doi:10.

1093/bjc/azl063

BRIT. J. CRIMINOL. (2007) 47, 491509 Advance Access publication 8 August 2006

ASPIRATIONS OF RESTORATIVE JUSTICE PROPONENTS AND EXPERIENCES OF PARTICIPANTS IN FAMILY GROUP CONFERENCES
M A R GA R I T A Z E R N OV A *
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This article will examine some key aspirations of restorative justice advocates. It will do so on the basis of the evidence collected in the course of an empirical study conducted in one family group conferencing project. The article will demonstrate that there is a significant gap between aspirations of proponents and practical realities of restorative justice. Possible explanations for the existence of the gap will be suggested. It will be argued that the findings of this study support some concerns of critics about dangers resulting from pursuing restorative ideals in practice. Many proponents of restorative justice have rather ambitious aspirations. They envisage the creation of a third model (Braithwaite 2003a) or a replacement discourse (Dignan 2002; 2003) or a fully fledged alternative to both punishment and offender rehabilitation paradigms (Walgrave 1995; 1999; 2000). They aspire to develop a model of criminal justice which empowers stakeholders in crime (McCold 2000) and restores the deliberative control of justice by citizens (Braithwaite 2003a: 87). Proponents wish that the form of criminal justice advocated by them will place victims at its centre and treat their needs as the primary concern (Zehr 1990; Wright 1999; McCold 2000). Some also believe that restorative justice should offer a way of doing criminal justice which is characterized by voluntariness (Marshall 1996; McCold 2000; Restorative Justice Consortium 2002; UN 2000; Council of Europe Recommendation 1999). No doubt these aspirations, if put into practice, imply radical changes for the way crime is traditionally responded to, and, according to proponents, such changes could bring about various benefits for victims, offenders and society in general (Zehr 1990; Wright 1996; 1999; Braithwaite 2003a; Van Ness and Strong 2002; McCold 2000; Morris 2000; Sullivan and Tifft 2001). However, critics have expressed numerous concerns about possible dangers of pursuing the restorative ideals in practice (Johnstone 2002: 2533; 2003: part E; 2006; von Hirsch et al. 2003). One source of dangers is that restorative justice philosophy suffers from fundamental problems, tensions and limitations and is based on questionable and mistaken assumptions. So, the sharp distinction drawn by many proponents between restorative and retributive justice has been questioned (Daly 2000; 2002; Barton 2000; Duff 2002; 2003; Johnstone 2002; Dignan 2002; Zedner 1994); the lack of clarity and coherence of restorative goals has been criticized (von Hirsch et al. 2003); certain claims made by advocates about restorative justice have been described as myths (Daly 2002); clashes between restorative values and fundamental principles of justice have been identified (Ashworth 2002); the paradox inherent in the restorative aspiration to offer a distinctive alternative to the traditional
* The Institute of Applied Ethics, University of Hull, Cottingham Road, Hull, HU6 7RX, UK; margarita.zernova@hull.ac.uk. I would like to thank Martin Wright, Gerry Johnstone and the anonymous reviewers for their help in improving this paper.

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The Author 2006. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org

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criminal justice and a simultaneous adoption of fundamental concepts and assumptions of the very framework it seeks to challenge has been analysed (Pavlich 2005). But even if restorative justice ideals are not intrinsically flawed, both critics and proponents have pointed out another source of dangers. Restorative reforms may go astray as a result of being co-opted and diverted from the original vision. There are historical precedents of criminal justice interventions which got sidetracked, resulting in undesirable consequences and serving functions rather different from those that had been intended (Rothman 1980; Cullen and Gilbert 1982; Martinson 1974; Toews and Zehr 2004: viiviii). And there are no guarantees that restorative justice will escape the fate of earlier well intended criminal justice reforms. In fact, there are good reasons to predict the likelihood of restorative ideals being diluted and distorted when implemented. One major reason is that the aspirations of proponents are pursued through criminal justice agencies, and restorative justice values do not fit well with the ideology underlying the traditional criminal justice system. When applied within the hierarchical and coercive structures of criminal justice, restorative justice reforms may result not only in something different from the original vision but in even worse problems than those which the reforms were designed to remedy (Levrant et al. 1999; Mika and Zehr 2003; Zehr 1990; Toews and Zehr 2004: viiviii). In the light of the concerns of critics about dangers which may arise when restorative ideals are put into practice, this article will examine four important aspirations of some restorative justice advocates:

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the aspiration to create an alternative to the punishment paradigm; the objective to develop an alternative to the rehabilitation model; the desire to construct a voluntary way of doing justice; the hope to craft a model of criminal justice which would empower stakeholders in crimevictims, offenders and their communities.

The article will ask: How realistic and desirable are these aspirations? What happens when these ideals are pursued in practice? How valid is the concern that implementing restorative justice within the framework of criminal law may lead to distortion and subversion of the original vision?

The Empirical Study In addressing these questions, the article will draw on a study carried out in a family group conferencing project situated in the south-east of England, which dealt with juvenile offenders. The legislative framework within which the project operated was provided by the Crime and Disorder Act 1998. Most funding came from the Youth Justice Board, and referralsfrom four Youth Offending Teams (YOTs). Forty-seven participants in family group conferences and six professionals involved in the conferencing process or its preparation were interviewed. Of the 47 participants, 13 were offenders, 17 victims, 13 offender supporters, and four victim supporters. The offences included assaults, a robbery, burglaries, thefts of a vehicle, theft and handling stolen goods, and criminal damage. Semi-structured interviews were employed as the primary research method. Other research methods included non-participant observation and documentary analysis. 492

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It is important to note that this empirical study was confined to one restorative justice project and the number of interviewees was rather small. So, it is important to look at the arguments, criticisms and claims made on the basis of the empirical findings in the light of this fact. An Alternative to Punishment? Theoretical debate
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Howard Zehr, in his influential book Changing Lenses (1990), proposes to conceptualize restorative justice as a new paradigm of justice, which is set against the retributive paradigm. Zehr contrasts characteristics and implications of the two paradigms and argues that unlike retributive justice, which considers imposition of pain normative and balances harm which an offender has caused by harm done to him or her, restorative justice sees restoration and reparation as a norm and balances harm resulting from an offence by putting things right (1990: 21112). Such polarization of retributive and restorative justice has served as a foundation for frequent claims by leading proponents that restorative justice is a radical alternative to the traditional way of responding to crimejudicial punishment of offenders (Walgrave 1995; 1999; 2000; 2003; Wright 1999; 2003; McCold 2000).1 Restorative justice is portrayed by a number of its advocates as an approach aimed at reparation of harms and broken social bonds, rather than involving deliberate infliction of pain on offenders (Wright 1996: 27). The advocates who contrast restorative justice with punishment do not deny that restorative sanctions can be painful and unpleasant. They believe that it is not the element of hard treatment that sharply distinguishes the two approaches, but the intention behind the sanctions. Restorative sanctions do not involve a deliberate imposition or pain. They are intended as constructive measures. Therefore, they are not punishments (Wright 1996; 2003; Walgrave 2000; 2002; 2003). There has been a strong opposition to the view that restorative justice constitutes an alternative to punishment (Barton 2000; Daly 2000; 2002; Duff 2002; 2003; Johnstone 2002; Dignan 2002). This view has been criticized on the grounds that it seems to define deliberate infliction of pain very narrowly. Even if causing pain is not the primary intention, as long as pain is an inevitable, or even highly probable, consequence, imposition of pain is intended, at least to a certain degree, when offenders are subjected to restorative sanctions (Johnstone 2002: 110). Besides, punishment is probably best defined not by reference to the intentions of the punisher, but the element of hard treatment, so that it would include anything that is unpleasant, a burden, or an imposition of some sort on an offender (Daly 2000: 39). It has been also suggested that the presentation of retributive justice by restorative proponents is misleading and over-simplified. It involves either an implication that hurting offenders is the sole purpose or an equation of punishment with a crude form of deterrence (Johnstone 2002: 107). However, many advocates of punishment offer rather different justifications for the practice. Some of them are not inconsistent with
1 Zehr himself, in Changing Lenses, does not totally exclude punishment from restorative justice (1990: 20910) and, in his subsequent writings, rejects the view of restorative justice as the opposite of retributive justice (2002: 13). Polarization of restorative and retributive justice has also been criticized by other proponents (Daly 2000; Van Ness and Strong 2002: 435; Dignan 2002).

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the restorative ideal, particularly a moral education theory of punishment (Hampton 1984; Morris 1984; Duff 1999a; 1999b; Reitan 1996). Consequently, the belief that restorative justice and punishment are incompatible is mistaken. The goals of restoration and retribution are not mutually exclusive; indeed, restorative justice requires punishment as a component of an educative and re-integrative process (Duff 2002; 2003; Daly 2000; 2002; Johnstone 2002). So, it has been argued, restorative justice is not an alternative to punishment. Rather, it is an alternative form of punishment (Duff 1992; Daly 2000; 2002). It has been further noted that to present restorative justice as an alternative to punishment would be not only misleading but also counterproductive. Offenders tend to experience restorative justice as painful and burdensome (Daly 2000; Johnstone 2002), so they would view the claim that they are not being punished when they are subjected to restorative justice interventions as disingenuous and hypocritical. If victims are told that restorative justice is not punishment, they may see restorative justice as denying the validity of their legitimate emotions of anger and resentment which they feel towards offenders (Daly 2000: 41). From the point of view of the community, if certain actions are not punished, it may amount to condoning and trivializing them. So, there could be advantages if restorative justice was presented not as something different from punishment, but rather as a more constructive use of punishment (Daly 2000). Views of conference participants on restorative justice as an alternative to punishment In the course of this empirical study, victims, offenders and their supporters were asked whether they viewed conferences as punishment. The majority of offenders and offender supporters in the sample did not interpret conferences as punishment.2 Rather, these interviewees saw restorative justice as a strategy aimed at offender rehabilitation. Similarly, most victims and their supporters felt that conferences were not punishment.3 They either saw them as a measure designed primarily to rehabilitate offenders, or an opportunity for offenders to apologize to their victims, or a chance for participants to express their feelings, or some combination of the above. The finding that participants in restorative justice conferencesespecially offenders did not generally understand conferences as a form of punishment is remarkable for at least two reasons. First, it was clear from interviews that offenders tended to see conferences as painful experiences. Second, typically attendance of a conference formed part of a court order, and a failure to comply with the order could lead to offenders returning to court. One possible explanation for the offenders refusal to interpret conferences as a punishment is that the way restorative interventions were prepared and conducted could have concealed the essence of restorative sanctions. Despite the fact that conferences were usually court-ordered, their organizers avoided resorting to openly coercive and repressive methods to make offenders participate and apologize in conferences. Instead, they preferred more subtle ways of achieving that goal. When preparing offenders for restorative encounters, conference organizers acted towards them in a
2 Out of 13 offenders, only one thought that the conference was a punishment and two were unsure; three out of 13 offender supporters thought that the conference was a punishment. 3 Only two out of 17 victims and no victim supporters believed that conferences were punishment.

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friendly, caring and sympathetic way. This discouraged resistance on the part of offenders and served to promote their willingness to submit to the guidance of facilitators. Facilitators promised offenders various benefits which they would derive from participating in conferences and apologizing; offenders, for instance, were promised that attending a conference would help them put the offence behind and move on, it would help them stay out of future trouble and would enable them to make the most of their lives. During the actual conferences, facilitators continued to act towards offenders in the same sympathetic way as during the conference preparation stage. They generally avoided expressing an open disapproval of the offending behaviour (delegating this function to victims), and demonstrated a deep concern for the well-being of offenders and a willingness to help them. Such treatment by facilitators probably discouraged offenders from interpreting conferences as punishment. Facilitators also encouraged and subtly pressured offenders to adopt particular selfidentitiesthe identities of repentant individuals who have understood the wrongfulness of their past actions, wish to put right their wrongs and not repeat their mistakes. This was achieved through skilful questioning, probing, reframing and rephrasing offenders statements, focusing offenders on certain issues, praising and encouraging them, and using other invisible techniques designed to constructand make offenders embracethe desired self-identities. If conference facilitators successfully achieved this task and offenders adopted such identities, the offenders were likely to think that they attended a conference and apologized to victims because they wanted to do so. The belief that participating in restorative interventions was their voluntary choice hardly facilitated the offenders interpretation of conferences as punishment. It appears from interviews that most victims attending conferences had demonstrated a great deal of understanding, kindness and forgiveness towards offenders. Often, victims appeared to derive no obvious benefits for themselves out of attending conferences. They made it clear to offenders that their main, or even sole, reason for participating was the altruistic desire to help them. Several victims shook offenders hands at the end of the conference. Two of them cried, touched by the offenders apologies, and some attempted to comfort offenders mothers. One victim offered his offender free driving lessons. Another victim offered an offender an apprenticeship in his company. Such generosity and willingness to help made it difficult for offenders to see victims as punishers, even despite the disapproval they expressed. It is possible that the hospitable, informal and friendly atmosphere within which conferences were conducted could be a factor preventing offenders from interpreting conferences as a form of punishment. That atmosphere was in sharp contrast to the environment in which offenders found themselves in the police station following arrest and the courtroom, and (in the case of those who were incarcerated) in prison. Typically, participants sat in a circle to underscore the non-hierarchical and participatory nature of the process and introduced themselves by their first names; drinks and snacks were provided; during coffee breaks, people could mingle and chat; and facilitators (who were supportive and friendly, using offenders words) did their best to make participants feel comfortable and relaxed. Victim Support representatives who took part in one of the conferences described it as a feast (referring to large amounts of food that had been provided), and such a nice place to be in, which was informal and relaxed and had a party atmosphere. In the light of these findings, probably it should not be surprising that offenders refused to view conferences as punishment. The fact 495

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that offenders were allowed, indeed encouraged, to contribute actively to discussions and agree to outcomes could also serve to discourage them from understanding conferences as punishment. The finding that the vast majority of participants in restorative justice interventions did not conceptualize conferences as a form of punishment seems to offer some support to the view of those advocates who believe that restorative justice is an alternative to the punishment paradigm, and does not appear to strengthen the argument of critics that restorative justice is an alternative form of punishment. However, three points need to be noted in relation to this conclusion. First, six interviewees did see conferences as a form of punishment, consistently with the claim of the critics. Second, the suggestion made above that the punitive essence of restorative interventions could have been masked should not be overlooked. Also, while the view of the nature of restorative interventions by the vast majority of participants differed from the interpretation by critics (who believe that restorative justice is a form of punishment), the participants interpretation of the substance of restorative encounters did not coincide with the interpretation by those advocates who refuse to see restorative justice as a form of punishment either. These advocates view restorative justice as a measure aimed at reparation of harm. However, conference participants tended to view it as an intervention aimed at offender rehabilitation.

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An Alternative to the Offender Rehabilitation Paradigm? Theoretical debate Theoretical works on the relationship between restorative justice and offender rehabilitation present somewhat conflicting views: some advocates wish to separate the two models, while others find merging them desirable. It is one of the fundamental tenets of the restorative philosophy that crime generates victims needs which are material, psychological and relational and include the need for compensation, answers, emotional expression, empowerment and security (Zehr 1990: 268; Johnstone 2002: 647). It is argued that to re-gain the sense of personal autonomy damaged by crime, to recover from the emotional trauma and restart normal relationships with others, the needs of victims have to be satisfied. According to its advocates, restorative justice views needs of victims as central: . . . [w]hen a crime occurs . . . the first questions ought to be, Who has been harmed? How have they been harmed? What are their needs? (Zehr 1990: 191). The importance attached to victims needs by restorative justice is used by a number of its advocates to distinguish it from the offender rehabilitation or welfare approach to crime. The latter model is often criticized within the restorative discourse on the grounds that it takes a onedimensional, offender-driven approach. It focuses on identifying and meeting needs of offenders, while ignoring needs of victims (Walgrave 1995; Bazemore 1996; McCold 2000). Rehabilitation is further differentiated from restorative justice on the grounds that it fails to hold offenders accountable and assigns them a passive role in the treatment process (Bazemore 1996; McCold 2000). As Bazemore (1996: 51) puts it, sanctioning within the rehabilitation model is viewed as irrelevant, incidental and generally inappropriate; and accountability is defined as the responsibility of the system to meet the 496

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offenders needs. In contrast, it is argued, restorative justice sanctions offenders and requires them to take responsibility for their actions and make amends. Given the apparent differences between the two paradigms with respect to needs of victims and offender accountability, certain restorative proponents emphasize the importance of maintaining a clear distinction between restorative justice and offender rehabilitation and are critical of proposals to fuse them. It is argued that it is desirable to preserve the purity of the restorative ideal by includ[ing] only elements of the restorative paradigm and exclud[ing] the goals and methods of the obedience and treatment paradigms (McCold 2000: 2723). Other restorative justice proponents, however, take a different view and want to combine the two paradigms (Braithwaite 1998; 2002; Wright 1996; 1999; Van Ness and Strong 2002; Bazemore 1996; Bazemore and Walgrave 1999; Bazemore and Dooley 2001; Bazemore and OBrien 2002; Bazemore and Bell 2004). The two models are seen as compatible, if not mutually supportive. As one such advocate has put it, [r]estorative justice does not involve a rejection of the rehabilitative ideal. . . . the marriage of rehabilitation programs to restorative justice will increase their effectiveness (Braithwaite 2002: 101). Views of conference participants on primacy given by conferencing to victims and offender accountability Overall, this study can offer little empirical support to the claim that the needs of victims received primary importance within restorative justice as practised in this project. One factor that puts into doubt the centrality of interests of victims is that this project was limited to juvenile offenders. The consequence of this limitation is that only those victims whose offenders were juveniles could get a chance to participate in restorative justice encounters (and thus derive the advantages promised by restorative justice proponents). The fact that the age of offenders determined the entitlement of victims to gain help from restorative justice conferences is rather difficult to reconcile with the restorative aspiration to make interests of victims central. The age of offenders appears an illogical and unfair basis for allowing some victims to benefit from restorative justice encounters and denying that opportunity to others. An additional finding which may cast doubt on the validity of the claim that restorative justice is a victim-centred justice within this project is that a considerable number of conferences went ahead in the victims absence.4 Yet, conferences never took place without the offender attending. It is remarkable that in a significant number of cases, it was thought that a conference without victim participation could benefit offenders. Yet, it seems it was never believed that a conference without offender participation would be helpful to victims. One more factor that makes the importance of victim needs within this project questionable is that too little attention was attached to material reparation. If restorative justice were indeed a victim-centred justice, it would probably be reasonable to expect that reparation of material harm caused to victims by offenders would be seen as a significant requirement. However, it appears from interviews that the issue of material
4 It was estimated that in the first year of the projects operating, 44 per cent of victims attended conferences and, in the second year, 64 per cent.

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reparation was not even raised in 12 out of 16 cases. In only two cases was compensation ordered by the court, and in only two other cases was a possibility of material reparation discussed in conferences. Among other data indicating that some needs of victims have been overlooked is that three victims felt that they had not been given proper feedback. So, during interviews, they asked to call them if any information about how their offenders were getting along became available and to share that information with them. One victim supporter complained that at the beginning of the conference, a facilitator had asked the young offender whether they could start, yet the victim (also a child) had not been asked a similar question. According to the victims mother, it created an impression that the victim was not as important as the offender, and, unlike the offender, was not entitled to be asked if she was ready to start the conference. A further finding which puts into question the centrality of victims within this restorative project is that over half of all interviewees thought that the mainor even the only beneficiaries of the conferences were offenders. Nine victims believed that the motivation behind inviting them to the conference had been not so much to benefit them, but to help rehabilitate offenders. These interviewees said they had had no objections to this and were happy to help. Yet, it can be argued that victims were used for the benefit of offenders. It can be counter-argued that victims were not in fact used, as the intention behind inviting them to conferences was to benefit both parties. While satisfying the needs of offenders, restorative encounters can simultaneously fulfil various needs which victims may experience in the aftermath of the offence (such as the need for answers, the need to express emotions, the need to gain control over the situation) and thus facilitate the victims healing and achieving a sense of closure (Zehr 1990; Johnstone 2002: 778). However, this argument might be weakened in situations in which victims do not seem to acknowledge personal benefits derived from conferences and define helping offenders as the sole reason for participating. Perhaps it could be suggested that such victims get benefits and fulfil their needs (as identified by restorative theorists) without even realizing that. The problem with this suggestion is that it seems to be based on a questionable assumption that restorative advocates have a greater knowledge of the needs of victims than the victims themselves do. A different response to the criticism that victims were used to benefit offenders relates to the fact that victims must agree to be used that way. If such consent is given, the ethical problem ceases to exist, or at least is minimized. However, the strength of this argument depends on the degree of voluntariness of the victims consent. There is a serious danger of conference organizers subjecting victims to subtle psychological pressures in obtaining their agreement to attend conferences. For example, implicit appeals to their social duty in helping young people stay out of trouble can be made. This may induce a sense of guilt in victims who had been originally reluctant to participate and consequently procure their agreement to come to conferences. In such situations, the victims consent may not be as free and voluntary as it might appear. Pre-conference reports in 16 cases were examined as part of this study. It was notable that the main focus in the reports was on identifying reasons for offending behaviour, needs of offenders and possible ways of meeting those needs so as to prevent re-offending. There were no similar detailed descriptions of needs of victims and suggested ways in which those needs could be fulfilled. These findings do not seem to fit well with the sharp distinction which certain restorative justice proponents draw between the rehabilitative 498

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and restorative paradigms of justice on the grounds that the former ignores needs of victims, while the latter prioritizes them. The strong emphasis of pre-conference reports on needs of offenders brought restorative justice, as practised in this project, very close to the traditional offender welfare approach. Yet, it is important to point out some evidence indicating that interests of victims, at least in one case, were put above interests of offenders. In that case, before the conference, one of the offenders had shown no remorse and expressed threats directed at the victim. The question was whether or not to invite him to the conference. Conference facilitators felt that it could be in the interests of the unremorseful offender to attend the conference and be confronted with the human costs of his actions. But it was feared that his attendance and attitudes could upset and frighten the victim. The dilemma was resolved by giving priority to the interests of the victim. As noted above, proponents who present restorative justice as a radical alternative to offender rehabilitation emphasize that restorative justice holds offenders responsible by requiring them to make amends, while the rehabilitation model overlooks offender accountability and instead focuses on meeting offenders needs. Certain findings from this study indicate the presence of elements and attitudes characteristic of the traditional offender welfare or rehabilitation approach in this restorative project with respect to the accountability issue. So, three victims and one victim supporter mentioned that they felt uncomfortable because of what they perceived as an over-sympathetic approach adopted by conference organizers towards offenders. Commenting on the way preparatory work before conferences was conducted, one young victim of an assault pointed out:
It did make me feel as though [the offender] hadnt done anything wrong, though. It did. It did feel like they [i.e. conference organizers] were sticking up for her.

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Another victim criticized the approach adopted by facilitators, on the following grounds:
I think [the way the conference was conducted was a] too soft approach. . . . I felt [the conference facilitators] were ... almost too accommodating, too sympathetic to the perpetrators, than the victim. It was almost conscious that here we have two young people who might be daunted by this situation, so well make them feel as comfortable as we can.

A somewhat similar view was expressed by Victim Support representatives who came to one of the conferences to represent a victim. They feared that if the victim came to the conference, she would have felt uncomfortable, because the conference looked more like a birthday party for the offender, rather than a criminal justice intervention. The above findings seem to suggest that restorative justice, as practised within this project, with its over-emphasis on offender welfare, can hardly be seen as an instance of full-blown restorative justice. At the same time, it would be unfair to suggest that the experiment fits perfectly well within the offender rehabilitation paradigm. Some needs of victims were addressed in line with restorative principles (in particular, the need to express emotions and a disapproval of the offending behaviour, and the need to ask questions). Also, offender accountability was not totally ignored: offenders were invited to acknowledge the wrongfulness of their actions and apologize to victims. In some cases, offenders were even asked to do some material reparation. The project in question can be seen as a mixture of the rehabilitation and restorative paradigms, as it contained elements of both. 499

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The final important finding concerning the relationship between restorative justice and rehabilitation is the following: there is evidence indicating that lay participants in restorative justice want restorative justice to promote actively offender rehabilitation. So, almost all victims mentioned as one of the reasons for attending conferences the hope that restorative interventions would make offenders realize the consequences of their actions and prevent re-offending. Just over half of victims said that it had been their main reason for participating. These data were supported during an interview with a conference facilitator, who claimed that in virtually all cases, one of the reasons why victims came to conferences had been a desire to help offenders stay out of future trouble. Using the words of that facilitator, the wish to help offenders is what gets them [i.e. victims] to the conference. These findings may offer a useful insight for those restorative advocates who wish to maintain a clear distinction between restorative justice and rehabilitation. The empirical evidence derived from this study hardly supports their position and seems to suggest that without the hope that a restorative intervention may stop re-offending, a restorative encounter might not have occurred in the first place, because many victims simply would not be interested in participating. A Voluntary Process? Theoretical debate Within the restorative justice discourse, the conventional way of doing justice is frequently criticized for being coercive and repressive, and restorative justice is presented by some advocates as an alternative characterized by a consensual voluntary process (Marshall 1996; McCold 2000; UN 2000; Council of Europe 1999). It is argued that restorative justice requires cooperation and cooperation cannot be compelled or imposed (McCold 2000: 382). Other advocates, however, are critical of limiting restorative justice to voluntary deliberations (Bazemore and Walgrave 1999; Walgrave 1999; 2000; Bazemore 2000). While they accept the superiority of voluntary agreements (Walgrave 2000: 419; 2003: 62), they warn that as long as restorative justice is presented as a model of free settlements, it will be condemned to remain some kind of a soft ornament in the margin of hard core criminal justice (Walgrave 1999: 131). Also, they argue that it needs to be recognized that criminal justice interventions inevitably involve coercion, so absolute notions of freedom of choice need to be rejected. Voluntariness within restorative justice will always be qualified by enticements, inducements, perceived threats and availability of alternative courses of action (Crawford and Newburn 2003: 47). Perhaps all that choice within restorative justice involves is an opportunity for offenders to refuse to participate in a restorative intervention or walk out of one following a referral and consequently be processed in a traditional way by the criminal justice system (Crawford and Newburn 2003: 47). Importantly, both groups of proponentsthose who see voluntariness as a fundamental restorative value and those who view it merely as a means of enhancing the quality of restoration (Walgrave 2003: 62)agree that where voluntary restorative justice is impossible or considered undesirable, judicially imposed coercive sanctions are acceptable, indeed necessary (Walgrave 1999; 2000; Bazemore and Walgrave 1999; Declaration of Leuven 1997; Claassen 1996; Restorative Justice Consortium 2002; 500

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Braithwaite 1999; McCold 2000). That is, there is a consensus that judicially enforced sanctions should function as a back-up for the voluntary restorative justice. Views of conference participants on the voluntariness of conferencing At first sight, it appeared that within the project of this empirical study, voluntariness was viewed as a fundamental value. So, the promotional leaflet given by the conference organizers to participants claimed: Restorative Justice is entirely voluntary so if you do not want to take part you cannot be forced to (emphasis added). However, it appears from the records kept in the project that typically attending a conference was either ordered by the court, or the court made a flexible order, recommending an assessment for a conference. When asked in interviews whether their attendance was voluntary, the opinions of offenders were divided. Approximately half believed that they had had to participate. Most such offenders did not seem very enthusiastic about attending. It appears that their attendance was motivated by fear of being taken back to the court. Approximately a quarter of all offenders thought that their participation in conferences had been optional. Some of them believed that they had been merely encouraged to participate. Others felt that their invitation to participate had been accompanied by a degree of informal pressure. Using the words of one offender, people organizing the conference and the YOT workers were quite pushy in trying to persuade him to attend a conference. The remaining quarter of offenders in the sample were unsure whether or not their attendance had been optional. Conference facilitators during interviews argued that offenders should not be pressurized intoand duringthe conferencing process. As one of them has put it, If it is restorative, it has to be restorative. It cant be prescriptive. It cant be forced .... It has to be voluntary in the purest sense of the word for it to be meaningful. When asked to explain why voluntariness was so important, the facilitator said that coercion would provoke resistance on the offenders part and would block their ability to empathize with victims. What happens if an offender who is ordered to attend a conference and apologize is unwilling to do so? It appears from an interview with a conference facilitator and from observations that restorative justice practitioners employ various techniques to obtain the offenders agreement to participate in a conference and apologize to the victim(s) (e.g. multiple private meetings, use of praise and encouragement, skilful questioning, evoking empathy in offenders, etc.). This is done in such a subtle way that offenders may be made to believe that despite the fact that attending a conference and apologizing was required by their court order, they freely chose to do so. These findings seem to indicate several problems with the claim of certain restorative proponents that the restorative justice process is voluntary. First, such proponents seem to assume that restorative justice operating in the shadow of the criminal justice system can be free from coercion. This assumption overlooks a possibility that, at least in some cases, the consent of offenders to participate in restorative justice programmes may be motivated by the fear that unless they agree to take part in a restorative justice encounter voluntarily, they will be subjected to judicial sanctions. Given that the threat of judicial sanctions is looming in the background, it is misleading to claim that restorative justice is absolutely voluntary (Crawford and Newburn 2003: 47). 501

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Secondly, it appears that when restorative justice proponents argue that the restorative process is voluntary, they equate coercion to formal judicial coercion, backed up with legal sanctions (McCold 2000). However, coercion need not come from state authorities and need not have the force of the law attached to it. It may take a very different forminformal pressuresand come from different directions (e.g. victims, families of offenders, other community members, YOT workers) yet secure the same resultsobedience and compliancewithout resorting to forceful legal methods. The insights of the interviewees who felt that their consent to participate in conferences had been obtained through subtle informal pressures suggest that the claims that the restorative justice process is voluntary present an inaccurate picture. Thirdly, certain proponents of restorative justice tend to make a neat distinction between voluntary and coerced. The finding from this study that some offenders and their supporters were unsure whether their participation had been voluntary indicates that this distinction is not necessarily so clear-cut in the minds of conference participants. Thinking about restorative justice in either/or terms (i.e. either the process is wholly coercive or wholly voluntary) is simplistic and too crude to capture the subtleties and complexities of what happens in practice. An Empowering Justice? Theoretical debate In a highly influential article, Nils Christie (1977) has criticized the traditional criminal justice process in which the main actors on the criminal justice stage are legal and other professionals and ordinary people who are directly affected by the crime are excluded from participation in their own conflict. Christies critique of the formal and professionalized legal process has found a wide acceptance among restorative justice campaigners (Zehr 1990; Wright 1996; 1999; Van Ness and Strong 2002; MCold 2000; Barton 2000; Braithwaite 2003a). Empowering victims, offenders and their communities and returning to them conflicts stolen (using Christies terminology (1977)) from them by lawyers has become one of the key aspirations of a number of restorative justice advocates. These proponents present restorative justice as a process enabling stakeholders in crime to participate actively in developing their own solutions to their problems (McCold 2000; Marshall 1996; Braithwaite 2003a; 2003b). However, although restorative justice proponents generally subscribe to Christies proposals to empower stakeholders in crime and place them at the centre of the conflict-resolution process, most of them seem to do so for reasons rather different from those put forward by Christie. Christie appears to value the participatory process as an end in itself, rather than as means towards other ends. In his own words, maybe participation is more important than solutions (1982: 93). If this view were adopted by mainstream restorative justice campaigners, one of the implications would be promoting the empowering process for its own sake, irrespective of its outcomes. Yet, most restorative advocates seem to value the empowering process for utilitarian reasonsas a useful way of achieving beneficial outcomes (Johnstone and Van Ness 2006). It is generally believed that the restorative process is more likely to lead to reparation of harm caused by the offence, satisfy victims and reintegrate offenders than the traditional criminal justice process. 502

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Views of conference participants on conferencing as an empowering justice Consistently with the position of mainstream proponents, it does not appear that stakeholder empowerment within the project of this empirical study was promoted for its own sake. Some findings suggest that the degree of power given to stakeholders was rather limited and it was used to secure other objectives. As noted earlier, restorative encounters took place after sentencing, so the criminal justice system had the monopoly over the disposal of offenders. The system also retained an overall control over the outcomes of the restorative process in the sense that the plan resulting from a conference had to be approved by a YOT worker. Certain findings may indicate that crime stakeholders were empowered to participate in conferences and develop outcomes as long as their actions and decisions fit withand promoted the agenda set out by system-oriented professionals. It seems that victim empowerment within the restorative process involved the following: to tell offenders how they felt, ask questions and express disapproval. Without denying the value for victims of an opportunity to ask questions and express emotions, it can be argued that the amount of power given to them was rather insignificant. Victims hardly had any real say over how crime should be responded to, or in defining offenders obligations. Yet, by allowing victims to attend conferences, express emotions, ask offenders questions and receive an apology, an illusion might be created that victims play an active role in the criminal justice process, and the restorative process belongs to them. It appears that limits were placed on the role of the victims in such a way as to avoid a potential challenge to the monopoly of the criminal justice system over the disposal of offenders. Indeed, the role allocated to victims could serve to promote the objectives of the system, prevention of re-offending in particular. Educating offenders about consequences of their actions could invoke their empathy and thus prevent them from doing similar things in the future, and the unpleasant experience of having to face victims and answer their questions might deter offenders from further wrongdoings. As far as offender empowerment is concerned, it may be argued that they were empowered in the sense that they had an opportunity to explain their actions from their own perspective and give victims and other conference participants reasons behind the offence. In practice, however, it appears that offenders did not always attempt to exercise that power. Three offenders revealed in interviews that they had not even tried to present their side of the story and justify their actions in the conference because they had not felt that they would be believed. In one of these cases, in order to avoid a trial, an offender pleaded guilty to something that he claimed in the interview he had not done. He was ordered to attend a conference and apologize to victims, which he did without even attempting to defend his innocence. An additional finding which makes the extent of the offender empowerment dubious is that several offenders said they had wished they could invite friends to conferences as supporters, but they had not been allowed to do so.5 It seems that offenders were empowered to choose people whom they wanted to support them during conferences only to the extent that their choices coincided with those of conference organizers.
5 It appears from the conversations with conference facilitators that they do not allow offenders to bring their friends to conferences, because they believe that it is unsafe to allow such people to attend restorative justice encounters.

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Several offenders felt that they have not had much say over the rehabilitation plan which had been developed during the second part of the conference mainly by professionals and offenders families. In one case, the plan was created while the offender was not even present. However, the very fact that offenders were given a chance to participate in the development of the rehabilitation plan and had to agree to its content could create an impression of empowerment. Empowering offenders to take part in making of the rehabilitation plan could also serve to promote the achievement of the goals of the criminal justice system, because offenders would probably be more inclined to comply with a plan which they helped to create and which they consented to. With regards to the empowerment of offenders families, some offender supporters said that for various reasons (such as victims taking a too dominant role), they had not been involved to the degree they had desired during the first part of the conference. However, they felt sufficiently engaged in the second part, which aimed at creating a rehabilitation plan and required mobilizing family resources to prevent re-offending. The fact that the rehabilitation plan had been created by offenders families was used by the project workers as an illustration of restorative justice empowering families to develop solutions to their problems and exercise self-government. Yet, on the basis of the documentary evidence which was examined (pre-conference reports created by YOT workers and rehabilitation plans), it appears that the plan can hardly be seen as a pure creation of the empowered families. The foundation for the plan had been developed to a large extent by YOT workers long before the conference and was contained in a pre-conferencing report. A typical pre-conferencing report provided a detailed description of the reasons why the offender got into trouble and proceeded to instruct the family what the plan needed to include. The plan devised by the family during the conference consisted of answers to the questions posed in the pre-conferencing report. It would not be true to suggest that professionals writing a pre-conferencing report were the sole authors of the plan resulting from a conference. The family clearly made an input. However, that input was carefully restricted by the framework set out in the pre-conferencing report. The professionals drafting the report predetermined the nature and the focus of the plan which the family would develop, ensured that the plan satisfied certain criteria and aimed to achieve certain outcomes (i.e. stopping re-offending) and assigned a specific role to the family (which was primarily to help prevent further crime). The professionals carefully guided the family in creating the plan, while delegating the task of fleshing out its detailed provisions to the family. One implication of such separation of functions between the professionals and the family is that the resulting plan is likely to be better tailored to the circumstances of the family and, consequently, more effective in achieving its goals than a plan authored by professionals alone. This is so because the family are the best judges of how they can mobilize their knowledge and resources in working towards the desirable outcomes. Yet, the separation of functions allowed the professionals to retain an overall control of the nature, contents and goals of the plan. The second implication is that allowing the family to develop the details of the plan (although within a framework set out by professionals) made the family believe that 504

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they themselves designed the plan during the second part of the conference. That is, it served to mask the fact that the input by the family might have not been as significant as it may appear. This could create a sense of empowerment in family members and reinforce their enthusiasm in implementing their plan. To summarize, the extent to which crime stakeholders in this study were empowered was carefully restricted. The criminal justice system stayed in charge, while creating an impression that conference participants were key decision makers. Participants were empowered so as not to frustrateor even positively to promotethe agenda of the system. Conclusion This article has looked at some aspirations of restorative justice advocates in the light of the findings of one empirical study. Restorative justice proponents aspire to develop an alternative to punishment and rehabilitation paradigms. They aim to create a way of doing criminal justice which would place victims at its centre, and which would empower stakeholders in crime. Some also argue that this way of doing justice should be characterized by voluntariness. The findings of this empirical study seem to demonstrate a significant gap between aspirations of proponents and practical realities of restorative justice. Restorative justice, as practised within this project, can hardly claim the title of a victim-centred, empowering, voluntary justice which presents a true alternative to the traditional response to crime. It appears to come very close to the offender rehabilitation paradigm, with some elements of restorative justice added to it. How can the gap between the aspirations of advocates of conferencing and the recorded experiences of stakeholders be explained? One explanation has been offered by critics who argue that certain aspirations of proponents have not been sufficiently thought through and may well be undesirable or impossible of realization. Johnstone (2002) and Daly (2002), for example, have argued that the presentation of restorative justice as an alternative to punishment and rehabilitation paradigms is misleading. When proponents criticize punishment and rehabilitation and distinguish restorative justice from them, in essence, they criticizeand contrast restorative justice tocaricatures of both paradigms. The punishment paradigm is presented as either having hurting offenders as the sole reason, or as a simple form of deterrence, and rehabilitation is conceptualized as a highly medicalized model of penal treatment (Johnstone 2002: Chapter 5). Such presentations of the two paradigms of criminal justice are inaccurate, and contrasting restorative justice to the caricature images of punishment and rehabilitation is not only deceptive, but also may be damaging. Arguably, the objectives of restorative justice could be achieved more successfully if goals and methods of the rehabilitation and restorative models were combined (Johnstone 2002: 111), and presenting restorative justice as a more constructive form of punishment, rather than an alternative to punishment, could have practical advantages in promoting it (Daly 2000). An aspiration to create a voluntary form of justice is another example of a restorative ambition which has not been thought through sufficiently well. It is misleading to claim that restorative justice is characterized by voluntariness when the threat of judicial punishment is looming in the background of the supposedly voluntary restorative 505

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interventionsas pointed out above, in the project of this study, most conferences were ordered by the court and a failure to comply with the order could lead to offenders returning to court and receiving a more severe punishment. In such circumstances, the consent of many offenders to participate in restorative encounters was promoted largely by the fear of judicial sanctions, rather than by a voluntary desire to meet victims. Besides, it is deceptive on the part of proponents to equate coercion to judicial coercion and limit it to official legal sanctions. This empirical study found that there might be other sources of coercion which were informal and more covert in nature. Also, it is misleading to think of coercion in either/or terms: either coercive or voluntary. Such a way of thinking is too naive and fails to reflect the intricacies and complexities of what really happens. Proponents aspiring to develop an entirely voluntary6 way of doing criminal justice probably need to re-examine their ambition in the light of the above arguments and accept that totally voluntary restorative justice can hardly ever be possible. A further explanation for the existence of a gap between aspirations of proponents and practical realities of restorative justice identified by this study relates to the fact that this project operated under the aegis of the criminal justice system and attempted to practise restorative justice within the ideological and structural framework of the system. As noted earlier, it received most of its funding from the Youth Justice Board and referrals from YOTs, with conferences either being ordered by a judge or forming part of a flexible court order. The legislative framework was provided by the Crime and Disorder Act 1998, which defines the principal aim of the youth justice system as prevention of offending by children and young persons. This context within which the project functioned may explain such findings as the over-emphasis placed on offender rehabilitation, the spin-off of which was neglecting some needs of victims. Also, it may shed some light on the findings relating to the nature and extent of the empowerment of conference participants. They appeared to be empowered only to a degree that did not endanger the achievement of the objectives of the criminal justice system. Indeed, in some ways, stakeholders were empowered to facilitate the attainment of the systems goals. It should not be surprising that attempts to incorporate restorative techniques in the shadow of the criminal justice system through a piece of legislation, the overarching aim of which is prevention of re-offending among juveniles, has led to the alteration of the original vision of restorative justice. To a large degree, restorative justice was made to serve the agenda of the system, and when that agenda did not appear to fit well with the aspirations of proponents, those aspirations were abandoned or diluted. The findings of this empirical study may offer some support to the concerns about possible dangers resulting from pursuit of restorative ideals in practice, which have been expressed by critics and some proponents. The study demonstrates that practising restorative justice under the tutelage of the criminal justice system within the framework of criminal law may lead to co-option and compromise of restorative ideals. The findings may also suggest that some aspirations may have not been given sufficient scrutiny by proponents and perhaps need to be re-evaluated.

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Using the words from the promotional leaflet of the project of this study.

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