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Abstract
The literature on restorative justice is replete with findings showing that offenders and victims judge restorative processes as fair and view outcomes as satisfactory. There is less evidence to suggest, however, that restorative processes are in fact restorative. I first consider how apology and forgiveness feature in one form of restorative justice (youth justice conferencing) and then examine findings from two major research projects in Australia (RISE and SAJJ) to show why reconciliation and repair are not common outcomes in restorative justice conferences.
Notes
[1] I thank Nicholas Tavuchis and Kathleen Daly for their insightful comments on previous drafts.
[2] The Australian Capital Territory (ACT) has only recently passed legislation for restorative justice conferencing—the Crime (Restorative Justice) Act 2004—and began conferencing under the new Act in early 2005. Prior to this, the Australian Federal Police convened conferences in the ACT since about the mid‐1990s.
[3] I focus on research in these two jurisdictions as my theoretical analysis of apology and apologetic discourse is informed by my observations of the ‘New Zealand model’ conferencing in operation in South Australia and Queensland. Nevertheless, a great deal of important evaluation work has been conducted in the US and the UK (see, e.g., Bazemore & Umbreit, Citation1999; Miers et al., Citation2001; Umbreit, Citation1996, Citation1998, Citation2001)
[4] Please see Maxwell and Hayes (forthcoming) for a detailed review of restorative justice developments in the Pacific region.
[5] This description of the conference process is based on several observations of conferences I conducted in 1998 and 2002, while engaged in research on the effectiveness of community conferencing in Queensland (Hayes & Daly, Citation2004; Hayes et al., Citation1998). My understanding of conferencing processes is also informed by several conversations I had in 2002 and 2003 with the state‐wide coordinators of youth justice conferencing in South Australia (Carolyn Doherty), New South Wales (Jenny Bargen), and Queensland (Gail Pollard). For a description of variation in the organizational placement and management of youth justice conferencing in Australia and New Zealand, see Daly and Hayes (Citation2001, Citation2002).
[6] While there is more consistency across Australian jurisdictions in terms of what occurs during conferences, there is considerable variation in the amount of intake work. In some high‐volume jurisdictions where large numbers of young offenders attend conferences (e.g., 1500–1700 per year may be referred to conferences in New South Wales and South Australia), fewer resources can be devoted to pre‐conference preparation. Necessary conversations between conference professionals and participants may be carried out over the telephone rather than face‐to‐face (Daly & Hayes, Citation2001). Queensland is the exception. This jurisdiction convenes more than 2000 conferences annually but still ensures that all pre‐conference interviews with young offenders and victims occur face‐to‐face.
[7] Even given the apparent relevance of Tavuchis’ analysis, the restorative justice literature has tended not to draw upon sociological formulations of apology (Bottoms, Citation2003).
[8] It is important to note that Tavuchis’ analysis of apology centres on dyadic encounters between the offender and offended. By contrast, youth justice conferences are necessarily attended by the offender, the offended, and third parties (e.g., the convenor, police officer, and supporters). I discuss how such third party attendance theoretically may affect apologetic discourse.
[9] I limit my review of research findings to major projects in Australia and New Zealand, as my focus is on one form of restorative justice: youth justice conferencing for young offenders. See Hayes (Citation2005) for a review of major research projects on restorative justice in the US, Canada, and the UK.
[10] There are no comparative data on forgiveness in the SAJJ project. The focus in SAJJ was more on victims’ and offenders’ abilities to develop, through restorative dialogue, mutual understandings of the other.
[11] In another field experiment in Indianapolis, researchers observing 157 conferences from September 1, 1997, to September 30, 1999, found that young offenders offered apologies to their victims in over 80% of cases (McGarrell, Olivares, Crawford, & Kroovand, Citation2000). However, no information was obtained from victims as to whether they felt the apologies they received were sincere. Nevertheless, these rates of apology are higher than those observed in other studies conducted in the US (McCold & Wachtel, Citation1998) and the UK. For example, in one study in the UK, researchers interviewed 43 young offenders referred to one of seven restorative justice schemes (Miers et al., Citation2001). They found that only 34% offered apologies to their victims through a written letter. They note: ‘[M]ost felt that writing a letter was enough to say sorry and “put things right”’ (p. 39).
[12] I note here that the importance of apology and forgiveness in achieving reconciliation and repair may be more important to offenders and victims who are known to one another than those who are strangers. The motivation to accept an apology and offer forgiveness comes from the desire to re‐establish or maintain a cherished relationship (Roberts, Citation1995). However, we learn from the SAJJ research on youth justice conferencing that, in a substantial proportion of cases, offenders and victims did not know one another (Daly, Citation2001a).
[13] In a recent discussion I had with the area coordinator of youth justice conferencing in suburban Brisbane, Queensland, Australia, the coordinator related a story about a conference that she had convened, in which a young female offender refused to apologize to her victim and was demonstrably angry throughout the conference. The coordinator later learned that this young offender had wanted to apologize to the victim in private and was angry because the opportunity was never offered during the conference (Hayley Baldwin, 2005, personal communication).
[14] Daly (Citation2003b) observed, for example, that 40% of the victims in her SAJJ sample said they received either no or only very little ‘information on what would happen’ (p. 223).
[15] I am currently engaged in a large qualitative field study that aims to learn how young offenders understand restorative justice conferencing processes. In future work, I also will be exploring the ways in which victims and offenders understand one another.