Trying to Restore Justice

Abstract

New Zealand is well known for its restorative justice conferences in the youth justice system. However, restorative justice has yet to overwhelm the adult criminal justice system. Based on interviews in New Zealand with correctional staff, restorative justice providers, and others, this article explores the reason for the modest inroads that restorative practice has made, and suggests that the general context may explain the limits of restorative justice in other places. The article argues that bureaucratic silos make it challenging to determine if restorative practice might fit within a rehabilitation or reintegration framework. In addition, because of the dominance of psychological modes for assessing and treating criminal behavior, an overarching preoccupation with risk management orients correctional practice toward treatment. Moreover, restorative justice’s affiliation with victims’ perspectives has made its placement within offender reintegration difficult to imagine. Finally, the penal populism that frames correctional practice in New Zealand, and other Anglophone countries, makes alternative to punishment harder to sell. However, the current liminal state of correctional practice creates an opportunity to conceive of more humanistic ways of repairing the harm caused by crime.

Keywords

restorative justice penal populism correctional bureaucracy psychology New Zealand offender reintegration

Introduction

Restorative justice has emerged as a promising alternative justice model that focuses on repairing the harms of crime—to the victim, to the offender, and to the community at large (Latimer, Dowden, & Muise, 2005). As an innovative way of doing justice and conflict resolution, it has endured arguments about how best to conceptualize and situate its processes and purpose. For some, the advantages of restorative justice are simply the healing potential for and focus on victims of crime (Zehr, 1990). For others, it represents a larger movement of peace-making and more constructive methods for resolving disputes (Cragg, 1992; Sullivan & Tifft, 2001). Still others envision its potential as a better way to run a criminal justice enterprise, as it would decentralize the processes and empower communities to handle crime as they see fit (Karp & Clear, 2002). Partly because its functions and purposes are disputed, its ability to transform traditional justice has thus far been limited. Moreover, its “co-optation” by state regulatory agencies inhibits restorative justice as a truly alternative model (McAlinden, 2011, p. 383).

New Zealand is world-renowned for its restorative justice practice in youth justice and child welfare. In 1989, historic child welfare legislation mandated a dramatic shift in the way that youth are treated; families are centrally involved (via the family group conference process) in decision-making about children. In addition, research has demonstrated its effectiveness in reducing the reoffending rates of youth who participate in restorative conferences (Maxwell, 1998; Maxwell & Morris, 2001a). In the adult criminal justice system, restorative conferences can be requested by judges pre-sentence if the situation is deemed suitable for consideration (Carruthers, 2012). The criminal justice proceedings are halted while a restorative avenue is pursued. If a restorative conference occurs, a judge must consider this in sentencing. In addition, the parole board may request that the Corrections department fund a restorative conference post-sentence for an offender in prison; however, these occur infrequently. The use of restorative justice conferences in the adult criminal justice system is neither routine nor widespread. In this way and others, New Zealand’s reserved engagement with restorative justice presents an interesting and curious case.

On a broad level, I was motivated by a question that preoccupied me: What explains the contradiction presented by New Zealand’s inclusion of restorative justice in its youth systems (both child protection and youth justice) and its very modest use of restorative practice in other aspects of justice? In fact, in sentencing, New Zealand is highly punitive, as evidenced by increasing sentence lengths and a relatively high imprisonment rate. Although Pratt (2006, 2007) has written extensively on the subject of New Zealand’s punitive criminal justice system, this article examines in greater detail the agency practices and constraints that explain the barriers to expanding restorative justice. In this article, I will illustrate the limited use of restorative justice in the criminal justice system in New Zealand, especially in Corrections; in this, the aim is to understand the interaction of factors within justice sectors that shape the meaning, benefit, and role of restorative justice. In other words, what issues and concerns are at play in the engagement with restorative justice? And what factors shape the available responses to crime? Government agencies have specific questions and concerns to attend to, given their particular mandates. Bureaucratic constraints also shape the course of justice practices generally. After explaining my methodology, I will explore empirically the host of considerations and issues that influence the adoption of and engagement with restorative justice in criminal justice settings. In particular, I will explain the brief history of restorative practice in New Zealand and how that shapes the competing definitions of the rationale of restorative justice. In addition, the larger correctional paradigm of risk assessment and management, as well as the micro-level cultural constraints within criminal justice sectors, frame the position of restorative justice. The greater significance will be the contribution to our understanding of the bureaucratic, disciplinary, and situational contexts in which justice policy leadership, decision-making, and action occur.

Although heavily influenced by Pratt’s (2006, 2007) notion of penal populism as a way to frame the punitive practices in New Zealand, this article argues that penal populism converges with bureaucratic limits, the victim-focus of restorative justice, and the dominant scientific paradigm of risk management significantly impacting the bearing of restorative justice on the adult justice system. McAlinden (2011) describes similar ideological limitations on the impact of restorative justice; however, this article clarifies the micro-structures and processes associated with different positions within criminal justice that give shape to the current restraints on restorative practice in New Zealand. Although the particular elements may be unique to New Zealand, the general conditions that sculpt government response may apply to similarly situated countries and take us far in understanding some fetters on the wholesale transformation of criminal justice into a more restorative one.

Methods

This project received institutional ethics approval from my home institution, as well as Victoria University in Wellington, New Zealand. The New Zealand Department of Corrections and the New Zealand Ministry of Justice approved the research protocol and agreed to cooperate with my research project. Initially, the research questions were about how and why New Zealand used restorative practice in adult criminal justice, and in particular, in the reintegration or other post-sentence contexts. How did a place like New Zealand, famous for its restorative practice, approach offender reintegration? However, I did not enter with a pre-conceived thesis to explore; rather, I engaged in grounded theory construction (Charmaz, 2006; Glaser & Strauss, 1967), in which empirical data collection precedes theoretical assessment. The research process is inductive and the coding process generates salient themes that form the basis for the findings.

In the 5-month research project in New Zealand, I conducted in-depth, open-ended, semistructured interviews with 64 participants. These included correctional staff, administrators, psychologists, case managers, probation staff, and prisoners from three different prisons. In addition, I interviewed volunteers who participated in a program to help support released sex offenders and recipients of that assistance. The research also included interviews with restorative justice providers, judges, former governmental officials, and non-governmental agency staff members. Respondents are not identified by their positions as doing so might compromise their confidentiality; however, all respondents have great familiarity with the subject at hand and have authority to speak on these issues. Interviews typically lasted 30 to 60 min and were semistructured and open-ended, were generally audio-recorded, and professionally transcribed. Questions differed for various participants. For example, questions for restorative justice providers and judges asked about when and how restorative practice was used whereas interviews with corrections staff asked about reintegration practices and, depending on their position, the ways in which restorative justice could be incorporated into their practices, if it is ever used, why they think it might not be, etc.

Recruitment processes were such that only willing and interested people responded to the request for interviews; in this sense, the sample was self-selecting and not all perspectives were heard. The logic of my methodology was to understand the diverse environments in which actors within the criminal justice system operate and negotiate their constraints. As such, I chose not to sample deeply within one particular group. However, because I analyzed for themes and ideas that surfaced repeatedly, I feel confident that the data are accurate and represent a true perspective held by many while acknowledging that other “truths” may exist as well. Qualitative data seek to describe the complexity of a situation rather than simplifying relationships. Thus, although there may be contradictory perspectives that are not fully represented here, coding for themes enables a triangulation of data insofar as themes were echoed from a variety of corners (Charmaz, 2006).

New Zealand Context

Based on interviews, New Zealand was engaged in restorative justice practices before those involved knew the term existed (see also McElrea, 2011). The “family group conference” (FGC), which is the major form of New Zealand’s brand of restorative justice process, is consistent with indigenous practice among Maori of New Zealand, which has a culture that is “whanau” (family) based and emphasizes reconciliation. During the 1980s, Maori and Pacific Island activists’ pressure on the family court process led to sweeping changes in legislation whose principles include the stipulation that families (and tribes) be involved in decisions regarding children (Consedine, 1995; McElrea, 2011). New Zealand passed the Children, Young Persons and their Families Act in 1989, which was sweeping legislation that never uses the term “restorative justice.” However, Family Group Conferencing (FGC) emerged from the legislative change and is used routinely in youth justice. As one respondent familiar with the history of restorative justice explained,

The great difference and the great strength of New Zealand’s restorative justice is that it’s all come from the community upward. It hasn’t been imposed by academics or legislation . . . so it’s fair to say that it’s been recognized by that legislation.

In addition, the legislation instructs that families be maintained and strengthened in the processes.

Because the family group conference model emerged out of child welfare and protection legislation, the transition to adult processes did not appear obvious. In addition, while other forms of restorative justice exist elsewhere, such as victim–offender mediation (Umbreit, 1998) and reparative panels (see Karp & Clear, 2002), the New Zealand brand of restorative justice is primarily FGC with youth. The practice has become more generic as it has been applied to other settings, such as adult diversion schemes. In addition, perhaps because it is a standard practice in the youth arena, the process tends to be used primarily for more minor offenses. Imagining its use in wider contexts has been slower to advance and evolve in other, more serious settings; however, there are smaller projects that use restorative process for cases of sexual violence (Jülich, Buttle, Cummins, & Freeborn, 2010) and other serious offenses (Maxwell & Morris, 2001b). In any case, the Court system has been more progressive in seeing the value of restorative justice than Corrections has. While the Ministry of Justice may view restorative conferences as a viable problem-solving process for offenders and victims, Corrections’ interest in restorative practice would result from its crime-reduction possibilities. New Zealand Ministry of Justice (2011) asserts that in their analysis of adult cases from 2008-2009, there was a 20% reduction in reconviction in a study comparing a control group with offenders who engaged in a restorative process (New Zealand Ministry of Justice, 2011; see also Hayes & Daly, 2003; Shapland et al., 2008).

Bazemore and Walgrave (1999) have argued that the chaos of definitions and applications of restorative justice exists because interest in it as a process converges with the rise of several movements, including the victims’ and women’s movements. Although there may be some confluence of interests in some of these social movements, their perspective on and attraction to restorative practice may differ. As one respondent explained,

First of all, FGC wasn’t designed as a restorative process so people said “well, hang on there, that’s not what [the legislation] says.” Second, you’ve got the political—at the time, they wanted to be tough on crime and thinking this was the soft option.

McElrea (2007) explains some of this difficulty in terms of the “adversarial” nature of adult criminal justice, in which there are winners and losers in a case; those positions are entrenched, making wholesale change difficult.

However, some small pilot projects were taking place quietly in a few district courts whereby judges would refer suitable cases for a restorative conference. If victims and offenders were willing to participate, then a judge must consider the outcome of the meeting as a mitigating factor in sentencing; this is spelled out under the 2002 Sentencing Act and 2002 Parole Act as well; these acts affect the adult criminal justice system. The idea behind this is that victims would benefit more from a restorative process than in the traditional court process. Meanwhile, offenders may learn empathy for their victims, which ideally would reduce future victimization. These kinds of programs are available more widely now but suffer from disagreements over the function of justice, as well as problems that may inhere in the definitions of restorative justice. According to one familiar with criminal sentencing,

What’s happened in New Zealand, however, is that it’s still peripheral to sentencing as a whole. It depends on the enthusiasm of the judges, or the lawyers, or individual police officers or probation officers. There’s no requirement to make it available to anyone who indicates that they want to go through this process. It’s voluntary. It’s unevenly funded . . . but it’s still at the periphery of the criminal justice system.

For example, restorative justice in New Zealand is framed as “victim-centered” and victim-initiated. Much public support stems from its essentially victim-focused purpose. As one restorative justice provider said,

If we say we’re a victim-centered process, we’re much more palatable to the general public, aren’t we? Okay. People are more prepared to say “good on ya.” If we were to say we’re an offender-based centered process, what’ll they say?

This is not to suggest that the general focus on victims is a cynical effort; rather, restorative justice as a process is more publicly viable than it would be if it attended to the restoration of offenders. According to a definitive scholar on restorative justice, Braithwaite (1999), the process must attend to victims, offenders, and communities to be truly restorative. However, over the years in some settings, the shift has been to a political contest between victims’ and offenders’ needs.

The Politics of Crime, Victims, and Punishment

Penal Populism

Pratt (2007; see also Pratt, 2006; Pratt & Eriksson, 2013) has written comprehensively about the political history of the punitive streak that is evident in New Zealand society. Pratt (2007) attributes the punitive streak in New Zealand to its jealous guarding of “paradise,” which included harshness toward outsiders and strict behavior regulation generated by a homogeneous dominant class. Evidence for this is New Zealand’s relatively high incarceration rate compared with other similar countries, the overrepresentation of Maori (the indigenous people of New Zealand) in prison, and use of incarceration for more minor crimes. Although it remains well behind the United States, it is second among industrialized nations, with a current incarceration rate of 199 per 100,000 inhabitants.

Like many jurisdictions, New Zealand is in the midst of national effort to reduce recidivism that may reduce the incarceration rate, although thus far the rate is stable. Pratt (2007) argues that penal populism emerges when the state is in a tenuous relationship to its citizens, and law-and-order motifs are an avenue for re-establishing legitimacy (see also Whitman, 2005). Countries like New Zealand, the United States, and Great Britain have been prone to the marriage between mass media and politics, and to media influence in persuading the public that crime is both out of control and in need of strong political intervention. Consequently, competing political parties vie for the mantle of being the toughest on crime. Policies are adopted that are popular with the citizenry but neglect expert evidence about what is effective in controlling crime.

Pratt (2007) discusses in the New Zealand case the role of the Sensible Sentencing Trust (SST), which is a lobbying group that pushes for stronger criminal justice sanctions. According to the SST website, under their “goals and policy” link is a list of advocating reforms such as “mandatory cumulative sentences” and the abolition of parole (SST, 2013). In interviews for this study, although participants were never asked about SST, the group’s name came up often in many contexts, from judges and some correctional staff members, as a factor that put extra pressure on finding a reasonable solution to crime. In other words, the punitive practices in New Zealand over the past decade or so are attributed, in part, to the work of the trust. But participants suggested both a more pressing need to counter the influence of the trust and a greater obstacle in pushing for reform. As one government staff member said,

And so the media have a vested interest in keeping the old system, the fear-based system going. And . . . the politicians at one point were falling all over themselves backwards to be friendly to the Sentencing Trust.

In fact, several participants mentioned the trust’s efforts as specifically undermining the more evidence-based approach that they might be inclined to undertake.

The Role of Victims

Moreover, a paradox exists in New Zealand between its position as a country that has contributed greatly to the restorative justice movement and its more punitive streak. The SST, which claims to speak for victims of crime, has expressed ambivalence about the way restorative justice operates in New Zealand. On its website, the trust mentions that if sentence consideration is on the table for offenders going through a restorative conference, then it is not “victim-driven.” In New Zealand, judges regularly take into account an offender’s willingness to go through a restorative process in meting out a final sentence, and post-sentence conference reports factor into parole decisions. Thus, one concern would be that offenders may not be sincere in their participation, as willingness may emerge out of self-interest. If the process benefits offenders, then the argument goes, it does not represent an improvement from the offender-centric criminal justice system. One respondent explained that for some groups, restorative justice is viewed as “a sop” to appease victims. The debate about whether or not it is appropriate to offer incentives reveals a “zero sum” interpretation of a restorative process (Robinson & Shapland, 2008, p. 340). This problem is not endemic to New Zealand; all around the globe there are debates around the definition of restorative justice (van Wormer & Walker, 2012). However, New Zealand has been fairly consistent over time in its approach to restorative justice as a victim-oriented process, as evidenced by its placement within the Victims’ Right Act of 2002, and according to the restorative justice providers interviewed.

However, as one government official explained, it only became victim-centered after New Zealand realized its practices fit into the framework of what was called “restorative justice.” Thus, in dialogue with the international community of restorative justice experts, New Zealand realized its practices fit into the rubric of “restorative justice” but slowly “narrowed” its focus to become more victim-centered, in recognition that others conceived it that way. The notable child welfare legislation, enacted in New Zealand in 1989, never mentions the term “restorative justice,” and language that provides the mechanism for FGC is decidedly offender-centric insofar as it specifies that arrangements must meet the needs of offenders and their families. According to one familiar with the youth justice process,

And you see, there’s still even now confusion as to who the youth justice system is for. Is it for primarily young offenders? Or is it for victims? Or is it for both? I think if you looked at the legislation, it’s heavily weighted toward young offenders . . . There’s a debate now as to, is it for victims or is it not. Because some victims are saying we feel conscripted into a process that is for the benefit of the young person.

Most restorative justice practitioners interviewed expressed that victim participation and satisfaction was vital to a good process. The New Zealand Ministry of Justice (2013), which funds most restorative justice in New Zealand, advances the definition:

Restorative justice is a process for resolving crime that focuses on redressing the harm done to victims, while holding offenders to account and engaging the community in the resolution of conflict. It does this primarily through a meeting between the victim and the offender called a restorative justice conference.

Nowhere in the definition does the offenders’ well-being or benefit appear as a concern.

Consequently, restorative justice in the adult criminal justice system occurs primarily at the pre-sentence phase, after a guilty plea or verdict. As one restorative justice provider asserted, that is because it is more squarely victim-focused at that stage than it would be later, for example, before release from prison when the primary focus would be on the offender’s situation. Restorative justice providers mentioned the benefit to offenders (besides sentence or parole consideration) was a chance to learn empathy or to apologize. Within the paradigm of restorative justice, as in criminal justice, victims and offenders are polarized as discreet entities, which has consequences for seeing the categories as more fluid. The discursive construction of victims and offenders aligns well with a punitive orientation, even though the aim in restorative justice is not retribution. But as one government official stated,

. . . it’s very difficult to find an offender who hasn’t been a significant victim in the past as well. So it just seems to me people want to put victim in a box and they don’t want to look on offenders as victims as well, but they certainly are on a daily basis.

In addition, the notion that offenders might learn empathy inadvertently aligns restorative justice with rehabilitation, which can be problematic. Interestingly, a government official explained the Sentencing Act of 2002 (New Zealand Government, 2002),

. . . there are mitigating and aggravating features of sentencing. So one on the list under features is the level of understanding an offender has as to the impacts of his crime. And one of the ways to display to the Court that you understand the crime is to go through restorative justice.

Understanding the impact of crime is quasi-rehabilitative, and although potential beneficial to the victim, legally, the understanding itself mitigate the need for harsher punishment. Daly (2000) argues that restorative justice is consistent with the principles of rehabilitation and not as divergent from traditional justice as critics suggest. According to Ward and Langlands (2009, p. 212), treatment seeks to “enhance the well-being of offenders and their ability to lead good lives,” whereas restorative justice advocates would tend to view efforts to help offenders as conflicting with a victim focus (see Robinson & Shapland, 2008). Robinson (2008) asserts that correctional strategies gain authority insofar as they line up well with other accepted discourses; for example, as Garland (2001) explained, treatment is consistent with the risk managerialism that dominates correctional practice. Risk management requires technical and rational assessment and manipulation of offenders’ risk profiles. Thus, the sovereignty of psychological treatment within correctional practice both reinforces the distinction between rehabilitation and restorative justice and curbs the influence of the latter (see McAlinden, 2006, 2011).

Disciplinary Sovereignty and Risk Management

Correctional practice has been dominated by the “risk-needs-responsivity” (RNR) paradigm for the past few decades (Andrews & Bonta, 2010). These principles suggest that treatment of offenders should be matched to their levels of risk (which can be measured) and to their specific needs that engender greater risks. In addition, the principles advocate an actuarial model for determining risk through the use of assessment tools that predict reoffending. Thus, corrections departments employ psychologists who introduce evidence-based practices based on first assessing risk and needs, and then matching appropriate treatment type and dosage. For decades, the RNR model’s dominance has narrowed the focus on reducing recidivism to fixing offenders’ problems through the use of some version of cognitive behavioral therapy for individuals (see Fox 1999a, 1999b). The significance of this for a discussion of restorative justice may not be apparent. However, as one corrections official said,

What I don’t want to happen is for restorative justice to become restorative rehabilitation or for that to somehow be blurred and lumped in with the other things we do that are, first and foremost, about rehabilitating offenders. Because there’s another view that needs to be respected there, and that’s the view of the victim . . . , but if it gets distorted to become part of a rehabilitation suite, firstly we risk that perception [we are] not helping victims; and secondly, we put an onus on it to deliver that it might not be ready to deliver on in terms of reducing the offending.

Although there is evidence to suggest that restorative justice can and does reduce reoffending (Sherman & Strang, 2007), the administrator’s view is reasonable given the state of such a polarized discourse about victims and offenders. The evolving concentration on victims that drives restorative justice in New Zealand would make its placement within offender treatment problematic.

Moreover, because of the seemingly inevitable distinction between department functions in large bureaucracies, it is unclear how to fit restorative justice into a rehabilitative framework. The rehabilitative literature is unambiguous about the kinds of treatments that are demonstrated to reduce risk. Thus, restorative justice might be better suited to a different department within corrections. But which one? Ward and Langlands (2009) describe some of the pitfalls of conflating restorative justice with rehabilitation, including the fact that restorative justice advocates sometimes argue that it is more effective than treatment, that treatment is not justice in the sense that offenders are not held accountable to the victim, and that rehabilitation is offender-centric. Interestingly, Corrections in New Zealand is moving into some experiments with restorative justice in prison, in part, because as one government official explained, “It just felt like it was the right thing to do now.” However, a dilemma could emerge, as one respondent described,

Let’s say it doesn’t reduce reoffending but we get good, albeit anecdotal and albeit subjective reports from victims to say, “that was really good for me” . . . would we stop it because it doesn’t reduce reoffending? Well, I would make the argument, no, we shouldn’t. We should proceed. If the opposite happened, let’s say the victim said, “actually, that was awful” . . . would we continue it?

Essentially, one could argue that Corrections is not responsible for crime victims, however, because restorative practice involves victims, if it were used in prisons, under correctional supervision, victims would become their responsibility. Thus, the dynamics of offender treatment and the impact for bureaucracies become more complex once others, such as victims or family members, enter the mix.

In addition, the quote above demonstrates the technical approach to risk management in anticipating unintended outcomes that might problematize a neat relationship between treatment targets. From that perspective, and in an environment in which corrections departments are encouraged to use scientifically demonstrated modalities, it is easy to see why restorative justice, with its dynamics between victims and offenders, and others would seem thorny.

The focus on risk, its assessment, and management have become central in many layers of correctional practice (Feeley & Simon, 1992). As one respondent said about parole decisions,

The only criterion is risk . . . you have to serve a portion of your sentence first, but if you’re eligible, it’s a question of our assessing whether you’re safe to be released. If you’re safe, you go. If you’re not safe, you don’t go. It’s all about risk . . . Sometimes the restorative conference produces a plan on where people are gonna live, who’s gonna support them, look after them, and so forth . . . so it can be part of the formation of a plan which does address risk factors.

Clearly in some contexts, restorative justice is connected to offense risk reduction, but in most contexts, the process is circumscribed and for the value to victims. As one respondent said about New Zealand: “RJ means capital R, capital J, it means conferences, it’s victims, and it comes with a manual.”

The interplay of the science of risk assessment, and the media distortion of the risks of crime posed to communities, has led to a perverse outcome of constructing offenders as walking bundles of risk (see Ward & Maruna, 2007). In tinkering with the risk drivers in offenders, treatment has drifted toward a tendency to concentrate on offenders’ deficits rather than their potential strengths (Maruna, 2001). In addition, media attention to rare and harmful cases of correctional “failures” has created an environment within which corrections’ departments, as well as judges, have become “risk averse.” Several respondents within corrections mentioned a particular high-profile example of a parolee who committed a serious crime as influencing their decision-making. In addition to concerns about victims, respondents were aware of the scrutiny their decisions may face in the media. Many respondents referred to Corrections as “risk averse” as a result of political, media, and public examination, although in practice there are movements underway in probation and within prisons to create bold policies that would seem to defy the extreme risk-aversion described, such as release-to-work programs and day releases to communities. In addition, probation officers are being asked to move away from the “tick box” approach to decision-making to use professional judgment in the field of risk evaluation and compliance monitoring. Nonetheless, in spite of these movements to more risk-accepting practice, many corrections staff members were guided by the threat of media attention to regulating risk.

The significance though of a risk-centric environment is that it can lead to unintended consequences, such as a less humanizing view of offenders. Bushway and Apel (2012) describe the difference between “desistance signals” and “signaling,” the former referring to the passivity of offenders as psychologists read their risk profiles, whereas “signaling” refers to activities that offenders engage in to demonstrate desistant attitudes and behaviors. An approach that is heavily weighted to risk and deficit does not lean toward a more restorative system, because a restorative approach recognizes the complex humanity of and harm to all parties involved in a crime. Respondents in interviews mentioned that in reality, many or most offenders have also been victims in some ways, and that the distinctions we tend to draw between victims and offenders can be somewhat erroneous. In addition, as Ward, Yates, and Willis (2012, p. 108) describe, the risk paradigm tends to construct offenders as “passive recipients of operant behavioral principles,” meaning that they become “risks” to be managed rather than humans with shared values and goals.

Bureaucratic Boxes and Culture

The structure and flow of responsibilities within the criminal justice system can create hiccups in promoting restorative justice within courts. For example, the government structure separates the Department of Corrections from the Ministry of Justice; in the past, they were one entity. The Ministry is responsible for court functions, whereas the Department of Corrections takes over post-sentence. Pre-sentence conferences would be funded by the Ministry of Justice; post-sentence conferences would be the province of Corrections. Although there are greater attempts currently to increase communication across government sectors, respondents who deal with various aspects of criminal justice expressed a concern that the sectors “don’t talk to each other.” In addition, there would be no existing logic to create restorative conferences at both the pre- and post-sentence phase, and in the absence of a communication about when and why such a meeting might be beneficial, the sectors respond to police, judge, or parole board suggestion. In other words, Corrections and the Ministry do not have their own automatic levers to push for a restorative conference. Due to the discreet funding silos and lack of communication, and in the absence of a systemic rationality about when restorative conferences are appropriate and what they may try to accomplish, they become fitting when someone within the system promotes them. The law currently states that judges should refer cases to restorative justice when and where appropriate. Some judges are true believers, and others apparently less so. Thus, the integration of restorative practice throughout the courts is uneven.

In interviews, it became clear that most respondents working within those systems understood the pre-sentence arrangement, which had become more formalized and centralized, but that post-sentence conferences were ad hoc and not clearly within Corrections’ mission. Parole board requests for a restorative conference for a prisoner being considered for release occur infrequently; many participants believed this was related to a lack of funding or Corrections’ reluctance to fund such processes. Arranging a conference is labor- and time-intensive. Corrections staff in charge of arranging a pre-release conference may not be invested in the process and respondents felt it would be viewed as additional work. More commonly, a judge may request a conference pre-sentence, wherein a police officer would be tasked with seeking out the victim and offering a restorative conference. In addition, victim contact information was not readily accessible. Only a small number of conferences requested by judges ever come to fruition. Some respondents felt there was insufficient “buy in” from police about the value for victims and were dubious about how the conferences were framed by police in conversations with victims. In any case, referrals were not being followed through and it was unclear where in the process the system fell down.

Although restorative justice is advocated within several pieces of legislation, it does not displace the overarching mandates of criminal justice sectors. The entrenchment of current justice practice does not create space in which restorative practice would materialize, except as an “add-on” to typical practice. Cragg (1992, p. 9) argues that the primary purpose of criminal justice is to find a humane solution to dispute resolution, and therefore argues that “the function of enforcement is, therefore, essentially restorative.” However, in practice, as McElrea (2007) describes, the “adversarial” nature of criminal justice hinders such solutions.

Because of the silos of responsibility for different parts of the system, and the tendency of bureaucracies to reward what many described as a “tick box” approach, there is less incentive to think creatively around solutions to crime that are not built into the system. As a case manager described, “We’ve prioritized the outputs, the things like offender plans and board reports, which we’ve got key performance indicators and we’ve got to meet them, and that actually goes up to the Minister, so that seems to be our priority.”

Micro-Cultural Elements

There are several avenues within the criminal justice system wherein restorative justice could be incorporated. The narrowly framed idea of what restorative practice should look like informs the cultural environment within the system that curtails the inroads that restorative justice has made. The structure of criminal justice as it is divided into silos (which is characteristic of New Zealand and elsewhere) necessitates a confined purview; in other words, police would only refer offenders to a restorative justice conference at one stage in the process; judges and parole boards would have limited opportunities to refer as well. As the justice process is segmented, there is no overarching umbrella that would dictate when and where restorative justice should occur, except within legislation. Thus far, legislation in New Zealand allows restorative justice to occur and to be considered at a couple of points in the process. In the absence of broader leadership, another possibility could be a bottom-up movement from within the ranks of criminal justice frontline workers.

Several respondents expressed concern about the degree to which the community-led traditions were being replaced by state-governed processes. As one restorative justice provider explained,

. . . RJ needs to be led by community and grass roots developed. It follows the indigenous practices of this land and we now have a government department who has responsibility in funding this, and in doing that, they are not capturing the essence of how it is used within communities. So narrowing the options of where it can be used against the opportunities for it.

This tension emerged repeatedly: As government wanted to tighten up training, certification, and processes to ensure some measure of quality control, many providers felt the creativity, flexibility, and community-specific aspects were being removed. As the practice becomes state-governed, as one provider declared, “It’s more about the process than the outcome,” whereas in other places, processes are developed to realize the desired outcome. The tension between process and outcome seems to parallel some of the victim–offender tension, and highlights the strain inherent in a definition of “justice.” Is justice a matter of ensuring a fair procedure or a good result? And for whom?

The New Zealand Department of Corrections has recently shifted its focus from a more control-oriented paradigm to a reintegrative framework, one that is more holistic in understanding the social and psychological dimensions of success on release. While Corrections has already devoted a great deal of resources to psychological rehabilitation programs, in the past few years, they also have made dramatic investments in reintegration, such as employment training, gradual release, and social/family supports. This shift to a more social-psychological orientation presents some interesting twists. First of all, as Rudes (2012) has documented, cultural changes among frontline correctional staff can be slow and taxing. As respondents explained, correctional officers are among the most cynical about offenders’ prospects for change. And as Rudes, Lerch, and Taxman (2011) found, those with a social work orientation in corrections are more open to reforms than those with custodial orientations. One might anticipate a greater use of restorative conferences in this new regime, but case managers and parole officers were concerned about the ability to devote the time necessary because they were also being asked to help with the reintegration of “short-servers” in addition to their harder cases.

The new regime is one that insists that correctional officers have meaningful, positive engagement with prisoners in their care. In other words, they are to be directly involved in moving him or her along the path of change. Probation staff, too, have been asked to swing to a more flexible and creative decision-making process and are given skills, such as motivational interviewing and a dynamic risk assessment tool, to determine how the change process is progressing. In this way, all the actors in the process are assisting in offender rehabilitation.

Although probation staff members were excited about the chance to do deeper work rather than “box ticking,” they found that their risk management responsibilities had not diminished. Thus, they experienced some tension between the helping function and the policing function of their jobs (see also Rudes, 2012; Rudes et al., 2011).

As one probation officer said,

. . . we’ve struggled [with] over the years with changes in the department, from becoming a quite punitively focused industry to the more social work role and trying to balance that has been really difficult . . . especially when you’re working one-to-one with a person. On one hand, you’re having to be quite strict about conditions and on the other hand, you’re trying to draw them into some change.

Another probation officer described it as “trying to create a fence at the top of the cliff rather than an ambulance at the bottom,” which he regarded as a positive but challenging move, and one that was hopeless in terms of some persistent offenders. A correctional staff member said that Corrections previously had used a “business rules” model, in other words, a bureaucratic “tick box” system in which strict criteria were used to assess treatment and supervision conditions. The staff member said they decided,

Let’s get rid of some of these unnecessary business rules. I mean you still need entry criteria and you still need guidance. But let’s not dance on a pin as to whether it’s right for someone . . . And sometimes you simply have to take the path of least resistance for some people to get some momentum behind their rehabilitation. I mean you have to get them engaged in something they’re willing to do and get a measure of a success, and with that you can maybe nudge them on to the next thing.

The shift from a regimented technocratic system to one that allows discretion and professional autonomy has been challenging. The probation staff and upper management agreed that it was struggling to determine an effective pace of change. Change is often introduced incrementally to establish a certain skill set before introducing new demands; however, Corrections has a stated goal of reducing recidivism by 25% in a few short years; thus, the necessary changes are dramatic and have to be rolled out more quickly. But as the saying goes, “Culture eats strategy for lunch,” meaning that top-down directives, even heavily resourced initiatives, can be undermined if there is sufficient resistance by frontline staff (Lipsky, 1983). Resistance is predictable when new activities are added to the pile of responsibilities. As Garland (2001) explained, structural change “results from the recurring, re-iterative actions of the actors who occupy the social space in question” (p. 24).

McNeill (2009, p. 22) describes the distinction between probation officers’ orientation toward “public protection” versus “community safety,” noting that the latter emphasizes the well-being of all parties, including the offender. He notes that over time, there has been a systematic attempt to shift custodial staff and probation staff to an emphasis on control and public protection. This, in addition to the risk-centric paradigm inherent in much rehabilitation, creates a scenario in which an ideology of restoration would not seem likely to emerge from the bottom-up, nor from the top-down. This same tension would preclude staff from advocating a more restorative approach in their frontline work with offenders, except insofar as they saw it as a worthwhile process for victims. Even so, there would be no reward structure in place to encourage restorative practice.

Although there are significant signs that corrections in New Zealand are moving toward a more rehabilitative and reintegrative orientation and away from a purely control-oriented model, the barriers to incorporating truly restorative practices are many. Among the barriers is a distinction between custodial staff, treatment staff, and reintegration staff. Efforts are underway to make those roles more flexible and more fluid, and to make interactions more humane and constructive, yet the connective theme in a corrections environment is the control of risk and reduction of crime. Whatever potential restorative practice may provide as a tool in those processes, it is unclear where and how it would be taken up in criminal justice.

Conclusion

Specific events and players in the small country of New Zealand contribute to the unique ways the story of restorative justice has unfolded. Although the details might be unique to New Zealand, the generic principles of how correctional bureaucracies work may apply to other similarly situated organizations. These data illustrate the tensions thus far that stifle the transformation of criminal justice into a truly restorative one. The inflexibility of bureaucratic structures and political wrangling over stakeholders’ interests can make system overhaul difficult. In addition, and ironically, the dominance of psychological discourse concerning risk assessment and management translates into challenges integrating a more relational approach to offenders’ needs for being restored. In some respects, because New Zealand made such significant strides in restorative justice with its youth practices, one could have expected to see a more substantial infusion of restorative justice into other parts of the justice system. In other words, if New Zealand experienced these difficulties in expanding restorative justice, imagine what adversities other countries face. However, like the United States, and other Anglophone countries, New Zealand experiences the fallout from penal populism, which makes the value of restorative justice hard to teach (Pratt & Eriksson, 2013).

The hazard in attaching restorative processes to traditional criminal justice functions has been explored (Robinson & Shapland, 2008). Many idealists predicted that restorative justice would convert criminal justice over time, or at least to infuse it more fully, by slowly demonstrating its value and eventually replacing the outmoded approaches we find ourselves mired within. In the short term, however, until or unless this ideal is realized, restorative practice as an “add-on” runs the risk of widening the net of social control (Cohen, 1985). According to McAlinden (2011, p. 396), What we are left with, therefore, is a hybrid rationale for a justice intervention that combines informal methods of social control with more formal regulatory punishment. Restorative justice has ultimately been endorsed by the state as a regulatory tool.

In other words, criminal justice carries on with its usual high level of incarceration, but with an additional mechanism for capturing low-level offenders in its web. Because of the abiding philosophies of justice that operate simultaneously within criminal justice, it should not be surprising that a system renovation would be slowly, if ever, forthcoming. Many citizens embrace the precept for punishment as the principal purpose of criminal justice; the larger frame of populist punitive sentiments creates resistance to alternative approaches. But as McAlinden (2011, p. 399) warns, if restorative justice remains “stuck on the margins of criminal justice,” then its potential may never be realized. Its marginalization may also reveal the depth of our ambivalence toward restoring offenders to the fold.

However, in this liminal state within corrections, which acknowledges the shortcomings of the logic of warehousing prisoners, and its concomitant move to a more relational and functional orientation to what “corrects” citizens, restorative justice might be embraced simply because of the humanistic exchange it provides. This analysis elucidates in empirical detail the complexity embedded within structures and processes in criminal justice that stifle the revolution in punitive systems. Change in bureaucracies is hard, as Lipsky (1983) taught us decades ago. Correctional culture is notoriously difficult to change, in part because of its fundamental mission of community safety and control (Freeman, 1999; see also Rudes et al., 2011); modifying the culture to allow for more meaningful human interaction, recognizing offenders’ capacity for change, and restoring offenders within the system may seem counter to the primary goal of control (Rudes, 2012).

Finding a place for restorative practice within the silos of corrections may be the most important step. To be considered rehabilitation, there would need to be solid evidence not simply that it worked to reduce recidivism, but also why or how it worked. But as McNeill (2009) argues, the goal of corrections should be more than recidivism reduction; it should be about doing “justice.” Even within a restorative paradigm, justice for one party in a criminal event often is deemed detrimental to the other parties. Using restorative practice to re-certify offenders as citizens back into communities would be another avenue to pursue if the goal was to restore offenders, but the role of victims in such a process would be an issue to resolve because of the overwhelming tendency to view offenders and victims as polarized and entirely distinct. Yet as corrections’ departments come to realize more that stigmatizing processes lead to poor results, an argument for restorative practice can be forged on the basis of its pragmatism, if nothing else.

The primacy of psychological models in correctional ideology currently leads toward a tendency to see offenders as objects to be tinkered with. And insofar as restorative process could be a kind of tinkering, psychologists might be more amenable to the ideas if they could pinpoint which risk principle restorative justice might address and with which population of offenders. But as corrections moves to a more rehabilitative and reintegrative stance—in other words, a more sociological understanding of crime and desistance—then the opportunity for imagining justice more expansively is ripe. And as more humanized processes are promoted within community-based options, to no ill effect, the slow shift may occur as the payback from retribution, victim–offender polarization, and cynicism is not realized.

Footnotes

Acknowledgements

The author thanks Fulbright New Zealand, Rethinking Crime & Punishment (NZ) for sponsorship and assistance; Victoria University in Wellington (NZ) for hosting me as a Visiting Scholar in the School of Social and Cultural Studies’ Institute of Criminology; New Zealand Corrections and the Ministry of Justice for cooperation; and Kim Workman, Tony Ward, and John Pratt for helpful advice. The findings presented here are not necessarily endorsed by any organizations or individuals listed here.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The project was sponsored by Fulbright New Zealand and the University of Vermont.

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