Asking the Restorative Question in Response to Criminal Wrongdoing Widening the Scope for Legal and Restorative Integration. Anthony James Foley

Transcription

1 Asking the Restorative Question in Response to Criminal Wrongdoing Widening the Scope for Legal and Restorative Integration Anthony James Foley A thesis submitted for the degree of Doctor of Philosophy The Australian National University Canberra, Australia September 2009

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3 Declaration This thesis is the product of my own work. Where material from other authors has been used, either paraphrased or verbatim, it is acknowledged in the text and in the references. Quotes provided by interviewees have also been included. Excepting the cited use of materials from other authors, all remaining work is my original labour and production. Signed This day of September 2009 Anthony James Foley Doctoral candidate Regulatory Institutions Network (Regnet) The Australian National University Canberra i

4 Acknowledgements This thesis has been a journey of discovery. The discovery has been about both myself and my subject of interest. Many people have provided support and advice without which the journey would not have been completed. I wish to acknowledge some of those individually and to thank them all collectively. I wish to thank Professor John Braithwaite for his supervision, the incision and exactitude of his critiques and his overwhelming kindness. I wish to thank him for giving me the scope to disagree with many of his fundamental ideas. In doing so he has ensured that my own ideas have had the best possible intellectual rigour that I could give them. I thank my supervising panel of Dr Heather Strang and Dr Brenda Morrison. Brenda for helping me to get started on this journey and Heather for her interest and direction throughout. I also thank two additions to my panel Professors Tom Campbell and Peter Drahos. Tom provided me with very generous assistance in reading earlier drafts dealing with the theory of justice and it is from Tom s suggestions that I developed my evaluative criteria of justice. Peter s own work on adapting generative mechanisms proved particularly useful in my conceptual analysis and was remarkably timely when I turned to modelling my own ideas. I thank the Regulatory Institutions Network in the College of Asia and the Pacific for providing me with an exciting and stimulating intellectual environment and a warm and friendly home. I thank all the wonderful people I have meet there and who have sustained me by their friendship. In particular I thank my corridor hosts the ARC Centre of Excellence in Policing and Security (CEPS) program which over the final years of my thesis allowed a research stranger in their midst while inspiring and sustaining me with their wonderful diligence and drive. I thank the Australian National University for providing me with a stimulating and supportive academic environment and for travel assistance funds including a Vice- Chancellor Travel Grant that allowed me to complete fieldwork in New Zealand, Canada and Australia. I thank my interviewees. They generously gave their time and views which provided me with much of the key empirical data on which this thesis rests. I thank my restorative justice colleagues Dr Tali Gal and Dr Peter Reddy who showed me all that was possible and provided a great lead to follow. I thank my work colleagues at the Legal Workshop ANU College of Law who endured my self absorption but always offered encouragement and support. I thank my wife Jill and all my family for their support and forbearance. ii

5 Abstract This thesis poses a normative question. It asks how a response to criminal wrongdoing should be reframed so as to achieve justice. The question is asked in the context of debates on the role of restorative justice and within a conceptual framework that sees justice as primarily concerned with distribution. Conventional responses to wrongdoing accept that offenders must be given their deserts and treated equally, and that all persons affected by the wrongdoing must have their rights promoted and protected. What is distributed to meet these aims is mostly in the form of burdens, primarily coercively imposed punishment. This thesis offers new insights into how well such conventional responses meet the needs of justice. It says that not all of what is required to mark such distributions as just is currently acknowledged. What is missing is a focus on removing the burdens imposed as a consequence of wrongdoing. There is an explicit failure to accept that benefits as well as burdens need to be distributed, primarily benefits of repair necessary to restore damaged individuals and relationships. What is also lacking is a more effective means to trigger crime prevention. This thesis argues that it is only by asking the restorative question in all responses to wrongdoing that institutional responses can be rendered more effective in meeting these deficiencies. This thesis considers the benefits that the restorative practice of justice brings to this issue. Empirical evidence gathered from sites of practice shows that restorative responses provide many missing elements. They address the need to re-establish

6 harmonious social relationships and to consider the imposition of necessary burdens through means other than punishment. Restorative practice nonetheless has its own inadequacies as a form of justice practice in response to wrongdoing. These limitations are highlighted when the seriousness of the wrongdoing calls for a strongly retributive response. Consequently rather than representing a replacement discourse, restorative practice acts best in a complementary role to conventional legal justice. Using methodology which integrates a normative/doctrinal/philosophical approach with ethnographic methods and legal and historical studies, this thesis offers a fundamental reworking of the justice response to wrongdoing. By means of this analysis, the thesis develops a set of institutional design ideas about how best to restructure the response to criminal wrongdoing. This integrated design is seen to better meet the need to give people their desert, to treat them equally, to protect their rights while at the same time promoting harmonious social relationships between them. The integrated model developed is founded on two core propositions. The first is that the purpose of responses to wrongdoing must always be to meet retributive, restorative and consequentialist goals. The second (and more radical) proposition is that many of these aspects can be better met through restorative means. Even aspects of retribution can be satisfied through the censuring power of restorative encounters. Restoration is as much achieved by remedying personal harm as it is by restoring the normative harm which wrongdoing causes. Consequential aims of crime prevention can be as effectively iv

7 delivered through responses contextualised to the individual circumstances of those affected. Integrating the restorative approach within conventional institutional responses requires care and inventiveness. There is a risk of diluting the protective rights-based focus of legal practice if another more personalised form of response is added. There is also the risk of overly institutionalising restorative practice and so damaging the effectiveness of the alternative responses it can bring to wrongdoing. But integration has clear benefits. Properly integrated, the restorative practice of justice will percolate up to influence the needlessly punitive responses of legal justice, and the legal practice of justice will filter down to strengthen the at times inadequate rights adherence of restorative practice. In the process, a stronger justice response to wrongdoing is delivered. v

8 Table of Contents Declaration...i Acknowledgements...ii Abstract...iii Table of Contents...vi Figures...xi Tables...xi PART ONE...1 DEVELOPING ANALYTICAL TOOLS FOR AN EXAMINATION OF JUSTICE PRACTICE...1 Chapter Fashioning a More Just Response to Wrongdoing... 2 The scope of the study...6 Research questions...7 Thesis Structure...7 A new way forward...14 Chapter Identifying the aims and means of institutional responses to wrongdoing...15 Introduction...15 Finding the essential aims of responses to wrongdoing...16 Influencing factors...16 Justice system responses...17 Wrongdoing...19 Identifying three essential aims...24 Retribution...25 Restoration...27 Consequentalist aims...28 Finding the benefits and burdens...31 Distribution not balancing...31 Identifying harm-related benefits and burdens...34 Harm-related benefits...35 Harm-related burdens...38 Conclusion...40 Chapter Identifying the evaluative criteria of justice...42 Introduction...42 Conceptualising justice...43 The concept of justice a core of entitlement...44 The concept of justice more than entitlement...47 Rawls s distributive justice...48 Critiques of distribution...50 Nozick s rights conception of justice...52 Young s structural critique...54 The concept of justice defined...58 Conceptions of justice finding evaluative criteria...59 Conceptions considered but rejected...61 Justice as utility...62 vi

9 Justice as reciprocity...62 Justice as need...64 Other conceptions considered and applied...65 Justice and desert...65 Justice and equality...67 Justice and rights...69 Justice and harmonious social relationships...73 Dignity...76 Respect and Concern...77 Conclusion...79 Chapter Identifying the generative mechanisms of justice...81 Introduction...81 Methodology...82 Identifying generative mechanisms of justice...83 Features identified as potentially generative in legal practice...85 Features identified as potentially generative in restorative practice...88 Isolating a generic set of generative mechanisms...89 Justice generating mechanisms...94 Accountability and Responsibility...94 In legal practice...96 In restorative practice...96 Censure and Remorse...97 In legal practice In restorative practice Punishment and Vindication In legal practice In restorative practice Deterrence and Proportionality In legal practice In restorative practice Truth telling In legal practice In restorative practice Reparation, Apology & Forgiveness In legal practice In restorative practice Conclusion PART TWO MODELS OF JUSTICE PRACTICE ASSESSED AGAINST NORMATIVE THEORY.125 Chapter Applying the evaluative criteria of justice to legal practice Introduction The normative system of law Law and wrongdoing Legal practice and the four standards of justice The desert standard The equality standard vii

10 The rights standard The relationships standard Conclusion Chapter Applying the evaluative criteria of justice to restorative practice Introduction The differences in a restorative practice response Differences in form brings together persons affected wrongdoing harm caused collectively how to deal with the aftermath Differences in function Responding to criminalised or non-criminalised wrongdoing Responses which are diversionary or supplementary Responses which involve direct or indirect deliberation Differences in values The differences in summary form Participation Personalism Reparation Reintegration Restorative practice and the evaluative criteria of justice The desert standard The equality standard The rights standard The relationships standard Conclusion PART THREE MODELS OF JUSTICE: PRACTICE ASSESSED AGAINST EXPLANATORY THEORY Chapter Selecting sites of restorative practice Introduction Selection criteria restorativeness and responsiveness Restorativeness Responsiveness Program Selection Programs in New Zealand Context juvenile family group conferences Adult community-managed programs Adult court-annexed referral program NZ adult programs - restorativeness and responsiveness The Adult Programs as representative of New Zealand restorative practice 193 Programs in Canada Context national legislative framework viii

11 Toronto Community Council Program Toronto CCP - restorativeness and responsiveness The Toronto CCP as representative of Canadian restorative practice Ottawa Collaborative Justice Project Ottawa CJP - restorativeness and responsiveness The Ottawa CJP as representative of Canadian Restorative Practice Nova Scotia Restorative Justice Nova Scotia RJ - restorativeness and responsiveness The Nova Scotia RJP as representative of Canadian restorative practice Programs in Australia Context early experimentation NSW Youth Justice Conferencing NSW YJC - restorativeness and responsiveness The NSW YJC as representative of Australian restorative practice ACT Restorative Justice Scheme ACT RJU- restorativeness and responsiveness The ACT RJ scheme as representative of Australian restorative practice South Australian Family Conference Scheme South Australian FGC - restorativeness and responsiveness The SA FGC as representative of Australian restorative practice Victorian Group Conferencing Program Victorian GCP - restorativeness and responsiveness The Victorian GCP as representative of Australian restorative practice Conclusion Chapter The restorative practice of justice Introduction Methodology Describing restorative justice practice Accountability and Responsibility Censure and Remorse Punishment and Vindication Deterrence and Proportionality Truth telling Reparation, Apology & Forgiveness The justice generating mechanisms of restorative practice Mechanisms seen as justice generating Mechanisms not seen as justice generating The justice generating mechanisms of restorative practice Conclusion PART FOUR DEVELOPING AN INTEGRATED MODEL OF JUSTICE PRACTICE Chapter Jurisprudential accommodation of restorative practice Introduction Meaning of sentencing jurisprudence Legislation Case law ix

12 Restorative jurisprudence Legal methodology The New Zealand accommodation The Clotworthy decision Developments post-clotworthy The influence of the Sentencing Act The Canadian accommodation Statutory reforms The Gladue decision Developments post-gladue The Australian accommodation Legislative developments Caselaw developments The accommodation of restorative approaches Conclusion Chapter An integrated justice response to wrongdoing Introduction The parameters of integration Retaining current approaches for the extreme edges of wrongdoing Focusing on the middle ground of wrongdoing The normative benefits of integration Better meet the essential aims of responses to wrongdoing Better satisfy the evaluative criteria of justice Better distribute harm-related benefits and burdens Better accommodate justice generating mechanisms Design requirements for an integrated model Mandating the accommodation of restorative responses Reframing the sentencing rhetoric Establishing multifunctional sentencing mechanisms Developing community restorative practice networks Providing overt reintegrative milestones The restorative question model A minimalist model Institutionalising the design features Considering whether harm has been caused Criteria to determine the extent of harm Considering the scope to address the essential aims restoratively Addressing the restorative question Using restorative-type sentences Using restorative encounters Conclusion Appendix A Table of Legislation Table of Cases Articles/ Books/ Reports x

13 Figures Figure 1. McCold and Wachtel s Restorative Practices Typology Tables Table 1. The essential aims of justice responses to wrongdoing Table 2. Harm-related Benefits Table 3. Harm-related Burdens Table 4. Features of legal practice Table 5. Features of restorative practice Table 6. Features of legal & restorative practices Table 7. Justice generative mechanisms Table 8.The essential aims of justice responses to wrongdoing Table 9. Potential of legal and restorative practice to satisfy the justness measures Table 10. Harm-related Benefits and Burdens Table 11. Justice Generative Mechanisms Table 12. Criteria for determining restorative aspects