Restorative Justice in New Zealand:

A Model For U.S. Criminal Justice

Donald J. Schmid is a federal prosecutor with the United States Department of Justice "Sited at the Ministry of Justice in Wellington, I studied New Zealand's pioneering and widely-hailed restorative justice programs which includes family group conferences for youth offenders and court-referred restorative justice conferences for adult offenders. I also conducted original research into the effectiveness of family group conferences and the management of youth justice processes in New Zealand, which sparked considerable debate in the country as to which government agency should be responsible for youth justice and under what jurisdiction youth justice coordinators should be located. I also made presentations on restorative and criminal justice policy at the National Library, Victoria University, and the Royal New Zealand Police College and served on a special Ministerial Task Force on Youth Crime that was chaired by the Chief District Judge of New Zealand. In addition to traveling throughout New Zealand with the Task Force, I was a member of a prison ministry team that visited inmates a Rimutuka Prison on Wednesday evenings. I appeared on Radio New Zealand's Kim Hill Show and TV1's Breakfast Television and a number of my publications appeared in the New Zealand Law Journal, Social Policy Now, the Evening Post, and The Dominion. I developed invaluable professional contacts with the New Zealand Ministry of Justice, the New Zealand Judiciary, etc. The fellowship gave me the time to do serious research and scholarship that would not have otherwise been possible. As a result of my experience, I will be teaching a new course entitled "Restorative Justice, A New Paradigm" as an adjunct professor at the University of Notre Dame Law School and will propose a program of restorative justice conferences in the Northern District of Indiana."

Executive summary

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.

Table of contents

Executive summary

Introduction

What is Restorative Justice?
What has fuelled the restorative justice movement?

Types of Restorative Justice Processes

Family Group Conferences
NZ Youth Justice Coordinator Survey
Adult Conferencing in New Zealand
Waitakere Restorative Justice Pilot
Court-Referred Restorative Justice Conferences
Project Turnaround in New Zealand
Australian Restorative Justice
Family Group Conferencing in America
Navajo Peacemaking Circles
Circle Sentencing in Canada
Community Reparative Boards in Vermont

Potential Contributions from Restorative Justice Processes

Victim Participation
Increased Satisfaction
Acceptance of Responsibility
Decreased Recidivism
Problem-solving approach to crime
Cultural and Ethnic Accommodation
Consensus decision-making
Community Building
Spirituality
Improved Perceptions of Police
Cutting Across Political Lines

Potential Concerns and Issues

"Soft" Options
Net-Widening
Outcome Disparity
Potential revictimization
Offenders' Rights
Restorative Justice: A Supplement To Court-Processes

Restorative Justice for the Federal Criminal Justice System
Diversion Restorative Justice
Post-charge Restorative Justice
Downward Departures for Restorative Justice

Conclusion

The Author

Restorative Justice in New Zealand:

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