Prepared by Donald J. Schmid, August 2001
with funding from the sponsors of the Ian Axford (New Zealand) Fellowships in Public Policy
Donald Shmid is an Assistant US Attorney in the United States Attorney’s Office for the Northern District of Indiana, in South Bend. He has prosecuted major public corruption cases as well as large drug, violent crime, and white collar fraud cases. Donald has been a prosecutor with the US Department of Justice since 1994 and has received numerous awards for his prosecution work including the Inspector General’s Integrity Award. Prior to joining the Department of Justice, he was a trial and appellate attorney with Gibson, Dunn & Crutcher in Los Angeles, California. Donald received his Doctor of Laws degree from the University of Michigan in 1985, where he graduated magna cum laude and Order of the Coif. He received his Bachelor of Arts degree in economics and philosophy from the University of Notre Dame in 1982, where he graduated summa cum laude.
During Donald’s Ian Axford Fellowship exchange to New Zealand he was based at the Ministry of Justice in Wellington, where he researched pioneering New Zealand restorative justice programmes including family group conferences for youth offenders and court-referred restorative justice conferences for adult offenders.
New Zealand has garnered international acclaim for its youth justice processes. In particular, the New Zealand invention of the “family group conference (FGC)” for youth offenders has been hailed as a pioneering model of restorative justice.
As an American prosecutor, I came to New Zealand this year specifically to study the FGC and other restorative justice initiatives in New Zealand. I have become convinced that restorative justice processes work and should be pursued as a matter of criminal justice policy.
But what is restorative justice? Restorative justice is a process whereby parties with a stake in a criminal offense (including the offender, the victim, and the communities of each) collectively resolve how to deal with the aftermath of the criminal act with an emphasis on repairing the harm from that act – the harm to the victim, to the community, and to the offender her/himself. Examples of restorative justice include FGCs, sentencing circles in North America, and victim-offender mediations in the United States, each of which are described below.
Criminal justice processes that are restorative share a number of characteristics that explain why they are effective in – among other things – reducing reoffending, increasing satisfaction rates, and preventing crime in the first place.
Perhaps most important, restorative justice makes the actual victims of crime central participants in the response to the crime. FGCs in New Zealand are conferences in which victims are invited to meet offenders and their families, with the police and a justice coordinator present, to discuss the crime and what should happen as a result of the crime. Victims are thereby given a voice to tell of the impact of the crime and to get their questions answered: Why were they victimized? Will they be victimized again? How will the offender put things right? In New Zealand, victims have the right (but no obligation) to attend the mandated FGC and to tell the young offender face-to-face about the personal impact of the crime. Persons who have observed FGCs attest to how important this expression is not only for the victim but the offender and his/her family.
Critically, the involvement of the victim leads to a greater accountability from the young offender. It is difficult for offenders to make excuses and to retreat behind a shell in the face of victims recounting the often devastating impact of the offense. Offenders more often express real remorse, which is a key step to their own journey away from crime and to the healing of the wounds suffered by victims.
Restorative justice works additionally because it gives new voices to victims, to offenders, and to community representatives. In this way, the participants – including even police – feel a greater sense of ownership in the process and of the outcomes produced by the process. This explains why researchers have found much higher levels of satisfaction with restorative justice processes than with traditional criminal justice in the courts. Victim and offender satisfaction rates in excess of 90% are not unusual.
Restorative justice programs are also a natural fit with community policing and police problem-solving, which have proven so effective in reducing crime rates in countries around the world. A key component of community policing is for the police to better understand the communities they serve. Restorative justice processes allow the police and other participants to understand in greater detail why a crime was committed in the first place. Police, working with community groups, can then use this information to target specific areas and types of offending with carefully tailored programs to reduce crime. In Wellington, police and the Wellington City youth justice coordinator have used information gathered from FGCs to target certain gang activity and truancy problems. The net effect has been an impressive two-thirds reduction in crime by youth offenders in Wellington City since 1996.
Another key to the effectiveness of restorative justice is its ability to accommodate cultural and ethnic diversity. Family group conferences, for example, can be held almost anywhere. The ability to conduct a conference on a marae or at the offices of a community group (with due deference to the view of the victim as to venue) can make an important difference. Even if held at a governmental office, the FGC procedure is flexible enough to allow prayer and other types of cultural accommodations.
Consensus decision-making is also very important. The hallmark of restorative justice is collaboration among those parties with an interest in the criminal offense, including victims, offenders, families of victims and offenders, community groups, and the police. Decisions are reached in FGCs in New Zealand and restorative justice programs elsewhere as a result of the conference groups coming to better understandings and achieving collective agreement as to how the injuries that were caused and revealed by the crime can best be healed.
Because they often reveal a deeper understanding of what is needed to reintegrate the offender into the community and to restore the victim, restorative justice conferences frequently lead to the greater use of community resources (including drug/alcohol counselling and alternative education programs). In this way, restorative justice seems better at building communities and resources within the community than traditional court processes.
Restorative justice is not a panacea. Nor can it supplant completely conventional criminal court processes. But in New Zealand and elsewhere, it is a tool that has repeatedly proven to be effective.
Because of its effectiveness and because most of the concerns raised about restorative justice are either not well founded or can be adequately addressed through sound operational practices as discussed below, I believe that restorative justice should be implemented as part of the federal criminal justice system. When I return to the United States, I will propose a program of restorative justice conferences in the Northern District of Indiana, all as described in more detail in last sections of this paper.
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