Abstract
In this article, attention is paid to understanding how the principle of restorative justice is operationalised and works within a context such as the Norwegian youth justice reform. The study reveals a distinct gap between ideals and practical realities. This gap is elaborated on and discussed within various perspectives on restorative justice. By this, the article adds both to international literature on the subject and to debates on limitations of this principle within youth justice. The article also adds important experiences from restorative justice used as part of a penal regime for youth offenders.
Keywords
Introduction
Restorative justice is widely used in reactions towards youth offences as an alternative to traditional approaches (Bouffard et al., 2017; Suzuki and Wood, 2018). The principle is also key to the Norwegian youth justice reform, a reform that in recent years has attracted broad international attention. In the Norwegian model, however, restorative justice is co-opted into the criminal justice system as a mandatory component of a penal reaction (Andrews and Eide, 2019; Eide and Andrews, 2020; Leonardsen and Andrews, 2022). The Norwegian model seems also to apply restorative justice in cases of more serious offences and in processes lasting over a longer period than what appears to be the case elsewhere according to works by, for example, Daly (2003) and Suzuki and Wood (2018).
A restorative justice process is commonly described as a deliberative process in which the parties directly affected by an offence come together to resolve collectively how to respond to the offence (Braithwaite, 1998, 2002). Yet, in cases of youth offences, restorative justice is used in ways that vary in content as well as in format and duration (Bouffard et al., 2017; Suzuki and Wood, 2018). Some processes include both direct and indirect communication between victim(s) and youth offender, for example, victim–offender mediation or family-group conferencing, while others involve a neutral third party to negotiate an agreement without direct contact between the victim(s) and the offender (Bouffard et al., 2017). A key belief seems to be that restorative justice works to reduce crime recidivism. Nevertheless, different works arrive at different conclusions as to whether such processes have the anticipated effects. In their review, Bouffard et al. (2017) point to the growing body of studies that demonstrate favourable outcomes particularly when compared with other criminal justice approaches. Suzuki and Wood (2018), however, suggest an ambiguity in or a mix of findings on effects. They point particularly to limitations in the effectiveness in terms of both victims’ experiences and impact on reoffending.
Several scholars, among them, Winterdyk et al. (2016) have called for a close examination of this reform to see what lessons can be learned (Leonardsen and Andrews, 2022). This article responds to this call by presenting results from a formative evaluation of the reform. Attention here is not paid to the entire model where restorative measures are combined with rehabilitative and punitive measures but directed specifically towards restorative justice and to how the principle is operationalised and works within this specific context. 1 By this, the article not only adds to the international literature on the subject but also explore how restorative justice works within the context that Nils Christie, as a pioneer within this field, expressed deep concern about. Christie (2014, 2015) criticised particularly the ways in which restorative justice in cases of youth offences in Norway were incorporated into the criminal justice system, and became part of a penalty regime, rather than being used as an alternative approach.
Key aspects of the Norwegian youth justice reform are outlined below and followed by a brief section on core values and debates within restorative justice.
On the Norwegian youth justice reform
The Norwegian youth justice reform was put into effect on 1 July 2014, and yields offenders aged 15 (the minimum age of criminal liability) to 18 years. One intention behind the reform was to reduce imprisonment for young offenders and as such function in ‘the child’s best interest’ according to the Convention on the Rights of the Child, UNCRC, Article 3, except for in cases of severe crimes such as homicide and grave sexual offences (Holmboe, 2018).
The reform includes two separate sanctions that respond to the severity of the offence(s): (1) ‘Youth sentence’ (ungdomsstraff) which is applied for relatively serious crime and as an alternative to an unconditional prison sentence and to the longest ‘community sentence’ of a maximum of 420 hours. The duration of the sentence, decided by the court, has a time range from 6 months up to 2 years, or 3 years in exceptional cases. The court also decides on a subsidiary prison sentence if conditions for the youth sentence are broken. (2) ‘Youth supervision’ (ungdomsoppfølging) is a milder sanction than a ‘youth sentence’ and is applied for less serious crimes. This sentence is decided either by the prosecuting authority as a waiver of prosecution, or by a court, and the maximum duration is 1 year. A precondition for both sanctions is the offender’s explicit consent. If conditions are complied with, the offender will avoid imprisonment in cases where he or she otherwise would have been sentenced to serve prison time (Andrews and Eide, 2019; Holmboe, 2017, 2018; Leonardsen and Andrews, 2022; Prop. 135 L (2010–2011); Prop. 57 L (2013–2014)).
Because the reactions build on restorative justice, the Norwegian National Mediation Service is given the responsibility for carrying out the sanctions. At each local Mediation Service, a ‘youth coordinator’ organises and coordinates the follow-up regime. While the court or the prosecuting authority decides the length of the sanction and the type of subsidiary punishment, the specific content of the sanction is determined by a follow-up team appointed by the local Mediation Service. The content, in turn, is specified in a ‘follow-up plan’. For each case, the ‘follow-up team’ shall both support the youth offender and control that he or she complies with conditions agreed upon in the ‘follow-up plan’. Members of this team are, for example, representatives of the child-protection service, the social service, the health services, the police, the correctional service and the school. Family members and/or private social networks may also be included.
The ‘follow-up plan’ shall be tailored to each youth and is finalised and agreed upon when the sanction begins. Several mandatory measures are included such as daytime activity (attending school, work, applying for work), and, when relevant; drug testing, participation in crime preventing programmes and restrictions on social contacts (Prop. 135 L (2010–2011); Prop. 57 L (2013–2014)). Among the mandatory measures is participation in a restorative justice conference arranged at the opening of the sanction period. 2 In cases of ‘youth sentence’, the offender, the offender’s guardian, the youth coordinator and representatives of the police and the correctional service shall be present. Other participants could be members of the ‘follow-up team’ and/or other relevant bodies. In cases of ‘youth supervision’, the offender and his or her guardian shall participate. The police shall be present if the local Mediation Service finds it necessary. For both sanctions the victim(s), the victim(s)’s guardian and/or defence lawyer have a legal right to participate.
Restorative justice: A brief overview of key values and debates 3
In the literature restorative justice has been met with great enthusiasm across the political spectrum (Walgrave, 2003). Nevertheless, proponents are divided and support different perspectives as to what restorative justice covers and what kind of processes it involves (McCold, 2000, 2004, 2010). Some emphasise the principle as a ‘more humane’ way of dealing with offences while others consider it in purely financial terms, as cost-saving, or believe that it reduces the risk of reoffending. The fact that the restorative process is marketed as taking better care of the victim and as working towards ‘a fairer society’, are also aspects that can appeal. A restorative process can in other words be applauded based on seemingly very different reasons: where one person emphasises ‘reconciliation’ and ‘forgiveness’, another may emphasise that the offender ‘must be held accountable for what she/he has done’ (Richards, 2006; Zernova, 2016: 1). Christie (1977), however, underscored the importance of ascribing the conflict in question to owners of the conflict, that is, to those affected by an incident or an offence. Seen from Christies’ point of view, a restorative justice approach aims to create a safe space, where the owners of the conflict can meet and talk about what happened and what they experience as important. The possibility not only of taking ownership of such a process but also of acting as equal actors, is crucial (Christie, 1977, 2015).
Restorative justice is also rooted in different traditions where one line of distinction is drawn between a micro-community and a macro-community perspective (McCold, 2010). A micro-community perspective is concerned with how the processes take place and who is involved, and the outcome cannot or should not be predicted in advance but be determined by those who are affected. Practices that follow a micro-community perspective could, for example, be Family group conferences, community group conferences, peace circles or sentencing circles, all of which involve those who are directly affected by the incident or offence.
From a macro-community perspective, the attention is paid to specific results of what is being done, regardless of the ways in which the results are achieved. Whatever is going on is discussed as a restorative process. Attention is not paid to repairs in individual cases. Rather, specific measures to protect neighbourhoods and local communities are prioritised with the aim of, for example, reducing people’s experiences of insecurity and/or other negative effects of crime. From this perspective people representing the macro-community are also preferred as participants in restorative processes rather than professionals (McCold, 2010). The micro-community and the macro-community perspectives do, however, not need to be mutually exclusive. The family is a critical network that constitutes the fundamental structure of society, and the needs of the macro society have been pointed out to be best protected through restorative processes involving victims, offenders and those in their networks who are affected (McCold, 2010).
Purists who advocate an uncompromising use of restorative justice would argue against a broad definition of a restorative processes (Walgrave, 2000). They claim that feedback from people close to the youth offender is more effective than feedback from experts or authority figures, and that an expert-driven treatment paradigm would undermine social mechanisms of crime control. From a maximalist standpoint, where the primary concern is how far it is possible to move away from the ideals without compromising integrity, a combination of reactions is perceived as favourably. Maximalists will claim that since problems may have several as well as different origins, combining approaches can be beneficial, and that restorative justice conferences could potentially work as the first step for identifying further challenges. A combination of measures could increase the possibility for the youth offender to be reintegrated. It is also emphasised that a restorative process should not only pay attention to the offender but to all those who are affected: victims, communities or professionals. Nevertheless, also from a maximalist standpoint it is important to be aware of what is going on and to understand the notions that are used, to avoid ending up with a restorative process in line with the ‘Alice in Wonderland’ concept that Walgrave (2003) warns against, which indicates that a restorative process is anything that anyone wants it to be.
A further concern on an ongoing move away from what initially were core values of a restorative process is expressed by scholars such as Erbe (2010), Sharpe (2010), and Zernova (2007, 2016). The ways in which local communities gradually seem to be pushed out of the process and replaced by professionals, are particularly addressed. Erbe (2010), for instance, point to the value of what professionals might offer in various cases, which should not be underestimated. Nevertheless, seen from his perspective, it is necessary to draw awareness to how such a move might lead to an erosion of the restorative process. The role of professionals and the professionalisation of the process that is seen in many restorative programmes are by Zernova (2016) described in terms of a colonisation of the restorative process. This change, Zernova argues, indicates that much of what takes place within this field can be categorised as rehabilitation, with certain elements of a restorative process. In her argument, Zernova raises the question whether the initial aspiration of a restorative process as a radical alternative, in any way is possible. The necessity of distinguishing between a restorative process and rehabilitation is, however, not supported by all scholars within this field, for example, Bazemore and Bell (2004), Braithwaite (1998, 2002), and Daly (2000, 2003). Discussions here touch specifically on whether, or to what degree, a restorative process and rehabilitation overlap are compatible, or incompatible. Some argue that a restorative process and rehabilitation are not only compatible but can be advantageously combined. Also, many victims wish that the offender moves in a direction that reduces the risk of reoffending. Thus, seen from victims’ point of view participation in a rehabilitation programme could be a way for offenders to make amends (Wright, 2004). Braithwaite (1998, 2002) argues that a restorative process can be rehabilitative, even if rehabilitation is not the primary purpose, and perhaps precisely because of this.
A restorative process is often explained as a radical alternative to the criminal justice system, and as voluntary and informal, and values that give guidelines to the process are often pointed to as ‘victim healing; offender accountability; individual empowerment; reconciliation; reparation of whatever harm has been caused by the crime; community-orientation; informality; de-professionalization; consensual decision-making and inclusiveness’ (Zernova, 2016: 1–2). Yet, a concern underscored by Zernova, is whether a radical alternative to the criminal justice paradigm is realistic: if the restorative process is formed by the criminal justice system, depends on the criminal justice system and functions on its behalf, it would be difficult for a radical alternative to grow or find fertile ground (Zernova, 2016: 138). In her argument, Zernova follows Christie (2014) who pointed to a development potentially moving in a direction where the core value of the restorative process is absent when the principle is adopted by the criminal justice system: the premises have been laid, but what takes place is an extension of the criminal justice system, rather than an alternative. Similar arguments appear in publications by scholars such as Achilles and Zehr (2001), Sullivan and Tifft (1998, 2001), Zehr (2015), and Zehr et al. (2015).
Methods and data
Data for this article is drawn from a case study included in a 4.5-year formative evaluation of the Norwegian Youth Justice Reform conducted by the authors. 4 The case study includes an in-depth exploration of 20 separate cases from five local Mediation Services in different geographical regions of Norway. 5 Each of the 20 cases includes offender, victim(s), guardians/parents, youth coordinator, follow-up team, mediators, prosecuting authority and managers of and employees at the local Mediation Service. The youth offenders were included at different times over the first 4 years of the study. A purposeful sampling procedure was used with the aim of maximising variation (Flyvbjerg, 2011; Patton, 1987), and variation was ensured through type of offence, type of sanction, duration of sanction and the youth offenders’ gender, age, socio-economic background and ethnicity. At the end of the study, the sample included 18 boys and 2 girls. 6 Their age ranged from 15 to 20 years. Offences varied from breaking traffic rules to sexually assaulting a minor, yet violence and possession of and dealing with drugs dominated. Duration of the sanction ranged from 6 months to 3 years, and 11 were ‘youth supervisions’ and 9 were ‘youth sentences’. 7
Each youth offender was interviewed several times as was the youth coordinator for each case. The youth coordinators provided information also in frequent informal conversations. Other actors were in general interviewed once either one-to-one or in groups. All interviews had an open, thematic design inspired by Spradley’s (1979) ethnographic interviews, which allows for detailed descriptions of both practices and experiences. For each case, one of the authors observed both the restorative justice conference and regular encounters between the youth offender and his or her follow-up team. During observation, notes were taken on what happened, on how the conferences proceeded and on what was said by whom and in response to what.
For this article, we have extracted data from the 20 cases primarily on parts concerning the youth offenders’ motivation for the restorative justice approach, their reflections on the offence and on how restorative justice conferences were set up, proceeded and experienced. Data were analysed across cases and across informant groups and/or across type of experiences within each case, following Patton (1987). Results are categorised thematically below, and then placed and discussed within general debates on restorative justice. Some results from Andrews and Eide (2019), based on analysis of survey data and register data included in the study (see footnote 3), are used to supplement findings from the case study.
Restorative justice put into practice: Experiences and reflections
Ambivalence and mixed motivations
When the youth offender signs the consent needed for the court or the prosecuting authority to decide on the sanction, he or she formally accepts to meet face-to-face with the victim(s) if the victim(s) accepts, and if there is a directly affected victim. In the interview, nearly all youth offenders related that their primary concern when they signed the consent, was to avoid prison in cases where the sentence otherwise could have been prison time. Some added, however, that they had not fully understood the implications of their consent because information on the conditions for the sanction had been given to them in a situation where they had been ‘stressed’, were ‘under strong pressure’, or intoxicated. By accepting a ‘youth sentence’, for example, they had chosen what they described as ‘the lesser of two evils’. One described, however, that he would have chosen 30 days in prison instead of the 7 months follow-up if he had not been given the opportunity to attend school without anyone being aware of the ‘penal regime’ he followed. Others expressed that they had been particularly intrigued by the opportunity to make money from ordinary work during the follow-up period if they chose the youth sanction. Among those who said they appreciated the opportunity to meet with the victim(s), some indicated that they had been through phases where they had switched between being motivated, ambivalent and opposed to the restorative justice conference.
Restorative justice conferences: Participants and form
Except for the correctional service that was not present in all cases of ‘youth supervision’, participants in the restorative justice conferences did not vary with type of sanction, but varied somewhat across cases, over time regarding number of participants and type of participants, and with the offender’s age. Three of the 20 youth offenders met without guardians, which they are allowed to if they have passed 18 years when the sanction begins. Most often, however, offenders met with one or two parents, two had invited grandparents, while one met with a foster parent. At all conferences members of the follow-up team were present varying in number and the type of public body they represented. The youth coordinator was always present as was the police. In most cases the police officer was the youth offender’s appointed ‘police contact’ who also was a member of the follow-up team. All conferences were led by two mediators – a woman and a man. At most, 14 people, researcher included, were present in the conference room.
During the conference participants, except for the researcher, were placed in a circle. The mediators used a script with fixed questions, separate for all participants. Prior to the conference, all participants have had a pre-conversation with the facilitators or the mediators. Throughout the course of the study, practice changed somewhat in the sense that the conference was carried out at a later stage of the sanction period, instead of at the opening of the sanction (according to current law). In one case, the conference was held the week before the sanction was completed, and with only a few participants. In two cases a written agreement between the youth offender and the victim was signed. Such an agreement is not mandatory. The court or the prosecuting authority has decided on financial or other kinds of compensations, in cases where this is relevant. Further obligations for the youth offender to comply with during the sanction, are included in the follow-up plan, and do not affect the victim(s), or the relation between the youth offender and the victim(s).
Although the Norwegian model allows for representatives from local communities to be involved, none of the 20 cases covered by the study included such actors at any capacity. A main reason for not including local community members was that the youth offenders participated in the process of selecting participants both for the restorative justice conference and for the follow-up team. Almost all youth offenders wanted to involve only participants who according to the law, had to be involved. In interviews, youth offenders often described that they felt ashamed for what they had done and that they wanted to avoid further burden or stigma placed on themselves and/or their closest family by limiting those involved in the process. In general, it seemed that people included in the youth offender’s social network and/or the local community were not aware of the ‘penal regime’ that the youth offender was following.
Offender-victim meetings without victims
Five of the 20 cases that were examined in the study, had no direct victim, or were so-called victimless cases. Such cases included offences where the youth offender had broken traffic rules, been driving while intoxicated or had possessed or been dealing with drugs. Out of the 15 cases that involved direct victim(s), only five conferences included victims. One of these conferences included victims from separate offences committed by the youth offender. Three victims met alone, young victims met with parents, while none met with a defence lawyer. The pattern of restorative justice conferences being held without victims corresponds with Norwegian national figures suggesting that victims were present at such conferences in a little less than one third of all cases (Andrews and Eide, 2019). Statistical figures do, however, not carry information on the total number of ‘victim-less’ cases.
Reasons for why victims did not attend the restorative justice conference vary. In cases that were examined in the study, the type and severity of the offence seemed to be of significance for victims’ decision. None of the victims were present at conferences in cases where, for instance, the offence was sexual assault. From the interviews, it appeared that some of the absent victims did not find such a conference important for themselves, or they did not feel a need to meet with the offender to ‘heal’ from the offence. Another reason for victims not to accept the invitation to meet face-to-face with the offender was due to the timeline between the offence and the conference. It seemed that the longer the timespan between the offence and the beginning of the sanction the less likely were victims’ acceptance of the invitation to meet with the youth offender. Some victims clearly underscored that ‘this happened so long ago’.
A maximum time of 6 weeks is set for the investigation or for the total process at the prosecution level in each case. Yet, the study indicated a time span of 190 days on average, nationally, from the crime was committed until the local Mediation Service received the case. Another 67 days, on average, were added until the follow-up period began (Andrews and Eide, 2019). For cases included in the study, the timespan between the offence and the beginning of the follow-up period ranged from 4 months to nearly 2 years. One reason for a delayed start up, was that offenders were not completely off drugs when the case was received at the local Mediation Service. Under such circumstances a restorative justice conference that according to the law should be held at the opening of the sanction, was considered unjustifiable both for the victim(s) and for the youth offender. 8
A predetermined goal and agenda
The restorative justice conferences that were examined in the study, differ in several ways from other conferences organised by the local Mediation Service (Andrews and Eide, 2019). Not only is the victim often absent, as pointed to above, but the room is filled with professionals, and the openness that is normally embedded in such a conference, where both offender and victim are free to leave, is absent. The conference for youth offenders seemed to a much greater extent than restorative justice conferences in general, to be characterised by a predetermined goal: the youth offender should apologise to the victim. Within other contexts, restorative justice conferences also included examples where apologies were given to the offender (Eide et al., 2016).
In interviews with professionals and mediators for the present study, support was widespread for the current practice, where members of the follow-up team are present at restorative justice conferences, together with representatives for the police and, in some cases, for the correctional service. A main argument was that it is important for the follow-up team to observe the youth offender in such a setting to form a broader picture of him or her. Another argument was that the youth offender would better understand the seriousness of the offence if several professionals, including police in uniform, were present. Only a few argued that a room filled with professionals might be at the expense of the opportunity to fulfil a restorative justice process between the youth offender and those affected by the offence.
Apology and remorse, or the lack of it
Accounts of restorative justice conferences given by youth offenders in the interviews indicate that their experiences varied as did their observed behaviour or performance during the conference. Three of the 20 youth offenders related, for example, that the conference had given them the opportunity to shake hands with the victim(s) and to apologise for what they had done, and that this had given them a positive feeling. When they talked about what had happened, their remorse and apology sounded genuine. Other apologies did not seem as genuine. One observed example is a youth offender who at the end of the conference, seemingly on his own initiative, crossed the circle, shook the victim’s hand and said: ‘I’m sorry’. In the subsequent interview, the victim in that case related that this ‘move’ on the part of the youth offender, was appreciated and perceived as sincere. However, a few days after this conference the youth offender committed a similar crime, a crime characterised by the police as unprovoked, serious violence.
Another youth offender met with victims from two different offences. At the end of the conference, the offender walked over and shook hands with the victims and told them he was sorry. In the interview shortly after the conference the offender expressed anger and accused victims of lying. According to the youth offender, one victim had lied both in the conference room and in an earlier encounter where the youth offender had apologised for what he had done. During the earlier encounter, the victim had promised not to report the incident to the police, a promise that obviously was not kept. Another victim was accused of lying about the actual incident. In response to the researcher’s question about the apology given to the victims, the youth offender said that he had told them he was sorry because he had been told to do so, and that he also feared further legal reactions or procedures if he did not.
While some youth offenders in cases where victims did not attend the conference, described that they were sorry for or regretted what they had done, others related that they had ‘no remorse at all’. Two of them claimed, for instance, that the victim had deserved to be beaten up because of his or her previous actions or provocations. Other offenders described that they did not regret what they had done because they ‘have had lots of fun’ and/or ‘earned lots of money’. Often in the latter cases, the offence was drug dealing.
Being fit and ready for the challenge
The ways in which the conferences proceeded varied substantially across the cases, not only in terms of whether victims were present but also in terms of youth offenders’ performance. A few of them seemed to talk freely. They described what had happened and answered mediators’ questions in ways that seemed adequate. In some cases, offenders also corrected or argued against mediators and/or professional participants’ comments or stories. Others seemed to struggle to express themselves in an adequate way. Their stories were often brief, or they did not give a full account of the offence. Some said that they did not remember what had happened, or they refused to say anything, as illustrated in the following question from one youth offender: ‘Why do I need to tell the story when everyone here knows what happened?’ Others, again, uttered short sentences, spoke in one-syllable words, starred down at the floor or had no eye contact with anyone.
The ambivalence revealed in some youth offenders’ acceptance of the restorative justice conference (see above) and their negative experiences, seemed in part to be connected to situations where they were struggling of various reasons, and/or felt that they were far from ready for a face-to-face dialog with the victim(s). Among those who hesitated or resented, some seemed to possess more limited verbal skills than others, while others indicated that they felt extremely uncomfortable in the situation.
During conferences we also witnessed situations that can be described as disastrous. One victim ended up in tears when describing experiences from the conference and the face-to-face meeting with the youth offender. In the subsequent interview, this victim talked about regrets on the decision of attending the conference. Another example of youth offenders being unfit for a meeting with the victim(s), was pointed to by a group of police officers who were members of follow-up teams in different cases in one of the case regions. In the interview they described various situations where offender–victim meetings would have been impossible. They as police officers in one such case had to wear bulletproof wests during all encounters with the youth offender due to the offender’s aggressive behaviour. Indications of difficulties also find support in survey data. More than half of the youth coordinators that responded to the survey included in the study suggested that restorative justice conferences are not appropriate in all cases (Andrews and Eide, 2019).
Restorative justice processes on the private arena
In some of the 20 cases included in the study, the local Mediation Services offered restorative justice conferences to parent(s) and the youth offender, and/or to the youth offender’s parents alone to address problems between the two of them that could have affected their son or daughter in various ways. The aim was to move family relations in a constructive direction or in ways that might affect the youth offender in a positive way. Such conferences were initiated regardless of the offence and/or whether a direct victim was involved. The restorative process that took place concerned or evolved around the relationship between the individual youth and his or her parents, with or without touching on the actual offence or crime. Accounts given in the interviews on such a process indicate that the dialogue that it allowed for, had meant a lot both to parent(s) and to the youth offender. One youth offender related that the most positive experience during the entire follow-up period was that his mother had participated and the two of them had begun talking in ways they had not done before.
Outcome of the sanctions
Eight of the 20 cases were terminated before the end of the sanction due to breach of conditions formulated in the follow-up plan, while in one case the youth offender was sentenced to a different type of sanction due to new offences committed before the follow-up period began. Two youth offenders received extended sanctions for offences committed either before or after the beginning of the original follow-up period, while two were sentenced to another sanction after the first follow-up period was completed. Six had to serve prison time as the subsidiary punishment. At the national level, a total of 66% had completed the sanction during the timespan covered by the study, 20% had committed new crime or had failed to meet the conditions agreed upon in the ‘follow-up plan’, while 10% had withdrawn their consent of various reasons either before or after the follow-up period began, and 4% were terminated of other reasons. At the time when the study was completed, around 470 cases were still in progress while 25 were temporarily terminated. Statistical figures indicate, however, that 30% of the youth offenders who completed the sanction in 2017 were sentenced again for criminal activity within 1 year (Andrews and Eide, 2019).
Whether youth offenders completed the follow-up period without breaches of conditions or without committing new offences, did not, in any apparent way, seem to correspond to the youth offenders’ experiences of the restorative justice conference or to how this conference was set up and proceeded, who participated, the number of people that were present, and whether victims attended. Most offences in the cases that were terminated, were drug related crimes, severe violence or robbery. Half of the youth offenders who had to serve subsidiary prison time due to breach of conditions in the follow-up plan, had met with the victim(s) in a restorative justice conference.
One example of an outcome that seemed unrelated to the principle of restorative justice, was a 17-year-old who after a troublesome period with several breaches of conditions, ended up on a positive pathway and completed the 1.5-year sanction. The victim in that case had not accepted the invitation to a restorative justice conference. In interviews throughout the follow-up period, the offender also repeatedly stated that he did not regret the crime he had committed because ‘the victim had deserved it’.
Discussion and concluding comments
Our analysis of the ways in which restorative justice is put into practice and of how this is experienced reveals several challenges. An ideal restorative process, according to Christie (1977, 2015), involves those who are affected. Those who are affected should also take ownership of the process and act as equal actors. For most cases included in the study, such ideals, seem not to play a prominent role. A single restorative justice conference was arranged, following the minimum required according to current law as described in Prop. 135L (2010–2011) and Prop. 57L (2013–2014). In a few cases a restorative conference was additionally offered individually for the youth offender’s family. The conferences were generally held at the opening of the sanction period with a varying number of participants. All included youth offender, mediators, youth coordinator, members of the follow-up team and representatives for the police and the correctional service in cases of ‘youth sanction’. Members of the offenders’ family were present at most conferences, while victims were present in a third of the cases that included a directly affected victim, with or without family members.
Format and participants seemed both to be far from what proponents within the restorative justice community advocate. One deviation from an ideal setting is the group of professionals present and the lack of those affected by the offence. People from the local community that are key to a macro-community perspective (McCold, 2010) were not involved in any of the cases. It should be noted though, that private social networks, family included, could be ‘moving in the wrong direction’ rather than getting the youth offender ‘back on the right track’, or they could themselves be ‘on the run’ (Andrews and Eide, 2019). In general, conferences in cases included in the study, seemed not to be informed by a micro-community perspective, where key criteria suggest that only people affected by the offence should participate, and that no outcomes should be predicted in advance (see, for example, McCold, 2010, outlined above).
The main argument for professionals, police and correctional services included, to be present at conference is to give them an opportunity for gathering information on the youth offender. This information is expected to be used in professionals’ support of the youth throughout the sanction, but also to adequately manage the control regime included in the sanction. Not only does a room filled with adults constitute a power imbalance between participants, as also pointed to by, for example, Haines (1998) and Suzuki and Wood (2018), the intention of collecting information on the individual youth within this setting could be characterised as a subtle way of exercising power in line with Foucault’s (1977) conceptualisation of power. A power relation such as this, and a conference room filled with participants not affected by the offence, is an example of a practice that seems to move the process away from core values of restorative justice, according to Erbe (2010) and Zernova (2016), for example.
A dialog between professionals and the youth offender could, however, be useful or have a positive effect in cases where no victim is present, or in cases where the victim is a police officer, for example. Yet, drawing on Zernova (2016) such a dialog seems to fit more into what a definition of rehabilitation than into a definition of restorative justice. In our data, the rehabilitation model dominated, indicated, for example, through the key role that professionals played. Professionals’ concern and attention were drawn to the youth offender and to his or her needs and interests, and not equally to the youth offender and the victim(s) because professionals have no responsibility for victims. In general, the youth offender was given far more attention in the process than was the victim(s), and not only by professionals. Another example on the domination of the rehabilitation model is that professionals played a major part in the process throughout the sanction, while the youth offender’s family or private network were assigned a minor role. Several scholars, among them Zernova (2016), point to the importance of preserving a clear distinction between restorative and rehabilitative models. A blurred distinction between the two models was also apparent in our interviews with youth coordinators where some noted that ‘restorative justice is such a small part of what we do’ while others described that ‘everything we do is restorative’ (Andrews and Eide, 2019). Often it seemed that restorative justice was restricted to a mandatory single youth offender–victim meeting placed on a list of ‘musts’ that was ticked off as ‘done’. Youth offenders who struggle in their everyday life have, however, often experienced broken relationships, betrayal and/or other challenges where a restorative process may work or have a positive impact and a restorative process continuing throughout the entire sanction period could be beneficial.
Another key belief within restorative justice is that a face-to-face dialog within a safe setting could result in a transformative process and opens for reconciliation to happen. In our data it is, however, difficult to identify any fundamental transfer of power in the process referred to as restorative. Youth offenders had agreed to a total package and accepted to meet with the victim(s) mainly because this was mandatory, and/or in self-interest to avoid further legal procedures, or because the alternative would have been worse (imprisonment). A mandatory conference leaves no opening for offenders to leave during the process, and they had no definite voice in written agreements or any other outcome of the process since this is decided by the court or the prosecuting authority. Also, the conference is voluntary for victims, and most of them chose not to participate. Basic conditions were, in other words, not in place for a restorative process to happen in all cases. Only a few youth offenders had appreciated the opportunity to meet with the victim(s) and to tell them they were sorry. Others had given their apology because they were told to do so, or as pointed to by Daly (2003), because they were easier off. Not all youth offenders were sorry for what they had done or regretted their actions. Some also expressed anger directed towards mediators, professionals and/or victims. An external motivation, expressed through formal acceptance of the conference, does, in other words, not necessarily lead to a genuine willingness to make up for the distress caused, or for the damage being done to the victim(s).
In an ideal restorative process, the relationship between youth offender and victim(s), on their own terms, is the core value and within which the potential for a transformative process could be found (Christie, 1977). A restorative justice conference can provide opportunities for ‘healing’, but the process should be determined by those who are affected. Forgiveness cannot be forced or prescribed, and apologies and expressed remorse are not always genuine. Notions that often are used in relation to a restorative process, such as forgiveness and reconciliation, as well as the term restorative, could be difficult to relate to for the victim(s), and place an additional burden on their shoulders. As demonstrated by the study, there is a tendency of letting the victim become a means of achieving a specific end on the part of the offender, a tendency also pointed to, for example, by Strang (2001) and Wright (2004). It is important to be aware of how such a tendency could lead to an erosion of the restorative process. Amstutz (2010), among others, addresses the concept of parallel justice, and points to the need for restorative justice processes that consider needs of both victims and offenders.
The Norwegian youth sanction has undoubtedly created a meeting place between people who are affected by an offence and by this work as a potential point of departure for dialogue and transformation, but not always between offender and victim(s). Such a process could include both parents and teachers, for example. These are pathways that could be followed and strengthened more deliberately.
Concluding comments
Although restorative justice is held as a core principle of the Norwegian Youth Justice Reform, the ways in which this principle is put into practice do not fit easily with ideals formulated by the ‘restorative justice community’. The value of a restorative conference is, however, difficult to assess, at least in the short run. It is also difficult to isolate effects of a single measure in cases where several measures are combined, as is the case within this reform. Measures with a restorative purpose may have positive effects even if they do not fit into an ideal or strict definition of such a process. Among youth offenders in our study, positive outcomes happened regardless of how the restorative conference worked out.
Nevertheless, we share concerns expressed by scholars such as Christie (2015), Erbe (2010), and Zernova (2016) on practices moving away from core values within restorative justice. A primary concern of Christie was that restorative justice loses its value when the principle is adopted by the criminal justice system. Erbe and Zernova worried about the ongoing professionalisation of the process and in that wake, what takes place could be characterised as rehabilitation rather than restorative justice. Although a restorative process may have a rehabilitative effect, and vice versa, on the part of the offender, important differences between rehabilitation and restorative justice should be acknowledged. Clear definitions of concepts matter because concepts work as guidelines for practice in the sense of indicating along which lines practice should move.
A mandatory restorative justice conference indicates that youth offenders are perceived to be ready for such a conference when the sanction begins. Not all youth offenders were, however, ready at that point, due to, for example, their mental condition, degree of maturity, verbal skills or ongoing drug use, as also pointed to by Daly (2003), Haines (1998), and Suzuki and Wood (2018). A restorative justice conference is demanding for both youth offenders and victims, and some offenders do not get ready to meet with the victim during the entire follow-up period. This means that if such a conference is mandatory, it will have implications for which youth to offer these sanctions to. Youth who need the help that potentially could be provided through a follow-up regime might have the greatest difficulties in facing the victim(s). In the process of assessing who might be suited for facing the victim, there is a chance of excluding youth who might become ready during the follow-up period and including those who do not become ready.
Restorative justice programmes seem to be growing as a reaction towards youth offences internationally, yet, with limited effects according to several studies. For the principle to work as an alternative to traditional approaches, it is important to identify ways in which this could be achieved, whether practices need to be rearranged, or if more resources and/or further education of practitioners are need.
Footnotes
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) received no financial support for the research, authorship and/or publication of this article.
