RJ best be delivered?

RJ has often been delivered badly in the UK by programmes

operated on a take-it-or-leave-it philosophy. Courts have been

asked – even in person by the Lord Chancellor – to refer cases

prior to sentencing, but they did not. Victims have been sent

letters inviting them to attend referral panels (on a non-

negotiable date), but they did not. Prosecutors have been asked

to approve cases for diversion to RJ as conditional cautioning,

but they did not. Magistrates have been asked to delay sentence

so that RJ conferences might be held, but they did not. RJ was

there for the taking, but the current system just left it. The

exception may be the youth conferencing programme in

Northern Ireland, which – unlike RJ in England and Wales – is

statutory. The evaluation indicates that the Northern Ireland

programme works well, with cases routinely referred to RJ by

criminal justice agencies as the law intends (Beckett et al, 2005;

Campbell et al, 2006).

It thus appears likely that RJ programmes can be successfully run

only via statutory and regulatory engineering of the criminal

justice system (see sections 3, 13 and 15). Statutory requirements

could ultimately include an adjournment after each guilty plea to

allow police to visit victims and offenders, who could then decide

whether to participate in RJ. That decision could be informed by

risk assessments conducted by police, who would also draw on

the latest research about the kinds of cases for which RJ may be

more or less effective (or could potentially backfire). Statutes

could also allow or require custody suite sergeants to explain the

possibility of diversion to RJ in a conditional caution if offenders

admit their guilt upon arrest, which is exactly what police in

Canberra were able to do without legislation. Such a practice

would be contentious in the UK if seen as an “inducement”, but

could be cast as part of a standard information package that

would be provided to all arrestees.

Other requirements could include the “best practice” methods of

contacting victims face to face by knocking on doors when

victims cannot be reached by phone or by post. Similar standards

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could be set for contacting offenders on bail, and for mobilising

all participants the day before, and the day of, an RJ conference.

Most of the rigorous evidence on RJ to date is based on police

administration of the RJ processes. Yet the expense of trained

officers providing these services makes some police leaders

reluctant to commit that expense to RJ. While there are no direct

comparisons between RJ provided by police or members of other

professions (with similar cases), there is a (still untested) way to

reduce the cost of restorative policing. Testing police community

safety officers assigned as “RJ officers” to work with a small

number of sworn constables could offer a way of providing the

benefits of association with police protection, as well as

incorporating more community-based knowledge of the cultural

dimensions of bringing together offenders and victims.

A competing viewpoint is that RJ facilitators should have no

affiliation with criminal justice agencies (Roche, 2003). There is

no evidence to suggest, however, that this practice can even

attract substantial numbers of crime victims, let alone produce

powerful reductions in offending or victim harm. The New

Zealand system of social workers leading RJ conferences, for

example, has a much lower victim attendance rate than the

police-led programmes evaluated elsewhere (Maxwell and Morris,

1993). The best evidence for large-scale delivery of RJ, at present,

is associated with police-organised and -led conferences.

More justice, less crime: a way forward

Restorative justice offers a strategy for holding more offenders

accountable, with many more victims helped, with more crimes

prevented, and with the costs of government reduced. The

evidence so far suggests that many elements of this strategy can

work with some kinds of offenders and offences. That evidence is

far more extensive, and positive, than the evidence base for most

national roll-outs of new criminal justice policies in any govern-

ment. This conclusion would support a decision to roll out RJ as well.

Building on the promise of the evidence requires two conditions.

In the short run, it requires an institutional focus for the

development of RJ as a major shift in justice policy, as distinct

from a minor programme on the margins. In the long run, it

requires a continuing growth in the evidence of its effectiveness

in order to withstand theoretically based attacks that it is not

“tough” enough or may cause more crime. Both of these may be

achieved by creating a stand-alone RJ agency comparable to

the Youth Justice Board.

A “Restorative Justice Board” (RJB) could provide the focus and

leadership for overcoming the obstacles to delivering RJ on a

widespread basis in England and Wales. It could consist of five or

seven members drawn from diverse constituencies concerned

with justice policy, including victims, courts, police, probation,

prisons, treatment professionals and the public. It could be

empowered to set standards and make recommendations for

statutory and policy changes. It could be given a budget to

deliver two products. One would be the implementation of high-

quality RJ on a much wider scale, fostered by investing the most

in communities achieving the most RJ and by recommendations

for statutory or other systemic changes needed to broaden

access to RJ. The other focus of the budget would be research

and development, investing in testing new ways to deliver RJ

even in communities most challenged by crime.

This second focus of the RJB would thus be able to fill the major

evidence gap found in this review: community-level impact

assessments. Unlike the abundant evidence of the effect of RJ on

individual victims and offenders, there is no evidence on how a

widespread use of RJ would affect community rates of crime and

respect for the law. In order to estimate the effects of RJ as a

general (national) policy, it is necessary to conduct evaluations

using neighbourhood crime rates, rather than individual

offending patterns, as the unit of analysis. This review found no

such tests to date. Such evidence could, however, be far more

relevant to policy making than further research using individual

cases as the unit of testing. Rolling out RJ right across a

neighbourhood – from every stage of the criminal justice system

to every civic organisation and governmental institution dealing

with harms – could yield the best evidence on the effects of

building a restorative society. It could also help to inform an

RJB of the best practices to encourage in making funding

decisions and setting standards.

Best practice for RJ

The ultimate purpose of this review is to identify “best practice”

for RJ. To do that in an evidence-based way requires a focus on

the two best-studied forms of RJ, face-to-face conferences and

court-ordered restitution. The evidence is far from definitive, but

it is at least suggestive. That suggestion is the following “best

practice” in at least setting priorities for investments in RJ:

• RJ seems to work best when it is focused on the kinds of

offences that have a personal victim, who can – at least in

principle – be invited to meet with the offender. The major

criteria for “working” in this claim include helping victims and

reducing reoffending.

• RJ seems to work best when it is focused on violent crime,

rather than property crime, with major exceptions: burglary

victims gain reduced post-traumatic stress symptoms, and

property offenders may commit less crime in future (or at

least no more) if they get RJ than if they get prison.

• RJ may be best able to reduce court and imprisonment costs,

as well as crime and its medical and financial impact on

victims, if it is used as a form of diversion from CJ – including

prosecution, or on a post-conviction basis, as a diversion from

likely incarceration.

With the benefit of this evidence, and increasing dissatisfaction

with the rising costs of prisons, restorative justice offers the

entire UK a 21st-century alternative response to the challenge

of crime in a free society.

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2. A tale of three RJ conferences

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A tale of three RJ conferences

This section presents three examples of the most tested form of

RJ, face-to-face conferences. The examples all show how victims

are helped, even when – as in the first example – the offender’s

pattern of violent crime continues unabated. The cases are not

intended to be representative, except of cases with the most

serious injuries. These cases illustrate both the possibility and the

benefits of using RJ in such cases, against conventional wisdom.

The cases also show, by contrast to conventional justice

procedures, just how much does not happen – that could happen

– in the UK to deal with the emotional impact of crime on the

social network of caring people connected to offenders and

victims.

2.1. A robbery in London

Two crime victims sat facing each other in HMP Holloway one

October night in 2002. The younger one – call her Natalie – had

been raped at age 19 and 21, and indecently assaulted when she

was eight years old. The older one – call her Carol – had been

violently robbed of her handbag, with a glass bottle smashed

over her head; her injury required over 70 stitches. Natalie (the

rape victim) was 21 years old. Carol (the robbery victim) was 56.

Both were Afro-Caribbean women. The reason the two victims

sat across from each other in prison was that Carol’s robber was

Natalie.

They met that night to discuss the harm caused by the robbery,

to which Natalie had just pled guilty in Crown Court. Carol never

knew that Natalie had been a crime victim, let alone been raped.

She did not know whether the meeting would affect the length

of prison sentence Natalie would receive. Carol did know that for

seven months, since Natalie robbed her, Carol had been unable to

return to her job as a caregiver in a nursing home. Not since the

attack had Carol carried a handbag, nor even left her home. Carol

was suffering from severe post-traumatic stress symptoms, not

unusual for victims injured in crimes. Such stress can foster

disease and reduce the quality of life. Thus her daughter and

her daughter’s partner went along as her “supporters” for the

conference, at the invitation of Nick Cole, the experienced Met

police officer who organised and led the event.

PC Cole opened the conference by introducing everyone present,

and said that the group was there to discuss three questions:

• What happened?

• Who was affected by it and why?

• What should be done to try to repair the harm?

At the end of the meeting, he said, the group would prepare a

written statement of what Natalie had agreed to do. He and

Natalie would sign the agreement, and submit it to the Crown

Court judge in the case. The judge was free to ignore the

statement or take it into consideration as a possible “mitigation”

of the harm done by the crime.

PC Cole turned to Natalie to describe what she was doing that

night in May, and how the robbery had happened. Natalie said

she was using crack cocaine at the time, and needed money to

buy her next hit. She was looking for someone to rob. Carol was

the first woman with a handbag that Natalie saw. She had tried

to grab the handbag and run, but Carol had held on to it tightly.

So Natalie had hit Carol over the head with the bottle to get her

to release the bag. Carol had let go, and Natalie had run off.

PC Cole asked Carol if she wanted to add anything to that

description. Carol said not a word. She sat there with her arms

folded and her head facing down, showing no emotion, as if

in a catatonic state. But Carol’s daughter quickly chimed in,

describing the injuries in great detail. She also described the

sudden change in Carol’s life in the aftermath of the crime.

When PC Cole asked “who was affected and how”, Carol’s daughter

described the ripple effects of the crime on the many family

members supported by Carol as head of the family. More effects

were described by Natalie’s grandmother, who was horrified to

hear the details of the crime. “Suppose somebody had hurt me

the way you hurt Carol,” said Natalie’s grandmother, looking

directly at Natalie. “Would you want somebody to do that to me?”

Now in tears, Natalie said she would not want anyone to do that

to her grandmother, or to Carol. She said how sorry she was that

she had done it. She stood up and crossed the circle to kneel

directly in front of Carol, who she asked to forgive her. But Carol

remained silent, eyes down.

Natalie pleaded again for forgiveness, saying it was just the

drugs; she had never meant to hurt Carol. That led the discussion

to PC Cole’s third question, “What should be done to repair the

harm?” Carol’s daughter stressed the need for drug treatment,

which Natalie’s family supported as well. Someone also raised the

idea of an anger management course, which Natalie said she

would be happy to attend.

Everyone assumed that Natalie would be sent to prison for the

robbery. They all hoped that prison would provide a chance for

drug treatment and rehabilitation. Natalie promised she would

work hard at her treatment. But no one discussed just how much

Natalie had to do to turn her life around.

New Scotland Yard’s first crime report on Natalie named her as

the victim of an indecent assault at the age of eight. The next

report named her as an offender arrested for assault at age 16.

Between March 1997 and May 2002 – about five years – Natalie

was arrested 28 times in London, averaging over five arrests per

year. Four of those arrests were for robberies, including the May

2002 attack on Carol. Natalie was also named as the victim in

these crimes and dates: a rape in 2000; an assault in 2000;

another rape in 2002.

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Natalie had received a series of community sentences (probation)

for her previous crimes, culminating in an 84-day prison

sentence from which she had been released just 75 days before

robbing Carol on 25 May 2002. She was arrested for that crime

on 1 June, and had been in prison awaiting trial and sentence for

exactly five months on the night of the restorative justice

conference. The question for her, and everyone else present that

night, was whether Natalie’s remorse for having hurt Carol so

badly would be enough to help her turn her life around.

The question, in other words, was what would happen by placing

the present victim – Carol – at the centre of a face-to-face

process of justice, one that is far more up close and personal

than the formal rituals she had already been through in a Crown

Court. Would it prevent Natalie from committing more crimes?

Would it help Carol to heal the trauma that had kept her from

going back to work?

The answer was that the process helped Carol immensely, but had

no apparent effect on Natalie. Carol had not spoken throughout

the RJ conference. When it was over and the participants stood

up to take tea and biscuits, Carol stayed in her seat. After general

conversation was under way, Carol suddenly said loudly, “Young

lady, come over here!” Natalie stood before Carol, who took her

hand and started to pray that Natalie would turn her life around.

Natalie, once again moved to tears, promised she would.

The items in the outcome agreement were as follows:

• Natalie to receive help for drug problem.

• Natalie to attend anger management course.

• Natalie to contact victim when ready (contact details through

PC Cole).

• Natalie promises to behave herself and become a better person.

Carol went out the next day to buy a handbag. Then she went

back to work. The RJ conference had restored and transformed

Carol’s life.

It had not changed Natalie’s.

Natalie was sentenced to five years in prison. With time off for

good behaviour and time served before sentence, she was

released 24 months later, in late 2004. Six weeks after her release,

she was arrested for yet another robbery. As of autumn 2006,

she was still in prison.

2.2. A serious assault in Canberra

Ten years ago in the Australian capital city of Canberra, two

heroin addicts sat in a circle with a uniformed Australian Federal

Police officer and a Protestant pastor. They were discussing an

assault by one addict that had almost killed the other, knocking

out his teeth and causing massive loss of blood.

The crime had occurred shortly after one heroin addict, Bob, had

been released from prison. He was filled with ideas of revenge. He

had heard that while he was in prison his girlfriend had been

raped by the other addict, Sam. Bob knew Sam slightly because

they both patronised the same heroin dealer. Bob came looking

for Sam on the day of his release. When he found Sam, months

of rage fuelled the beating Bob gave him. He left Sam with

broken bones, his front teeth all knocked out, bleeding profusely.

Sam lost three litres of blood and would have died if he had not

been found in time. Bob was soon arrested. He most certainly

would have gone back to prison if he had been charged and

found guilty in court of this assault. Instead, police decided that

an RJ conference might work better. After submitting the case to

the randomised controlled trial of RJ at the Australian National

University’s RISE (Reintegrative Shaming Experiments) Project,

the case was randomly assigned to a conference.

Usually RJ conferences are attended by the family and friends of

both the victim and the offender, but Bob and Sam had no one

who wanted to come with them. Only the church pastor, Joe,

who knew both of them because of his work with the drug-using

community, offered to come and to support them both.

In the conference Bob freely acknowledged responsibility for the

injuries he caused to Sam. He had no remorse at all. The RJ police

facilitator asked Bob what he had been thinking when he

attacked Sam. Bob explained about his girlfriend (with whom he

had broken up since the time of the assault). Sam was sheepish

about this accusation – the first explanation he had heard for

what happened – and responded by saying, “I didn’t go out of my

way to rape her.”

An hour’s discussion ensued in which Bob insisted on the moral

rightness of his actions, while Sam spoke only of the injuries he

had suffered. In Sam’s own estimation, the attack had been

completely unjustified, despite his admitted rape of Bob’s former

girlfriend. Sam was particularly concerned about his teeth – he

had found out they would cost A$3,000 to repair. When he said

he wanted A$3,000 from Bob, Bob laughed.

Bob knew, however, that if this RJ conference failed, he would

have to go to court – and almost certainly go back to prison. In

the time between the incident and the conference his anger had

cooled and he was now feeling some regret, if not remorse. Sam,

for his part, knew that if the conference failed he would be living

in fear of the next time he encountered Bob – a very likely

event given their way of life, and use of the same heroin dealer.

Sam trusted neither his own feelings of anger and vengefulness,

nor Bob’s, in that eventuality.

Finally Joe, the pastor, proposed that Sam would forgo his claim

against Bob for monetary restitution of damages. In return, Bob

would agree always to stay 500 metres away from Sam, even

when they were both visiting their drug dealer. Six weeks after

the conference Sam said he was still unhappy about his teeth,

but enormously relieved that there had been no further trouble

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with Bob. Nor did he expect there to be. Five years later, neither

Bob nor Sam had been arrested again in Canberra – for any

offence against anyone.

2.3. Another robbery in London

One night in December 2004, a young man walked into a room

in a Highgate (London) police station with a young woman and

their baby. Sitting in the room awaiting their arrival were a

middle-aged couple, Anne and Terry, as well as a criminologist

(Heather Strang) and two male cameramen. Two cameras were

set up (by advance consent of all parties) to videotape the

conference.

A Scotland Yard police constable in plain clothes, PC

Mark Davies, introduced everyone and began an RJ conference.

Anthony and his partner, Christy, had fallen on hard times. Both

were young newcomers to London and had faced many

difficulties since the birth of their son. Anthony had worked in

the building industry until an accident resulted in his being off

work for several weeks prior to his offence. Both he and Christy

had also been the victim of robbery, in separate incidents. Their

social isolation meant that there was no one they could turn to

for assistance when their precarious situation led to a financial

crisis. Anthony’s attempted robbery of Anne’s purse in the street

near where both of them lived was amateurish. He was quickly

apprehended.

When Anne, a journalist, and her husband, Terry, a school

headmaster, arrived at the RJ conference they were extremely

sceptical about Anthony’s motives for meeting them. They were

unimpressed by his repeated apologies and said they believed

that Anthony had committed many such offences before this

one. Anthony, with his many tattoos and body piercings, may

have given the impression of prison experience. This robbery was,

however, his first recorded offence. In expressing his remorse, he

said he could well understand that Anne and her husband would

feel quite unforgiving. That is why he wanted to tell them face to

face how very sorry he was for causing them trouble and pain.

Anne responded that she had not been traumatised by the

incident, but she felt angry about it because it diminished

feelings of trust and confidence in the local community. At this,

Anthony’s partner, Christy, said that she had felt the same way

when she had been the victim of an attempted street robbery.

Christy’s robber had hurled their baby in his pushchair into the

road. This was why she had been so angry at Anthony for his

actions.

Christy went on to describe her own feelings of outrage and

disgust when she found out what Anthony had done. As Anthony

cradled their sleeping child in his lap, she described eloquently

the consequences of the incident for their relationship: she said

that she had no patience at all with Anthony’s excuses for his

actions, even though she acknowledged their poverty and

anxiety about the welfare of their son. As far as she was

concerned there was no possible justification for the robbery

attempt. She had come close to leaving Anthony, despite her

own desperate circumstances, because she found it so hard to

forgive him. She then said that his extreme remorse gave her

some hope about their remaining together because she loved

him for that, though she did not expect Anne and her husband

to set any store by it.

Christy’s description of the state of her relationship with

Anthony proved to be a powerful turning point for the

conference. After a moment’s silence Terry turned to Anthony

and said: “You may go to prison on Monday, but you are a very

lucky man.” Anne and Terry agreed that the best outcome of

the conference as far as they were concerned would be for

Anthony to get himself some job training and to get back into

employment as soon as he was able. They hoped very much that

he would not receive a custodial sentence and that he and

Christy would be able to survive the stresses and strains of their

present circumstances. As one viewer of the videotape, Malcolm

Gladwell, quoted their exact words in the New Yorker:

“If there is anything I can do, please say it,” Anthony says.

“I think most of what you can do is between the two of you,

actually,” Anne says to Anthony and Christy. “I think if you can

put your lives back together again, then that’s what needs to be

done.”

After the conference, the Crown Court judge in Anthony’s case

was informed that there had been an RJ conference, and that it

had been filmed. He asked to see the three hours of videotape

from both cameras: only rushes were available, so the judge

watched six hours of conference proceedings. In view of

Anthony’s remorse and previous good character, the judge said in

court that he had decided for the first time in his career not to

impose a custodial sentence for a robbery. Twenty-one months

later there was no record of Anthony having reoffended.

2.4. What can we conclude from these cases?

Little can be concluded from three examples about the average

effects of RJ on key outcomes. But much can be concluded about

the nature of the process itself, and the central importance of

narrative in the emotional processing of the aftermath of a

crime. As Malcolm Gladwell wrote of the third case (Anthony the

robber) in his review of a book about how people crave, offer and

understand explanations for events (Tilly, 2006):

Watching the conference is a strange experience, because it is

utterly foreign to the criminal process of which it is ostensibly a

12 This case was excluded from the sample of the randomised trial in order to

minimise any heterogeneity in the way in which RJ was delivered, since it was the only

case to be videotaped.

13 The resulting videotape of this conference was viewed by New Yorker magazine

writer Malcolm Gladwell (author of The Tipping Point) and analysed in that publication

in 2006, the text of which (called “Here’s Why”) is posted online at

http://www.newyorker.com/critics/content/articles/060410crbo_books.

14 http://www.newyorker.com/critics/content/articles/060410crbo_books

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part. There is none of the oppressive legalese of the courtroom.

Nothing is “alleged”; there are no “perpetrators”. The formal

back-and-forth between questioner and answerer, the

emotionally protective structure of courtroom procedure, is

absent. Anne and Terry sit on comfortable chairs facing Christy

and Anthony. They have a conversation, not a confrontation.

They are telling stories, in Tilly’s sense of that word: repairing

their relationship by crafting a cause-and-effect account of

what happened on the street.

Why is such storytelling, in the wake of a crime, so important?

Because, Tilly would argue, some social situations don’t lend

themselves to the easy reconciliation of reason and role …

Tilly argues that [conflicts between narratives and codes] are

endemic to the legal system. Laws are established in opposition

to stories. In a criminal trial, we take a complicated narrative of

cause and effect and match it to a simple, impersonal code:

first-degree murder, or second-degree murder, or manslaughter.

The impersonality of codes is what makes the law fair. But it is

also what can make the legal system so painful for victims, who

find no room for their voices and their anger and their

experiences. Codes punish, but they cannot heal.

So what do you do? You put Anne and her husband in a room

with Anthony and Christy and their baby boy and you let

them talk.

Gladwell’s analysis does not apply fully to all forms of restorative

justice; only the face-to-face conference allows the chance to

“let them talk”. But the craving for a “story”, an explanatory

narrative for why and how a crime happened, may be present in

almost all victims. Similarly, the craving to offer an explanation

may be present in many or even most offenders, once they come

into direct contact with their victims. To the extent that

explanations do help to repair relationships, this may explain why

victims derive so much benefit from (at least face-to-face) RJ.

To the extent that giving such explanations to victims may

encourage remorse by offenders, it may be one of the most

emotionally powerful tools in the armament of criminal justice.

Whether these effects are differentially produced, if at all, from

different kinds of RJ remains an unanswered question. The

question we can answer is what varieties RJ can take in the

modern world.

15 Gladwell at http://www.newyorker.com/critics/content/articles/060410crbo_books

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3. Varieties of restorative justice

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Varieties of restorative justice

Restorative justice means different things to different people.

The evidence on repeat offending in this report focuses heavily

on the use of face-to-face meetings of victims, offenders, and

their respective families and “supporters”, in response to what is

recognised by all those parties as a criminal act. The purpose of

this section is to clarify that focus in light of other approaches to

RJ, regardless of the evidence or theoretical power that may be

associated with them.

This section briefly describes some varieties of restorative justice

found in the world today, as well as throughout human history.

It does so by focusing on the major dimensions on which RJ

varies – the fundamental choices people make about who is to

be brought to RJ, for what kinds of actions, in what kind of

relationship to conventional justice – rather than by attempting

to describe the thousands of RJ programmes in use today in

India, China, South Africa and many other parts of the world.

But underlying all of these dimensions is a definition of RJ that

has been widely accepted across the modern world, and adopted

in publications and research grants by the Home Office. That

definition builds on the ancient customs of human societies from

Europe to New Zealand, from the Arctic to Arabia, from Kenya

to Bangladesh. Just as those ancient customs varied on such

process dimensions as the involvement or exclusion of women, or

such outcome dimensions as the cost of reparations to be paid in

compensation for the harm caused by different kinds of crimes,

the modern revival of RJ varies widely on similar dimensions of

process, scope and outcome.

What all definitions of restorative justice share is a common

moral vision: that justice requires more than the infliction of a

“just dessert” of pain on an offender. Whether RJ should include

such pain is a point of controversy and difference across the

varieties of RJ. But the evidence suggests that RJ starts with the

common premise that offenders should somehow try to make

the world a better place than they left it after they committed a

crime. Once that cornerstone is laid, RJ can then be built in two

major ways: by authorities imposing on the offender an act of

restitution, or, less controversially, by a process involving the

people most affected by a crime – including the offender, whose

consent to a collective agreement is considered essential to the

definition of RJ. However RJ is achieved, it is consistent with the

moral vision of redemption through acknowledgement of

responsibility for having caused harm.

3.1. One definition of restorative justice

The most generally used definition of “consensual” RJ is now

almost a decade old (Marshall, 1999):

… a process whereby all the 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 definition is far from universal, but it serves as a starting

point. There are many varieties of RJ that achieve what Marshall

describes. These include:

• face-to-face conferences of victims, offenders and

stakeholders;

• face-to-face mediation (without supporters present);

• indirect, “shuttle diplomacy” mediation;

• victim-absent discussions with offender and supporters

about crime;

• offender-absent discussions with victim and supporters

about crime;

• sentencing circles led by a judge (First Nations people in

Canada).

Notably, Marshall’s definition of restorative justice does not

include a penalty of court-ordered restitution to a victim, which

is central to the meaning of the term in many locations, and in

many of the empirical tests of RJ. Thus the extent to which RJ

represents a voluntary agreement by an offender is the first of

many dimensions found in the actual use of the concept of RJ by

people processing crimes around the world. Some, like the

authors of the UN standards, would say that it is not RJ if it is

not voluntary. Empirically, however, it is necessary only to

classify each test correctly on this dimension, and to call the

reader’s attention to this distinction in reading and interpreting

the evidence in tables 1 to 5.

3.2. Major dimensions of restorative justice

(a) Scope: criminal versus non-criminal

RJ is a conflict resolution technique not confined to incidents

defined by law as criminal. It is increasingly used in school and

workplace settings. It is also the basis for attempts to resolve the

consequences of transgressions by the state through truth and

reconciliation commissions, most notably in South Africa.

(b) Standing: diversion versus supplementation

RJ in criminal justice has been most commonly used to divert

offenders from the formal justice system. These are usually,

but not always, juveniles, often first-time offenders, who have

committed minor offences. In some cases (see section 2)

diversion has also been used with extremely serious adult cases.

RJ is also used in addition to normal prosecution through the

criminal courts for offences too serious, given our current state

of knowledge, to be dealt with exclusively by RJ.

While the theory of RJ predicts it will work most effectively when

personal victims are involved, RJ is also feasible when the victims

are a collectivity. Collective victims include both corporations

(such as with shoplifting) and communities (such as with

disorder offences or vandalism of such public property as schools

or parks). We note that stakeholders to crimes are defined by

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their emotions, regardless of a crime’s physical impact on them

or on property that they own. Some might say that certain

stakeholders in a collectivity are really “personal victims” of a

crime, if the crime caused them enough emotional harm. One

example is the zookeepers at a Midlands zoo where youths

abused and killed a wallaby. The deep pain felt by the zookeepers

led them to participate in a police-led RJ conference with the

offenders.

(d) Process: face-to-face versus all other methods

Face-to-face RJ entails direct deliberation among those affected

by a crime. The emotional power generated in this way may be

critical to the process. When one or all of the parties are

unwilling to meet, however, indirect mediation or discussion with

only the victim or the offender is often used to process the crime.

(e) Convening: negotiator or facilitator

Victim-offender mediation programmes typically involve a

mediator whose responsibility is to negotiate between the parties

to achieve a satisfactory outcome. This may take place with both

parties present or by the mediator shuttling between them.

Conferencing programmes typically involve a facilitator whose

responsibility is to provide a forum in which the parties can

negotiate directly with each other. The facilitator’s role is to

ensure that the parties stay focused on the reasons for the

meeting and remain civil in their communication. The facilitator

is not expected to participate or lead the substance of the

discussion.

(f) Outcome: restitution-centred versus other restoration

RJ in the form of court-based restitution programmes and

some victim-offender mediation programmes usually focus on

financial restitution to the victim. These typically pay less

attention to victims’ emotional harm.

3.3 Why focus on face-to-face RJ?

The evidence and the vision considered in this report are

primarily, but not exclusively, about face-to-face RJ. Given the

limits of length in a document addressed to busy policy makers,

the report largely takes this focus for three reasons. First, the

principles of the moral vision of RJ to strengthen interdependent

communities resonate more with face-to-face RJ than with any

other approach. Second, a preponderance of unbiased evidence

about RJ comes from the face-to-face variety. Third, the

criminological theory derived from the evidence on patterns of

criminal offending and desistance over the life-course predicts

that only face-to-face RJ could provide an experience with enough

emotional power to substantially reduce repeat offending.

3.4. Stages in the criminal process: inventory of face-to-

face RJ models in relation to conventional justice

Within the domain of face-to-face RJ, a further variety of

settings for RJ have emerged in relation to the criminal process.

These include, but are probably not limited to, the following

models:

• police diversion from prosecution to a caution, even for very

serious offences (such as the Canberra RISE model);

• in youth justice, as a way of delivering standard cautions,

reprimands or final warnings, or referral panels;

• diversion from prosecution by prosecutors (for example,

conditional cautioning under the Criminal Justice Act 2003);

• diversion from prosecution by court order or statute (for

example, various Australian mainstream models, the New

Zealand mainstream model for juveniles and to a more

limited extent for adults);

• “sentencing circles” combining elements of traditional First

Nations conflict resolution techniques with formal court-

based justice (in Canada);

• victim-offender mediation and victim-offender reconciliation

programmes (scattered throughout Europe and the US, often

community-based);

• conditional caution preserving possibility of prosecution (UK

test model);

• post-conviction, pre-sentence (UK test model);

• post-sentence, case management (UK test model);

• post-sentence, pre-release (UK test model);

• consensual processes not brought to the attention of the

formal justice system (UK restorative policing).

3.5 Summary

The label of “restorative justice” has been applied to a wide range

of programmes, with one common element: offenders doing

something constructive to make the world a better place, rather

than simply having pain inflicted on them. This broad definition

is an opportunity for flexibility as well as for confusion.

Confusion results when, for example, the term “restorative” is

used to describe prison inmates cleaning up a rubbish-filled lot,

or when juvenile delinquents are required by a youth offending

team referral panel to remove graffiti from park benches. While

it is true that in such activities offenders are in some sense

“restoring” the world to the status quo before the rubbish or

graffiti was there, such efforts do nothing to put the victim at

the centre. That is, the restoration to the community has no

connection to the restoration to the actual victims of the

offenders performing such activities.

From the perspective of the personal victims of these offenders’

crimes, such community service per se offers little restoration of

the emotional or psychological state the victims were in before

the crime occurred. Even from the perspective of the offenders

themselves, the experience of such “constructive” work is unlikely

to cause an emotional revelation of the moral truth that harming

other people is wrong. And from the perspective of the loved

ones and friends – of both victim and offender – who were

affected by the crime, the mere act of community service has

not been tested to see if it can mitigate the psychological harm

of crime.

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The kind of RJ that could have wide-ranging benefits for

everyone directly affected by a crime requires more than

community service. Restoring victims, reducing repeat offending,

and building community commitment to the rule of law are all

part of the moral vision of RJ. The evidence about whether RJ

can achieve those results is largely limited to the variety of RJ

designed to achieve them: face-to-face meetings. That design is

also consistent with criminological theories based on thousands

of criminal careers about “epiphanies” and “narratives” about

who ex-offenders are and what they do (Maruna, 2001; Giordano

et al, 2002). For these reasons of goals, evidence and theory, most

of the report focuses on what we know about face-to-face

restorative justice: its processes, compliance levels, and long-

term effects on offenders and victims.

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4. The process of restorative justice

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The process of restorative justice

RJ depends entirely on a process of bringing offenders and

victims together, either in person or by communication through

third parties. The process consists of a sequence of three key

stages: finding cases, getting consent and reaching agreements.

When RJ is used as a supplement to CJ processes, a fourth stage

may arise: the transmission of an agreement to criminal justice

decision makers.

In some tests, this process has been completed in substantial

volume, despite the lack of public familiarity with the idea. In

other tests, the process has been mired in the first or second

stages. Either no cases can be found (or referred by officials), or

offenders and victims refuse to consent.

These problems might be due to sheer start-up inertia. They may

fade away if RJ is pump-primed with enough cases to become

commonplace to the public (and perhaps appear in television

dramas). Whatever the evidence shows to date on the extent to

which victims and offenders are willing to communicate, it is

reasonable to predict that take-up rates for RJ should increase

steadily as public awareness of the process increases. As in any

other “tipping point” of social change in technologies, from fax

machines to mobile phones, public acceptance of the technology

rises with greater experience and a critical mass of participation

(Gladwell, 2000). The problem, to which we return in section 13,

is how to get to that tipping point.

4.1. Finding cases

Many evaluation reports on RJ in the UK (Meirs et al, 2006;

Shapland et al, 2004, 2006) stress the difficulty of recruiting

victims and offenders into RJ processes. Where this problem is

found, it is usually associated with a decision to test RJ as an

“add-on” to an agency or organisation that already has plenty of

other work. In contrast, when a team of people has been funded

to do RJ – and nothing but RJ – all the time, the case-flow of

case recruitment has been far more successful.

At its peak in Canberra in 1995-97, for example, the RJ unit in the

Australian Federal Police/Australian Capital Territory was organising

and conducting up to five conferences a week in a community of

under 300,000 people. This was in an agency with a total

strength of some 500 officers, 100 of whom had been trained to

lead RJ conferences on request of a central RJ co-ordinating unit.

Scaled up in terms of London police numbers, that would equal

some 300 RJ conferences a week, or almost 16,000 per year. The

production of RJ was simplified by two conditions: 1) many

conferences addressed victimless crimes, and 2) AFP procedures

required no formal consent of victims – who were simply asked

to name a time and date they could attend such a conference.

More important, perhaps, was the in-person or telephone

conversations police officers had with the victims, offenders and

sometimes supporters before a conference occurred, which

produced a very high show-up rate for all parties (Strang, 2002).

The most important reason the Canberra RISE project found so

many cases, however, was that it was able to work with some 500

arresting police officers as independent decision makers. Each

one of the officers was empowered to refer a criminal case to RJ

as a diversion from prosecution. Under ACT policies, police

constables were given broad discretion, in consultation with the

station sergeant in the custody suite booking area, to decide

whether an arrest should result in a police caution, a prosecution,

or a diversion to RJ. In the UK, by contrast, these powers have

now been relocated with the Crown Prosecution Service, which

by written policy (and statute) has excluded many of the kinds of

cases that were referred to RJ in Canberra.

Similarly, the five youth offending teams that co-operated with

the Northumbria police in testing RJ for youth justice agreed as

a matter of policy to refer all cases resulting in a reprimand or

final warning to the police RJ unit. This provided a very high

volume of cases for the specially trained RJ officers to work on,

yielding both victim and offender consent in over a third of all

property and assault crimes brought to justice without

prosecution (Shapland et al, 2006).

Northumbria’s adult cases for similar crimes in magistrates’

courts, in contrast, were far harder to identify. Neither CPS nor

court clerks actually implemented agreements to notify the

police of eligible cases as convictions were reached. Only after

months of trying alternative strategies was the RJ unit able to

find an effective link for case referral: the pre-sentence report

(PSR) staff of the regional branch of the National Probation

Service. Each time a PSR was requested for an offender convicted

of an eligible offence type, probation staff faxed a copy of the

request to the police RJ unit, which in turn was able to contact

the offender and victim to organise RJ cases prior to the

offender’s sentencing date.

The Northumbrian adult cases, however, also illustrate the

precarious position of RJ programmes in seeking cases without

statutory requirements, even when the Lord Chancellor meets

with the people concerned. For several years, in 2001-04, police

and Home Office officials asked the magistrates’ courts not to

sentence cases “there and then” when offenders offered guilty

pleas, and where no PSR would be requested – the majority of

the adult convictions for eligible cases. Instead, police asked the

courts to adjourn the cases for sentencing four weeks later, to

allow time to organise RJ before sentence. Court officials said

they would do so, but in practice the courts continued to

sentence “there and then”. Even a meeting of some 200

magistrates with the Lord Chancellor failed to change the local

custom, which made RJ-before-sentence impossible to organise

in the majority of eligible cases.

The question of “finding” a case is closely linked to the step in the

criminal process at which RJ is being attempted. A time window

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deadline is associated with most cases, determined by the date at

which the next step in the process must occur by law. An arrest

must generally be diverted before the case is prosecuted; a

conviction must not lead to immediate sentencing if RJ is to

occur pre-sentence; a probation plan cannot be based on RJ

unless an RJ process occurs at the very beginning of the

sentence; and inserting RJ into a prison pre-release process must

be done before the inmate is actually released. The advantage of

tying RJ to these deadlines is that they provide a focus, and some

incentive, for offenders to co-operate with the process and

accept responsibility for their crimes. The disadvantage of tying

RJ to these deadlines is that the CJ officials with primary control

of the case can use the deadlines to foreclose the possibility

of RJ.

While some tests of efforts to refer high volumes of cases to RJ

have succeeded in the UK, other tests provide evidence of a need

for statutory requirements for referral (see section 13).

4.2. Consent to RJ

Once cases can be identified in good time, the UK record on

obtaining consent to RJ from victims and offenders is excellent.

Compared with the scepticism often heard about crime victims

meeting or communicating with their offenders, the rates of

victim take-up have been substantial – at least in pilot tests

focused on RJ.

The low rates of victim involvement in routine

youth justice, however, indicate the challenge of making RJ

succeed without a unit with a special brief for RJ. If RJ is one of

dozens of performance indicator targets to be met, it seems

unlikely to get top priority. If RJ is the only performance target a

unit must meet, however, the track record is far better.

The best track records in the UK so far have been found in adult

probation (Meirs et al, 2001) and in the Metropolitan Police-led

London Crown Court cases, as well as with youth reprimands and

final warnings led by a specialist RJ team in Northumbria

(Shapland et al, 2006). In these settings, consent and completion

of RJ processes all happen with enough frequency to maintain

morale and competence in facilitating the actual content of RJ.

This includes the critical work of preparing for a conference or

other RJ process, delivering the process to a mutually satisfactory

agreement, and then ensuring that the agreements are met by

the offender.

The typical process in these units is to offer RJ to offenders first,

without saying whether the victim is willing. This practice is

based on a desire not to bother crime victims with the emotional

work of deciding whether or not to communicate with the

offender – unless the offender is willing to communicate and

appropriately takes responsibility. Thus in the initial meetings

with offenders by RJ facilitators, the primary concern is whether

an offender is suitable for RJ, regardless of stated intent. If

offenders deny their guilt, express intense anger or give other

indications of posing a risk to victims or supporters in an RJ

process, facilitators have readily excluded them.

At the same time, there has been no attempt to require evidence

of “remorse” as a precondition for RJ. Many offenders agree to

RJ in a matter-of-fact way, in a one-on-one meeting with a

facilitator. It is when they get into an RJ process that they

may become quite emotional and make apparently sincere

expressions of remorse and apology. As facilitators often say, “RJ

doesn’t screen for remorse; it aims to achieve remorse.” This basis

of the facilitator’s consent to have an offender participate has

resulted in no documented cases (to our knowledge) of offenders

verbally abusing victims, let alone behaving violently, in any RJ

process in the UK.

Once an appropriately willing offender has given consent, RJ

facilitators contact victims to seek their consent. This is a key

issue for “best practice”, since there are at least three ways to

obtain victim consent: by letter, by phone call, or in person. Our

evidence suggests that best results are likely to be obtained by

facilitators meeting in person with victims prior to any RJ

process, especially face-to-face RJ conferences. By contrast, it is

common youth justice practice to send crime victims invitations-

by-letter before a youth offender panel meets with their

offenders. This practice yields a low victim take-up rate. It may

also yield problems in victim or offender reaction to a meeting

with three or more people who had no direct stake in the crime

– in stark contrast to Marshall’s (1999) definition of RJ.

Whether victims choose to participate in RJ depends on many

considerations: who asks them, in what fashion, and with what

kind of priority given to their convenience and emotional state.

All these factors appear to influence the likelihood of victims

taking part. The resulting take-up rate can vary enormously.

For example, Gehm (1990) found that 47% of the victims from

six US victim-offender reparation programmes (VORPs) agreed to

meet their offender, after strenuous efforts to reach agreement.

Where efforts have not been so strenuous, as with the New

Zealand family group conferencing programme (Morris and

Maxwell, 1993) or the referral panels operated by the Youth

Justice Board (Miers et al, 2001), victim involvement has been

much lower.

Within England and Wales, some of the highest victim take-up

rates are for the most serious offences. About half of all victims

of serious burglary and robbery who were approached (after

offender consent) by Metropolitan Police officers in the Justice

Research Consortium’s London Crown Court studies agreed to

meet their offenders.

Comparable if somewhat lower rates were

found for victims of violent offenders sentenced to prison or

probation in the Thames Valley, who were approached by the

THE SMITH INSTITUTE

16 In the JRC experiments as of mid-2003, victim take-up ranged from 38% for the

Thames Valley prison study to 78% for the Northumbria youth property study.

Offender take-up ranged from 57% for the Northumbria magistrates’ court adult

property study to 82% for the Northumbria magistrates’ court adult assault study.

17 JRC, or the UK studies of the Jerry Lee Program of Randomized Controlled Trials in

Restorative Justice.

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THE SMITH INSTITUTE

National Probation Service-Thames Valley/HM Prison Service RJ

team for the JRC tests.

The highest overall take-up rates we have found were in the

Northumbrian youth justice experiments, in which 39% of

eligible youth assault cases and 46% of eligible youth property

crime cases resulted in a joint victim-offender agreement to

complete RJ. Without a special RJ unit in youth offending teams,

however, only 5% to 15% of invited victims attend youth referral

panel meetings (Crawford and Burden, 2005; Newburn et al,

2002). This range of response reflects the importance, and

structural conditions, of the substantial efforts taken to

encourage victim participation in RJ.

For example, Crawford and Burden (2005: 38) report that with

youth justice referral panels: “[A]dministrative pressures of time

militate against active encouragement of victim attendance, in

particular the 20-day timetable for the initial panel meeting as

set by national standards [and the fact that] attending panels

can place an inconvenient burden upon victims.” Lack of

awareness by the general public about RJ may also contribute

to the low take-up in youth justice, given the difficulties of

suggesting the value of attending an event about which there is

little public knowledge.

By contrast, the facilitators involved in organising RJ conferences

for the JRC experiments in RJ spent on average 18 hours in

organising each successful conference. This included time spent

talking to offenders, but in general more time was needed to

explain the process to victims. They also arranged conferences as

far as possible to suit victims’ convenience. Notwithstanding the

need to conduct most of the London and Thames Valley

conferences within prison, with all the attendant difficulties of

bringing people together in that setting, these efforts paid off in

90% or higher rates of victim attendance as promised. (RJ in

prison also has the advantage of allowing RJ facilitators to find

non-appearing offenders, who are occasionally too ashamed or

fearful of meeting their victim to come out of their cells.)

4.3. Reaching victim-offender agreements

Even when RJ facilitators succeed in getting both offenders and

victims to agree in principle to undertake RJ, there are a number

of reasons why RJ conferences may not go ahead to reaching a

victim-offender agreement. While we lack good evidence on

indirect RJ, we have ample data on face-to-face processes, which

define full success as an agreement completed at a conference

with both victim and offender present. For many reasons, this

may be harder than simply sentencing an offender in court – a

process that is far from perfect due to offender failure to appear.

But it is possible to make it easier, as the evidence shows.

It is a common experience of victims in the UK that the RJ event

cannot be held at a time and place convenient to them, so they

decline to attend. There are also many reasons why offenders

prevent face-to-face RJ from being delivered as promised. The

offender may withdraw his/her admissions or guilty plea;

something may be discovered to render the case ineligible for RJ;

at the last minute the offender perhaps cannot be found; the

offender may fail to attend the conference. Most rarely, offender

and victim meet but a satisfactory outcome agreement cannot

be reached.

These offender compliance (and sometimes facilitator delivery)

obstacles in the process pose a major issue for RJ. When, for

whatever reason, victims have been promised an RJ conference

that is not held, they are often very dissatisfied. In RISE, for

example, about a third of victims assigned to CJ described

themselves as “angry” about their experience – three times as

many as those who completed RJ. But proportionately even more

victims were angry if they had been promised RJ that never

actually happened.

The evidence suggests that these problems can be solved, at least

in the UK, when special RJ units are employed to do face-to-face

RJ and nothing else. For indirect RJ, we have no precise evidence

about rates of completing agreements given consent. But for the

face-to-face RJ tests, we can be very specific and even hopeful.

Across the eight Justice Research Consortium tests in 2001-04, a

total of 883 cases were randomly assigned to RJ or CJ status. Of

the 444 cases assigned to RJ, 372 (84%) were completed with

both victims and offenders present for a face-to-face discussion.

Of the remaining 16%, some 8% (35) of the cases had no

conference at all, 8% (34) had a conference with the offender

that the victim declined to attend, and two had a conference

with the victim present but no offender. The 92% offender

completion rate compares favourably with the 74% offender

appearance rates in a London court, as reported in recent years.

The evidence is clear that systems can be designed to bring the

RJ process to completion. The key problem is not whether such

systems can be created, but whether sufficient funding and

statutory support will be provided to create them (see section 13

below). When the processes are completed, they produce an

agreement based on a discussion of the kinds of issues that

victims – at the centre of the process – wish to discuss.

Issues for discussion

Here again, we rely on the evidence about face-to-face RJ. In

personal discussions among victims, offenders and other

stakeholders to the crime, the following issues usually arise. It is

less clear whether these issues arise or are discussed to the

same degree during indirect RJ processes. But we can say that

victims of crime widely share these concerns. They want to have

a discussion of:

• What happened? (This includes “Why me?” or how the

offender picked the victim for the crime; the answer that it

18 Lord Chancellor’s Department Extended Court Sitting Hours: Pilot Final Evaluation

Report v 1.0 (21 November 2002), p.ii

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was “chance” or opportunistic is usually assuring to the

victim.)

• Who was affected by the crime and how?

• What should be done to try to repair the harm?

Robust discussions of these questions can last from one to three

hours. The first hour can be an emotionally intense period of

venting anger. The second hour can be a time for expressions of

remorse, apologies and forgiveness. Whatever happens in the

beginning and middle of an RJ conference, the third and final

phase almost always reaches an agreement on what the offender

should do. This agreement has at least two dimensions. One is its

emotional meaning for the participants in the room. The other is

its symbolic meaning for people outside the room, especially

those charged with assessing what it means for community

standards of justice.

In a face-to-face conference, the discussion of what should be

done can become a dance of mutual altruism. Offenders say they

want to help the victim. Victims often say they just want the

offender to help himself. Offenders often focus on promises of

material reparation. Victims often refuse those promises, asking

instead for promises that offenders will seek and complete drug

treatment, rehabilitation or education. If no one has any ideas,

police facilitators may sometimes suggest some. Canberra

facilitators, for example, often suggested community service

work for the Salvation Army, a donation of money to the victim’s

favourite charity, or a donation of blood to the Red Cross. The

facilitator’s iconic power is the one-page “outcome agreement”

form on which something must be written. Unless the group

agrees on what to write on the form, the facilitator will (usually)

not adjourn the conference. Only rarely is resistance by the

offender an obstacle to adjournment. More often it may be a

sheer lack of ideas or knowledge of available programmes.

The tea break: building social bonds

When an agreement is finally (or speedily) reached, the group’s

reward for its work – if its facilitator has been trained by the

Australian school of police-led RJ in many of the RCTs (tables 1

to 4) – is a break for tea or coffee with biscuits. While the

facilitator writes up and makes photocopies of the agreement, an

informal discussion occurs among the participants. This is a

frequent opportunity for building social bonds across the divide

of offenders’ supporters and victims’ supporters. These bonds

may then help to create informal controls that support the

offenders’ compliance with the “outcome agreement”.

After the tea break, the facilitator asks the group to sit down again.

The facilitator reads the agreement, and asks again if everyone is

happy with it. At that point the offender and the facilitator sign

the agreement. In some cases, a victim may sign as well. The

agreement then becomes an icon for a promise to keep, a symbol

of the offender’s commitment to repair the harm. It also becomes

a tool for future monitoring of the offender’s compliance with

the agreement. That part of the process, like the completion of a

criminal sentence, may take years after the case is “resolved”. Due

to its connection with crucial issues of crime prevention, it merits

a further discussion later in the report (see section 8).

4.4. Reporting RJ to officials

Once an RJ agreement is reduced to writing, it can be used for

many serious purposes. From length of sentence to the elements

of a probation plan, the RJ agreement can represent a major

moral and material part of an offender’s life. But because it is

designed to reflect a group consensus in an emotionally intense

discussion, it is not intended to look like a court document, a

medical report, or a pre-sentence report. It is, rather, as short as

a single sentence may be, for example, as written in the minutes

of a business meeting. To those who were not present at an RJ

conference, it may even appear trivial or insufficient. Crown

Court judges in London who have read them for the Justice

Research Consortium experiments have been far less impressed

with the signed paper promising to, for instance, ”seek drug

treatment” than they have by actually observing a videotape of a

conference, or even attending a conference in person (but not for

a case in their own court).

A less labour-intensive solution (than watching an entire RJ

conference) is the kind of report that the Justice Research

Consortium used in London, with support from the Esmée Fairbairn

Foundation, in the second part of its test of RJ for burglary cases.

After consulting with several Crown Court judges about the format

for such a report, the JRC consistently followed the protocol used

below. What follows is a verbatim copy of what was submitted to

the sentencing judge in this case, with only the names of the

parties involved being altered to protect their anonymity.

As the case shows, the participants chose to include their views

on whether the offender should be sentenced to prison. This

issue often arose in pre-sentence conferences, but with a variety

of responses. Some victims said they had no desire to influence

the sentence, and even said it would be wrong for them to do so.

More often, victims were inclined to recommend against custody.

After sitting with the offender for up to three hours, sceptics

may suggest that this was another example of the “Stockholm

syndrome” of victim identification with an enemy. Yet the ways

in which victims have talked about this issue suggest that they

see it as in their own interest, and society’s, to try to prevent

another crime by the offender. They express little confidence that

prison will prevent that crime.

THE SMITH INSTITUTE

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THE SMITH INSTITUTE

Protocol for an RJ conference record, as submitted to

sentencing judge

This is a chronological summary of the conference that led to

the attached outcome agreement. The report includes some

direct quotes and “summarised quotes” from participants. It also

includes specific information identified by the judges as

important to the report. These are as follows.

• Remorse expressed by defendant.

• Degree to which defendant takes responsibility for crime.

• Defendant’s commitment to change.

• Victim statements about defendant, offence or conference

including:

- offender remorse;

- relief at learning the crime occurred by chance with

little planning;

- increased feelings of safety and security;

- empathy for the offender;

- views about sentencing.

Conference details

Date of conference: 12-11-2003

Time: 7:45PM-10:45PM

Place of conference: North London Restorative Justice Centre

Offence: Burglary

Offence date:

Date of next appearance:

Participants

1. PC Mark Davies – conference facilitator

2. Joe Bloggs – defendant

3. John Doe – victim

4. Frank Sinatra – victim’s friend (1)

5. Matthew Perry – victim’s friend (2)

6. Ginger Rogers – defendant’s girlfriend

Produced by conference observer

Sarah Bennett

Restorative Justice Centre

407-409 Archway Road

London N6 4NW

Tel: 020 8345 2225

Mobile: 07980 834 072

Part 1: What happened

The facilitator introduced all the participants and asked the

defendant to describe what happened. The defendant described

how he had recently been released from prison and, following

an appointment with his probation officer, was walking home

with no money to purchase heroin or a present for his son’s

birthday. He came to the victim’s house, which appeared to be

unoccupied. He knocked on the door and when no one answered,

explored the exterior of the house until he located a side window

where the frame was in poor repair and was able to gain entry.

Once in the house, the defendant used gloves found in the

victim’s house to search through his belongings and ultimately

stole a stereo and jewellery. When he left the house, he removed

the gloves and dropped them in the victim’s garden. DNA

evidence from these gloves identified the defendant four months

later. The defendant sold the items for £40 – £20 went towards

heroin and he gave £20 to his son.

The victim asked how the defendant could know that no one was

at home at the time. The defendant replied that he picked

the house for no other reason than that it was empty and he

had a “gut feeling” but he knocked on the door to be sure. The

defendant said that whilst he was not proud of it, he had a

certain skill for identifying empty houses. The victim asked several

questions including whether the defendant had committed the

crime on his own, how long the defendant had been a prolific

burglar and if he had committed any crime since. The defendant

replied that he did not have a co-offender and whilst he had

committed a lot of crime in the past and had “been in every

prison except Holloway” he had not offended since this burglary.

The defendant said he “felt disgusted when I found out it [the

house] belonged to an older person”. “If I had known it was a

pensioner’s house I would have come right out.” To this the

victim’s friend said “it was not the point” whose house he stole

from but that he chose to steal at all. When he was caught, the

defendant said he felt a huge relief. He explained that he wanted

to clean up his life and whilst he had always given “no

comment” interviews, he had pleaded guilty right away, against

his solicitor’s advice. In the time between the offence and the

arrest, he had taken active steps to deal with his heroin

addiction by referring himself to a drug treatment programme

and was now self-employed as a painter and decorator with

guaranteed work with a building company.

The victim and defendant debated throughout the conference

what jewellery had been stolen. The defendant agreed that he

had taken some of the items listed but “with hand on heart”

vehemently denied taking any of the watches, locket or bracelet.

The victim said: “I know what is gone … the things that went

were of great sentimental value.”

Part 2: Who was affected and how

The facilitator asked all present how they were affected by the

burglary at the time and how things had been since. The victim

replied that he returned home following an appointment with a

hip replacement specialist. He entered the house and saw the

box in which he kept his parents’ jewellery on the floor. The

victim explained that he was very sentimental and when his

mother died three years ago (and his father some years before)

he had made a choice to keep their jewellery and possessions in

drawers that he used daily so he would always be reminded of

them. The victim said he did not sleep the night of the burglary

as he was afraid someone might return and therefore spent most

of the night attempting to secure the place by screwing down

windows, which was very painful given his bad hip. The victim

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commented how surprised he was that the defendant had not

knocked over, destroyed or vandalised anything in the house.

The defendant stated: “If I am not going to take it, I’m not going

to break it.”

Since the burglary, the victim said he had paid thousands of

pounds to install a burglar alarm and new windows. However, he

is “terrified” when he leaves the house and constantly wonders

“what am I going to come back to … I don’t see that I will ever

relax again.” Despite this expense however, the victim said what

he wanted most out of the meeting was to get back the jewellery

that had great sentimental value.

The victim’s friend said he was worried about the victim and

joked about how the phone bills have been “racking up”. He and

his son (victim supporter 2) had driven all the way from Preston

to be at the conference and would be returning right after the

conference (arriving back home at 4am). The friend went on to

say how impressed he was that the defendant had taken such an

active step in his own drug rehabilitation and employment.

The defendant’s girlfriend highlighted how she had found out

about the offence when the defendant gave her son £20 which

she knew he did not have earlier that day. The girlfriend said:

“I was hurt at the time; I have a dad your age and I could not

stand for this to happen to him.” She had thrown him out of the

house but in time he had made real efforts to sort his life out.

She highlighted that the defendant “has changed” and she was

so proud of the steps he had taken since committing the offence

in terms of his drug addiction and employment.

Part 3: What can be done to repair the harm caused

The victim said that he had not been looking forward to the

conference as he thought it would “rake everything up again

and I would wring your neck”. However, he felt much better for

attending and said: “I consider myself to be a good judge of

character and you have come across favourably … I am upset

that you categorically deny taking the items but if I take what

you say as genuine then we have a mystery.” The defendant said:

“I assure you, if I had seen a gold watch – I would have seen it

and taken it.”

The defendant stated that he had never seen what people go

through as a result of his offending and had never met someone

like this before. “This has been a real eye opener; I know my

apology may be an insult but I genuinely mean it.”

The defendant offered to decorate the victim’s house from “top

to bottom”. The victim declined, however, as he said his house is

a shrine to his mother and being very sentimental he did not

want to change a thing. The defendant offered to paint the

exterior of the house, which the victim declined as well as it had

been painted this year. The defendant offered to buy a dog for

security purposes, but the victim said he likes to travel and might

not be able to take it with him.

All participants agreed that the defendant had made active

steps to deal with his heroin addiction, a catalyst for his

offending behaviour. The defendant stated that he thought it

was likely that he would get a custodial sentence. The victim’s

friend said “to send you back to prison now would be a waste –

you are off drugs, you have a job; I personally think you should

be given 12 months’ probation. Going to prison for you right now

… I don’t see the point of it.” The victim said he did “not consider

prison to be a deterrent at all … It is to your credit that you have

got off heroin.” The defendant replied that the sentencing judge

would be looking at all his prior offending and “has to be seen

as giving justice”.

The conference ended with all participants shaking hands.

The outcome agreement

1. Joe has made a commitment to move out of his estate and

will start researching areas and letting agents in an effort to

do so, after Christmas.

2. Joe wants to work with diverting youth from drugs. He will

consult probation and social services on which schemes are

available.

3. Joe has agreed to write to all participants to apprise them of

his progress. This was agreed by all present.

4. All participants (victim and supporters) agreed that prison is

not an appropriate sentence. They felt community sentence

would achieve more.

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While the narrative report is far more informative than the RJ

outcome agreement printed – in its entirety – in the final section

on page 41, it is not clear how much of that detail would be

absorbed by a Crown Court judge. A survey of Crown Court

judges for the Esmée Fairbairn Foundation found that almost

half of the judges to whom these reports had been sent could

not recall having seen one. While judges may be flooded with

paperwork in making sentencing decisions, it is also true that the

delivery of paperwork to a judge’s office does not guarantee that

it will find its way, in time, into the case file. In the absence of a

statutory requirement for such reports to be produced and

reviewed prior to sentence, it may be that the use of such reports

will fail to have much impact on sentencing practices.

Nor did the outcome agreements themselves have any apparent

influence on sentencing, despite the Collins and Barci cases.

Several JRC comparisons between the pre-sentence cases

randomly assigned RJ and those not found no difference in the

length of sentence. While reduction in custody length was

manifestly not a purpose of the project, it was a question raised

by numerous participants. Some may even welcome the news

that RJ did not affect sentencing, in hopes that it will

nonetheless affect future criminal behaviour. At the least, the

result controls for sentencing effects, so that any differences in

subsequent arrest rates can be attributed to the RJ process as an

add-on to otherwise consistent criminal justice practices.

What the role of RJ reports does raise is questions about the rule

of law. Since RJ has been accepted by the High Court in relation

to the law of mitigating harm as a sentencing criterion, it would

seem to be essential for counsel to make any RJ known to the

court before sentencing. The fact that this does not always

happen does not mean that RJ, per se, violates the rule of law. It

does, however, raise one more item for a long list of matters that

could be tidied up by a sustained institutional commitment to

developing RJ as an enhancement to the rule of law.

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5. Restorative justice and the rule of law

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Restorative justice and the rule of law

Restorative justice is an ancient practice that has been codified

in Roman law, Sharia law, and many other documents.

Restorative justice is arguably the most common approach to

law in most societies throughout most of human history

(Braithwaite, 1998). Whether that makes it compatible with the

principles of the “rule of law” that emerged during the 18th-

century European Enlightenment, however, is a different

question from its ample precedents.

Lord Justice Bingham has recently addressed the definition of a

rule of law.

He notes that there is a need for greater clarity in

both legislative and judicial uses of the concept, and proposes

eight “sub-rules” to define the rule of law. Each of these

principles, we conclude, is potentially consistent with the use of

restorative justice in all of its varieties noted above. As in any

other system of administering justice, there is always a potential

for mal-administration that breaks the rules of the system itself.

But that is a different question from the one put to us by

the Smith Institute: whether “RJ is philosophically compatible

with traditional approaches to criminal justice, or whether it

represents a conflicting paradigm” (emphasis added).

There is no doubt that RJ represents an alternative paradigm to

the conventional approaches to criminal justice of the past

century or so. In that respect, it is a possible response to Lord

Woolf’s (1999) call for the discipline of criminology to develop a

more effective alternative to conventional approaches, which

have, in his view, been failing to achieve their goals. We conclude

that this paradigm is both a promising alternative to those

conventions and a compatible extension of them, under the

principles articulated by Lord Bingham:

1. The law must be accessible and so far as possible intelligible,

clear and predictable.

Comment: The statutes prohibiting assault and robbery, burglary,

car theft and other crimes are just as clear under RJ as under

conventional justice (CJ).

2. Questions of legal right and liability should ordinarily be

resolved by application of the law and not the exercise of

discretion.

Comment: RJ is clearly not a system for resolving issues of legal

right and liability. It is a system for dealing with the question

imposed by decisions of legal right and liability. Whether an

offender pleads guilty in court, or tells a police officer he would

be willing to meet with the crime victim and take responsibility

for the harm he has caused (or “decline to deny the offence”, as

it is put in New Zealand), the question of liability for the crime is

always resolvable under the rule of law, and not by the discretion

of the stakeholders in an RJ deliberation. The discretion entailed

in RJ is no different in principle from the discretion found in CJ:

in the decisions to arrest, to charge and to sentence, but not to

decide whether someone is liable for a crime despite their denial

of liability. RJ simply transfers discretion, after an accused person

has voluntarily accepted responsibility for a crime, about “what

should be done to repair the harm” to the people vitally

concerned with the question. All of the ground rules for that

transfer and the decisions to be reached can be established and

regulated by case law or statute.

3. The laws of the land should apply equally to all, save to the

extent that objective differences justify differentiation.

Comment: RJ is clearly based upon principles of equality, and

may reinforce them in powerful ways through the intensely

personal exchanges among parties affected by crimes.

4. The law must afford adequate protection of fundamental

human rights.

Comment: The voluntary and consensual nature of RJ processes

has, to date in the UK, consistently allowed for rights to

withdraw from the process and return to a CJ approach.

5. Means must be provided for resolving, without prohibitive cost

or inordinate delay, bona fide civil disputes which the parties

themselves are unable to resolve.

Comment: While RJ has been evaluated primarily in relation to

criminal processes, it could well be extended into alternative

dispute resolution for civil matters. Its costs are potentially far

lower than litigation, and may provide greater access to dispute

resolution.

6. Ministers and public officers at all levels must exercise the

powers conferred on them reasonably, in good faith, for the

purpose for which the powers were conferred and without

exceeding the limits of such powers.

Comment: This principle has been applied in many RJ projects

by police officers, prosecutors and other officials who convene

or facilitate RJ resolutions.

7. Adjudicative procedures provided by the state should be fair.

Comment: To the extent that adjudication is defined as a

determination of legal liability (or guilt), RJ does not alter

adjudicative procedures at all. To the extent that it may supplant

determinations as to sanctions for crime, it is only by mutual

consent of all concerned. Whether the community is adequately

19 Lord Justice Bingham “The Rule of Law”, sixth Sir David Williams Lecture, Faculty of

Law, University of Cambridge, 16 November 2006.

(http://cpl.law.cam.ac.uk/Media/THE%20RULE%20OF%20LAW%202006.pdf)

20 Letter from Wilf Stevenson (30 June 2006).

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represented in a stakeholder conference is an important issue

that future RJ projects must continue to address. Many systems

for insuring community interests, such as the possibility for

judicial review of RJ decisions in New Zealand, are available for

addressing this concern. Thus RJ is not, in principle, at all

incompatible with Lord Bingham’s requirement of fairness, given

the existing discretion in sentencing and the current variation

in sentences for apparently similar offences committed by

offenders of similar backgrounds.

8. The rule of law requires compliance by the state with its

obligations in international law, the law which whether deriving

from treaty or international custom and practice governs the

conduct of nations.

Comment: RJ neither entails nor requires a breach of this

principle.

The underlying tension between RJ and CJ is not about the rule

of law. It addresses a question that Lord Bingham does not even

include in his definition of the rule of law. That question is: “Who

owns a crime?” As Norwegian criminologist Nils Christie (1977)

has suggested, the rise of European monarchy resulted in

offences against people becoming transformed into offences

against the Crown – and, by modern extension, against the state.

In Christie’s argument, the Crown “stole” the offences against the

people, and used them to seize assets of offenders for the

monarch’s own use rather than to provide compensation to

victims.

A 21st-century view of this question need not view crimes as

“property” owned by victims or states, but rather as problems to

be addressed jointly by nation-states and their citizens most

directly affected by specific crimes. In this view, RJ can become a

“rebalancing” of the interests of crime victims and the state that

may improve public respect for law. RJ may afford the

opportunity for maintaining the capacity of justice to protect the

community in future, and maintain fairness about past actions.

At the same time, it may promote a greater sense of achieving

what is fair to victims. The evidence reported here suggests that

there is a substantial improvement in victims’ own sense of

fairness when RJ is added to the tools of justice than when RJ is

not available.

United Nations principles

One reassuring safeguard in best practice for RJ is adherence to

the UN principles. In mid-2006, for example, the Northern Ireland

Office adopted these principles in its Draft Protocol for

Community-based Restorative Justice Schemes, at point 6:

Subject to the other provisions of this Protocol, schemes will

adhere to the relevant sections of the UN “Basic Principles on the

use of Restorative Justice Programmes in Criminal Matters”, in

particular the following:

• restorative processes should be used only with the free and

voluntary consent of the parties (which may be withdrawn

at any time);

• agreements should be arrived at voluntarily and should be

reasonable and proportionate;

• disparities leading to power imbalances, and the safety of

the parties, should be taken into consideration in referring a

case to, and during, a restorative process;

• parties should have the right to legal advice about the

process;

• before agreeing to participate, parties should be fully

informed of their rights, the nature of the process, and the

possible consequences of their decision;

• neither victim nor offender should be coerced, or induced by

unfair means, to participate in the process or to accept the

outcome.

Most of the RJ programmes reviewed for this report, and all of

the 12 controlled tests of RJ that the authors have conducted in

the UK and Australia, have followed these UN principles. They

are strongly supported by British (as well as Irish) culture, and

would seem likely to achieve high levels of compliance. Even

conventional criminal justice (CJ), of course, has occasional

lapses, as when a judge falls asleep during a trial. The question of

such lapses is not whether to abolish the system of justice, but

rather how to hold it accountable to scrutiny and correction. In

terms of visibility to anyone besides the offender, CJ rarely has

more people in the room than RJ (Roche, 2003: 194-198). RJ

would therefore seem to have just as much (or more) potential

for detection of violations of relevant rules as CJ.

In sum, we conclude that, on the evidence so far, RJ does not

conflict with the rule of law. Nor does it necessarily conflict with

the basic framework of common law. What it does offer is an

alternative to conventional interpretations of that framework as

they have developed in the industrial world. As a public safety

strategy for the post-industrial era, RJ may offer better results

within the same basic principles. By providing more opportunities

for questions and answers, face-to-face or otherwise, it may

actually make law far more accessible to the people. The evidence

of satisfaction with RJ suggests that it may reinforce the rule of

law. There is no evidence that wider use of RJ would undermine

the rule of law.

THE SMITH INSTITUTE

21 See Lord Woolf’s letter to Crown Court judge David Pitman at

http://www.sas.upenn.edu/jerrylee/jrc/lwsresponse.pdf.

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6. How we know what works – and

what doesn’t

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How we know what works – and what doesn’t

6.1. The logic of cause and effect

One of Britain’s greatest gifts to the world is the scientific and

statistical understanding of cause and effect (Salsburg, 2001).

The stunning achievements of British thinkers in this domain,

including immigrants and citizens from other nations who

trained or worked here, is often forgotten in modern discussions

of evidence-based policy. While Isaac Newton is well

remembered for discovering the uniformity and invariant nature

of gravity, less famous British scientists discovered how to reveal

causation of the widely variable phenomena that are

characteristic of criminal justice.

Foremost among these contributions is the work of Sir Ronald

Aylmer Fisher, whose research on agriculture in the 1920s laid

the foundation for studying all phenomena that are diverse and

variable (including human responses to medicine, music and

criminal sanctions). Fisher’s (1935) invention of randomised

controlled trials (RCTs) was first employed in medicine in 1948

to demonstrate that a new antibiotic could cure tuberculosis.

Since then an estimated 1 million RCTs worldwide have been

undertaken to test medical procedures.

The basic logic of causation within diverse populations, Fisher

suggested, lies in a comparison of outcomes between members

of a population with a certain characteristic and those without

it. If all other characteristics are identical (or “held constant”),

then any difference in outcomes can be attributed to the one

characteristic that differs. Thus if 500 tuberculosis patients are

divided into two groups at random (with an equal chance of

placement in either group), the groups will usually not differ on

the average age, weight or other characteristics that could affect

their health. So if one group is given an antibiotic, while the

other is not, any difference in death rates between the two

groups can be said to be caused by the antibiotic.

While other methods are used to test causation in diverse

populations, they are often described as “approximations” of

Fisher’s experimental design. The term “quasi-experiment” is

sometimes used to describe groups that are selectively matched,

rather than assigned at random. Such quasi-experiments vary in

their ability to rule out selection bias, or pre-existing differences

in characteristics of populations that are the true cause of

differences in outcomes (like death or crime), rather than the

treatment being evaluated. Such quasi-experiments have been

ranked from 1 to 5 on a scale of internal validity (Sherman et al,

1997) called the “scientific methods scale” (SMS) or “Maryland

scale” that has been adapted by the Home Office in its reviews

of evidence on what works to prevent crime.

The evidence presented on RJ is a mix of RCTs, quasi-experiments

and matched comparisons. This review uses the Maryland scale

to identify a threshold of results that are reasonably unbiased by

self-selection into or out of RJ. As in the Maryland report to the

US Congress on what works to prevent crime (Sherman et al,

1997), the present report uses level 3 on the SMS as the

minimum criterion for inclusion in the list of findings included in

tables 1 to 5 above. This means that at least one population

receiving RJ is compared with a similar population not receiving

RJ, with the definition of “similar” excluding the idea that one

group accepted RJ but the other group declined. While such

comparisons have been reported in the evaluation literature, the

decision to reject or accept RJ is so fundamentally related to its

effects that it creates a strong suspicion of influencing the

outcomes of crime rates or victim satisfaction.

Within the Home Office scale of approximations of Fisher’s

randomised experiments, tables 1 to 5 employ two variations on

the theme. One is the use of subgroups of randomly assigned

cases, identified on the basis of fixed characteristics that

preceded random assignment. These include gender and race.

While the cases were not randomly assigned with separate

randomisation formulae for each subgroup (called “blocking”),

they are virtually the equivalent of that procedure from the

standpoint of removing self-selection bias.

The other variation

on the Home Office scale is the designation of “4.5” for RCT

findings about victims (table 4 above). Because the victims were

not themselves randomly assigned to RJ, but were closely tied to

the cases that were randomly assigned, we treat the effects of RJ

on victims as unlikely to be influenced by self-selection bias, but

not as unlikely as if they had been randomised themselves.

Sample sizes are an important part of our assessment of the

evidence, although we follow no rigid formula for inclusion or

exclusion. Because both the diversity of people within the sample

(which statisticians call standard deviation or variance) and the

magnitude of effects can affect statistical power, we avoid any

minimum sample size as a cut-off criterion; this approach differs

from Home Office practice.

Tables 1 to 5 display sample sizes in two ways, in order to

emphasise the difference between experimental and non-

experimental findings. Where allocation has been based on

random assignment of cases, a single sample size (designated by

the letter “N”) is shown to indicate the total population allocated

– usually with about half the cases placed in the RJ group. Where

allocation has not been based on random assignment, the sample

size of the treated population is indicated under the “population”

column, with the “N” size of the matched comparison sample

(if any) indicated under the “comparison” column.

In sum, how we know what we know about the effects of RJ is

based on comparisons of similar groups according to the same

22 As one statistician notes, “… simple randomization in each of several strata is

equivalent to randomization overall. Because a simple random process has no memory

of previous assignments, stratification serves no purpose …” Piantadosi, 1997: 211.

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outcomes, such as future crime. These comparisons are made by

making the groups as similar as possible, so that the main

difference between them is that one group went through (or at

least began) RJ processes and the other did not, after both

groups said they were willing to do so.

6.2. Searching for eligible tests of RJ

This review is based in part on a systematic search of the

following databases from 1986 through to 2005 (the terms

“restorative justice” and “conferencing” were not in use prior to

1986):

• C2-SPECTR;

• [US] National Criminal Justice Reference Service (NCJRS);

• Criminal Justice Abstracts;

• Sociological Abstracts;

• Criminal Justice Periodicals Index;

• Dissertation Abstracts;

• Social Science Abstracts.

The search terms used were “restorative” and “justice” or

“conferenc/e/ing” with “reoffending”, or “recidivism”, or

“evaluation”. In addition, reviews of the effects of restorative

justice on repeat offending and victim reactions, including

satisfaction with the handling of their cases, were examined for

references. Experts in the field were also contacted. Unpublished

evidence is included where available, including up-to-the-

minute analyses of the 12 main tests and additional subgroup

analyses of the Jerry Lee Program of Randomized Trials in

Restorative Justice. The review is also based on qualitative

evidence on implementation and theoretical issues. The reviewers

searched reference lists, contacted other authors, conducted

electronic searches, and examined all reports related to

restorative justice in the programme of the American Society of

Criminology from 1997 to 2005.

While some databases were restricted to particular periods of

time, electronic searches were not otherwise limited by date.

Indexes were searched in which non-English publications were

expected to appear, but only reports written in English were

considered for the review. In January 2005, one reviewer

electronically searched 24 databases related to criminal justice,

law, and related areas of social science. The most common search

was applied to databases indexed by Cambridge Scientific

Abstracts; these databases were searched using the following

terms: ((restorative AND (justice OR sentenc*)) OR (mediate OR

mediation OR restitution OR conferencing AND ((criminal OR

offender OR perpetrator) AND victim))) AND (reoffend* OR

recidiv* OR victim) AND (ab=random* OR ab=controll*). All

databases searched and the particular terms used to search each

database are listed in figure 1.

6.3. Selecting the eligible studies

One reviewer checked titles and abstracts to identify studies that

could be excluded based on information provided in the title or

abstract. When a study could not be excluded based on that

information, more information was obtained by retrieving the

article or by contacting the authors.

The search identified articles in languages other than English. The

reviewers are not aware of any completed or on-going RCTs or

level 3 or 4 tests that have not been reported in English, but the

reviewers are unable to conclude that none would be identified

by combing these articles or by conducting a broader search.

Two reviewers extracted information from the full text of

articles when published reports were available. Other information

was obtained directly from investigators, including our own

on-going work.

In order to update the 2005 search for the present (non-

systematic) review, we examined the abstracts or full reports for

all of the tests of RJ currently listed by the Restorative Justice

Consortium in London. Three reviewers participated in this

process, again applying the level 3 threshold to anything that

claims a “result” or “consequence” of RJ, or that RJ “caused” an

outcome. The surviving studies of all these searches are listed

and summarised in tables 1 to 5 above.

In summing up the evidence, this review does not employ meta-

analyses, forest graphs or other summary tools for averaging the

results of effectiveness research. By NICE standards, there is too

much diversity in populations, interventions and comparisons to

yield a meaningful average of outcomes. This review takes the

more conservative approach of listing results that specify

populations and comparisons (summarised above in tables 1 to

5), and discussing any discernible tendencies towards patterns.

THE SMITH INSTITUTE

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THE SMITH INSTITUTE

Figure 1: Electronic searches

Database

Academic Index

1) (restorative OR mediat* OR restitution OR conferencing) AND victim AND random*; 2)

(restorative OR mediat* OR restitution OR conferencing) AND offender AND random*; 3)

(restorative OR mediat* OR restitution OR conferencing) AND crim* AND random*

Bibliography of

Nordic Criminology

("restorative justice" or mediation or conference or restitution) AND (criminal OR offender

OR perpetrator) AND (random or randomly or randomized)

Criminal Justice

Abstracts

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR

conferencing AND ((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR

recidiv* OR victim) AND (ab=random* OR ab=controll*)

Criminal Justice

in Denmark

("restorative justice" or mediation or conference or restitution) AND (criminal OR offender

OR perpetrator) AND (random or randomly or randomized)

Criminology

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR

conferencing AND ((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR

recidiv* OR victim) AND (ab=random* OR ab=controll*)

Dissertation Abstracts

((restorative AND (justice OR sentenc?)) OR (mediate OR mediation OR restitution OR

conferencing AND ((criminal OR offender OR perpetrator) AND victim))) AND (reoffend? OR

recidiv? OR victim) AND ab(random? OR controll?)

International

Bibliography of the

Social Sciences

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR

conferencing AND ((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR

recidiv* OR victim) AND (ab=random* OR ab=controll*)

Index to Current

Urban Documents

1) restorative justice; 2) conferencing; 3) mediation 1

Index to Foreign

Legal Periodicals

1) kw criminal OR kw offender OR kw perpetrator; 2) kw restorative justice or kw mediation or kw

conferencing or kw restitution; 3) #1 & #2

Infotrac Onefile

1) (restorative OR mediat* OR restitution OR conferencing) AND victim AND random*; 2) (restorative OR

mediat* OR restitution OR conferencing) AND offender AND random*; 3) (restorative OR mediat* OR

restitution OR conferencing) AND crim* AND random*

NCJRS Abstracts

Database (NCJRS

Virtual Library)

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(random* OR controll*)

146

PAIS International

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

PILOTS Database

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(random* OR controll*)

PolicyFile 1) Keyword: restorative justice; 2) Keyword: conferencing; 3) Keyword: victim mediation 8

Political Research

On-line

Subject: restorative justice 10

PsychInfo

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

Social Services

Abstracts

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

Social Work Abstracts

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

Sociological Abstracts

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

Sociology: A SAGE

Full-Text Collection

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

TRANweb

Keyword Anywhere: ("restorative justice" mediation conference restitution) AND Keyword Anywhere:

(criminal offender perpetrator) Keyword Anywhere: (criminal offender perpetrator)

Worldwide Political

Science Abstracts

((restorative AND (justice OR sentenc*)) OR (mediate OR mediation OR restitution OR conferencing AND

((criminal OR offender OR perpetrator) AND victim))) AND (reoffend* OR recidiv* OR victim) AND

(ab=random* OR ab=controll*)

Total Hits

424

Search(es) Hits

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7. Restorative justice in the UK:

the four settings

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THE SMITH INSTITUTE

Restorative justice in the UK: the four settings

Recent RJ practices in England and Wales have been developed

in at least four major settings: adult and youth justice, schools,

and neighbourhood policing.

7.1. Adult justice

As recent Home Office reports show (Miers et al, 2001; Shapland

et al, 2004, 2006), RJ has been used in multiple settings for

adult justice. These programmes have almost all used RJ as a

supplement to CJ, rather than as an alternative to it. One of the

earliest and most common forms of RJ is in the post-sentencing

stage of the criminal process. Probation agencies have been early

prime sponsors and advocates of such efforts to bring victims

and offenders together. Until the major Home Office initiatives

funded in 2001 (Shapland et al, 2004), probation programmes

created the greatest volume of adult RJ (Miers et al, 2001). In

these programmes, communicating with victims, either by letter

or face to face, became part of the process of serving a

community sentence.

More recently, RJ has been conducted after a guilty plea but

before a sentencing decision (see cases in section 2). In these

settings, the RJ process becomes information that a judge can

use to decide the appropriate sentence. The fact that RJ occurred

or that the offender offered to undertake it can then be treated

as mitigation of the harm of the offence.

The most striking aspect of RJ in adult justice is the wide range

of offenders and offences for which RJ has been employed.

Contrary to the conventional wisdom heard in discussions with

government officials as recently as November 2006, RJ has not

been limited to minor offences, and certainly not to juveniles.

Since the 1980s, RJ has been used in UK cases of relatively

serious violence and property crime. From 2001 through to 2005,

RJ was used in the UK with robbery and burglary offences, many

of them committed by offenders with long criminal histories.

Offenders with up to 50 or more prior convictions have met with

victims and apologised for their actions, with demonstrable

benefits for the victims – including reductions in post-traumatic

stress symptoms (see section 9). This programme, however, has

been discontinued due to lack of funding.

Even the most widespread form of violence – domestic violence,

long considered off limits to RJ by central government policy –

has been the subject of RJ efforts for adults in Hampshire. The

“Dove Project” has conducted RJ-style family group conferences

on the Pennell and Burford (2000) model under the auspices of

Hampshire County Council, which has supported up to 600

conferences a year. While it is not clear from published sources

how cases are referred, one Hampshire Constabulary report

describes the Hampshire model as the one used previously with

effective results in Canada:

• Stage 1 – the family (includes wider family and friends) meet

with professionals and information is shared regarding the

incidents and problems surrounding the violence.

• Stage 2 – the family have a time together in private without

professionals present, to plan ways of making the home a

safer place.

• Stage 3 – is a chance to confirm the plan with the agencies

to ensure it is supported by all present.

These conferences appear to be led by non-profit community

organisations under grants from Hampshire County Council.

And as noted in table 1, a level 4 Canadian evaluation

demonstrated substantial reductions in family violence relative

to similar families not receiving RJ, the results of which were

presented in the constabulary report in 2002.

Other RJ efforts may be under way across the UK, well under the

research radar. There may well be, for example, traditional forms

of RJ being used in communities of South Asian Britons, even

with criminal offences that may or may not have been reported

to police. The robust tradition of RJ in such communities is not

always consistent with the rule of law, especially if it results in

agreements for imposing physical punishments on offenders. But

in a related example, there was a public outcry across Australia

over a youth agreeing, in an RJ conference, to wear a T-shirt

saying, “I am a thief.” The challenge of law is not necessarily to

foreclose such community justice, but rather to monitor and

regulate it under nationally agreed principles.

What is not clear in the UK is the future of diversion from

prosecution in adult RJ. While the Home Office (2003)

consultation document and the Criminal Justice Act 2003

adopted it in principle, diversion on a wide scale has been

difficult to achieve. This might have been easier to accomplish

when charging decisions were still made by police rather than by

co-located Crown Prosecution Service lawyers. But the advent of

conditional cautioning, based on offenders’ agreement to

undertake RJ, coincided in history with the transfer of charging

decisions to the CPS (in early 2004). There may be some RJ under

way on this basis around England and Wales, but if so it has not

been visible. With half the offences in the country, London’s CPS

was barred by national policy from pursuing a high volume of

cases as diversion to RJ. These issues are considered further in

section 13.

7.2 Youth justice

The Crime & Disorder Act 1998 was intended (among other

things) to make RJ a major part of youth justice in the UK. The

act also provided for new institutions, including the creation of

23 Chief Inspector Paul Bright, Hampshire Constabulary, Report of a 2001-2002

Fulbright Scholarship, found at

http://www.hampshire.police.uk/NR/rdonlyres/0095EEF9-5864-478B-965A-

1159FF386AFA/0/Fulbright.pdf

24 http://www.familypower.org/library/hampshirefgc.html

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multi-agency youth offending teams (YOTs) to manage young

offenders and to convene community leaders in “youth offender

referral panels” to help guide community sentences to

delinquents. But the act also required the Youth Justice Board

and YOTs to manage custodial sentences of young offenders in

HM prisons, with many other tasks related to court convictions.

In general, the evidence suggests that these other missions have

created constraints on the capacity of YOTs to deliver RJ to

victims, especially in first offender cases receiving reprimands

and final warnings. The evidence on these questions is reviewed

below (see section 9) in the discussion of victim effects. It is fair

to say that youth justice in the UK is not predominantly delivered

in ways that are based on RJ principles, although there is ample

statutory room to introduce them on a case-by-case or more

general basis.

7.3 Restorative justice in schools

Perhaps the least-known arena for RJ lies at the borders of

criminal and youth justice, in the management of antisocial

behaviour in schools. Because it lies outside the criminal process,

we go beyond mere description in this subsection in order to

offer a more complete picture of what is known about the

varieties of school-based RJ, as well as what little is known about

its effects on students’ behavioural problems.

Persistent problems in the school environment have long been

addressed outside the criminal process by using restorative

techniques. In recent years, those approaches have become more

formalised as comprehensive and replicable programmes for

addressing a wide range of school problems. These include

bullying, truancy, disciplinary issues arising from defiant and

disrespectful behaviour, everyday conflicts, disputes and petty

crimes.

Following a programme introduced into Australian schools in

the mid-1990s (Cameron and Thornsborne, 2001), similar RJ

interventions have been tried in the US and the UK. These range

from proactive, informal practices in everyday interaction

between students and staff – usually known broadly as

restorative practices – through to full-blown RJ conferencing to

address specific and serious incidents of harm in the school

environment (Wachtel and McCold, 2001; Hopkins, 2004). A

number of programmes have been devised (mainly in the US) to

teach RJ principles for managing relationships within schools. If

a public health framework is employed, these can be described as

primary-level interventions, trying to prevent harm in as-yet-

unharmed populations. The Collaboration for Academic Social &

Emotional Learning, based at the University of Illinois at Chicago,

was established in 1994 by Daniel Goleman (author of Emotional

Intelligence). It has described (but not evaluated) many of these

programmes on its website (see www.casel.org).

Although there have been high hopes for RJ in schools, problems

have frequently been encountered in implementation. Traditional

disciplinary approaches tend to predominate, even in schools

experimenting with RJ on a limited basis. Anything short of a

whole-school RJ approach appears to be difficult to manage and

difficult to assess in terms of impact. Evaluation has been patchy

and usually not rigorous, but the following programmes have

been subjected to some level of evaluation.

RJ as conflict resolution

Some programmes have used restorative principles for

responding to conflicts in a non-violent manner, but without the

intervention of an RJ facilitator. Instead, students are taught in

advance how to deal with any conflicts they may have in future.

The Help Increase the Peace Project (HIPP) in Baltimore, for

example, takes students through a series of workshops designed

to develop mutual respect and understanding. A pre-post

evaluation (Woehrle, 2000) indicated that students who

completed the workshops dealt more constructively with

conflict.

Another programme focused on student conflict resolution skills

is the Resolving Conflict Creatively (RCC) programme in New

York City. This ambitious K-12 intervention involved the

development of social and emotional skills through 25 or more

workshops over the course of a school year. The subject of a

major pre-post evaluation effort involving 5,000 students, 300

teachers and 15 elementary schools (Aber, Brown and Henrich,

1999, as cited in Morrison, 2005), the programme reduced crime

and antisocial behaviour among participants compared with

non-participants. There were, however, fewer positive outcomes

for boys, younger students and high-risk students.

The Responsible Citizenship Programme piloted in an Australian

elementary school also aimed to build school community and

resolve conflict peacefully (Morrison, 2001, 2006b). It involved 30

students aged 10-11 years. A pre-post evaluation found that

students’ feelings of safety at school increased along with levels

of respect, empathy and participation in the school community.

Responding to incidents

More intensive programmes that are focused on incidents of

harmful behaviour affecting the whole school community

include peer mediation and problem-solving circles, both of

which entail a third person initiating dialogue among those

directly affected by an incident. This dialogue does not, however,

rise to the level of organisation of a professionally led RJ

conference.

Peer mediation attempts to employ fellow students trained in

mediation techniques as the neutral party to resolve conflict.

Despite their wide popularity, with thousands of programmes

in existence in many countries, a systematic review shows

non-significant or weak effects (Gottfredson, 1997).

Problem-solving circles aim to improve students’ capacity for

collective dispute resolution by introducing them to the

structures of RJ conferencing and encouraging them to solve

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classroom problems for themselves. The evaluation of a

programme in an Australian elementary school (Morrison and

Martinez, 2001, as cited in Morrison, 2005) compared one

classroom (N = 12 students) with two other classrooms acting as

controls. Teachers reported a number of benefits to the

experimental classroom, including the provision of a safe place to

express problems, the open expression of feelings, and better

communication and support between students. Students said

they thought teachers held bullies more accountable and that

bullying had decreased.

Conferencing

The face-to-face RJ conference is the most intense and personal

kind of RJ, focused on specific incidents and individuals. In the

school setting it has been structured along similar lines to

conferences in criminal justice. These conferences have been

attended by the person responsible for the harm, the person

experiencing the harm, and their respective communities of

support. This model has been used in Australia, Canada and the

UK. Some limited evidence is available about its effectiveness in

resolving school conflicts and disputes.

The first evaluation of school-based RJ conferencing was

reported by Cameron and Thorsborne (2001). Describing

outcomes from 89 conferences in Queensland, the report details

RJ for serious assaults (about half of all cases), bullying, property

damage, theft, truanting and other more minor criminal

incidents. The report shows positive findings from all participants

on measures of engagement with the process, procedural

fairness and satisfaction with the experience. It also shows high

levels of compliance by offenders with agreed conference

outcomes. Morrison (2006a) reports that these results have been

largely replicated in studies she cites by: Calhoun (2000) in

Calgary, Canada; Hudson and Pring (2000) in Thames Valley, UK;

Ierley and Ivker (2002) in Colorado; and Shaw and Wierenga

(2002) in Victoria, Australia. Findings reported are from post-

conference interviews, with no comparison group.

Another study focused on conferencing for disciplinary problems

was carried out by the University of Waikato in 34 New Zealand

schools. It found that RJ was successful in reducing the number

of suspensions (Dravery et al, 2006), although that measure can

be interpreted either as a reduction in conflict or as a reduction

in punitive response to conflict. Despite the high level of interest

generated by the programme, there has been no systematic

introduction of restorative conferencing into New Zealand

schools. The authors conclude that conferencing for incidents of

crime and discipline in the school environment is not enough.

They say that for RJ to be accepted as an alternative to

traditional punitive responses, it is necessary for restorative

practices of all kinds to be used in all kinds of interactions.

An evaluation of Hampshire County Council’s application of

family group conferencing in schools, as part of its extensive RJ

programme in social welfare and justice settings, has been

conducted by the University of Sheffield. The programme was

designed to address the needs of students involved in truancy,

bullying or other behavioural difficulties. It worked through

referral to the county council’s Project in Education, rather than

being located in the schools themselves. Morrison (2005) reports

that the evaluation (cited as Marsh, 2004) consisted of interviews

with students, their families and professionals. Most participants

were positive about the process and links between home and

school appeared to be improved, though only if schools were

closely involved with the programme.

Whole-school programmes

Whole-school approaches of the kind recommended by the

Waikato team include a variety of RJ practices as primary,

secondary and tertiary interventions. The largest evaluation of

RJ in schools in the US using RJ practices in staff-student

interactions – as well as conferencing for specific incidents – was

conducted by the Minnesota Department of Children, Family &

Learning (MDCFL, 2002). Its primary outcome measure concerned

the effectiveness of RJ at reducing the use of suspensions and

expulsions. It concluded that restorative measures of many

different kinds could be an effective alternative in addressing

disciplinary issues. However, baseline data are incomplete,

outcomes varied from school to school and the evaluation

reports are so varied in their content that the results are unclear

(Morrison, 2006a).

The whole-school approach was also evaluated by a Scottish

study carried out by the University of Edinburgh and the

University of Glasgow (Kane et al, 2006). The evaluation of RJ

trialled in 18 schools of different levels and settings consisted of

interviews with staff and students, observation of RJ in operation

and surveys of participants. It found evidence of a change in

culture towards disciplinary practices in elementary schools but

less in high schools, where considerable staff resistance was

encountered towards restorative alternatives to punishment.

A national evaluation of a whole-school approach in the UK via

the Restorative Justice in Schools Programme was carried out by

the Youth Justice Board for England and Wales (YJB, 2004). This

involved nine local youth offending teams working with 26

schools across the country. The programme included informal

restorative practices as well as formal RJ conferences of varying

kinds, though the actual restorative practices varied widely from

place to place. Almost 600 conferences were held for incidents of

bullying, name calling, gossiping, family feuds, conflict with

teachers, and minor property and violent crime. The report

concluded that if a conference was held, it was usually successful

in resolving the dispute.

The YJB (2004) evaluation used a comparison school in each of

the nine project areas for evaluation purposes. It found through

a student survey that the three schools using RJ for the full three

years of the evaluation had less bullying behaviour. It found no

significant differences between project and comparison schools,

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however, in the remaining 23 schools, where the programme

had lasted only 18 months. A teacher survey also indicated

encouraging differences between the programme and non-

programme schools in improved student behaviour, though staff

remained firm in their view that exclusion was an effective way

of dealing with behaviour problems. Inconsistent reporting

practices meant that it was not possible to conclude whether or

not RJ approaches affected the level of exclusion in the schools.

In addition, almost half of all staff in the RJ schools reported at

the end of the evaluation they knew little or nothing about RJ;

those who felt they did know about RJ often had significant

misconceptions.

The YJB (2004) report concluded that if RJ is implemented

“correctly” (without specifying exactly what this meant), “it may

be a useful resource that improves the school environment and

enhances the learning and development of young people” (YJB,

2004: 65). Moreover, while there were no statistically significant

effects on student attitudes, the RJ programme schools reported

some important within-school improvements in student attitude

compared with non-programme schools. The report observed

that since the programme came to an end in 2004, there was

little value in making specific recommendations, though it did

suggest that any future introduction of RJ in schools should

seriously involve the Department for Education & Skills, should

require a whole-school approach, and should clearly articulate

what RJ means in the school context.

RJ in schools remains an attractive possibility. Insufficient

evidence is so far available about its effectiveness. Evidence that

is available suggests that:

• Tensions frequently exist between restorative principles and

prevailing practices for school discipline, typically involving

punishment. Such tension militates against successful

implementation. Staff resistance to testing such a radically

different approach (as RJ frequently appears to be) requires

careful explanation and a great deal of support.

• Successful implementation of RJ, even on a pilot basis for fair

evaluation, requires broad institutional commitment within

the relevant educational authority, the involvement and

strong support of the school leadership, and adequate

training in restorative techniques for staff.

• Evaluations require more clarity about outcome measures.

Culture change is a difficult concept to measure, while

simpler indicators such as numbers of suspensions and

expulsions may not be sufficiently clear as measures of

harmful conduct.

• Using restorative conferencing for specific incidents, isolated

from other restorative practices, appears to have limited value

for school conduct generally.

• A whole-school approach, with RJ being used throughout the

institution, rather than limited to specific classes or specific

circumstances, appears to be essential for a satisfactory

test of RJ.

The implication of these conclusions for the future of RJ in

criminal justice may be similar. All tests of RJ to date in criminal

justice have been limited to case-specific tests. Perhaps whole

communities or court areas need to adopt RJ in order to give it a

fair test as a crime prevention strategy (see section 15).

7.4. Neighbourhood policing

The use of restorative policing in neighbourhood policing is an

evolving idea. Police community safety officers or regular

constables may find opportunities to divert cases from the

criminal process if they can be resolved more effectively with RJ

in collaboration with parents, neighbours or community leaders.

The potential for this approach may depend on both the extent

of social capital in a neighbourhood and on the extent to which

local police have mapped the social networks that can be

mobilised for RJ. But where both requirements are met, there

appears to be great potential for returning to what is often

celebrated as the “golden era” of neighbourhoods.

In this era, it is said, village bobbies on foot who knew everyone

could operate a system of less formal justice. Their use of local

knowledge to handle crime often prevented the escalation of

conflicts into serious violence, but it entailed the risks attendant

to all unaccountable processes. Whether such neighbourhoods

or villages ever existed in quite this way is open to debate

(see eg Banton, 1964; Cain, 1973). Nonetheless, the value of such

conditions seems theoretically powerful in contemporary society.

It is even possible that RJ itself may help to foster the social

cement that holds neighbourhoods together. The current

discussions of neighbourhood-based RJ properly address the

question of how such “street” practices can be made transparent

and accountable to the wider society. They could also, in

principle, become a way to reintroduce police diversion decisions

on the Australian model, at least on a pilot basis, to see what

crime reduction effects it might achieve on a “whole-

community” basis.

The four institutional settings for RJ each provide opportunities

for growth and development. Of these four, the greatest

potential lies in adult justice. That is where large volumes of

crimes go unsolved, probably for lack of victim and witness

confidence in the system. Adult justice is where some 65,000

offenders are incarcerated, and many more are under community

supervision. That is where most of the serious violence is treated,

for which recidivism rates remain high. That is also where the

lion’s share of the costs of crime are borne by the entire nation.

The rest of this report therefore focuses on the evidence about

adult – and, to a lesser extent, youth – justice as a setting for

restorative strategy.

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8. Keeping promises versus following orders:

how RJ compares

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Keeping promises versus following orders:

how RJ compares

Motivating offenders to keep promises is a key step in reducing

repeat offending. RJ shares with CJ the tough question of how to

ensure that offenders keep their promises in the aftermath of a

crime. Problems of compliance in conventional criminal justice

include ensuring attendance at court, at probation and at drug

treatment or other rehabilitation programmes, payment of fines,

payment of restitution to victims, and other promises.

Supporters of CJ assume that custody is an effective “stick” and

that RJ may not benefit from that threat. Yet the data on

compliance with CJ are not encouraging as evidence of deterrent

effects of the custody “stick”. Offenders often return to prison for

breaking promises, not for committing new crimes. Rather than

being deterred by returning to prison, they often seem surprised.

Rather than using more prison to enforce promises offenders

make, RJ could provide an alternative. It may be that RJ can do

as well by providing a better “carrot” or motivation to keep

promises. When offenders agree to terms that are dictated by a

sentence, they have little emotional connection to the court

officials offering those terms. But when offenders sit face to face

with a crime victim for two to three hours, they may – or may

not – develop a strong emotional commitment to that victim.

Compliance with outcome agreements is important for the

integrity and reputation of the RJ programme as well as for the

sake of victims. Measured simply by average rates of promise

keeping, the evidence to date is indeed encouraging that RJ

may do better.

Compliance with outcome agreements

The key test of RJ on this point is whether offenders fulfil the

outcome agreements they have reached in a consensual group

discussion. Such agreements are reached with offender consent

in a very high proportion of cases: 98% of JRC conferences held

succeeded in reaching consensual outcome agreements across

eight experiments in London, Northumbria and the Thames

Valley, according to the University of Sheffield’s evaluation

(Shapland et al, 2006). A similar percentage was reported in the

four Canberra RISE tests (Strang, 2002). The number of items in

each agreement varied, but almost always there were several

components. The timescale for completion was usually within six

months. Both offenders and victims often emphasise altruistic

reasons for taking part (Shapland et al, 2006: 65).

The data are less clear, but still promising, for offender fulfilment

of those consensual agreements. We reach this conclusion in part

because of, and not just despite, patchy compliance checking in

the Australian RISE project – where police claimed a compliance

rate of around 70% of all conferenced offenders. Learning from

this earlier experience, police and probation facilitators in the

UK’s JRC studies developed an intense monitoring regime to

determine whether offenders had in fact fulfilled their

agreements. When offenders were found not to have complied,

facilitators encouraged them to do so if the outcomes were

feasible. In general, offenders could not walk away from their

agreements without at least being prodded to fulfil them –

repeatedly if necessary.

Sometimes the offenders’ undertakings proved not to be

achievable. For example, offenders who had agreed to pay

compensation were often unable to do so because of receiving a

custodial sentence. Those who had promised to comply with

drug treatment were not always able to be placed on a drug

programme (Shapland et al, 2006: 68). Across all eight Justice

Research Consortium UK experiments, Shapland et al report that

36% of all agreements were fully completed and a further 52%

were partially completed, leaving only 11% definitely not

completed. They conclude (p68): “Given the seriousness of the

offences and the entrenched nature of many of these problems,

these are in fact very low failure rates.”

Despite the paucity of evidence on compliance with RJ outcome

agreements in other projects, what evidence we have shows that

RJ exceeds the rate of compliance with court-ordered outcomes.

In the Canadian meta-analysis of 22 studies that examined the

impact of 35 RJ programmes, Latimer et al (2001) found that

participation in RJ significantly improved the likelihood of

offenders complying with restitution agreements over court-

ordered payments. Cormier (2002) reports that a (non-

randomised) evaluation of a Canadian victim-offender mediation

programme conducted by Nuffield (1997) estimated that victims

seeking restitution for material harm were more than four times

as likely to receive it as victims whose cases went to court.

There also appears to be substantial evidence that compliance

with court-ordered fines is problematic. An Australian study in

the state of Victoria found that 79% of fines were unpaid for

more than one year, and that the overall recovery rate was 44%

(Victoria Auditor-General, 1998). This comports with a study in

South Australia reported by Chapman et al (2003) that found a

collection rate of 51%. Similarly, the Canberra (ACT) magistrates’

court clerk estimated that during the RISE experiments only

about 40% of court-imposed fines were ever collected (personal

communication to H Strang, 2000). The situation in England and

Wales is little better: Chapman et al (2003) report that the

estimate of the UK select committee of public accounts was less

than two-thirds of fines collected, at vast public cost: in 2000/01

alone, £74 million in financial penalties were written off.

Once again, the evidence from three highly developed, long-term

RJ programmes in the UK shows a documented success. Across

the eight separate tests of the RJ units in the Metropolitan Police,

the Northumbria Police, and the Thames Valley probation and

prisons services, 89% of promises made in RJ were kept, at least

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in part. By simple comparison to 66% of UK fines collected, RJ

does better.

Whether the comparison is reasonable depends on how difficult

it may be to pay a fine versus meeting the RJ agreement. Even if

there was less money to be paid in the RJ outcomes, that does

not mean that it was easier than paying a fine. For a chronic

offender to attend a drug treatment programme is a big step

forward. If such results are more likely with RJ than with CJ, we

may have found the “missing link” between sentencing and crime

prevention. If RJ can foster more commitment to completing

rehabilitation programmes, then it could be focused on

specifically indicated programmes for each offender. While this

approach has not been attempted or tested, it is a logical next

step in building on the promising evidence to date.

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9. Reducing harm to victims

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Reducing harm to victims

One observation about the cost-effectiveness of RJ focuses

entirely on victims. Even if RJ has no effect on crime, it may still

be a useful strategy if it helps victims. And if by helping victims

it reduces the costs of other services to victims by more than the

cost of RJ, then RJ would be cost-effective. On the grounds solely

of reducing cost to taxpayers, RJ may be a very beneficial strategy.

On the grounds of putting victims at the centre, RJ may be a very

appealing strategy. On the grounds of helping victims for the

intrinsic merit of that goal, the evidence for RJ is compelling.

To be sure, this evidence has limits. Most victims will never learn

who committed a crime against them, since most crimes go

unsolved. RJ cannot help those victims directly. Even when an

offender is identified, some offenders will refuse to accept

responsibility, or to engage in RJ on any basis. RJ cannot help

their victims. And even when offenders are willing to engage in

RJ, some victims (or their families) will prefer not to. RJ cannot

help those who will not help themselves.

All of these categories of excluded victims could, in theory, shrink

steadily if RJ became more widely available. RJ could be more

appealing to offenders’ families and friends, who might be

moved more often to turn in their loved ones and offer evidence

against them – if only as a way to get them into RJ. More

offenders could agree to it because they would become more

familiar with RJ. So could more victims, who might have

attended other people’s RJ conferences as supporters.

Thus while the evidence to date is limited to the “pioneers” of RJ,

there is no reason to assume that the proportions of criminal

cases they represent must always be that small. Nor does it mean

that RJ would have the same effects on a broader sample of all

victims. The only way to find out is by testing RJ on a widespread

basis. The evidence to date supports, at least, the cost-

effectiveness of such a test.

9.1. Effects of RJ on victims

While the effect of RJ on offenders appears variable, the effect of

RJ on victims who agree to participate are far more consistent.

Evaluation results almost always indicate a high level of

satisfaction with the process, despite a wide range of rigour in

those tests. The quality of many evaluation studies in relation to

victims is as problematic as it is for offenders; often they are the

same studies. Yet the results stand up to the toughest test:

comparing all victims randomly assigned to RJ (whether or not it

was delivered or completed) to similar victims whose cases

received normal CJ processing.

Less compelling is the evidence that victims who completed RJ

were more satisfied than victims who refused RJ. Such findings

may reflect pre-existing differences in personality, or even

opinions about RJ, rather than the effects of RJ itself. The

problem of “completers’ evidence” runs through all the victim

studies that do not compare victims whose cases are randomly

assigned (or not) to RJ. Indeed, even in these studies, it is not

possible to have the views of the victims who did not consent to

be considered for RJ. In any event, it is likely that some of the

reluctance is due to the unfamiliarity of the general public with

RJ, plus some misconceptions about what it entails. Greater

availability of RJ, together with information about the very

positive views of the victims who have chosen to participate, is

likely to increase the proportion of victims willing to participate

in the future.

Some reluctance by victims to risk encountering their offenders

is undoubtedly due to anger, fear and other emotions. The level

of reluctance appears to be mediated by the setting and perhaps

by the seriousness of the offence. We do not know whether

victims who choose to participate have the capacity to

self?select in such a way that they are more likely to benefit than

victims who decline.

There is also good reason to think that RJ is not a remedy that is

right for every victim. For a small minority within well-conducted

studies, it is clear that RJ was a negative experience that did

not improve their situation and may have made it worse.

Conferences are inherently more risky ventures than normal

criminal justice processing: the latter may do little to help

victims, but little to harm them either when they have no role to

play. Confronting the (fortunately rare) unremorseful offender

in an RJ conference, however, may appear to be a significant

risk – even if the payoff is substantial when the encounter

results in a sincere expression of apology.

At present we do not have the tools to predict for which victims

RJ is likely to be beneficial and for the (probably rare) cases in

which it will be counterproductive. Nevertheless, such strong and

consistent positive findings about victim benefits in the great

majority of cases lead us to conclude that victims will generally

benefit from participation whenever they have the opportunity

to do so.

9.2 Evidence from randomised controlled trials

(a) RISE

(Sherman et al, 2005; Strang, 2002)

Even though RISE employed a randomised design, the victim

analysis constitutes a quasi-experimental analysis only (level 4.5)

because it was the case rather than the victim that was randomly

assigned. However, the high participation rate of eligible victims,

as well as their high interview response rate (approximately

90%), gives us confidence that there was little selection bias

inherent in the research design (Strang, 2002). If anything, the

study underestimates the effects of RJ because 23% of victims

who were promised a conference did not actually attend one,

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due to various difficulties of implementation (Strang, 2002: 81).

When victims were asked whether they were satisfied with the

way their case was dealt with by the justice system, there was a

statistically significant difference between the court-assigned

and the RJ-assigned victims (46% vs 60%). Significantly more of

those who actually experienced an RJ conference were satisfied,

compared with those whose cases were dealt with in court

(70% vs 42%). There was no difference here between property

and violence victims.

As a further indicator of overall treatment satisfaction, all RISE

victims were asked whether they were pleased with the way their

case had been dealt with (whether by court or by conference), or

whether they would have preferred the alternative treatment.

Significantly more conference victims than court victims agreed

they were pleased to have been treated the way they were

(69% vs 48%). Property victims were slightly more pleased than

violence victims.

Victims thought offender apologies were important in bringing

about emotional restoration. Ninety percent of all victims,

whether assigned to court or to conference, felt they should

receive an apology. One of the most important differences was

thus found in the prevalence of apologies for each group. For

those victims assigned to a conference, 72% said their offender

had apologised (and 86% of those who actually experienced a

conference) compared with 19% of those assigned to court.

Furthermore, more conference-assigned victims than court-

assigned victims said they felt the apologies they received were

sincere (77% vs 41%).

It seems likely that these findings are related to another striking

difference between the conference-assigned and court–assigned

victims: desire for revenge. Overall, 20% of court victims said

they would harm their offenders if they had the chance,

compared with 7% of conference victims. This difference was

especially stark for victims of violent crime whose cases went to

court, nearly half of whom (45%) wanted to harm their

offenders, compared with 9% of those who went to a conference

(Strang, 2002). Table 4 shows that when we extended this

analysis to London, computing separate point estimates for men

and women victims in each of four separate experiments, the

pattern across the eight tests of the revenge-reduction

hypothesis was supported as statistically significant and

substantial. On average, there was two-thirds less desire for

revenge across the eight groups receiving RJ than their

comparison victims receiving CJ (Sherman et al, 2005).

(b) Bethlehem Restorative Policing Experiment

(McCold and Wachtel, 1998)

Results from these experiments with first-time juvenile property

and violence misdemeanour offenders are complicated by the

fact that consent of participants was sought after random

assignment rather than before. As a result, a substantial number

of victims or offenders assigned to the conference group

declined to participate in RJ and their cases went to court.

Conferences were conducted in only 42% of cases randomly

assigned to conference. Because victim impact results were not

reported according to the randomised assignment (as “intention-

to-treat”), but rather were reported on the basis of treatment as

delivered, we actually code this study not as a randomised trial

(level 5) but as a correlation study (SMS level 1). We include it in

table 4 to provide clarity about its status among readers familiar

with the study. Victim results for the two experiments (violence

and property) were combined in the original report.

Among the RJ completers, McCold and Wachtel found 96%

victim satisfaction with cases randomly assigned to conferences

(and where the case was dealt with in a conference), compared

with 79% when cases were assigned to court and 73% among

victims whose case went to court after the option of a

conference was declined. Victims who attended a conference

also more often felt that the process was fair (96%), that the

offender was held accountable (93%), that their opinion had

been adequately considered (94%) and that the offender had

apologised (96%). It is important to note that the satisfaction

level was lowest among those victims who were promised, but

did not get, RJ. This provides evidence in support of the practice

of asking offenders first, before even raising the prospect of RJ

with victims who may later have it denied. Similar results were

found among the victims in RISE whose cases were randomly

assigned to the RJ group but who were not ultimately given RJ.

What we cannot tell from this design, as implemented and

reported, is what the effects of RJ would be on victims if consent

had been sought prior to random assignment. A comparison

between victims of criminals who were willing to do RJ, but not

offered it, would be necessary to draw an inference about the

causation of victim outcomes by RJ rather than selection bias.

(McGarrell et al, 2000)

This study of young (seven to 14 years) first-time property and

minor assault offenders and their victims also found markedly

higher levels of satisfaction among victims whose cases were

randomly assigned to a conference rather than an array of

other court diversions. In this experiment, however, random

assignment was almost always followed, so that analysis suffers

less offender self-selection bias than in Bethlehem. Furthermore,

97% of victims said they felt involved with the way their case

was dealt with, compared with 38% of victims in the control

group, and 95% felt they had been able to express their views,

compared with 56% of the control group.

(d) Justice Research Consortium’s eight trials of RJ in London,

Northumbria and Thames Valley

(Shapland et al, 2006)

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The University of Sheffield’s evaluation of the JRC’s series of

randomised trials in the UK does not directly compare the views

of victims whose cases were assigned either to normal CJ or to

normal CJ plus RJ. However, it contains a number of measures of

victims’ experience of RJ, derived from interviews from over 200

of the approximately 450 victims involved in RJ in the eight trials.

Overall they found that about 85% of victims (and 80% of

offenders) were satisfied with their experience. In particular, only

12% of victims (and 10% of offenders) expressed any doubt

about the outcome agreement reached at the end of the

conference, and almost all thought it was fair. Looking at various

dimensions of satisfaction, the evaluation found that more than

70% of victims in all eight experiments said they found the

conference useful and fair and that it had given them a sense of

closure about the offence. Interestingly, given the highly variable

length of time that had elapsed between the incident and the

conference (from a very few weeks to several years), most said

that the RJ had been held about the right length of time after

the incident.

Besides the findings relating to macro-level victim satisfaction

concerning both process and outcome in the London trials, there

are strong indications of psychological benefits to traumatised

victims at the individual level. A study embedded in the larger

RCT was conducted to determine the effect of RJ on post-

traumatic stress symptoms (PTSS) experienced by burglary and

robbery victims (Angel, 2005). While few of these crime victims

had PTSS symptoms severe enough to be classified as having a

clinically diagnosable disorder (PTSD), their symptoms were

nonetheless substantial.

A total of 137 individuals whose cases had been randomly

assigned either to court only or to court plus RJ were assessed

using a standardised psychological instrument (the “impact of

event scale revised”) to measure PTSS. Victims who had

experienced RJ consistently scored lower than control

participants, both immediately after their cases were finalised

and also six months later. The item concerning return to

employment and normal activities is reported separately in table

4, even though the significance level is marginal, for two reasons.

One is that a substantial effect of RJ on employment could

produce major cost savings for government and economic

productivity. The other reason is that the magnitude of the effect

of RJ on return to employment is quite substantial, as distinct

from its 12% probability of error. It suggests that robbery and

burglary victims take 50% longer to return to work without RJ

than if they have received it.

Given the low propensity of victims to seek assistance for trauma

associated with their experience and the sometimes devastating

consequences in terms of health, employment and quality of life,

RJ offers encouraging prospects for victim recovery that are not

otherwise available. The long-term effects of lowering even

sub-clinical PTSS symptoms is suggested by a prospective study

of PTSS among almost 3,000 military veterans, almost all of

whom fell below the threshold of clinical PTSD. Nonetheless,

their PTSS levels predicted substantial increases in coronary heart

disease (CHD) and myocardial infarctions (Kubzansky et al, 2007).

These biomedical consequences of PTSS suggest that a broader

view is needed of the true costs of crime, and of the cost-saving

benefits for helping crime victims with their PTSS.

Another striking finding from the London trials, as noted above,

concerned victims’ unresolved anger towards their offenders and

their desire for revenge, which mirrored the results from RISE

referred to above. Indeed, remarkably consistent results emerge

across violent and property crime and for male and female

victims in both sites. While victims of violent crime in both

Canberra and London showed higher levels of desire for revenge

than victims of property crime, nonetheless, for both offence

types and both sexes, RJ reduced vengeance in the predicted

direction (Sherman and Strang, forthcoming).

9.3. Evidence from non-RCT studies

Victim benefits have been remarkably similar in findings from

both RCTs and other evaluations. Broadly speaking, victims who

agree to participate report extremely high levels of satisfaction

with the process on the outcomes they say matter most – the

opportunity to confront their offenders and express themselves

directly to them. Consistent with findings from conferencing

programmes (see eg Strang, 2002), victims tend to show

satisfaction based on greater participation in the justice process

rather than according to the extent of financial or other material

restitution ensuing from the encounter with the offender.

Like the RCT-design studies, these evaluations consistently show

that RJ appears to benefit victims along several dimensions. It

can reduce victim anger, anxiety and fear of revictimisation and

increase their perceptions of fair process. The meta-analysis of 35

RJ programmes carried out by Latimer, Dowden and Muise (2001)

found that they increased victim (and offender) satisfaction

generally. The following studies relate to various forms of

RJ, including victim-offender mediation, victim-offender

reconciliation programmes and family group conferencing and

its effects on victims:

(a) Victim-offender mediation in North America

(Umbreit and Coates, 1992, 1993; Umbreit, 1994, 1995, 2001;

Umbreit, Coates and Kalanj, 1994; Umbreit, Coates and Roberts,

2000; Umbreit, Coates and Vos, 2001; Nugent et al, 2003).

25 As part of their evaluation, the University of Sheffield team also reported on two

non-RCT schemes that the Home Office funded under the same arrangements as the

JRC, Connect and REMEDI. Both these schemes offered both direct and indirect

mediation, giving the evaluators an opportunity to make a preliminary assessment of

the relative merits of the two techniques. They observe that, while victims may initially

be more attracted to indirect contact with their offenders, indirect mediation makes it

difficult to have an agreed outcome or to refer to future-oriented matters and that it

is associated with lower levels of satisfaction. They further observe that almost all

victims who experienced a face-to-face meeting with their offenders did not regret it

and conclude that direct mediation is more helpful than indirect.

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In a series of studies, mostly relating to juvenile offenders,

stretching over more than a decade, Umbreit and his colleagues

consistently report high levels of victim satisfaction arising from

the opportunity to tell their offenders directly about the effects

of the crime and to negotiate restitution. They also found that

restitution per se was the least important issue for the victims

who completed the process.

(b) 1990s RJ evaluations in England and Wales

(Miers et al, 2001)

This major evaluation of seven RJ schemes operating across the

country in the late 1990s was mixed in its findings, though many

of the problems reported concerned issues of implementation

rather than dissatisfaction among participants. Interviews with

23 victims found that while most felt the intervention had made

an impact on the offender, they were not always convinced that

the offender had made sufficient amends. Nevertheless, they

indicated that they appreciated the opportunity to be involved

and to get the information they wanted and over two-thirds said

that they were satisfied with their involvement.

(Strang et al, 2006)

In RISE and the JRC tests in the UK, victims who had participated

in RJ conferences were asked a series of questions after the

conference about how they felt both before and after the

conference. Although there are shortcomings in asking the

respondent to remember feelings from before the event, the

consistency of responses lends confidence to the findings; in any

event, it was not practical to obtain baseline information on

emotional dimensions beforehand. Nor was it practical to ask

control victims similar questions on a before-and-after basis.

The findings therefore have the status of quasi-experimental,

level 2 results that are more qualitative than quantitative. While

they do not meet the threshold for inclusion in the tables, they

are presented here because they address substantial issues of

victim impact.

In these before/after, retrospective comparisons, consistent and

statistically significant differences were found. When victims

reported on their before-conference and after-conference

feelings, there were large differences in Canberra, London and

Northumbria on all the following dimensions: fear of the

offender (especially for violence victims); perceived likelihood of

revictimisation; sense of security; anger towards the offender;

sympathy for the offender and the offender’s supporters;

feelings of trust in others; feelings of self-confidence; anxiety.

9.4. Victims’ opinions of RJ across the process

The quality of studies relating to victims’ opinions or views of RJ

are highly variable: they rarely include an explicit comparison

group and almost never do they consider the views of victims

who consented to RJ but for whom the RJ was not delivered for

any reason. Nonetheless, across all these studies including many

kinds of offence type the conclusions are clear: when victims

consent to meet their offender in an RJ conference they are

usually satisfied with their experience provided that 1) the RJ

meeting happens as promised and 2) the offender complies with

the undertakings they made during the conference. Furthermore,

available evidence shows that these victims are far more satisfied

than their counterparts whose cases are dealt with in the formal

justice system (Strang, 2002; McCold and Wachtel, 1998;

McGarrell et al, 2000).

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10. Reducing repeat offending

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Reducing repeat offending

The variable effects of RJ on repeat offending are listed in tables

1 to 3 above. The patterns we have been able to discern from this

evidence so far are reported in the summary. The key finding is

that RJ may work better with more serious crimes rather than

with less serious crimes, contrary to the conventional wisdom.

The research is therefore discussed in this section in the same

structure as in tables 1 to 3: organised by results for violent,

property and non-victim crime.

10.1. Recidivism after violent crime

The success of RJ in reducing, or at least not increasing, repeat

offending is most consistent in tests on violent crime (table 1).

Whether we consider just randomised experiments, or include

quasi–experiments as well, we find no evidence of increased

repeat offending with RJ after violent crime. We also find, in

some tests, substantial reductions in recidivism after violent crime.

Randomised experiments

The largest effect of RJ on recidivism after violent crime found in

a randomised experiment so far has been in the Canberra RISE

project. In a two-year-before, two-year-after comparison, the

frequency of arrest among white people under 30 years of age

who were assigned to RJ dropped by 84 per 100 offenders more

than in the control group. This effect was found despite a

less-than-perfect implementation of RJ in the group assigned to

that treatment. The arrest measure included all kinds of crimes,

from offences with victims to non-compliance with court

appearances. These effects were not found among Aboriginal

offenders, but the sample size for that stratum was too small for

an adequately powered test (Sherman et al, 2006a).

Almost as impressive was the effect found among girls in

Northumbria (Sherman et al, 2006b). Females under 18, whose

parents joined in their consent to an RJ conference as part of a

final warning for assault, were randomly assigned to either the

conference or a standard “talking-to” by a police officer with a

parent present. Those who were assigned the conference almost

always attended one. Compared with those not assigned a

conference, they had twice as great a reduction in arrests per 100

offenders (118 fewer in the year-before/year-after comparison)

than the CJ group (only 47 fewer). Thus we can estimate that RJ

among predominantly poor, violent white girls in Northumbria

prevented 71 crimes leading to arrest per 100 offenders, relative

to CJ.

Similar effects were found among children aged seven to 14 in

Indianapolis (McGarrell et al, 2000). Youth accused of violent

crime were randomly assigned to RJ conferences or a wide range

of other programmes of diversion from prosecution. None of

the comparison treatments involved a meeting with the victim.

The RJ group was reported to have had a 28% prevalence of

rearrest at six months (after only) compared with 34% for the

control group.

The first reported randomised experiments in diversion from

prosecution to RJ – those conducted in Bethlehem, Pennsylvania

– are included in table 1 for clarity, even though little can be

concluded from them (McCold and Wachtel, 1998). As noted

above, the random assignment in these experiments was done

prior to seeking offender consent, which guaranteed a high

refusal rate. (Most experiments seek consent first and then

randomise cases to RJ or controls, answering the question of

“what effect RJ has on those who say they are willing to

undertake it”.) Since it is possible to combine the refusers and

completers into a comparison of the groups randomly assigned

to RJ and control, that analysis stands as a level 5 RCT. The result

is no difference in repeat offending between the two “intention-

to-treat” groups. With some half of the RJ offenders refusing to

undertake RJ, however, it is difficult to draw any conclusions

from this experiment about the effect of RJ on recidivism after

violent crime.

Much the same can be said for the Brooklyn, New York,

experiment in diversion to RJ for (predominantly) violent felony

cases (Davis et al, 1981). While the evidence is reported as a level

5 intention-to-treat analysis, 44% of the cases assigned to RJ

never undertook it. Similarly, 72% of offenders prosecuted in

court had their cases dismissed or absconded. The comparison of

27% of prosecutions resulting in criminal convictions to 56% of

RJ cases with completed mediations across 100% of both groups

yielded no difference in recidivism.

A better test of RJ also failed to show an effect (Sherman et al,

2006b). The white male youths in Northumbria, in the same

experiment that found a strong effect of RJ on violent white

girls’ recidivism, had similar recidivism rates regardless of how

their final warning was delivered. Meeting with the victim in an

RJ conference yielded no less recidivism than a “talking-to” by a

police officer. Equally important, it yielded no increase in

recidivism. This finding stands in clear contrast to the reductions

in recidivism after RJ found in RCTs among white male youth in

Canberra and Indianapolis, but it is unwarranted to analyse this

question as a vote count. Rather, the question remains why RJ

works in some samples and not others.

Quasi-experimental tests

As is often the case in evaluation research generally, the less-

than-RCT evidence is far more consistent in showing benefits of

treatment (see Weisburd et al, 2001). Three reasonably strong

quasi-experimental tests of RJ on violent (or groups of

predominantly violent) offenders all found substantial reductions

in repeat offending after RJ compared with CJ.

Perhaps the least known of these tests is the Canadian

programme of RJ for violent families (Pennell and Burford, 2000).

This comparison of families offered a family group conference

(as described in section 7) with families not offered such a

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conference (in the same years) addresses a very volatile issue in

RJ. While the sample size is small, the apparent effects of RJ

are large. In the RJ group, for example, emergency visits to the

home dropped from the before to the after period by over half,

compared with a 50% increase in the comparison families. Nearly

identical differences were found in reports of child abuse or

neglect. While the sample included many aboriginal Inuit people,

the sample size was too small to compute separate effects by

ethnicity.

Two UK evaluations of (mostly) indirect RJ in the 1990s found

statistically significant, although smaller, differences between

predicted and actual offending rates after RJ treatment (Meirs et

al, 2001). In West Yorkshire, a mixed sample of violent and

property offenders were given a mix of indirect and direct RJ

treatments. The predicted rate of reconviction based on their

record prior to the treatment was then found to be about a third

higher than the observed rate of reconviction after RJ, for a

relative reduction in recidivism of 25% after RJ. A West Midlands

pre-sentence mediation programme prior to sentencing

produced almost identical results with a similar size and mix of

sample. In both tests, slightly over half of the offenders also

received custodial sentences.

10.2. Recidivism after property crime

The use of RJ for property crime produces less consistency and

magnitude of effects on recidivism than is found in RJ for violent

crime (table 2). The evidence here includes two findings of

increased offending, as well as five findings of crime reductions.

More impressive, however, is the fact that RJ did as well as, or

better than, prison time as measured by recidivism in two

separate tests.

Randomised experiments

The best result of RJ for property crime in the UK so far is found

among white male youth in poverty areas of Northumbria

(Sherman et al, 2006). Randomly assigned RJ conferences

among youths whose parents joined in their consent to RJ were

delivered to half of the cases in which victims were also

willing to undertake RJ. The other half received the standard

final warning “talking-to” by a police officer. The one-year

before/after comparison of arrest rates in the RJ group showed

88 fewer arrests per 100 offenders. In the control group, the

reduction was only 32 fewer arrests per 100 offenders. Thus RJ

had more than twice the size of the reduction in offending

measured by arrest as did CJ. The number of females enrolled in

the sample was too small to yield a valid estimate of RJ effects

for that stratum, but large enough to drive the effects on the

overall sample into a difference that failed to achieve statistical

significance.

The Northumbria results stand in sharp contrast to the Canberra

results (Sherman et al, 2006a), where non-Aboriginal youths

under 18 had no different rates of arrest frequency after RJ

than after CJ (in a two-year before/after comparison). The good

effects of RJ on Northumbrian youth property crime stand in

even sharper contrast to the Canberra results for Aboriginal

youth, a small sample of whom (N = 23) showed such a large

negative effect of RJ that the result was statistically significant

(P = .049). RJ caused an increase of 228 arrests per 100 offenders

per year among Aboriginal property crime arrestees, while

conventional juvenile prosecution caused a reduction of 66

arrests per year per 100 offenders. This means that RJ roughly

tripled the detected offending rates of these people under 18.

Why that happened, and its broader implications, are discussed

below in section 11.

The Indianapolis experiment with youths aged seven to 14 did

much better than its counterpart in Canberra did with older

juveniles of both races (McGarrell et al, 2000). Unfortunately, no

breakdown by race in recidivism results has been published for

the Indianapolis test. But the main effects show that RJ

conferences cut in half the percentage of juveniles who had any

new arrest after random assignment, relative to the control

group that was not given RJ (15% vs 27%).

Most of the randomised trials of RJ for property crime, however,

did not employ the face-to-face RJ conference strategy. Rather,

they were primarily experiments in indirect RJ conducted by

Anne Schneider (1986) in a nationwide evaluation of restitution

programmes in the US in the 1970s. These programmes varied in

their details of treatment and consent, but were consistently

implemented and reported as level 5 RCTs. Two of the four RCTs

showed that court-ordered restitution, randomly assigned,

yielded lower rearrest rates than conventional probation. This

was despite one of the tests (in Washington, DC) suffering a 40%

dropout from its consent-based programme. The intention-to-

treat analysis preserved the level 5 test, showing 12% lower

arrest frequency for consenting cases assigned to RJ and a 7%

increase for consenting cases assigned to non-RJ probation. This

stands in contrast to a similar comparison in Oklahoma, where

no effect on recidivism was found.

Perhaps the most important finding of the four Schneider (1986)

experiments is the Boise, Idaho, result. In this test, court-ordered

restitution in the community was compared with a sentence of

eight days in jail, served primarily on weekends. With a sample of

181 randomly assigned cases, this test may be one of the best

tests of the “short, sharp shock” theory long popular with British

courts. What it found was substantively significant because the

outcome lacked statistical significance. That is, there was no

benefit from putting offenders in jail, compared with restitution,

despite the far higher costs of incarceration.

Quasi-experimental tests

An even more impressive comparison of RJ to prison was found

in a quasi-experimental test in Canada (Bonta et al, 1998). In this

test, 142 predominantly (61%) property offenders coupled

indirect or (in 10% of cases) face-to-face RJ with court-ordered

restitution. All of them were rated after conviction but before

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enrolment as “likely” to be sent to prison for six months, but most

of them were not. They were matched with a comparison group

of 67 inmates with similar profiles who had not been offered this

programme. The two-year prevalence of reconviction for the

comparison group after they were released from prison was 37%

– three times the 11% rate of the RJ group. This difference was

statistically significant evidence that RJ after serious crimes can

reduce recidivism better than six months or more in prison. If

that comparison were to hold up in the UK, it might be possible

to use RJ to cut the prison population in half with no change, or

a reduction, in the crime rate.

RJ performed less well in the New Zealand pilot of court-referred

RJ for adults (Triggs, 2005: 15). In this study, only 25% of referred

offenders actually completed the RJ as requested. The actual

two-year prevalence of reconviction (41%) among the 193

completers was then compared with their predicted reconviction

rate (45%), with the difference not enough to be statistically

significant. The broad mix of property, violent and non-victim

offences (including traffic) in this sample, however, limits what

we can conclude from it.

10.3. Recidivism after non-victim crime

This subsection examines the effects of RJ on recidivism after

offences such as shoplifting, drink-driving, and public disorder

(table 3). While RJ is often most widely acceptable when used for

such low-seriousness offences, it generally does worse in these

tests than in tests on more serious crimes.

Randomised experiments

Two of the four RCTs in the Canberra RISE project drew samples

from these offences (Sherman et al, 2000). One was for drink-

driving, detected by random breath tests at police roadblocks.

Anyone with a measured blood alcohol content of .05 or higher

was then randomly assigned to RJ or prosecution. The difference

meant no criminal record or publication of the offender’s name

in the newspaper if they received RJ. It also meant that they did

not lose their driver’s licence for six months or pay a mandatory

fine, although they often agreed to pay larger amounts to a

charity voluntarily in the RJ agreement. In terms of drink-driving

behaviour, there was no difference in repeat offending. In the

initial analysis, in fact, there was a small increase in total

offending associated with RJ.

A second RISE experiment employed a sample of shoplifters

under 18 caught by security staff in large department stores. In

these cases, the store sometimes sent a security employee as a

representative, but they could not claim to have suffered from

the offender’s conduct (indeed, their jobs depended on the

sustainability of crime, as Karl Marx pointed out about law

professors). We therefore treat this test as a non-victim crime. No

difference in repeat offending was found between the RJ and CJ

groups.

The best result for RJ in RCTs of non-victim offences has been

reported by McGarrell et al (2000). This sample focused on such

“public order” offences as making noise, drinking under age, and

youth curfew violations. In this Indianapolis test of RJ with

youths aged seven to 14, the group randomly assigned to non-

victim RJ conferences had half the prevalence of repeat arrest of

those assigned to other diversion programmes: 28% for RJ versus

45% for the comparison over the next six months after

disposition. Whether this effect can only be achieved among

very young offenders is a question the evidence cannot yet

answer – one that can be raised about all the Indianapolis results.

Quasi-experiments

We found no quasi-experiments that met our minimum

eligibility criteria for testing RJ with non-victim crime cases.

10.4. Missing evidence on recidivism

The results discussed above generally support the conclusion that

RJ works most consistently to reduce repeat offending – and

not increase it – with violent crime. The effects of RJ are less

predictable, and sometimes counterproductive, for property

crime. The evidence is least compelling for the use of RJ with

non-victim crime. While it would be inappropriate to quantify

this ranking any more precisely than saying it in words connotes,

it is still a reasonable summation of the evidence.

The missing evidence, however, could change the content of that

summation. More tests of RJ on more specific kinds of offences,

organised by such criteria as stranger versus acquaintance crime,

injury versus non-injury crime, and other salient criteria, could

yield different conclusions about seriousness. Until and unless

such tests are conducted, however, the finding on this evidence

can stand: RJ works better with more serious offences. The

reason why may be consistent with the apparent emotional basis

for RJ: that offender remorse for having harmed a victim –

perhaps especially victims “like them” rather than socially distant

by class, race or income – is what drives any reduction in repeat

offending that follows RJ.

Beyond the conclusion that RJ may reduce crime more

effectively with more serious crimes, the evidence does not

readily allow accurate predictions of the kinds of offences or

offenders for whom RJ is more likely to be effective. Such

obvious patterns as consistency by race and gender are elusive;

the opposite effects of RJ for property crime by young white

males in Northumbria versus Canberra is a prime example.

What we can predict, based on the evidence, is that except in rare

circumstances RJ is unlikely to cause more repeat offending than

CJ. That, combined with clear and consistent average benefits

for victims, means that RJ could proceed on a much larger scale,

as long as:

1) criminogenic effects of RJ are not more widespread than is

apparent; and

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2) we can tackle the remaining question about the effects of RJ

on crime: how does RJ affect general deterrence?

As several criminologists have pointed out, the second question

is central to the foundation of criminal law. What effect would

living in an “RJ community” have on potential offenders,

knowing that their first offence would almost always be dealt

with by a restorative process? Would that knowledge encourage

more primary offending, even if RJ reduced repeat offending?

Only a randomised comparison of communities with widespread

RJ to communities without it can answer that question.

Because of the great importance of the issues of “how rare” the

backfiring effects of RJ might be, and what effect RJ would have

on general deterrence, we highlight our discussion of them in the

next two sections, respectively.

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11. Rare events: when RJ backfires –

and why

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Rare events: when RJ backfires – and why

For many people, the fundamental rule of justice should be the

same as in the Hippocratic oath: first, do no harm. The extensive

evidence on RJ effects provides substantial reassurance that RJ

has a very low risk of causing harm to past crime victims, or to

communities and victims suffering from higher rates of repeat

offending that might have been caused by RJ. The exceptions to

that evidence so far, as reported in section 10, are rare. So far

negative evidence is scattered and weak. But any evidence at all

of criminogenic effect merits close examination. This section first

revisits the evidence. Then it examines the theory that could

explain past findings and predict future results.

11.1 Three findings to consider

There are three findings worth discussing on this issue. One is the

large effect of RJ on a small sample of Australian Aboriginal

youth arrested for property crimes against white victims. A

second is the initial evidence of a small increase in total arrests

for Canberra offenders assigned to RJ after arrest for drink-

driving. The third is a marginally significant increase in offending

among Bethlehem (Pennsylvania) youth who were offered RJ

after arrest for property crimes.

Effects of RJ on Aboriginal property crime offenders

The clearest evidence of criminogenic effects of RJ is limited to

23 Australian Aboriginal youth charged with property offences.

This RCT did not set aside the Aboriginal defendants for a

separate, block-randomised sample. The finding, rather, is from

what statisticians call a subgroup analysis, or the analysis of

interaction effects within a stratum of the larger experiment. The

very large magnitude of the effect, however, meant that the

effect was clearly not due to chance, even though the sample

size was small. While certain governmental rules and systematic

reviews exclude findings with samples that are small, there is no

statistical necessity to distrust significant findings from small

samples when the effect sizes are large and appropriate tests

have been used.

Whatever the internal validity of the finding, its external validity

– the capacity to generalise from these results to other

populations – remains unclear. We do not, and cannot ethically,

know whether this finding would apply even in another sample

of Aboriginal youth in Canberra. We do not know whether it

would apply to Aboriginal offenders in other cities in Australia, in

other age groups, or other offence types. We certainly do not

know what the limits of the finding are for other minority groups

in other countries – especially minority groups of colour with

disproportionately high rates of incarceration. We do not know

whether there is a potential for criminogenic reactions whenever

minority offenders of colour meet with white victims, but not

when such offenders meet with victims of their own race. We do

not know whether the finding could be limited to the specific

context of property offending in the wealthy and highly

educated community of Australia’s capital – or if it could be

predictive of RJ effects in all cities, rich and poor, across the

developed world. There is no way to answer this question

without further evidence.

It is therefore appropriate to say that the question of minority

group effects remains a major gap in the evidence on RJ in the

UK, as elsewhere. Further analysis of existing studies may shed

some light on it, especially as recidivism data accumulate on

the Crown Court experiments in London. Ample numbers of

minority group offenders in those experiments provide a robust

opportunity to explore issues of race and RJ.

Even more useful may be experiments specifically designed for

the purpose of the comparison of RJ effects with different

combinations of races or ethnicities of offenders. One example

would be a suite of four RCTs testing RJ on samples of crimes

with, respectively, white offenders and Afro-Caribbean victims,

white offenders and white victims, Afro-Caribbean offenders

with white victims, and Afro-Caribbean offenders with Afro-

Caribbean victims.

RJ for drink-driving

In the first year after random assignment to either RJ or

prosecution, Canberra drink-driving offenders in the RJ group

had 83% more arrests for all offences in the year after than in

the year before (Sherman et al, 2000). The prosecution group,

however, had only 30% more arrests. The probability that this

difference was due to chance was 13%, or slightly outside the

conventional margins of statistical significance. The difference

also disappeared at two years before/after, so the effect was

transitory. The question is whether it has any significance.

Answering that question requires further evidence on the

conferences themselves. In some of the conferences, police

invited a “community representative” who lived in the

neighbourhood where the arrest occurred. This volunteer citizen

was often highly critical of the offenders, all of whom had been

required by police to invite five family members or friends. These

statements may have been emotionally toxic to the offenders, as

an analysis of subgroup results indicated. RJ increased total

arrests among cases at which community representatives had

been present, but it reduced total arrests among offenders who

had no community representative present.

Interpreting these findings has been complicated by the finding

in repeated transfers of arrest data from the police that the

criminal history of the offenders – for the same years – was

different in different data sets transferred. This probably

represents the effects of changes in both hardware and other

aspects of record keeping. Nonetheless, the finding did appear, in

one data set, for the first year of the experiment. It also fits into

a larger possible explanation for any criminogenic effects.

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Juvenile property crime defendants in Bethlehem, Pennsylvania

A majority of the property crime offenders assigned to diversion

for RJ in the Bethlehem experiment refused to undertake RJ. This

group had the highest prevalence of repeat arrests among the

three groups compared by the authors: accepters, refusers and

controls. When the repeat offending is combined for both

refusers and accepters assigned to RJ, however, the result is a

small increase in the RJ group compared with the controls. The

difference is again just over the boundary of conventional

significance levels, at 11%. Yet given the random assignment of

cases, there should not have been a difference in repeat

offending between the groups if the refused offer to do RJ had

no effect on recidivism. Rather, the data suggest that merely

offering RJ to the refusers somehow made them more criminal.

In that sense it appears that this majority Hispanic population

experienced a criminogenic effect from the way in which their

local police may have presented the invitation to RJ.

11.2. Theoretical and policy implications

It is important to note that none of these three findings

would be reportable under current Home Office standards of

publication. The Aboriginal sample is too small to meet the Home

Office minimum, even with random assignment. The other two

findings are not within the boundaries of statistical significance.

The drink-driving differences also disappeared over time. These

are reasons to disregard the findings altogether.

There are two good reasons to give the findings further

consideration. One is the implications they may have for the

criminological theory of RJ. The other is the implications they

may have for policy decisions on scaling up RJ.

All three findings are consistent with predictions made by

defiance theory (Sherman, 1993): that some people who are told

they have behaved immorally by other people they neither trust

nor like will become more criminal in future, rather than less.

Defiance theory specifies some characteristics of such people

who are “allergic” to criticism from sanctioning authorities they

perceive to be illegitimate. They are disproportionately likely to

be lacking in conventional “stakes” in conformity, such as jobs,

marriage or respect of mainstream people. They may also be

constitutionally sensitive to criticism due to trauma or abuse at

an early age, or perhaps nutritionally deficient in foods that

promote equanimity.

While it may be impossible to screen for such reactivity to RJ at

the individual level, it may be possible to predict at the

neighbourhood or community level of analysis. It may be that RJ

simply does not work well where there is a preponderance of

such offenders. That may be what happened in both the

Aboriginal and Bethlehem samples. And it may also be that the

dynamic only applies to property crimes. It is arguable, for

example, that a victim of property crime can be seen as part of

an unfair system. A victim of violent crime, however, could be

seen by the offender as someone who hurts – physically – just

like them, and who is worthy of the offender’s sympathy or

remorse.

Predominantly white and employed drink-driving offenders also

may fit defiance theory, when exposed to criticism from a

community representative they have not elected or ever met

before. The stinging words of a stranger may evoke anger on a

bus or in a playground, let alone in front of a police officer and

close friends. Activating the limbic system with a fight-or-flight

reaction, such criticism could be carried around in the offender’s

head for some months or years. That, in turn, may cause an

increased propensity to “get back” at an illegitimate accuser

through defiance of such people as representatives of the wider

society. It may just make them “mad as hell and not going to take

it any more”.

These connections make the three findings more significant in

theory than they are in practice. They suggest that policy

development may need to be guided by more theory, as well as

by more data, just to be sure at every stage of scaling up RJ we

“first, do no harm”.

THE SMITH INSTITUTE

26 See, for example, Gesch et al, 2002.

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THE SMITH INSTITUTE

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THE SMITH INSTITUTE

12. Other effects on crime

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THE SMITH INSTITUTE

Other effects on crime

Just as RJ may work best in schools when it is used as a “whole

school” strategy rather than for isolated incidents, RJ may work

best when it is used across an entire community. Small pilot

studies cannot generate such conditions. Public knowledge of RJ

does not become wide enough with such pilots to influence

community-level effects. But such effects could be the result of

a synergy of many cases being handled by RJ at the same time.

A high proportion of community residents, for example, might

attend the RJ conferences, and begin to understand the process.

Evidence to date also suggests they would see it favourably. This

raise the question of what benefits – or harms – there may be

from RJ on which we have yet to gain evidence.

If RJ became a widespread first response to crime by the criminal

justice system, there could be two major effects on crime and

justice that cannot be seen in the evidence to date. One is that

many more crimes could be detected and brought to justice.

The other is that many more crimes could be committed. The

evidence to address both these possibilities is missing at present,

but could be gathered before very long.

12.1. Bringing more crimes to justice

At the individual level of analysis, there is good evidence that RJ

can bring more crimes to justice (table 5). If RJ is scaled up across

a large portion of all offences in a community, the benefits could

be even greater. The major barrier to bringing offences to justice

is victim and witness reluctance to risk retaliation or – more

important – their time, from involvement with legal formalities.

They may also distrust or fear the system itself, in terms of

imposing excessive or inappropriate punishments on their loved

ones. Hence the vast majority of crimes go unsolved, despite

many citizens having the knowledge that could lead to a

criminal conviction.

RJ could change all that. If it worked widely and well, it would

logically encourage more people to come forward to participate

in a process that would be more predictable and convenient than

going to court. If offenders themselves accept responsibility at a

higher rate because they become more familiar with the RJ

process, that would also help solve more crimes. The evidence

that RJ can improve trust in justice is substantial (see Strang et

al, 1999). That trust could be translated into putting more crimes

in the arms of justice, because those arms would be seen as

helpful rather than harmful.

12.2. Undermining general deterrence?

There is good evidence for discarding the worry that RJ would

undermine general deterrence. That worry posits an opposite, but

possibly simultaneous, effect of widespread RJ in a community

causing more crime as well as solving more crimes. Removing the

threat of punishment, it could be argued, would encourage more

people to commit their first offence. In principle, it could be seen

as giving a lifetime “juvenile offender” status to all adults in the

community. The implication of “one free crime” might be too

attractive to resist, unless other reasons besides the prospect of

jail time make people restrain from offending.

It is important to note that this question has not been addressed

to date in any study, with any research design. The question, in

fact, can only arise when RJ is used on such a broad scale that it

could theoretically alter the calculations of offenders or potential

offenders in deciding whether to commit a crime. Suppose, for

example, that a city were to divert over half of all its arrests

for violent offences into RJ, as opposed to CJ. Some might

argue that a level of diversion that high would undermine the

effectiveness of the threat of punishment that results from the

expectation that offenders who are arrested will be prosecuted

and punished. Many readers may nod their heads in agreement

with this hypothesis.

The evidence shows, however, that in England and Wales,

diversion of half of all arrests for violent crime already occurs.

That is, one report claims that around half of all arrests for

violent crimes result in a police caution. These cautions are

unlikely to involve much restorative work by offenders in relation

to victims, based on the evidence of current RJ operations.

What effect they have at the individual or community level is

unknown. But because it is current practice, rather than the myth

of 100% prosecution, which forms the baseline for discussing

changes in policy, we may actually be justified in ruling out the

“loss of deterrence” scenario.

One policy response to that conclusion might be the opposite:

that there should be no cautioning of any violent crime

defendants, and that all should be brought into court. Yet these

cautions may reflect problems of evidence, limited resources, or

other factors associated with the complex requirements of

proving a case in court. Many of those requirements vanish when

offenders accept responsibility, and proceed directly to a

discussion of how they could repair the harm.

It is not clear whether an RJ discussion would decrease – or

perhaps increase – the burdensome consequences of committing

a crime. From a deterrence standpoint, an RJ agreement could

possibly even increase the general deterrent effects of law

enforcement on crime. This could be even more likely in contrast

to an unconditional caution.

There is no way to resolve this question in theory. What is

required to undertake a full assessment of the effects of RJ

on crime is a demonstration of RJ as a community-wide

phenomenon, a default option by which all cases are initially

processed unless offenders or victims refuse. We have predicted

27 Ford, Richard “Violent Criminals are Avoiding Jail as Police Issue More Cautions”,

The Times (24 November 2006).

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that if RJ is used on a much larger scale, from schools to policing

to probation, take-up rates may well increase. If and when they

do, it would be possible to assess the effects of RJ on a wide

range of outcomes, at least if there is a systematic comparison

between communities using this approach and similar

communities that do not.

Other effects of RJ on society and government could be obtained

from community-level tests that have never been done. For

example, would an RJ community produce a level of social

capital and community building such that those factors alone

would help to reduce crime levels? Irrespective of general

deterrent effects, would less crime result from an increase that RJ

might cause in such characteristics of communities as

“intergenerational closure” (where parents know the parents of

the young people their own children play with, and vice versa)?

Would face-to-face recognition of community residents increase

to a point where more informal surveillance would provide a

greater level of general deterrence? Would RJ increase

community respect for the law, and legitimacy of the police, in

ways that would also increase compliance with the law? Or

would none of these effects occur?

Related questions could be raised about community support for

the rehabilitation of offenders. RJ is often hypothesised as

something that could help motivate offenders to seek and

complete rehabilitation. It is just as plausible that RJ could

motivate law-abiding community members to support offender

resettlement in far more powerful ways than at present. RJ

agreements between offenders and victims to stay in touch are

not uncommon. If a sufficient density of such agreements in a

community were to be put in place, it could create a new culture

around the idea of helping offenders go straight. The growing

use of “circles of support and accountability” for sex offenders

serving community sentences, such as the Quaker partnership in

Thames Valley, is but one example of such long-term support.

Finally, the evidence that RJ consistently reduces victim desire for

violent revenge against their offenders could result in a reduced

level of such violence in RJ communities. Many crimes of

violence may be committed out of motives of revenge. Nipping

that motivation in the bud with an RJ process could become

a further mechanism for RJ to reduce crime. All of these

mechanisms, if properly tested, could then be entered into the

cost-effectiveness calculations of RJ to be applied by Treasury

analysts in estimating the value of investing in its development.

THE SMITH INSTITUTE

28 http://www.lucyfaithfull.co.uk/circles.htm

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THE SMITH INSTITUTE

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THE SMITH INSTITUTE

13. Getting cases brought to justice

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THE SMITH INSTITUTE

Getting cases brought to justice

Before RJ can be rolled out in high volume, substantial barriers

to giving more victims RJ must be removed. The evidence

shows that when diversion to RJ is available, many more

offences can be brought to justice than when it is not (table 5).

Current policies and statutes in England and Wales, however,

bar the widespread use of diversion to RJ. This section reviews

that evidence. It then describes the barriers to diversion,

and concludes with an alternative strategy of intensified

supplementation of conventional justice with RJ.

13.1. RJ effects on offences brought to justice

Table 5 summarises five RCTs testing diversion from court to RJ.

One of these tests was conducted in Brooklyn, New York, where

prosecutors approved a high volume of serious felonies to be

diverted to victim-offender mediation. These cases were all

felonies, or crimes punishable in New York State by more than

one year in prison. The other four RCTs were in Canberra,

encompassing over 1,000 arrests for violent, property, shoplifting

and drink-driving crimes.

Table 5 compares the rate at which the randomly assigned cases

were “brought to justice” in both the RJ and control groups. The

concept of diversion from prosecution is often misunderstood

to imply that prosecution would otherwise occur in 100% of

the cases. What is actually meant, however, is that prosecution

will proceed in the usual way, with offenders absconding and

charges dismissed for lack of witnesses. Both these and other

contingencies affect the rate at which offences are brought to

justice, as the British government defines that phrase, both by

prosecution and by other means.

In the Brooklyn experiment (Davis et al, 1981), for example,

almost three out of four cases randomly assigned to prosecution

as usual were never brought to justice. Dismissals and

absconding accounted for most of the case attrition. In the RJ

(mediation) group, by contrast, 56% of the offences completed

the process. From the perspective of both victims and offenders,

it seems fair to say that these mediation cases were “brought to

justice”. Certainly, victims were more satisfied in these cases than

in the prosecution cases (p51). When the percentage of randomly

assigned cases that were resolved in each group is compared as

a ratio, the odds of bringing the crime to justice were over 2 to

1 in favour of RJ.

Some might object that the defendants may have been factually

innocent in the prosecution group, and that there was no

offence to bring to justice in those cases. That hypothesis,

however, can largely be eliminated by random assignment. The

proportion of truly innocent defendants should have been

roughly the same in each group. The fact that offenders in the RJ

group were twice as likely to accept an ultimate decree of justice

as offenders in the CJ group says much more about the process

than it says about true guilt or innocence.

A similar procedure in the four RISE experiments shows

surprisingly favourable odds for diversion to RJ over prosecution

as usual. A case of violent crime against a youth under 30 is

twice as likely to be brought to justice with RJ as with CJ, just as

in Brooklyn. A case of property crime with a personal victim

against a Canberra juvenile is three times more likely to be

brought to justice with a completed RJ conference than a case

assigned to prosecution as usual. A case of shoplifting from a

department store showed the biggest effect of RJ, with four

times higher odds of an offence being brought to justice for the

RJ group than for the CJ prosecution group. The only offence

type in which the odds of justice were not different was

drink-driving, for which the result was largely determined the

moment offenders failed the breathalyser test.

Understanding these results does not require the reader to

accept a special magic from RJ. Rather, it requires understanding

just how difficult it is to bring offences to justice under the strict

requirements of the formal legal process. This issue has received

public attention in recent years in the UK, but perhaps

insufficient nuance. The high attrition rates in prosecution are

not necessarily due to incompetence or even intimidation. They

are more likely to indicate a disconnection between the

unpredictable, multi-day court procedures for trial and the

predictable, one-off structure of an RJ conference. Consider how

many people must appear at exactly the right time on how many

different days in order to achieve a criminal conviction at trial.

Every one of those deadlines holds the potential of losing the

case to justice. RJ lowers that risk level by lowering the number

of times and dates, and even more by making it predictable – and

convenient – to the key parties concerned.

The fact that many more offenders take responsibility for the

crimes with RJ does not necessarily indicate any kind of unfair

inducement. It may simply indicate their preference for a path of

least resistance. If RJ makes it quicker and easier for them to

“give it up” and get it over with, they may prefer to game the

system that way rather than by playing cat and mouse with the

court process. Evidence of such attitudes may be indicated by

the substantial differences in rates of guilty pleas across

demographic groups and regions within Britain. Whether or not

we want defendants to think in such terms will not change the

truth about how they in fact make such calculations.

Whether getting more offenders to calculate their way into an

OBTJ will reduce repeat offending remains unknown. The only

way we can find out, of course, is to make RJ much more widely

available in the UK, on the same lines as in the US and in

Australia. That course of action, however, faces obstacles of

policy and statute.

13.2. Getting cases and opening doors to RJ

The basic barrier to more widespread use of RJ is the reluctance

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to make decisions that could divert offenders from a custodial

sentence. While individual judges in London have changed their

views on custodial sentences based on RJ, it may be more

difficult for policy makers and prosecutors to make such

decisions. The fear of something terrible being done by an

offender who was diverted from custody may lead to a decision

that RJ is “not in the public interest”. As long as such rules are

discretionary and based on unspecified criteria for what is in the

public interest, RJ leaders will find it difficult to shift such

decisions from their current course.

Ironically, there is actually little chance of most potential

diversion cases ever resulting in a sentence, let alone a custodial

sentence, as shown by the evidence cited above. Yet the one

case in a million that becomes a cause célèbre of “soft justice” is

enough to prevent the rest from being diverted to RJ.

The failed effort to introduce conditional cautioning with RJ

in London in 2004-05 provides ample evidence of this problem.

Yet the source of the problem was arguably not with the CPS,

nationally or locally. Rather, the statutory restrictions in the

Criminal Justice Act 2003 made diversion almost impossible,

despite its stated intent to implement Lord Justice Auld’s

recommendation for such RJ-based cautions.

This 2003 act required full admissions of a crime in order for

an offender to become eligible for RJ diversion. It did not

acknowledge the evidence that such admissions are almost never

made in the early stages of criminal processing. This provision of

the act was inserted after questions were raised in the House of

Lords, focused on the propriety of any “inducement” of the

offender to make admissions. While the UN standards forbid any

unfair inducement, they do not forbid inducement altogether.

As a matter of practice, the option of a caution is “explained” to

offenders all over the UK every day. Whether it constitutes an

inducement is a matter of debate.

What is not a matter of debate is that diversion to RJ via

conditional caution simply did not happen in London. Despite

substantial investments of public and private funding to train

police and prosecutors, to search for eligible cases and bring

them forward, and to provide a team of experienced police

officers to lead RJ, prosecutors approved fewer than 10 cases

in one year. The full admissions requirement for cautioning via

RJ effectively prohibited them from doing more, under the

requirements of the 2003 act.

In order for RJ to be used more widely, and to bring far more

offences to justice, these obstacles must be altered. An evidence-

based review of the full admissions requirements, based on the

evidence of what is possible, is needed in order to allow more

victims the possibility of electing to meet with their offenders.

That is not possible as long as offenders are required to meet a

bar that is far higher than the standard for diversion eligibility

that is widely used in Australia, New Zealand, Canada and the US.

13.3. Getting victims RJ with CJ

While diversion may offer the greatest potential for increasing

the proportion of offences brought to justice, supplementation

may offer more victims RJ. It is also possible to offer more

supplementation in the short run, since the process is tested and

feasible under current UK practices.

The highest priority for supplementing CJ with RJ would be

serious cases under Crown Court review for sentencing decisions.

It is these cases in London for which victim benefits have been so

clearly demonstrated, with potential cost savings to government

as well. Cases are readily identified by pre-sentence report

requests from judges to the National Probation Service – as long

as pre-sentence reports themselves continue to be conducted.

The Metropolitan Police RJ unit that provided conferences in

such cases could be reactivated with central government

funding, at least in the short run. It could also test the concept

of civilian “restorative justice officers”, drawn from more diverse

communities than the constabulary. Other regions could

replicate the London approach, with broad national benefits for

victims.

Another priority would be to resume police-led RJ for youth

reprimand and final warning cases of violence and property

crimes. The Northumbrian tests could be replicated on more

ethnically diverse samples, in order to reduce concern about

criminogenic effects in minority populations. The test, and RJ as

a policy, could also be extended into RJ conferences after court

convictions, via youth offender referral panels.

We are still awaiting results from the post-sentence adult

experiments, which may also benefit victims. If there is no

indication of criminogenic effects with these populations

(inmates and probationers on community sentence), the benefits

of RJ for victims could be extended even further.

The supplementation strategy could make RJ far more

widespread in the short run. That could lay a foundation of

public support for increasing use of diversion. As a first step, it

provides the clearest path to getting more cases brought to

(restorative) justice.

THE SMITH INSTITUTE

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THE SMITH INSTITUTE

14. Could RJ reduce the financial costs

of justice?

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THE SMITH INSTITUTE

Could RJ reduce the financial costs of justice?

Whatever the evidence on the benefits of RJ, it cannot be

expanded without a consideration of costs. That consideration

entails two options. One is adding new money to the criminal

justice system: a budget increase. The other is reallocating

existing funding for criminal justice: no budget increase. Of the

two, the second is clearly more feasible.

There are at least three ways in which RJ could reduce costs to

government. One is to reduce the use of courts for processes that

fail to bring offences to justice. A second is to reduce the use of

prisons for offenders whose incarceration does not prevent total

crime. The third is to reduce the health costs incurred by failure

to treat crime-related post-traumatic stress symptoms (PTSS).

RJ versus courts

The evidence shows that, when it is allowed, diversion from court

to RJ conferences can increase offences brought to justice. What

is does not show is just how much money could be saved by such

a policy. Diverting more cases from court that would ultimately

be dismissed might bring down the costs of prosecution with no

impact on offences brought to justice. It could even raise the

count of total offences brought to justice, while bringing down

the cost per offence brought to justice. These costs would include

legal aid solicitors and barristers, court security and clerical

personnel, and time spent by police and prison officials in going

to and from court. The costs of organising a single RJ conference

appear likely to be far less, even with substantial monitoring of

post-conference compliance with agreements.

Better and more realistic estimates of these savings, however,

require cost calculations that are not bogged down by start-up

costs associated with a pilot. A “scaling up” of RJ to a level of

volume in which economies of scale could bring down the unit

cost per case would provide more realistic estimates. That is

exactly the kind of evidence that could result from the testing of

the concept of “RJ communities” (see section 15).

RJ versus custody

At £35,000 per year for each offender in custody, even a 10%

reduction in custodial population in favour of an RJ alternative

could yield substantial cost savings. The evidence that RJ does as

well as custody is admittedly modest, but consistent. The debate

over short sentences could be addressed by pitting RJ against

short sentences, to see which approach costs less and yields less

crime over a multi-year follow-up period. Short sentences are

especially vulnerable to the result of more total crime than no

custody, on the theory that a short sentence increases offender

anger (and desire for revenge) more than enough to make up for

any crimes prevented by mere incapacitation behind bars for a

short time.

Reduced health costs from RJ

The effects of RJ on PTSS may have substantial impact on long-

term health costs. These savings have not been estimated, so

they pose another evidence gap in thinking about RJ. But they

could be measured in collaboration with the National Health

Service or the Medical Research Council. Offering the possibility

of discoveries in basic science as well as in treatment outcomes,

a long-term test of the effects of RJ could show another way by

which RJ could pay for itself.

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THE SMITH INSTITUTE

15. More justice, less crime: a way forward

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THE SMITH INSTITUTE

More justice, less crime: a way forward

This section begins with a restatement of various conclusions

and recommendations offered throughout the report. It then

offers a description of the kind of restorative community that

could be tested prior to a wider national roll-out of such a

concept. It concludes by suggesting an institutional mechanism

that could provide energy and guidance for increasing the pace

of development for RJ in the UK.

15.1. Conclusions and recommendations

Conclusions from the evidence

1. Crime victims who receive restorative justice do better, on

average, than victims who do not, across a wide range of

outcomes, including post-traumatic stress.

2. In many tests, offenders who receive restorative justice

commit fewer repeat crimes than offenders who do not.

3. In no large-sample test has RJ increased repeat offending

compared with CJ.

4. RJ reduces repeat offending more consistently with violent

crimes than with less serious crimes.

5. Diversion from prosecution to RJ substantially increases the

odds of an offender being brought to justice.

6. Diversion from prosecution to RJ is almost impossible in the

UK because of an evidentiary requirement that far exceeds the

bar found in other common law nations.

7. The best evidence on success in implementing RJ from tests

to date is associated with specially trained police officers

providing RJ from a base in a police RJ unit.

8. RJ does not conflict with the rule of law, nor does it depart

from the basic paradigm of the common law of crime.

9. RJ can do as well as, or better than, short prison sentences,

as measured by repeat offending.

10. RJ reduces stated victim desire for violent revenge against

offenders.

Recommendations for evidence-based policy in the UK

1. RJ can be rolled out across the country with a high

probability of substantial benefits to victims and crime

reductions for many kinds of offenders.

2. RJ can be resumed and expanded immediately as a

supplement with substantial victim benefits in cases awaiting

Crown Court sentencing.

3. RJ can be resumed and expanded immediately as a supplement

with substantial crime reduction effects to young offenders in

final warnings: girls for assault, boys for property crime.

4. RJ as a supplement can be resumed and expanded for victims

with inmates about to return from prison, as soon as repeat

offending results in Thames Valley are completed to show no

risk of increase from RJ.

5. RJ as a supplement can be continued for offenders sentenced

to community sentences, pending repeat offending results in

Thames Valley.

6. RJ as diversion could provide the basis for far more general

use of RJ, with possibly substantial crime reductions, less victim

post-traumatic stress, and more offences brought to justice.

7. A “Restorative Justice Board” (RJB) or similar institution is

needed to provide guidance, set standards, monitor

programmes, and provide research and development for

continuously improving best practice.

8. An RJB could develop RJ in an evidence-based way, on a

continue-to-learn-as-you-go basis.

15.2. Testing restorative communities

The major evidence gap in restorative justice is the evidence on

its scaling-up. What would happen if RJ were delivered on a

widespread basis, rather than in small pilot tests that affect a tiny

fraction of cases in any local justice system? Answering that

question requires some precision about what such a community

would look like. Most important, we must be clear on how its

criminal justice system would work.

A short answer to these complex questions is that a restorative

community would employ graduated sanctioning of its

offenders, using restorative solutions first and then increasingly

coercive solutions for those who persist in harming others. This

model is derived from Braithwaite’s (2002) sanctioning pyramid,

with the highest volume of cases at the bottom, at the level of

the most restorative responses to crime. As the community goes

up the pyramid, to fewer crimes committed respectively by

second, third, fourth and fifth repeat offenders, the criminal

penalties become correspondingly less restorative for offenders –

but no less so for victims.

Offenders would be subjected to increasing constraints on their

freedom if they persisted in crime, but they would always be

encouraged to meet with their victims to explain the crime and

offer to make amends. The challenge at these higher levels will

always be to balance past victim needs against the potential for

creating future victims. Electronic tagging and home detention

would come into play along with making amends at a relatively

low to middle level of the pyramid. When offenders’ crimes become

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serious enough, the community would simply have to remove

the offender altogether, as in a life sentence for murder. Even

then, however, it may benefit the survivors to be able to meet

with the offender, as they have done in both the US and the UK.

Most important in this pyramid is what happens at the bottom.

That is where a “default” response to first crime at any age would

be to seek a restorative process, possibly with diversion from

prosecution (up to, but not beyond, offences as serious as those

tested in Brooklyn by Davis et al, 1981). This default response may

even continue well beyond the first offence, if the offenders

seem sincere and victims are willing.

Among neighbourhood police, RJ could become the tool of first

resort for responding to matters when they are called in by

citizens. Their operating framework could shift from the recent

emphasis on such questions as “Was any law was broken here?”

or “Is the evidence sufficient to charge anyone with a crime?” to

Sir Robert Peel’s historic emphasis on preventive policing (Miller,

1977) with such questions as these:

• What happened?

• Who was affected by it and how?

• What can be done to repair the harm?

• Does anyone accept responsibility for having caused the harm?

• If so, would responsible parties be willing to negotiate how to

repair the harm?

• Even if there is sufficient evidence that a crime has occurred,

and that a certain person is responsible, is arrest and criminal

prosecution the most effective way to deal with the harm –

or is a negotiated agreement more likely to repair past harm

and prevent future crime?

• If the effort to reach such an agreement in the first instance

fails, is there a police or RJ unit with special skills that could

undertake a second or third attempt to bring offender and

victim together in a way that can restore the status quo ante,

rather than potentially inflaming the case with legal actions

that may harden emotions of anger and distrust?

• What sanction, if any, is required in addition to the repair of

material or emotional harm?

There will continue to be many cases in which police decide to

proceed by arrest and prosecution. It is for repeat offenders in

such cases that the Canadian idea of sentencing circles, with a

judge or magistrate in the room, along with victims and offenders,

may need to replace purely community-based justice. Reaching

an agreement that can become the basis of a criminal sentence by

restorative processes could add extra force to its crime prevention

effects. But there must also be safeguards for compliance with

sentencing guidelines and other national policies.

The underlying idea is to maximise restorative practices, even

while staying within the range of current sentencing outcomes.

The same sentence, reached by RJ, may be far more effective in

curbing future crime than if it is imposed without such deliber-

ations. This hypothesis can be tested, along with many others like

it, in a “nested” design of experiments within experiments.

Communities with these and other strategies could provide a

variety of models of restorative communities, based upon local

preference. That, in turn, could provide the basis for a much larger

test comparing restorative communities – possibly centred on

magistrates’ court areas – to conventional justice communities.

Among the general public, an RJ community would feature

familiarity with RJ processes and their use in resolving conflicts.

RJ in schools, for example, could proceed by offering classes to

parents or the general public in the RJ processes schools use to

deal with bullying, thefts and minor violence among students.

Parental involvement in some of these processes would further

educate adults in the restorative framework for win-win responses

to harms, made possible both by victims’ willingness to talk to

those who have harmed the victims, and a harmer’s incentive to

take responsibility for their actions as the first step in repairing

the harm. This might prepare neighbours to deal with more of

their own problems, from barking dogs to parking space disputes,

rather than consuming expensive police time on such matters.

In sum, the key features of restorative communities would be,

subject in all cases to victim and offender consent:

• diversion to RJ if there is a willing personal victim on a first

offence, for all offences included in the Brooklyn test

(Davis et al, 1981);

• consideration of diversion for subsequent offences;

• post-guilty plea, pre-sentence RJ for subsequent offences;

• experimentation with sentencing circles;

• post-sentence restorative sentence planning for community

sentences;

• combinations of home detention and tagging with RJ;

• RJ in prison for those about to be released;

• RJ upon resettlement to form support circles and reintegration;

• RJ in other community conflicts, including schools and

neighbourhoods.

The key hypotheses to be examined for such communities,

compared with conventional justice communities, would be that

RJ communities, other things equal, would have:

• less crime;

• better reduction in harm to crime victims;

• more offences brought to justice;

• less cost of justice;

• greater public confidence in justice.

There is an enormous difference in the capacity to test these

hypotheses between developing major pilot sites and conducting

small randomised trials. All tests of RJ done to date, as both a

diversion and a supplement, have been mere blips on the justice

radar screen. None of them have confronted the multiple dimens-

ions of turning RJ into CJ, in a mainstream way rather than as an

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exotic but rare option. The evidence required must tackle a systemic

change in how everyone thinks about justice in a community, from

the general public to officials right across every agency of justice.

Only then can research determine both the problems of imple-

mentation, and the evidence on results, of a large-scale use of RJ.

The crucial decision in testing RJ communities is the definition of

a “community”. For this purpose, the scope of a community must

be larger than a police beat but smaller than an entire police

authority. A valid test would require a large volume of cases

ranging across the spectrum of crime seriousness, without too

large an area to measure reliably. Perhaps the ideal solution is to

link a magistrates’ court to one or several police basic command

units, or the evolving equivalent. Several hundred police officers

would then become the core of the test, in their application of

the questions listed above to the full array of events they are

asked to resolve.

The link to a magistrates’ court would provide a coherent focus

for using RJ within the criminal justice process. Training of court

clerks and magistrates could be focused not only on principles

but also on evidence. Progress reports on a monthly or quarterly

basis could show how well crime is being prevented (in

comparison with OGRS2 scores or predicted local trends) and

how many victims are being served by RJ compared with a

baseline period. This process of encouraging and supporting an

RJ community could be led by existing services, such as

probation, or by an evolving institution similar to youth

offending teams. Interagency, multidisciplinary, adult-focused RJ

teams could provide both the expertise and local evidence for a

community-wide drive to increase justice and prevent crime.

There is no doubt that such tests would reveal many problems

with the administration and implementation of RJ. By analysing

those problems in relation to the operation of CJ, however, the

tests we propose would focus on the difference between the

systems rather than on some ideal of perfection. Even targets

could be defined in relation to such differences, rather than in

absolute terms. The evidence needed, like the evidence in hand,

is not to show that RJ is a perfect system. All the evidence that

we have to date, and all that new tests would need to confirm, is

that conventional justice can do better with RJ in its toolbox.

15.3. How can development and testing of RJ be

accomplished?

In the past five years, several parts of government have been

engaged in developing RJ. None, however, has been able to take

primary responsibility. The Home Office has invested the most

funding, but the cases have remained in the province of the

courts, the CPS, the Department for Constitutional Affairs, and

even the Department for Education & Skills. No one minister or

ministry can be said to have a portfolio for restorative justice

that cuts right across government.

The time may be right to pinpoint responsibility and

accountability for leading on restorative justice. An institutional

framework for doing that has a precedent in the form of the

Youth Justice Board. Such a board brings in representatives of

diverse constituencies affected by the policies under

development. It may also speak as a body that is quasi-

independent of government, and hence able to push the

envelope of innovation somewhat further and faster. In contrast

to the YJB, however, a “Restorative Justice Board” need not take

over any massive on-going operations of a justice system. It need

not create RJ teams around the country, although that could be

an option to explore. It need not manage a large prison estate,

or see its budget consumed by sentencing decisions beyond

its control – all of which have restricted the YJB.

Similarly, an RJB could avoid the pitfalls of a national roll-out

with no institutional oversight. The conversion of the New

Zealand youth justice system to RJ almost two decades ago, for

example, lacked such a board. New Zealand also failed to engage

some half of the crime victims whose offenders were brought

to justice (Maxwell and Morris, 1993). Had there been the

accountability and oversight provided by an RJB in New Zealand,

there might have been more successful efforts to increase victim

participation in the process, thereby greatly increasing the

potential return on a national investment in RJ.

Similarly, we note that efforts to advance RJ to date have

required extensive consultation across agencies of government.

The leadership in such consultations is unclear because each agency

is in theory co-equal with all others. Designating a board to take

the lead would cut through the unavoidable issues of separate

departments sharing pieces of the criminal justice process.

Rather than serving as an operating agency, an RJB could

become more of a national improvement agency for restorative

justice. Much like the National Police Improvement Agency, an

RJB could use information systems, research and standards to

foster innovation and improvement. With a reasonable budget, it

could provide grants of local assistance to criminal justice

agencies willing to invest in RJ, test RJ, or even just explore RJ.

Its budget could support projects as modest as reinstituting the

Crown Court RJ services, or as broad as piloting a restorative

community or two. It could also become a repository of research,

training and consultation, providing technical assistance to

community groups, schools and human services agencies, as well

as justice agencies.

As a board with multiple members, an RJB could have

memberships designated for expertise in policing, prosecution,

defence, adjudication, probation, prisons, rehabilitation and

community organisation. While there are other ways to provide

such expertise, such diversity would offer legitimacy to its voice

that could help gain public understanding of how RJ works.

Whether as a board or some other structure, an agency with

pinpointed responsibility to take RJ forward may be the best

option for making the most of the evidence so far.

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