Can Restorative Justice Shrink Our Prison Population?

Chris Marshall

Prof Chris Marshall is the inaugural holder of the Diana Unwin Chair in Restorative Justice at Victoria University of Wellington

In a recent article in the British Journal of Criminology (2015, 55/5: 883-900), William Wood sets out the reasons “Why Restorative Justice Will Not Reduce Incarceration”. His analysis is perceptive and, to my mind, largely persuasive, even if it has the potential to dampen the growing political confidence in the potential of restorative justice to improve crime control.

For those of us who believe in the power of restorative justice to promote healing and change in participants and to strengthen social bonds, Wood’s treatment is an important reminder of the need never to lose sight of how structurally embedded the modern prison system is, of the inherent limits of any intervention aimed primarily at delinquent individuals to bring about systemic change, and of the dangers of rhetorical excess in promoting the benefits of restorative justice.

At the same time, there is still good reason to invest in expanding restorative justice practices, both within the criminal justice system and beyond it, as an important part of the solution to mass incarceration, and in ways that are not always immediately obvious.

Three Levels of Impact
Wood begins by distinguishing three levels at which RJ is said to be effective. At the micro-level, it strives to repair the harm caused to victims and to hold their offenders accountable. At the meso-level, it facilitates the involvement of the wider community in responding to crime and reducing its occurrence. At the macro-level, it seeks to transform criminal justice practices and policies by advocating a new way of dealing with the problem of crime.

Most empirical research has focused on assessing the effectiveness of micro-level practices, such as family group conferencing and victim-offender mediation. These practices are said to deliver a strong sense of procedural justice, to enable the affected parties to take greater ownership of their conflicts and needs, to bring about a deeper sense of satisfaction to victims, to reduce recidivism in offenders, and to enhance the reintegration of wrongdoers into the community.

But in addition to these micro-level claims, it is not uncommon for RJ proponents to claim that restorative practices also have the potential to transform to criminal justice system as a whole, at the macro-level, and to substantially reduce the use of incarceration. But is this the case?

The Modern Prison Boom
​Wood focuses on four countries that have each experienced galloping growth in prison populations over the past 40 years. Between 1980 and 2010, the rate of incarceration in Australia increased by 100%, in the United Kingdom by 83%, in New Zealand by 183%, and in the USA by a staggering 500%. To imagine that a phenomenon of such massive proportions can be substantially changed through the use of RJ conferencing is not only lacking in empirical evidence, Wood claims, it is patently naïve.

It is lacking in empirical evidence because there is a dearth of empirical research on the impact of RJ on incarceration. Numerous studies and meta-analyses have demonstrated the impact on recidivism in general, including two by our own Ministry of Justice. But reduced rates of reoffending do not translate automatically into reduced rates of imprisonment, for several reasons.

One reason is that the majority of cases referred to RJ, especially in the youth jurisdiction, are for offences that would not normally carry a prison sentence anyway, such as vandalism, theft, burglary, minor assaults and traffic violations. Only a handful of studies have focused specifically on the impact of RJ on those who would likely face imprisonment for their crimes, and these studies have come up with mixed results.

There are also very few examples in the world where RJ is available as an alternative to prison. Certainly in its earliest days, victim-offender mediation was envisaged as an alternative track to the mainstream punitive system. “Since this time however”, Wood explains, “RJ has developed not as an alternative to state practices, but as an extension of them, so that today few restorative programmes exist as alternatives to the criminal justice system” (8).

A possible exception is the NZ Youth Justice system, which uses Family Group Conferencing in place of formal prosecution and punishment for young offenders. Following the introduction of new system in 1989, there was a marked reduction in juvenile detention. But this laudable outcome cannot be attributed simply to the inherently restorative power of FGCs. It was the result of a conscious legislative intent to use mandatory diversionary mechanisms to severely limit custodial placements.

As well as being lacking in empirical evidence, the claim that RJ has the potential to solve the prison problem is also sociologically and politically naïve. It rests on the assumption that our currently high rate of imprisonment is due to increased levels of criminal offending, and that by reducing reoffending rates through restorative interventions, the prison population will eventually fall.

But reality is not that simple. The recent growth in incarceration has not come as a result of real increases in crime, but because of changes in sentencing practice that have criminalized less serous offences, extended sentence lengths, increased the use of remand, tightened bail and parole requirements and increased the practice of recalling released persons to prison for technical violations. These harsher policies are in turn part of a larger pattern of more punitive and exclusionary practices of social control that extends through multiple policy areas, including social welfare, mental health, employment law and education. No amount of RJ conferencing, in and of itself, will be able to undo the deleterious impact of such policy settings.

It is probably no accident that the growth of incarceration has followed hard on the heels of neo-liberal economic reforms involving the deregulation of labour markets, reductions in social welfare provisions, reduced worker protection, regressive taxation, growing inequalities of wealth and income, and relatively punitive policies towards the poor and minority populations. These structural inequalities and the discursive practices that have justified them, such as the so-called “war on drugs”, are the major contributing factors to the burgeoning prison population of recent decades.

If recent trends towards more punitive sentencing are not the result of increased criminal offending, they cannot be reversed simply by working more restoratively with individual criminals. Micro-level practices, like RJ, cannot readily fix the macro-level or structural problems that have given rise to the prison boom, and it is naïve to think otherwise. Only if it were able to reduce poverty, social inequality and marginalization would RJ be able to significantly affect rates of incarceration.

So Where To For RJ?
Wood’s analysis is a helpful warning against sloppy talk and sloppy thinking on the part of RJ advocates. In promoting the benefits of restorative justice to politicians and policymakers, and to the general public, it is all too easy to commend it on the grounds that it reduces reoffending, and will therefore reduce the prison population, and in so doing save the government money. The evidence that it can help to reduce reoffending is encouraging. But there is no automatic correlation between offending rates and rates of imprisonment, between the drivers of crime and drivers of incarceration. There are deep systemic and ideological reasons for what has been called “the expanding prison”, and these cannot be undone solely by increased access to restorative conferencing.

This is not to say that RJ can make no difference whatsoever to the problem. There is still good reason for RJ advocates to work hard at extending the reach and deepening the quality of restorative practices, as one part of a much larger campaign to transform the wider system and, indeed, society itself.

The bulk of RJ work around the world is still for relatively minor offending, especially by young people. There is nothing wrong with this, but if RJ is to play even a small role in reducing incarceration it needs to be used more regularly for imprisonable offences. As Wood concludes, RJ will continue to have a negligible impact on rates of imprisonment “unless RJ practices can be more systematically implemented into cases of serious offending and developed more broadly as a sentencing alternative for offenders who otherwise may face incarceration” (p.12, cf. 8).

At the same time, much more effort should be made to expand the use of restorative practices within prisons and especially as part of the process of reintegration following release. New Zealand is still doing very little in this space, certainly compared to the pre-sentence arena. More work is needed on the potential of restorative programmes and practices to reduce the number of people who return to prison a second or third time because they fail to reintegrate successfully into law-abiding society.

Another way in which RJ can play some role in reducing incarceration is by interrupting the so-called “school-to-prison pipeline”. There is a direct correlation between failure at school and entanglement in the criminal justice system and the extent to which restorative practices in schools can help to keep kids engaged in education is the extent to which they will help to reduce the prison population. It is also important to recognize that quantitative research has its limits. Not everything that matters can be measured statistically. One of the most important roles that RJ can play is in cultivating the values and social commitments needed to move society toward greater civility, equality, inclusiveness and compassion.

The highly retributive and exclusionary Corrections system we have created over the past generation is, amongst other things, the symptom of a deep shift in our social and economic values, marked by a growing individualism and diminishing sense of our interconnectedness and interdependence as citizens and as human beings. RJ promotes on a different value system, one focused on whanaungatanga, and those who participate in its practice often discover or rediscover in themselves and in others something that is profoundly humanizing and unifying.

It is a mistake, then, to limit the role of RJ in redressing the prison problem solely in terms of its ability to keep more offenders out of jail. For every offender who engages in a RJ conference there will often be half a dozen or more other participants involved in the process, whether as victims, supporters or community representatives. They witness what takes place. The impact their attitudes, values, actions and relationships subsequently helps to remove or reduce the fears, hostilities and rivalries on which prison monster has grown fat.

Researchers have often found that victims who participate in RJ typically experience a reduction in feelings of vengefulness and fearfulness, the very emotions that have been manipulated by the advocates of tougher sentencing. Who can say what long term shifts in social climate will flow from increasing numbers of people engaging in restorative processes?

Wood is correct. Micro-level practices cannot, by themselves, effect macro-level change. But they can still play an important role in creating the conditions necessary for macro-level policy changes to be contemplated and implemented.