Introducing Restorative Justice in the Netherlands, Lessons to be Learned from Neighbouring Countries

Transcription

1 Introducing Restorative Justice in the Netherlands, Lessons to be Learned from Neighbouring Countries A comparative study on the development of penal policies and the implementation of restorative justice in Belgium, England and Finland, as an example for the current penal reforms in the Netherlands. Tilburg University Tilburg Law School Master Victimology and Criminal Justice Supervisor: Professor A. Pemberton 2 nd reader: Drs. K.M.E. Lens August 4, 2014 Anke Vroomen ANR:

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3 Content Chapter Page Content 2 Figures and Tables 3 1 Introduction 4 Research question 5 Approach 5 Methods 6 2 Restorative Justice 8 A new approach 8 Restorative Justice theory 8 The Dutch way 11 3 The diverse society structures 14 Introduction 14 A diversity of social orders 15 Social order, penal ideology and restorative justice 18 The Dutch social structure 19 4 The context of the case-studies 22 The neighbour as a role model 22 A further examination 24 Norms and Values 24 The tradition of prison use 25 Fear of crime 27 The millennium change 29 5 Three European examples 32 Belgium, a conservative corporatist example 32 The experienced neighbour 32 A complex country 33 Restorative justice in Belgium 33 England, a neo-liberal example 36 The other neighbour 36 A flexible system 36 Restorative justice in England 37 Finland, a social democratic example 42 Finland, a role model? 42 The Finnish miracle 42 Restorative justice in Finland 44 6 A reflection of the case studies towards the Dutch situation 48 A comparison between the three case studies 48 The law of the handicap of the head start 50 Conclusion 54 References 56 Abbreviations 62 2

4 Tables and Figures Table Page 1 The key elements of restorative justice by Sherman (2003) 10 2 An extended typology, based on the typology of political 17 economies and their penal tendencies by Cavadino and Dignan (2006, p. 15), with the addition of the justice approach as defined by Sandel (2009) 3 The implementation of the findings of the EVS 2012, the study by 28 Hummelsheim et al. (2011), and the imprisonment rates for Belgium, England, Finland and the Netherlands 4 Some of the key elements of restorative justice by Sherman (2003) 35 applied for the Belgian situation 5 Some of the key elements of restorative justice by Sherman (2003) 40 applied for the English situation 6 Some of the key elements of restorative justice by Sherman (2003) 46 applied for the Finnish situation 7 The topics of the strategic triangle by Moore (2013) for the four 53 involved countries; with the current strategies of Belgium, England and Finland, and the options of policy-development for the Netherlands Figure Page 1 Imprisonment rates for Europe; Source: Council of Europe, report: 23 SPACE I 2012.m.1 2 Imprisonment rates for Belgium, England, Finland and the 26 Netherlands between 1982 and 2013; sources: : the Council of Europe/ : the World Prison Population Lists by the International Centre for Prison Studies 3 Percentage of the population with fear of crime ; source: 27 Hummelsheim et al., 2011, p Imprisonment rates development in the 21 st Century for Belgium, 50 England, Finland and the Netherlands. Source: The World Prison Population Lists, 3 rd 10 th Editions. 5 The strategic triangle (Moore, 2013) 52 3

5 Chapter 1: Introduction an eye for an eye leaves everyone blind. Ghandi By the 70s of the previous century in Western countries ideas on how to react to crime began to change. Doubt had risen on the effectiveness of the habitual measures to combat recidivism and achieve rehabilitation, and some even argued that they had failed (Van Ness and Strong, 2009). In the development on new ideas for a proper reaction to crime the Netherlands seemed to be a fore runner. Wright (1996) refers to the practices of Dr. Roosenburg in the Van Der Hoeven Kliniek 1 that inspired Hughes and Palmer in the USA to develop the first mediation programs. Dutch criminologists like Bianchi and Hulsman together with other scholars- argued against the existing penal practice and opted for another approach to crime and justice, a form whereby the goal was less on punishment and more on repairing the harm or healing the wounds (Bazemore & Schiff, 2001, p. 7 ). This resulted in the emergence of restorative justice (hereafter: RJ). Although once the Netherlands seemed to be at the vanguard in these new developments, practice has not developed accordingly, while in the meantime RJ gained ground in other countries. But recently a renewed interest and increased willingness to apply RJ measures has come forward (Pemberton, in press). Blad (2012), in a recent article with the title 2012: het jaar van de kanteling? (translation: 2012, year of the transition) analyzed the situation regarding restorative justice practice in the Netherlands as standing on a cross road. RJ covers a broad range of measures and is worked out in different ways by the different countries. The practice of RJ is influenced by the penological culture, the political ideology and the social situation of these countries. For instance in South Africa RJ was seen as the only option for social recovery. For the Netherlands recovery of society is not an issue. But when examining the recent developments of RJ in the Netherlands, the lack of developments during the last decades and the revival of interest might also work to the advantage. Earlier developments and experiences of RJ practice in other countries, that have proven to be not that effective, can be sorted out, and vice versa (Pemberton, in press). Pemberton (in press) argues that RJ in the Netherlands faces the possibility to develop towards mediation within the criminal justice system. He points at the Zeitgeist in the 1 The Van der Hoeven Kliniek is a centre for clinical forensic psychiatry. The hospital aims to help make society safer. It does this by teaching patients on whom hospital orders and civil law orders have been imposed how to live in a correct and responsible manner outside the hospital ; source: 4

6 Netherlands, whereby the spirit has moved towards Americanism, including ideas on harsher punishment. New developments can offer opportunities to include both, harsh punishment for severe crimes as well as restorative justice as the alternative reaction to common crimes in the penal system (Pemberton, in press). This thesis explores the opportunities of RJ for the Netherlands by examining the literature on RJ and particularly by studying some of the RJ practices in other countries. The developments and experiences of these countries will be analyzed in order to answers the research question. Research question: What can the Netherlands learn from restorative justice practices of other countries and how can they apply them in an effective way in the Dutch Criminal Justice System. Approach Society is not unidimensional, and to get some understanding of the processes in society and to find answers to the research question a broad perspective is necessary. In line with the interdisciplinary approach of the master Victimology and Criminal Justice at Tilburg University, this thesis tries to take into account the diverse relevant disciplines, although it remains mostly related to the perspective of the social sciences. In order to get an understanding of the context chapter 2 starts with a description of the RJ developments in the Western world. Thereafter the underlying theory of RJ and the current Dutch situation in relation to RJ is described. When using the RJ experiences of other countries to develop practices in the Netherlands it is necessary to understand their underlying ideologies. Chapter 3 therefore investigates the diverse social orders that are formed within the Western world. To gain insight in the foundations of the various countries diverse categorizations by socio-economic, political and penal ideologies were analysed. Chapter 4 examines the basic values, the concept fear of crime, the prison-use and the recent change of mind-set in Europe. Thereafter, in chapter 5, the findings of chapter 3 and 4 will be worked out towards the RJ practices of three European countries, Belgium, England and Finland, each representing one of the analysed regimes. In chapter 6 the experiences of these three countries will be reflected towards the situation in the Netherlands. Thereby particularly a future perspective will be taken into account, as the Netherlands, 5

7 developing RJ practices, can learn from the successes and failures of these countries. This reflections will be worked out in the final conclusion. Methods To answer the research question of this thesis a literature review is conducted. The research question was inspired by Pemberton s article Changing frames? Restorative justice in the Netherlands (in press). Publications referred to in this article, as well as publications by internationally acclaimed RJ-thinkers like Bazemore, Johnstone, Van Ness, Sherman, Strong and Walgrave were used to get an understanding of the context. References made in these publications as well as a search on the internet via ScienceDirect and Google Scholar, using the key word restorative justice and restorative justice theory, provided additional information. To analyse the diverse categorizations by socio-economic, political and penal ideologies in chapter 3 the book penal systems by Cavadino and Dignan (2006) was one of the leading information sources. Next to that two other internationally recognized categorizations of society, by welfare state provisions (Esping-Andersen, 1990) and by justice approach (Sandel, 2009), were added. References by the authors delivered useful information, and this was complemented with articles found via ScienceDirect and Google Scholar using related key terms as penal culture, penal ideology, welfare state, restorative justice, punishment, imprisonment and imprisonment rate. For the analysis of RJ practice in the European context and the separate case studies particularly two books by scholars from Leuven University were very helpful: Institutionalizing Restorative Justice (Aertsen, Daems, & Robert, 2006) and Restorative Justice Realities, Empirical Research in a European Context (Vanfraechem, Aertsen, & Willemsen, 2010). In exploring the three countries internet search by using the key word restorative justice in combination with the country names provided additional information. The final chapter is based on the findings of the previous chapters, combined with the insights from the public value theory as developed by Moore 2. 2 Harvard professor Mark Moore developed the ideas in his classic book Creating Public Value (1995); for this thesis his most recent book Recognizing Public Value (2013) is used. 6

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9 Chapter 2: Restorative justice A new approach During the last two centuries the criminal justice system in the Western world developed from a system with a main focus on imprisonment as a deterrence, to a broader approach whereby treatment of the criminal, in order to achieve rehabilitation, was part of the program (Walgrave, 1994). But by the early seventies of last century scholars started to criticise the existing system. Some thereby questioned the effectiveness of imprisonment and argued that instead of working as a deterrence prisons might be the advance of a criminal career (Gendreau et al., 2000; Wermink et al., 2009). Bianchi calls them universities for crime 3. With the altering mindset new ideas developed whereby the perspective on crime changed from a violation of law and harm done to the state, towards harm done to people and their communities (Bazemore & Schiff, 2001; Van Ness & Strong, 2009). Therefore the measures should aim on making it right and on a healing process for all, victims, offenders and communities (Bazemore & Schiff, 2001; Van Ness & Strong, 2009). This new approach is known as restorative justice (RJ). Walgrave (2008) mentions three sources that have influenced the emergence of RJ. Next to the already mentioned scholars that criticized the criminal justice system, he names the movements that promoted emancipation and attention for victim s and feminist s rights, and the communitarian movement that promoted active engagement of the community in defining the social order. Van Ness and Strong (2009) also bring up as influential factors the sanction of compensation and restitution that started to be included in the criminal justice system in the 1960s, and the upcoming attention for indigenous justice that demonstrated that there were other effective approaches to crime than the approach practiced in the Western world. They point out that none of these factors by itself have resulted in RJ, but all together have contributed to the development of the restorative justice theory (Van Ness & Strong, 2009). Restorative justice theory Van Ness and Strong (2009) state that among the diverse actors that have contributed to the development of restorative justice theory there is significant common ground and 3 Bianchi mentions on several occasions that prisons are universities for crime (gevangenissen zijn universiteiten voor criminaliteit). Among others in an interview with Sander de Vaan for Meander Magazine in

10 also notable differences (p. 18). This has resulted in several views on how to approach crime in a restorative way (Daly, 2006; Johnstone & Van Ness, 2007). Johnstone and Van Ness (2007) name three views of RJ that differ from each other but also have overlapping aspects. The first view is encounter, whereby offenders during face to face meetings like mediation, conferencing and family circles are confronted with the victims and/or involved communities. The second view is reparation, that focuses on repairing the harm done to the victims and/or communities. This can be the result of the encounter process, for instance by giving an apology, but it can also be physical, for instance by restitution, compensation or work performed at the service of the community. The last view is transformation, that includes a total change whereby the existing criminal justice system is challenged (Daly, 2006), and the whole society develops a different stand towards crime and punishment. This change also includes an approach (bottom-up) whereby the needs of the people is the starting point, instead of the existing approach (top-down) to crime (Pemberton, in press). These diverse views make it impossible to give an unanimous definition on what RJ is. The definition given by the European council in the 2012 Directive 4 is related to the first (encounter) and the second (reparation) aspect: any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party (article 2, 1d), and is mainly focused on the individual participants. By naming RJ the social reactions to offences (p. 63) Walgrave (1994) takes a broader stand, focused on reparation as well as transformation, whereby a new way of dealing with crime will affect the whole society. He points that RJ does not intent to punish, not even to (re-)educate, but to repair or to compensate for the harm caused by the offence (Walgrave, 1994, p. 63). Daly (2006) argues that an inability to define RJ, or justice more generally, is not fatal (p. 2 ). She points to the diverse opinions and ideologies that all contribute to the discussion on the existing system and the developments of an alternative approach. Despite their different views, all advocates and practitioners share the conviction that a just reaction to crime is an approach that goes beyond the punishment of the offender (Sherman & Strang, 2007). 4 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime. 9

11 Although not delivering a definition, Sherman, in , gave a clear overview on the key elements of RJ practice in a speech for the American Society of Criminology (see table 1). It describes in general the elements that are involved in many RJ programs, but does not take away the discussions on the different approaches and the focus on a micro or a macro level. Indeed, in the purpose the social aspect of prevention is included, but the focus is on the individual. And as outcome the main goal is harm reparation by offenders. On a macro level however, crime reduction in general, and bringing deviators back in society in a meaningful way are less worked out. Purpose To repair the harm of the crime under discussion, and prevent further crimes by the offenders, victims, or supporters of either. Responsibility Offenders must first accept responsibility for having caused harm, and not dispute the factual claim that they are guilty, regardless of whether they formally plead guilty. Method Any means that can produce reconciliation between victims, offenders and their supporters, minimizing anger and leaving all satisfied that they have been treated fairly while justice has been done. (Face-to-face conferences among stakeholders in a crime, led by a disinterested third party, are the most widely tested method.) Decisions To the extent possible, decisions about what should happen next to repair harm and prevent future crime are made collectively and consensually by all individual participants in the process who were closest to the crime, as a form of justice ratified or supplemented by decisions of courts. Emotional Power The power of the process comes from the engine of emotional engagement of the participants, in contrast to the suppression of participants emotions in court determinations of guilt (prior to courts expressions of broader public emotions when punishing crimes). Emotions to Engage Remorse, guilt, shame, empathy, hope. Emotions to Avoid Anger, humiliation, fear, disgust. Outcome Offenders repair harm as feasible, given the nature of the crime Table 1: The key elements of restorative justice by Sherman (2003, pp ) 5 Published in: Sherman, W. L. (2003). Reason for emotion: Reinventing justice with theories, innovations, and research. Criminology, 41,

12 The Dutch way Dutch scholars have substantially contributed to the early developments of RJ. For instance the first mediation programs that were established by Blackmore, Kiely, Palmer and Hughes 6 in the early 1970s in the United States were inspired by the practices of Dr. Roosenburg in the Dutch Van Der Hoeven Kliniek, where in many cases of interpersonal disputes the most effective deterrent to future unacceptable behaviour was to have the disputants confront each other in a controlled setting (Palmer, as quoted by Wright, 1996, p. 75). Also Dutch scholars played a prominent role when by the 1970s Western scholars started to criticise the existing criminal justice system. Van Ness and Strong (2009), in describing the abolitionist movement as one of the new developments, name among others Hulsman and Bianchi as influential contributors to the ideas of the movement. These Dutch proponents of abolitionism could spread their views in the 70s and 80s of previous century while teaching criminology at Dutch universities. But despite the work of these thinkers their new ideas did not lead to a general implementation of RJ practices in the Netherlands. Pemberton (in press) refers to the feelings of disappointment among foreign scholars and practitioners when it comes to this lack of implementation. Contrary to what would have been obvious by the early eighties as a result of these new ideas, the mindset in the Netherlands changed, and even developed, especially during the last decade, towards a neo-liberal slant. Pemberton states that it is safe to say that of all the continental European countries the Dutch have most closely mimicked the penological development of the Anglo-Saxon World (in press, p. 9). In this penological culture, highly influenced by the culture of the United States, there is a strong distinction between good and bad, and thereby harsh punishment is favored in order to eliminate evil out of society. One of the results for the Netherlands is the highly increased imprisonment rate (figure 2 in chapter 4). In the 70s, when scholars like Hulsman and Bianchi strongly opposed against incarceration, the imprisonment rate in the Netherlands with 17 per 100,000 in 1976 was very low compared to other countries, but it increased enormously, especially since the second half of the 1990s, with a peak of in This number however is decreasing since, and for 6 Source: The first mediation program in the USA was a cooperation of Capital University of Columbus professors Josiah Blackmore, Terrence Kiely and John Palmer with the City Attorney of Columbus, Ohio, James Hughes. 7 Source: The World Prison Population List (7 th ed.) by the International Centre for Prison Studies. 11

13 2012 the imprisonment rate was 82 8, which is, compared to the imprisonment rate in the USA 9, very low. For the Netherlands the decline of the imprisonment rate, or the renewed interest in RJ is not initially a sign of a milder attitude towards punishment. Although often assumed to be contra dictionary, RJ practice does not rule out a harsh regime on crime as proofs the practice in Anglo-Saxon countries (Pemberton, in press). The current government proclaims to be tough on crime. At the same time they try to meet the public demand to promote victims rights. One of the recent developments in this perspective is the wet versterking positie slachtoffers 10 (translation: law to empower the victims position). There are several explanations for this renewed interest and increased willingness to apply RJ measures in the Netherlands. The first aspect is the public demand and the international attention for victim rights. The second is the coercion of the European Directive establishing minimum standards on the rights, support and protection of victims of crime, which should be implemented by all members of the EU by the end of But there is another aspect that has influenced the renewed political interest. The current government is struggling with severe budget cuts, and as the costs of imprisonment are very high, a high imprisonment rate thus implies a large claim on the national budget. RJ measures are seen as an valuable option to reduce these claims. Where Blad (2012) analyzed the Dutch situation as standing on a cross road, the question rises which direction to follow. Pemberton (in press) opts that the Netherlands will head on in the direction RJ has taken in the Anglo-Saxon penological culture, where it is not replacing the criminal justice system, but is integrated. The experiences of other countries can offer guidelines for the developments in the Netherlands. Here the law of the handicap of a head start can count, as The Netherlands, in developing RJ measures, learns from the failures of other countries, and in the meantime implements the successes. Thereby integrating all the different views on RJ towards an effective RJ practice Source: The World Prison Population List (10 th ed.) by the International Centre for Prison Studies. 9 According to the 10 th edition of the World Prison Population List the USA has, with 716 per 100,000 people the highest imprisonment rate in the world. 10 Since January

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15 Chapter 3: The diverse society structures Introduction Cavadino and Dignan (2006) notice that every society, even the most simple one, needs a system to respond to deviance in order to survive. By defining rules and rights for behaviour, and by sanctioning the ones that do not act accordingly, the so called social order is set. For social scientists the concept of social order is related to all the aspects that form a society. This includes norms and values, but also customs and culture. Noticing the necessity to settle a social order, although being a different one for the various societies, Kelsen (1945) describes the concept of law as: the social technique which consists in bringing about the desired social conduct of men through the threat of a measure of coercion which is to be applied in case of contrary conduct (p. 19). Changes in the social technique and by consequence in the measures of coercion must therefore have effect on social conduct and thus affect society. In examining the effects of RJ too often the focus has been on the micro level, examining the impact for the victim and/or the offender. Sherman (2003) mentions with regard to RJ measures that the questions are now focused on what effects it may have on different kinds of offenses and offenders in different social settings (p. 26). But what is the impact on a macro level? Bazemore (2005), noticing that RJ-practitioners still tend to identify less with system concerns than with addressing the needs of victim, offender, and their families or supporters (p. 134), argues that RJ can help a community in improving both, social control and social support. Which brings forward the question how RJ can contribute in bringing about the desired social conduct (Kelsen, 1992, p. 19), and which social conduct is desired? According to Cavadino and Dignan (2006) societies organized along different lines will diverge to some extent in the social rules that are vital to maintain their diverse social orders, as well as in the precise methods of social control employed (p. 6). Some countries have a re-active attitude with regard to crime, they want to punish the offender and revenge is a strong element in their crime prevention program. Other countries are more pro-active in their approach, taking long term solutions into account. Thereby the crime prevention program is more focused on re-socialization and reparation. This thesis investigates the opportunities of RJ for the Netherlands, and therefore examines some of the experiences with RJ of other countries. The countries, selected for the 14

16 case studies will represent these diverse angles. Like Cavadino and Dignan (2006) in their comparative approach of penal systems the focus will be on Western societies that are similar to the Netherlands; developed societies with an industrialized economical structure and a democratic political system. Western societies in general are extremely similar (Cavadino & Dignan, 2006, p. 6), but there are differences in their political ideology and in their economical structure, as well as in their penal culture. A diversity of social orders When categorizing the diverse societies of the Western world some options come forward. It should however be noted that all of these options are broadly generalized and the regimes are defined in a certain category because of their main characteristics, although they can deviate on other (minor) aspects. In a reflection towards his own division Esping- Andersen (1990) stated: there is no single pure case, and elements of all these regimes can be found in most countries (p. 49). The first option to categorize regimes is by the way their welfare system is organized. Esping-Andersen (1990) with regard to the social order stated that the welfare state is not just a mechanism that intervenes in, and possibly correct, the structure of inequality; it is an active force in the ordering of social relations (p. 23). He thereby identified 3 main categories: the social democracy model, related to the Netherlands 11 and Scandinavian countries, the liberal model as applicable for instance to Australia, Canada, and the United States, and the conservative corporatist model, related to for instance Austria and Germany (Esping-Andersen, 1990). The regimes with the social democracy model have little social inequality due to a generous welfare system and common social rights. In contrast the regimes of the liberal model are characterized by individualism and minimal state involvement and regulation, thereby emphasizing on personal freedom. Lastly the regimes of the conservative corporatist model have some characteristics of both models, they do include some welfare state provisions and social rights, but also include individual rights and personal choices. Another option is the categorization by Sandel (2009) who classified societies by the way they deal with justice, which is highly related to the measures of coercion used to establish desired social conduct and the sanctions used to react to deviance. By asking what is the right thing to do? Sandel (2009) defined three approaches. The first one is maximizing utility of welfare, the second one is respecting freedom of choice and the 11 Esping-Andersen (1990) categorized the Netherlands in the same category as the Scandinavian countries. 15

17 third approach he defined is cultivating virtue and reasoning about the common good (Sandel, 2009, p. 260). The first approach is based on the philosophy of utilitarianism whereby the benefit of the largest amount of people prevails. The second approach is based on a laissez-faire philosophy, whereby the right thing to do is determined by each and every person themselves. Government involvement, as well as regulations are minimal. The third approach tries to find a balance between these two approaches arguing that neither the common interest, nor the personal choice should prevail, nor be neglected. Therefore, to define the social order, a strong community engagement is necessary. Cavadino and Dignan (2006) made a division 12 for countries, based on their political economies and the way they punish. For the political economy categorization they used among others the Esping-Andersen welfare state categorization. According to their findings countries with a similar profile tend to resemble each other in the penal realm (Cavadino & Dignan, 2006, p. 6). Maximizing utility of welfare in Sandel s (2009) categorization, and social democratic corporatism in the typology of Cavadino and Dignan (2006), share similar characteristics as the social democracy model of Esping-Andersen (1990), with same opportunities for all. In this regime the state takes care of their citizens and this is reflected in the penal culture. The general attitude towards those who have committed offences is less severe because, in the recognition of the situation of the deprived, society accepts a responsibility. In this right-based society offenders are not expelled and imprisonment rates are low (Cavadino & Dignan, 2006). The long term effect of re-socialization prevails. Sandel s second approach, respecting freedom of choice, has similar characteristics with what Esping-Andersen calls the liberal model, or in Cavadino and Dignan s typology neo-liberalism. In this regime the penal culture is based on the retributive justice principle of an eye for an eye and a tooth for a tooth. In contrast to the social democracy model, that has a low imprisonment rate, in this regime the imprisonment rate is high (Cavadino & Dignan, 2006). Adhering the freedom of choice, offenders are seen as people who have willingly made the wrong choice and therefore have to take the consequences (Sandel, 2009). They have lost any right and the consequence is exclusion. 12 Cavadino and Dignan in their typology of the Western regimes based on political, economical and penal approaches also included Japan, defining their regime as oriental corporatism. This approach is left out of this thesis because of the focus on Europe. 16

18 Socio-economic organization Justice approach Penal tendencies Regimes Social democratic corporatism Conservative corporatism Economic approach Universalism; Hierarchy, statusrelated union involvement but with a degree of union involvement Welfare state Generous welfare Some general provisions state welfare state provisions with additional contribution by family/church Social rights 14 Social inclusion Mixed with dependency on traditional institutions as family/church Income distribution Wage restraint, redistribution of income and wealth Notable differences but not extreme (Neo-) liberalism 13 Free market policy Minimal welfare state provisions; everybody has to take care for him- /herself. Social exclusion Extreme differences Political orientation Left-wing Centrist Right-wing Justice approach Humane/human rights Mixed Retributive Social ethos State/collective Community Individual responsibility responsibility/ responsibility citizenship Penal ideology Rights based Rehabilitation Law and order Imprisonment rate Low Moderate High Mode of Inclusionary Mixed Exclusionary punishment Countries Sweden, Finland Germany, Austria, Belgium England, USA, Australia Table 2: An extended typology, based on the typology of political economies and their penal tendencies by Cavadino and Dignan (2006, p. 15), with the addition of the justice approach as defined by Sandel (2009). The third approach of Sandel resembles Esping-Andersen s and Cavadino and Dignan s conservative corporatist model. The ideology of communitarianism, that underlies Sandel s approach of cultivating virtue and reasoning about the common good, promotes community involvement, whereby the people together define the rules, the rights and the sanctions that form the social order (Sandel, 2009). This approach also underlies the conservative corporatist model whereby society is not a state but a civil responsibility and whereby social control by family and church are still influential. By consequence there is a 13 Cavadino and Dignan (2006) distinguish (neo-)liberalism from the common meaning of the word liberal. The first one is a political and economical ideology that favours the free market and minimal state involvement. The word liberal is related to those who favour the opposite, promoting more social and material equality (Cavadino & Dignan, 2006, pp ). 14 Cavadino and Dignan refer to the accessibility of political, civic and social rights for all people. When people lack this access this is called social exclusion. 17

19 strong sense of responsibility towards those in need, also reflected in the attitude towards offenders. This regime favors rehabilitation and re-socialization (Cavadino & Dignan, 2006). Table 2, based on the table of Cavadino and Dignan (2006, p. 15), gives an overview of the main characteristics for each regime. Social order, penal ideology and restorative justice The criminal justice system reflects the social order a country adheres. With rules and rights, based on the underlying ideology, the conduct of its citizens is regulated. It is obvious that in a liberal regime where individual rights prevail, the aim of making things right for society is not dominant. In a regime that prefers to exclude the offender it seems impossible to practice a system that tries to replace the offender in society in a meaningful way. But what does matter in this regime is the victim: the emphasis in punishment must be not on paying one s debt to society but in paying one s debt to the victim (Rothbard, 2002, p. 86). It is also obvious that in a social democratic regime, with the emphasis on human rights, the approach of compassion, whereby offenders are taken back in their midst, is promoted. Society as a whole benefits when recidivism is prevented because offenders, instead of falling back (or stay) in their old behaviour, can make a new start. And of course a society that highly values the role of family and traditional institutions such as churches is likely to accept it as their responsibility to take care of those that deviate, including those that broke the law. Bazemore (2005) refers to community justice when the measures include involvement of individual citizens or neighbourhood groups. Despite their different views on punishment, countries within each regime have adopted some form of RJ measures. Miers (2007) noticing the international expansion of RJ, points at the plurality of practices. To name a few: informal mediation, victim-offender mediation, community panels or courts, healing circles, and other communitarian associations (Miers, 2007, p. 448) that all fall under the nominator restorative justice. Where Sherman and Strang (2007) noticed that restorative justice means different things to different people (p. 32), VanFraechem (2010) points that with regard to RJ practice institutions differ too within and between the diverse countries. But when addressing the system of each regime to set their social order one might ask: why RJ at all?. As noticed the victim orientation is appealing for a neo-liberal regime, addressing the individual needs. This direct approach gives the victim the chance to confront the offender with the results of his action, who thereafter can take responsibility for instance in offering an apology and reparation or compensation to the victim. 18

20 Of course this orientation will be hailed by all regimes but the social corporatist regime might eventually be willing to sacrifice the victim for in line with utilitarianism- the greater good, the benefit of society. Which in fact was the common practice until recently, as victim rights where neglected and the focus was primarily on the offender (Groenhuijsen & Letschert, 2012). The rights or needs of offenders is not considered at all in a neo-liberal regime. The offender in their view has lost any rights by deviating, and exclusion is the consequence. Social aspects as prevention of recidivism and the benefit of it for society are long term consequences that are not in line with neo-liberalism. In this ideology excluding evil is the best option, and the USA thereby even goes as far as including the death penalty in their penal culture. But other two regimes are willing to see the causes of the offender s conduct which may lie beyond his or her individual choice, and are thus willing to contribute to better conditions that may prevent repetition of the deviant behavior. In the conservative corporatist society there is a role for the family and institutions like the church, where in the social corporatist society this role is for the state, who has the responsibility to take care of their citizens. Therefore re-socialization and rehabilitation of offenders are part of their system. Each regime, answering the question: why RJ at all?, thus will give a different answer. But nevertheless each of them will give an answer as many have incorporated some form of RJ. In chapter 5 three examples will be given from countries, each representing one of the regimes, that have adapted some form of RJ practice. The Dutch social structure. As noticed, in the Western World in general 3 types of regime can be identified (see table 2). When taking a closer look at the situation in the Netherlands, this country seems to be an outlier, or at least difficult to identify. In the late 80s - early 90s Esping-Andersen (1990) determined the Netherlands as social democratic based among others on their generous welfare system. In those days the Dutch imprisonment rates were among the lowest in the world 15. By the beginning of the 21st century, when Cavadino and Dignan (2006) made their typology, they placed the Netherlands more in the middle, defining them as a conservative corporatist model because of the increased imprisonment rates 16, but also in 1986 according to Cavadino and Dignan (2006, p. 45) based on the Council of Europe, Prison Information Bulletin of June 1986 and January in 2002/03 according to Cavadino and Dignan (2006, p. 45) based on the 2003 report by Walmsley. 19

21 because of a change towards a less social and a more exclusionary economy, already noting the American influence (Cavadigno & Dignan, 2006). Recently Pemberton (in press) noticed that the Netherlands is highly infected by Americanism, which opens the comparison to the neo-liberal regime. Bauman (2000) has already argued that the social order is not solid, but instead constantly changing. He calls it liquid modernity whereby under the influence of globalization, as well as for instance social actors as immigration, society alters on an individual as well as on a macro level (Bauman, 2000). Noticing the regime changes of the last three decades the Netherlands might have been more liquid compared to the other countries, that have been more consistent. The global economical crisis has also forced the Dutch government to serious budget cuts, which included the penal system, whereby plans were developed to diminish the number of prisons. In order to achieve this goal measures like two prisoners in a cell were opted, but it also gave rise to other forms of sentencing, like electronic tagging and Victim-offendermediation (VOM). Recently (2013) several pilots for VOM were introduced. But where Cavadino and Dignan in 2006 still noticed that the welfare system was fairly unscathed (p. 119), at this moment (2014) the Netherlands is economizing this generous welfare state system. When the new government was formed in 2012 their agreements were written down in the regeerakkoord (translation: coalition agreement) and to name a few: the cabinet will cutback five milliard Euro on public healthcare; the cutback on social security will be a total of three milliard Euro. 17 By introducing the term participationsociety 18, arguing that the welfare state has to shift towards a society where people take responsibility towards themselves but also towards others and society as a whole, the government moves in the direction of the conservative corporatism aspect of community involvement and responsibility. When it comes to the redistribution of income and wealth, the just published WRRreport 19 on inequality in the Netherlands noticed that income-inequality is still rising 17 Het kabinet bezuinigt vijf miljard op de zorg. Op de sociale zekerheid wordt in totaal 3 miljard bezuinigd. Source: 18 This term, translation from the Dutch word participatiesamenleving was introduced in the Speech from the Throne of September 2013, arguing that the welfare state had to shift towards a society where people take their own responsibility towards themselves but also towards others and society as a whole. 19 WRR stands for Wetenschappelijke Raad voor het Regeringsbeleid (translation: scientific council for government policy) 20

22 (Salverda, 2014). Based on the Gini-coefficient 20, according to the report the Netherlands is a player in the European middle field, being lower than the UK, but higher than for instance Belgium (WRR, 2014). However when taking into account the lowest and the highest incomes, the gap is widening since 1985 (WRR, 2014). The report notices that this is particularly concerning because social inequality leads to an increase of health and social problems and feelings of insecurity (Salverda, 2014). And lastly, the most relevant part for this thesis, the penal culture in the Netherlands. This was very open-minded towards inclusive approaches by the early seventies of previous century. Cavadino and Dignan (2006) point at a cultural belief in the wrongfulness and disutility of harsh (and especially custodial) punishment (p. 114). This mindset has changed towards a neo-liberal slant with a preference for harsh punishment by the end of the twentieth century (Pemberton, in press). As Cavadino and Dignan (2006) noticed in their book: a beacon of tolerance dimmed (title of chapter 8, p. 113). Taking all these characteristics in account for identifying the current regime in the Netherlands, according to the aspects of table 2 it would still fit best, in line with the choice of Cavadino and Dignan (2006), in the conservative corporatist option. In chapter 6, reflecting on the case studies of chapter 5 and the future options for the Netherlands, this will be examined further. 20 The Gini-coefficient measuring inequality and ranges between 0 and 1- for the Netherlands in 2014 according to the WRR report is 0,57 before taxes and social welfare provisions, being on the same level as the USA, while being 0,33 after adjustments by taxes and social welfare provisions. 0 represents total equality. 21

23 Chapter 4: The context of the case-studies The neighbour as a role model In order to find answers to the research question of this paper: what can the Netherlands learn from restorative justice practices of other countries and how can they apply them in an effective way in the Dutch Criminal Justice System?, some practices of other countries will be examined. Therefore from each regime a country, having adopted RJ practices, is selected. The most obvious example for the neo-liberal regime would be the USA. When addressing the current penological culture in developed countries often reference is made to the strong influence of the USA. Although particularly in the Netherlands in the first decade of the 21st century a move towards their penological ideology has been noticed, this influence has not been noticed all over Europe (Cavadino & Dignan, 2006; Tonry, 2006; Pemberton, in press). The developments in European countries differ, among others depending on the degree of adaptation of the American influence (Pemberton, in press). Nolan (2012) recognizes the influence -in all kinds of fields- of America on Europe, but she also notices that European countries do not blindly adapt. Hofstede and Hofstede (2005) point at the stability of society s fundamental values. Acknowledging that changes do occur, Hofstede and Hofstede (2005) notice that values prevail, they are persistent and take a long time, even generations, to develop and adjust. European countries, adhering to their historical values, maintain a more social and inclusive policy, and when it comes to American things Europeans selectively resisted, adopted and modified (Nolan, 2012, p. 5). With regard to the prison-use tradition Tonry (2006) refers to the American attitude towards offenders. In the an eye for an eye and a tooth for a tooth approach of the neoliberals the offender gets what he deserves (Sandel, 1999). Western Europe is less revengeful, but the attitude towards offenders in the UK is different than in mainland Europe. Tonry (2006) refers to the 2000 ICVS 21 study that reveals that English respondents preferred prison sentence for a young and less serious offender far more than respondents in the rest of Europe and also English respondents preferred much longer sentences than people from the continent. However even the UK, taking another stand than the continent by adhering the neoliberal regime, is less punitive than the American people. They do share European traditions, 21 The International Crime Victims Survey 22

24 as can be noticed by their imprisonment rates, albeit being around 150, they do not even come close to the American rates 22. The map of figure 1 visualizes the European prison-use. Figure 1: Imprisonment rates for Europe; Source: Council of Europe, report: SPACE I 2012.m.1 Having noticed the current American influence on the Dutch practice, but also the importance of the underlying values, this influence might be less persistent in the long run. The decrease of the Dutch imprisonment rates, as noted in chapter 2 and 3, could be an indication for the dominant influence of the historically developed values. Next to that, although there has been American influence on all kinds of levels, there have been tension and critics as well (Nolan, 2012). To incorporate practices of others into the own system it is important that they fit the underlying values. Therefore the countries chosen as case studies are all western European countries that are more or less related to the Netherlands. Learn from your neighbor so to say, which is even literally by the choice of Belgium, a country that shares very similar characteristics with the Netherlands, as the example for conservative corporatism. England is chosen as example for the neo-liberalist regime, being a close friend, but with different stands. As an example of the social democratic regime the practices of Finland are worked out. VanFraechem (2006) points at the policies per 100,000 people; see 9. 23

25 that are different from the common European approach. It might be this unusual approach that could be the model for the Netherlands to incorporate. A further examination In chapter 3 the three relevant regimes for the Western world are worked out. To gain more insight in the context of the representing countries, and how they relate to the Dutch social order, some relevant aspects will be examined. The first aspect addresses norms and values, the general attitude towards welfare state provisions, individual versus state responsibility, hierarchical structures and the opinion on the death penalty. Therefore the results of the latest European Values Study (EVS 2012) 23, as conducted in a longitudinal sequence by Tilburg University, are used. The EVS examines the norms, values, customs and opinions of European citizens by country, which gives an insight in the desired social conduct of these countries. The next aspect to be addressed is the severity of punishment. Cavadino and Dignan (2006) examined if imprisonment rates were indicative for the level of punishment of a country and their regime, and although they state that it is not always true, their findings were mostly confirmative. For that reason also in this thesis the imprisonment rates are used to determine the level of punitiveness of the four countries. Thereafter fear of crime will be discussed. Between the late 1960s to midst 1990s in all Western societies crime rates have gone up (Tonry, 2006). This could have resulted in increasing feelings of unsafety and by consequence a demand for harsher punishment and exclusion of criminals. Where some countries indeed reacted conformingly, others did not. For the four countries the fear of crime, and the factors that contribute to the level of fear will be explored. Lastly the change towards a more punitive stand that has taken place in all the Western countries since the late 1990s will be discussed. Norms and values One of the topics in the EVS 2012 is on public versus private duty. This touches upon two aspects in the regime categorization as presented in table 2; the level of welfare state provisions versus people having to take care of themselves, and the social ethos (individual versus state responsibility). The related question of the survey is should 23 The European Values Study is a large-scale, cross-national, and longitudinal survey research program on basic human values. It provides insights into the ideas, beliefs, preferences, attitudes, values and opinions of citizens all over Europe. It is a unique research project on how Europeans think about life, family, work, religion, politics and society Source: 24

26 individuals take more responsibility for providing for themselves or should the state ensure that everybody is provided for? (Halman, et al., 2012, p. 85). In the results all three corporatist countries, Belgium, Finland and the Netherlands rated with an average of 4,5-4,9, all not adhering a generous system while England, in line with the neo-liberal stand, even rated below 4,5 (m=5,45 on a scale of 1-10, whereby 1 equals individual responsibility and 10 state responsibility). Another topic in the EVS 2012 was related to being obedient or critical, whereby the respondents could chose from 3 options: 1 -follow instructions of a supervisor, no matter what; 2 -only follow the instructions when one is convinced they are right; 3 -depends. This is one of the 3 elements of the Power Distance Index (PDI) (Hofstede and Hofstede, 2005), a measure to determine the level of inequality in a society. So hierarchy and status are dominant in a neo-liberal regime and not in a social democratic regime. Citizens in Finland and Belgium in general chose 2 (convinced), as were England was more obedient by choosing 1, and the Netherlands more critical by choosing 3 (depends). This also has consequences on the public acceptance of arguments brought forward by politicians and media. Being critical makes people less open for populist argumentation, although also for expert opinions. The last topic is on death penalty. By asking the respondents whether they considered the death penalty justified the answers underlined the stands on punitiveness. England has the highest percentage of people (> 30%) confirming this statement, being indeed tough on crime. Belgium and Finland were less tough as only 15-20% of the respondents agreed to this statement. The Netherlands seem to be the most lenient as only 10-14% of the respondents agreed. The Netherlands thereby seem to underline the recent decrease of imprisonment rates (figure 2 and 4) and contradict the assumed harsh punitive tendency. The tradition of prison use In order to examine the level of punitiveness of a country Cavadino and Dignan (2006) as well as Tonry (2006) use imprisonment rates. It should be noted however that the imprisonment rates are not related to the crime rates of a country (Tonry, 2006). Firstly, it does not mean that when imprisonment rates are high, the crime rates will drop. The homicide rates in the USA for instance are much higher than those in Europe (Tonry, 2006), although the imprisonment rate of the USA 24 is the highest in the world. Despite their high 24 The USA imprisonment rate is 716. Source: the World Prison Population List (10 th ed.) by the International Centre for Prison Studies. Note that the country with the highest rate in Europe, Latvia, has a rate of

27 imprisonment rates crime rates are not diminishing, which underlines the necessity to at least question the effectiveness of this form of sentencing and to investigate other options. Secondly, the other way around, when a country experiences more crime it does not mean that by consequence the imprisonment rates are going up (Tonry, 2006). Although crime rates have gone up all over the Western world since the 1970s, imprisonment rates, like fear of crime, did not follow this trend in a similar way (Tonry, 2006). Some countries indeed did react to the increasing crime rates by becoming more punitive, others however tried to find alternative solutions. Important factors in these developments were the influence of politics and of the underlying national culture (Tonry, 2006). A country with a neo-liberal stand will react more punitive whereas a country with a milder regime will include other solutions imprisonment rates / / Belgium NL England Finland Figure 2. Imprisonment rates for Belgium, England, Finland and the Netherlands between 1982 and 2013; sources: : the Council of Europe/ : the World Prison Population Lists by the International Centre for Prison Studies Both, figure 1 and 2 show that nowadays all of the three countries confirm their regime. According to their imprisonment rates neo-liberal England is most, and social democratic Finland least punitive. However where Tonry (2006) notices different movements between the various countries examining the period , the graph of figure 2, covering the period , shows that since the end of the 20 st century all the four 26

28 involved countries 25 show an upwards movement, although each at their own level. The part on the millennium change will go into this. Fear of crime In the demand of the public for tougher punishment the fear of crime is an influential aspect. The aggressive and punitive stand of mass media in some countries, and the (responding) strong rhetoric by their politicians are often brought forward as explanations for the level of public fear of crime (Hummelsheim et al., 2011). The continuous focus on evil does raise the public awareness on crime and their own optional victimization and thereby enlarges their anxieties (Tonry, 2006). However Boutellier (2006) argues that we should not blame it all on the media. He points at the complexity that is related to fear of crime, involving the fear of becoming a victim oneself, fear about the level of crime in society, but also fright about other social issues and a general feeling of unsafety. In this context also the intolerance towards other social groups like minorities and immigrants is often mentioned (Tonry, 2006; Hummelsheim et al., 2011). Figure 3. Percentage of the population with fear of crime ; source: Hummelsheim et al., 2011, p Tonry (2006) did not cover the same countries. In his book he used the USA, Germany, Finland and also France. Figure 2 covers similar regimes but partly other countries. 27

29 Hummelsheim et al. (2011) conducted a comparative analysis 26 between several European countries on the relation between fear of crime and social security. The researchers in their analysis divided the countries according to the categorisation by Esping- Andersen assuming that (neo)-liberal 27 countries would show high levels of fear, with social democratic countries showing low levels of fear while the conservative corporatist countries would range in between. The empirical analysis confirmed that higher social expenditure was associated with lower fear of crime and that a higher degree of decommodification 28 of social welfare policy was accompanied by lower levels of crime-related feelings of insecurity (Hummelsheim et al., 2011, p. 337). Regimes Socio-economic organization Justice approach Economic approach/pdi/hiera rchical structure Welfare state provisions/ generous versus minimal Social ethos/state versus individual responsibility Social democratic corporatism Critical on status: The Netherlands Conservative corporatism Belgium, Finland Mixed: Belgium, Finland and The Netherlands State responsibility Belgium, Finland and The Netherlands (Neo-) liberalism Hierarchical: England Minimal: England Individual responsibility: England Stability and safety issues Fear of crime/level of insecurity Low - Finland Middle Belgium and the Netherlands High - England Penal tendencies Imprisonment rate < 100 Finland and The Netherlands punishment/tough on crime Lenient: The Netherlands > 100 Belgium > 130 England Belgium, Finland Tough: England Table 3. The implementation of the findings of the EVS 2012, the study by Hummelsheim et al. (2011), and the imprisonment rates for Belgium, England, Finland and the Netherlands. Although this thesis will not go into the implementations of the social security systems of the analysed countries these results are in line with their welfare system. Figure 3 displays 26 Individual-level data from Round 2 of the European Social Survey (ESS) 2004/2005 were used, and adjusted with several data from other official country-statistics. (Hummelsheim et al., 2011, p. 331). 27 Esping-Andersen named the neo-liberal regime the liberal model ; see chapter Esping-Andersen s concept of decommodification is a general indicator for the strength of the welfare state (Hummelsheim et al., 2011, p. 332); a high level of decommodification is related to a strong welfare state. 28

30 the level of feeling of insecurity 29 of the population of the analysed countries, showing that indeed people in the UK, have high levels of fear (33,7) as where people in Finland (10,8) show low levels. The UK does have a marginal form of social welfare provisions (Cavadino and Dignan, 2006), whereas in Finland, the welfare system is generous and fully integrated (Castells and Himanen, 2002). Both Belgium and the Netherlands are in between these two results (respectively 21,7 and 18,3). In table 3 the format of table 2 (the extended typology on regimes) is applied to the outcomes of these three aspects. It should be noted that the EVS measures opinions. These are not always reflected in the practices and policies of the regime and can be influenced by the whim of the day. Finland is chosen by Cavadino and Dignan as a social democratic regime because of the social practices. Practice and (current) public opinion seem to differ here. The Millenium change The strong influence of feelings of insecurity, as described by Boutellier (2006) and Hummelsheim et al. (2011), is underlined by the what happened at the end of the 1990s, when in all Western countries imprisonment rates started to rise again (see figure 2). In Europe the borders disappeared, leading to international trade, but also to increasing immigration and increasing crime. These ongoing changes made people feel insecure as the world has become a less comfortable and predictable place (Tonry, 2006, p. 6). Lappi-Seppälä (2012) points at this changing mind-set, calling it the punitive turn (p. 212), and by using Finland as example, he notices an increasing fear of crime. Finland till the early 1990s had experienced a deep crisis (Kiander, 2005) which had resulted in budget cuts in the welfare provisions. It was also the period after the Iron Curtain went down, when Finland and also the other Western countries - saw many people from Eastern Europe entering the country. Fear of crime melds with fear of the outsider (Cavadino and Dignan, 2006, p. 48). In Finland, despite the new economic boost and the actual crime rates that contradicted increasing victimization, feelings of insecurity grew (Lappi-Seppälä, 2012). The political reaction was a tougher penal policy, whereby punitiveness at the level of legislation functioned to give expression to insecurities largely unrelated to crime as such (Lappi- Seppälä, 2012, p. 214). 29 The researches asked the respondents How safe do you or would you feel walking alone in this area after dark? They recognize the vagueness of the question but argue that precisely for this reason we believe that this standard item is highly suitable to measure general feelings of insecurity projected onto the symbolic issue of crime (Hummelsheim et al., 2011, p 332). 29

31 This punitive turn is not exclusively a Finnish phenomenon. As figure 2 shows by the turn of the millennium also all the other countries, although each at their own level, made the same movement. Cavadino and Dignan (2006) argue that there is no evidence for increasing crime rates that might justify this punitive tendency, but instead notice an increasing support for right wing populist parties that do not avoid anti-immigrant and tough punishment rhetoric. Politicians and media can contribute to the public opinion (Cavadino and Dignan, 2006) and can influence public fear of crime (Hummelsheim et al., 2011). And this contribution, due to the social media, is not restricted to national borders. However, both Finland and the Netherlands show decreasing imprisonment rates since the midst of the 2000s (figure 2). In both countries the average time of prison sentences declined and other extra-mural sanctions improved (WODC, 2010; Lappi-Seppälä, 2012). New initiatives like electronic tagging were introduced, and measures to improve the situation for victims 30 were included to reverse this punitive direction (Lappi-Seppälä, 2012). Governmental budget-cuts and the European Directive do play a role, as does the public demand for victim rights, but it might also be an indication for the persistent influence of historically developed values. In the next chapter the three case studies, regarding the countries Belgium, England and Finland, each representing one of the regimes as defined in chapter 3, will be described. Each case study starting with a explanation why this country is a relevant choice. Next the current situation of the country will be described and thereby some reflection will be given on the above findings. Thereafter the RJ practices and its developments will be worked out, including the successes and failures as far as known. 30 In the Netherlands: Wet versterking van de positie van het slachtoffer in het strafproces (translation: law to empower the victims position); since January

32 31

33 Chapter 5: Three European examples Belgium, a conservative corporatist example The experienced neighbour. The two countries that the Netherlands shares physical borders with have both a conservative corporatist regime. Both neighbours, Germany and Belgium, share characteristics, but also have differences with the Netherlands. In contrast to the Netherlands their regime has been more persistent over the years, wherein family and institutions like the church still play an important role. Esping-Andersen (1990) already defined both countries as being conservative corporatist, Cavadino and Dignan (2006) 15 years later defined them accordingly. Cavadino and Dignan (2006), in discussing punitiveness make a reference to the contrast between Germany and the Netherlands, noting the relatively conservative and authoritarian ethos of the one and the more liberal 31 tradition of the other (p. 104). According to the findings of the EVS (see chapter 4) this contrast can also be noticed between Belgium and the Netherlands, as also in Belgium the ethos is more conservative and authoritarian. With regard to their neighbors the Dutchmen still have a somewhat difficult and competitive relationship with Germany, an attitude often ascribed to WW II. As for Belgium, there is more connectedness, at least with the Flemish 32 side of the country, where the people speak a similar language. To make the comparison easier -learn from a friend- for this case study the example of Belgium is chosen. And Belgium is a friend to learn from. On the scientific level the University of Leuven is very influential in the field of RJ, not only within Belgium as their expertise and activities reach far beyond borders (Aertsen et al., 2013). Also many publications, used in this thesis, are written by renown Leuven scholars; to name a few: Aertsen, Miers, Vanfraechem, Walgrave. Van Doosselaere and Vanfraechem even conclude that in Belgium, practice, theory (research) and policy do seem to go hand-in-hand on the road to restorative justice, mutually enforcing each other s strength and challenging their self-evident decisions and ideas (2010, p. 88). 31 See note 12 on the common meaning of the word liberal in contrast to (neo-)liberalism. The word liberal is related to those who promote more social and material equality (Cavadino & Dignan, 2006, pp 15-16). 32 In 1830 The Kingdom of Belgium was founded after the southern provinces separated themselves from the United Kingdom of the Netherlands. 32

34 A complex country It might be an understatement when Van Doosselaere and Vanfraechem (2010) call Belgium a complex country (p. 57). The country, by constitution, is divided on two levels; into regions (the Flemish, the Walloon and the Brussels-Capital region) and into language communities (the Dutch-speaking Flemish, the French-speaking French, and a small German speaking community). By consequence political power is divided over these different regions and communities. Regions for instance are granted authority on matters of infrastructure, as where communities decide on socio-economic matters like youth, welfare, education and culture (Put et al., 2012). However the federal government is responsible for the main legislation, as well as for some of the funding (Van Doosselaere and Vanfraechem, 2010). Tensions between the two main linguistic groups are common and can have far reaching effects. Put et al. (2012) refer for instance to the Belgian State reforms in the 1980s that lasted for decades: Belgian authorities were caught in a hold between the options for restorative justice (promoted mainly by Flemish politicians, practitioners and academics); a revised model of rehabilitative justice (defended especially in the French speaking part of Belgium); and a tendency towards more punitive and repressive responses to what is called serious youth crime (which was [and still is] demanded by some populists in both parts of the country). (p. 86) It is this remark and still is (Put et al., 2012, p. 86) that can be noted in the millennium change. Where the other countries show a hold or even a movement downwards (figure 2), in Belgium there is still an increasing movement in the imprisonment rates. Despite an open mind for RJ practices, the tension within the country stirs feelings of insecurity that does effect punitiveness. An other effect is that due to this division in regions and communities different RJ practices developed, each using their own method, their own criteria and their own vocabulary, thereby making it hard to compare (Van Doosselaere and Vanfraechem, 2010). However, despite the complexity and the tension, or maybe even because of it, thereby challenging those involved, RJ in Belgium has developed in a successful way (Put et al., 2012). According to Put et al. (2012) this is indeed the result of inspired practitioners supported by academics (p. 93). Restorative justice in Belgium Belgium has a deep rooted tradition of youth justice whereby the diverse social services, judicial and psychological health institutions, and welfare agencies are working 33

35 together. It is in this context that in the late 1980s the first practices started with small-scale mediation initiatives (Aertsen, 2006; Put et al., 2012). It was however not until 2006, with the introduction of the Youth Justice Act 2006 (YJA), that RJ became the primary approach to juvenile delinquents (Put et al., 2012). The measures of the act aim on rehabilitation of the young offenders, they are as described by article 37 of the YJA: measures of care, preservation and education. Mediation has to be offered in every case to all involved, whereby the judge afterwards can order additional measures. Sometimes the severity of a crime make it necessary to respond in a more punitive way. The practice in Belgium shows that in most cases indeed mediation is offered. The only exceptions are cases where there is no apparent victim, and cases with a severe offence. Also for the adult offenders by the early 1990s various programs were developed, and already in 1994 penal mediation 33 was included in the Belgium criminal law, which offered the offender in small cases the opportunity of mediation instead of being officially accused. The motivation for this rapid development is interesting in the light of nowadays populist demands for tougher punishment in the Netherlands. In Belgium in the early 1990s an extreme right-wing political party 34 gained ground because they were responding to the public sentiment of political distrust and insecurity. The Government felt they had to react, and including penal mediation into the criminal law served two purposes providing a quick social reaction to common city crime, and paying more attention to the victim (Aertsen, 2006, p. 71). Table 4, taking the overview of Sherman (2003, pp ; see table 1 in chapter 2) as a starting-point, gives an overview of the key elements of the Belgian RJ approach for both juveniles and adults. In Belgium RJ practices are mainly victim-offender mediation, with some practices in conferencing (Aertsen, 2006). Next to penal mediation other forms developed: mediation for redress (in Dutch: herstelbemiddeling), a form to address more serious crimes that would not fit into penal mediation (in French community this is called: pre- and post sentence mediation); mediation at the police stage (Flemish) or local mediation (French), which addresses particularly small incidents at the police level that seek for a quick agreement. The above notion of the different names in the two main linguistic communities is an indication for the diversity of practices. However, due to national legal developments, with the 2005 law improvements that fully included mediation for adults in the Belgium criminal 33 Mediation at the prosecutor level 34 Vlaams Blok, focusing on anti-migrant sentiments and Flemish nationalism. 34

36 law system and the YJA 2006, prioritizing RJ in juvenile cases, RJ has become a serious element in the Belgian justice system. There can be an element of danger in this national regulation as well. Aertsen (2006) mentions that a top-down approach does not work and he argues that especially the local involvement, whereby crime approaches, definitions and reactions are discussed (p. 89) are of fundamental importance. When addressing the role of the academics in this process Put et al. (2012) recognize particularly the scholars from Leuven University who have highly contributed, not only by starting RJ pilot projects, but also by monitoring the projects, and thus provide useful outcomes for implementation by the practitioners. Having hailed the Belgian developments of RJ, Put et al. also signal some serious risks. They point, in line with the above argument of Aertsen (2006), at the standardization of practices that have taken over the practice-research based pioneering, and they warn for the McDonaldization of mediation (Put et al. quote Umbreit, 2012, p. 92) whereby procedures become routine and commitment is fading away. Purpose Reach an agreement between victim and offender, which for instance covered paying the damages,... involved explanations and excuses... promise by the offender not to re-offend... and reparation in natura (Van Doosselaere & Vanfraechem, 2010, p. 71) Responsibility the offender taking responsibility and involve him/her in actions to repair the individual, relational and/or social harm caused by their offending (Put et al., 2012, p. 84) Method Belgium is amongst the countries... where legislation explicitly provides for, but does not go as far as to oblige, the youth justice apparatus to accommodate, develop and apply restorative responses (Put et al., 2012, p. 85). Decisions RJ is regulated by law and available at all stages of the criminal procedure and for all types of offences (Van Doosselaere & Vanfraechem, 2010, p 61). Those involved take the decision to participate and it is not the right of the judiciary to force the parties into mediation. Emotional Power Historically, the development of restorative justice in Belgium has been driven by inspired practitioners and supported by academics... initiating pilot projects in close cooperation with fieldworkers, in convincing the judiciary to experiment and in providing scientific (research) follow-up for the same projects. This represents a good example of how restorative justice principles and practices can be developed through research policy practice relations. Practitioners learn what is feasible and scientific guidance helps to orient practice (Put et al., 2012, p. 93). Outcome For offenders there are two aspects: avoid court appearance and take responsibility, while for victims there are several reasons to participate: reparation, the fact that something is done with their case, and the prevention of re-offending by confronting the offender (Van Doosselaere & Vanfraechem, 2010) Table 4: Some of the key elements of restorative justice by Sherman (2003) applied for the Belgian situation 35

37 England, a neo-liberal example The other neighbour The North Sea, separating the United Kingdom (UK) from the rest of Europe, seems to be more than a border; it is a gap between regimes. The British themselves, in a them-versusus identification, refer to Europe as the continent. The country does not share the more social and inclusive policy, characteristic for the corporatist regime and based on the historically developed fundamental values of the other Western European countries. Instead, as noticed in chapter three, the country favours a more exclusive policy. Although the UK has had some social democratic features up until the 1970s, the regime quickly transformed to neoliberalism with the installation of the conservative government of Margaret Thatcher in When referring to the changes that take place in the Netherlands many name Americanization, referring to the influence of the American culture (Cavadino and Dignan, 2006; Pemberton, in press). But perhaps the term anglo-saxonisation might be more appropriate as the Dutch are attracted to the Anglo-saxon culture, which is not restricted to the influence of the USA but includes many aspects of the British culture. Cavadino and Dignan (2006) notice the influence of the British penological culture and argue that it was particularly the policy of Blair s New Labour that has influenced the penological changes towards a more harsh policy in the Netherlands by the end of the 20 th and beginning of the 21 st century. Positioned against mainland Europe the United Kingdom seems to be one entity. Reality however is otherwise, as the UK is formed by four separate countries: England, North Ireland, Scotland and Wales. They have their own legal systems and developed different legal practices (Dignan, 2010). But when it comes to culture and influence England is most dominant and therefore, in finding answers to the research question and reflecting the Dutch situation towards other regimes, for the neo-liberal regime England is chosen as case study. In analyzing the Dutch developments the question is to what extent the Dutch held on to their fundamental values, thereby resisting the Anglo-saxon influence, and to what extent they adopted British practices into their own policies. A flexible system The UK distinguishes in many aspects from the European mainland. Not only their regime, but also their law system is different. Where all the other European countries practice the civil law system, the UK, as well as many of their former colonies, like the USA, New Zealand and Canada, practices the common law system. 36

38 The main difference between the two systems is the codification 35. Where in a civil law system the legal procedure follows specific codes and the judge decides according to the implications of these codes, in the common law system the procedure as well as the judge is more flexible, as this system is not based on rules and statutes. In the common law system the judge moderates between the parties, and jurisdiction is based on the verdict of a jury formed out of laymen and previous verdicts in similar cases. Put et al. (2012) argue that because of all the rules and codes it is harder to implement new practices in the civil law system as it leaves much less space for discretion to be exercised amongst the police, prosecuting agencies and sentencing authorities (pp ). In England RJ practices could develop alongside the criminal system, despite the neo-liberal stand that prefers exclusion of offenders and despite the (most times) skeptical attitude of the government. RJ practices could be put into practice because of the flexibility of the common law system, as according to Put et al. (2012): flexibility is a crucial element in restorative practices themselves, it is easier to carry out mediation or conferencing outside of the justice system within the community for example and the outcomes of restorative processes are not as strictly weighed against legal checks as would be the case in civil law regimes. (p. 86) Restorative justice in England Although the UK was not yet a specific neo-liberal regime, by the midst 1970 s the imprisonment rate of the UK was already above the average rates of mainland Europe (Cavadino and Dignan, 2006). Campaigning for her election in 1979 Margaret Thatcher responded to the public sentiment by promising a tougher policy on crime. The new policy, defined as short, sharp, shock involved among others the building of more prisons, in order to exclude more offenders from society by sentencing them to a time in captivity. In the early 1980s the main focus of the new government was on law and order, but despite their determination this policy did not succeed. The first problem was that building prisons costs time and money while secondly, despite all the drastic measures, crime did not go down but instead increased (Cavadino and Dignan, 2006). As a result of both, increasing crime rates and harsh punishment, the prison population was growing while in the meantime 35 Source: The Robbins Collection, University of California, Berkeley, School of Law, as retrieved from: 37

39 there were not sufficient prison cells to provide for the increasing demand. The government therefore had to rethink their policy and so, by the midst 1980s they, according to Cavadino and Dignan (2006) relatively discretely (p. 64), encouraged alternative measures. As a result the first RJ initiatives, mostly ad-hoc initiatives developed by people or agencies working with young offenders, came forward. It was the flexibility of the common law system that enabled these parties to introduce RJ initiatives that were not part of the criminal justice system but were practiced alongside. Cavadino and Dignan (2006) point that most of these RJ initiatives, like VOM, FGC and reparation programs, were only practiced on a small-scale stand-alone basis (p. 237). It was not until 1997, when New Labour came into power, that the criminal justice system, especially regarding juvenile offenders, changed. Before that, between 1979 and 1997 policies had gone back and forward between being tough and punitive and being more pragmatic and lenient in order to avoid overcrowded prisons. Between 1987 and 1992 there was even a period of awareness on the ineffectiveness of the harsh imprisonment policy. In 1988 the Home Office of the government mentioned in a document 36 that: imprisonment is not the most effective punishment for most crime. Custody should be reserved for very serious offences, especially when the offender is violent and a continuing risk to the public (Quoted in Cavadino and Dignan, 2006, p. 65). This policy, whereby on the one side serious offenders are treated with harsh punishment and on the other side less serious offenders are kept away from prison by alternative forms of punishments, is called bifurcation (Cavadino and Dignan, 2006). For long the development of RJ practices was hindered by the skeptical attitude of the government, but with the reforms of New Labour RJ could develop. The new focus was on prevention of both offending and recidivism with a policy referred to as neocorrectionalism, whereby RJ practices became part of the strategy (Dignan, 2010). The new government registered the reforms, which included RJ, in two Acts, the Crime and Disorder Act 1998 and the Criminal Evidence Act 1999 (Dignan, 2010). This has resulted in a fast growth of the RJ practices (Mackay, 2006). Especially with regard to the juvenile crime system RJ has become a common practice (Dignan, 2010). There are several remarks to be made on the British situation. Firstly the election of Tony Blair in 1997 did bring forward some changes but did not end the rise of the imprisonment rates as shows figure 2 in chapter 4. New Labour did not reject neo-liberalism 36 The Green Paper of 1988 was a consultative document that preceded the Criminal Justice Act of 1991 that registered the reforms (Cavadino and Dignan, 2006) 38

40 but instead tried, as Cavadino and Dignan (2006) call it, to make it modern, whereby policies become manageriable 37. Thereby the criminal justice system has to function as effective, efficient and economical as possible (Cavadina and Dignan, 2006, p. xiii). Therefore next to imprisonment diverse methods are used, including for instance electronic tagging. Also restorative justice fits in this approach but the ideology is far from making it right, and repairing the harm done. Another aspect, as already noted in chapter 4 is that in general the people in the UK are less forgiving towards offenders. Tonry (2006) notices a moralism that calls for much harsher penalties (p 16). English media appeal to these sentiments by giving the public what they want, bringing crime topics on the front pages and blaming the government for being soft on crime, which is an image they want to avoid at any price. It is the punitive public opinion together with the wish of the government to hold their support that (re-)formed the criminal justice system (Cavadino and Dignan, 2006). The Cameron Ministry, being the new government since 2010, is a coalition of two parties, the conservatives and the liberal democrats, who both underline the neo-liberal ideology. This coalition will not soften their policy. Kenneth Clarke, the Lord Chancellor and Secretary of State for Justice begins his foreword in the governmental document Breaking the Cycle: Government Response (2011) with: A firm, fair justice system which keeps the law-abiding safe and gives law-breakers their just deserts is the most fundamental thing a state should offer its citizens (p. 1). The document does recognize the needs of the victims thereby referring to the victim impact statement (VIS) and the possibilities of restorative justice. It notes that the government is intended to develop a framework that supports local practitioners to develop and deliver effective, best practice restorative justice approaches at all stages of the criminal justice system (Ministry of Justice, 2011, p. 29). In a law-and-order speech 38 Cameron introduced a new word to describe regular practices, promising the people that his government would be "tough but intelligent" on crime. It is interesting though that the PM in his speech particularly addressed the bifurcation approach. He argued that the only solution for serious offenders is to sentence them to a long time in prison, as this is what victims and society deserve. While next to that he pointed that juveniles and the less serious offenders should receive help in order to prevent reoffending, stating: 37 Cavadino and Dignan (2006) with regard to penality define managerialism as an approach whereby crime management and crime control are the main features. 38 Speech by Prime Minister David Cameron on October 22, 2012 at the Centre for Social Justice in London. 39

41 Recognizing this isn't soft or liberal, it's common sense. We'll never create a safer society unless we give people, especially young people, opportunities and chances away from crime. Prevention is the cheapest and most effective way to deal with crime - everything else is simply picking up the pieces of failure that has gone before (Cameron, October 22, 2012). One of the measures Cameron mentioned in his speech was to encourage organizations, communities and volunteers to support those who have been imprisoned in rehabilitation programs. By making them part of the solution instead of the problem the focus again is on preventing recidivism. Less attention is paid on some of the important values of RJ, as repairing the harm done and the rights and needs of both, victims and offenders. Table 5, taking the overview of Sherman (2003, pp ) as a starting-point, gives an overview of the key elements of the RJ approach in England, which deviate widely from the original goals of RJ. Purpose the most important goal the prevention of future crime and future victims (Kenneth Clarke, the Lord Chancellor and Secretary of State for Justice in the foreword of Breaking the Cycle: Government Response, 2011, p. 1) Responsibility In contrast to RJ goals whereby offenders must first accept personal responsibility for having caused harm, in the English situation this personal aspect has no priority in the governmental approach. Offenders are not seen as persons with individual rights but as categories of deviants (Cavadino and Dignan, 2006, p. 7). Note that this might be different for small scale local initiatives. Method In the governmental approach the aim is on punishing offenders, protecting the public and reducing reoffending (Clarke, K. 2011, p. 1). Thereby RJ is just a technique, and the practices do have a coercive and punitive character. Decisions It is mostly a top down instead of a bottom up approach. Emotional Power Our plans mean a return to what the public wants from the criminal justice system: punishment, protection and a renewed focus on breaking the cycle of crime and reoffending (Clarke, K. 2011, p. 2) Outcome Crime control and less recidivism. Table 5: Some of the key elements of restorative justice by Sherman (2003) applied for the English situation. Mackay (2006), referring to the RJ practices in England, is skeptical about the content of these practices. With a managerialistic approach on efficiency and cost-reduction there is less concern about the values of RJ. Also Dignan (2010) raises doubts, mentioning the variety of RJ approaches that is short of coherence, as well as the lack of real commitment by the 40

42 government. He refers to the constant pressure to deliver fast results that hinder the real RJ goals wherefore patience and sensitivity are required (Dignan, 2010, p. 256). Mackay (2006) therefore points to the need for setting principles and guidelines 39, in order to prevent RJ from drifting away from its basic goals, and to give a clear framework, not only for the practitioners themselves, but also to stakeholders like lawyers and politicians. 39 The Restorative Justice Council (RJC) has published in 2004 the RJC Principles of Restorative Processes 41

43 Finland, a social democratic example Finland, a role model? Finland lately has been brought forward as a role model in many fields. Their health care program is mentioned often in the discussions on the reformation of the USA health care system. And when discussing the problems in the Dutch education system Finland is frequently used as the example of how it can be done too. According to the PISA 40 results of 2012 Finland was among the high-performing countries and within the top 5 on science (OECD, 2012). In both previous case studies, regarding RJ in Belgium and England, RJ practices developed alongside the criminal and youth justice systems. Vanfraechem and Aertsen (2010) notice this connection for most European countries, but they detect one outlier, being Finland, where RJ developed within the social welfare programs. The question is whether the Finnish model for criminal and restorative justice can be a role model too? In finding answers to the research question what can the Netherlands learn from restorative justice practices of other countries and how can they apply them in an effective way in the Dutch Criminal Justice System the tenacious approach of Finland might be an example that could fit the Dutch culture. It is for this reason that Finland is chosen, not only as an example of a social democratic regime, but particularly because they have chosen a different approach for inserting RJ into their criminal justice system. The Finnish miracle. The transformation that has taken place in Finland in the second half of the 1990s is by many authors referred to as the Finnish miracle. After a deep crisis, by Kiander (2005) compared to the great depression of the 1930s, the Finnish were able to give their economy an enormous boost, resulting in high rankings (Castells and Himanen, 2002; Kiander, 2005). It are these results that has made Finland a manifold usable role model. However much earlier another miracle took place, when Finland managed, in a movement opposite to most other countries, to drastically reduce their imprisonment rates. By the early 1950s Finland, with a number around 200, had a very high imprisonment rate even for European standards. Although decreasing in line with the global trend by the early 1970s 40 PISA a survey organized by the Organization for Economic Co-operation and Development (OECD), which examines the school results of 15-year-olds in Sixty-five countries and economies; source: 42

44 the imprisonment rates still transcended the high rates of the UK (figure 3 in chapter 4). Although speculations are being made about the reasons for this punitive stand, no clear answer can be given (Cavadino and Dignan, 2006). However clear answers can be found on how Finland, when by the early 1980s imprisonment rates in other European countries started to rise (figure 3), managed to get their rates down. By the beginning of the 1970s, influenced by the debates on the effectiveness of imprisonment in other countries, criminologists in Finland started to question the country s high imprisonment rates (Cavadinon and Dignan, 2006; Lappi-Seppälä, 2007). One of the characteristics of Finland is that the country does rely on expert s opinions and is less open for populist influences (Cavadinon and Dignan, 2006; Lappi-Seppälä, 2007). So experts not only took the lead in the debates but also in the planning of the reforms. And because of the broad acceptance of their authority, whereby also politicians held on to the original plans, the reforms were implemented without resistance, resulting in the intended outcome. In two decades 41 the country moved from having one of the highest imprisonment rates (118 in 1976) to having one of the lowest (46 in 1999) in Western Europe (Cavadino and Dignan, 2006). At first glance the miracle described earlier is not related to the miracle of the drop down of imprisonment rates, but according to Lappi-Seppälä (2007; 2012) the change of the penal culture in Finland is related to the social reforms and the economic boost. In addition some of the general aims for the social policy, being the aim of minimization and the aim of fair distribution also became goals for the penal reform. The focus in the new policy was on the minimization of the costs and harmful effects of crime and of crime control and fair distribution of these costs among the offender, society and the victim (Lappi-Seppälä, 2007, p. 8). This cost-benefit approach is pragmatic. Although punishment was seen as society s reaction towards offenders, showing that it did not accept deviant behaviour, criminologists argued that long imprisonment does not add meaning, and in fact was a disgrace ( Lappi- Seppälä, 2007, p. 15). In transforming from a severe punitive stand towards a more social reaction to crime control Finland included the bifurcation approach (Cavadino and Dignan, 2006). Where sentences for small and less serious crime became much lower, thereby radically reducing the imprisonment rates, the sentences for serious crimes became tougher. Reducing the length of imprisonment was one of the changes, but Finland also introduced alternative options for imprisonment like fines or conditional sentences (Cavadino and Dignan, 41 An addition in the Penal Code in 1976 formed the starting point (Cavadino and Dignan, 2006). 43

45 2006). The deterrent effect was no longer the main goal for a sanction or sentence (Lappi- Seppälä, 2012). Instead, the focus, as written down in the first National Programme for Preventing Violence 42 was on addressing and improving the social situation of offenders, in this manner reducing the rehearsal of deviant behaviour. Castells and Himanen (2002) refer to the Finnish society with strong ties of identity and communal feelings (p. 146). The social democratic ideology, with a focus on providing equal chances to all, is intertwined within the Finnish identity, and has provided stability, security and social justice. (Castells and Himanen, 2002). It reflects the values of the Nordic welfarestate ideal and emphasizes that measures against social marginalization and inequality work also as measures against crime (Lappi-Seppälä, 2007, p. 16). Measures to fight inequality and provide social security can be powerful elements in a RJ system. Part of the strong identity has historically developed through the isolated position. Open borders, with globalization and the influence of immigration also influenced the Finnish mind-set, and the punitive turn (Lappi- Seppälä, 2012, p. 212) got grip on Finland too, as noticed earlier. Cavadino and Dignan (2006) even question whether Finland can still function as an example for penal policies. But recent imprisonment rates show that, just like in the Netherlands, this upwards movement has come to a halt and even reversed. Giving rise to the assumption that historically created values of inclusion and re-socialization are not abandoned. Restorative Justice in Finland In most European countries RJ is linked within the criminal justice or youth justice system. In Finland however RJ is implemented within the social welfare system, meanwhile cooperating with the criminal justice system (Vanfraechem and Aertsen, 2010). In adhering an egalitarian and inclusive society, re-socialization of offenders is part of the Finnish political system. Crime prevention is not only about controlling and excluding criminals, crime prevention is related to the underlying social structures. By taking away the causes of the deviant behaviour and by supporting offenders in reorganizing their life, efforts are made to prevent reoffending. Boutellier (2006) refers to the possibilities that come forward when the criminal justice and the social welfare institutions work together: cooperation between the police and community work can be reinforced, and connections can also be created in the cooperation between prisons, probation services, private security companies, mental health care and social work institutions (p. 38). 42 The first National Programme for Preventing Violence in Finland is adopted in 2006 ((Lappi-Seppälä, 2007). 44

46 In reforming the Finnish penal policy and developing alternative measures for imprisonment and measures for re-socialization of offenders in 1983 a pilot with VOM was introduced. (Livari, 2010). The pilot was successful in such a way that over time municipalities in Finland started to offer mediation at a voluntary basis. However not all municipalities were able, or interested, in providing this service to their citizens which by the late 1990s became criticised, as not everybody had the chance to receive mediation. Also the practices as well as the mediators were of very diverse quality. It was felt as a problem of equality (Livari, 2010, p. 105). Together the ministries of Social Affairs and Health and of Justice started research on how VOM could be organized properly in Finland. One of the findings was the need for a proper framework and legislation (Livari, 2010). It took until 2006 when the practice of VOM was registered in the Act on Mediation providing equal access and equal right to good quality mediation (Livari, 2010, p. 96) for all. This implies that mediation is not concentrated on young and less serious offenders but is available to any form of crime 43. And by putting the responsibility of development and monitoring on the Ministry of Social Affairs and Health the focus will remain on social justice and security, as good social development policy is the best criminal policy (Lappi-Seppälä, 2007, p. 8). When it comes to RJ, in Finland practices only consist of VOM (Vanfraechem and Aertsen, 2010). Table 6 gives an overview of the key elements of VOM as a restorative measure in Finland. In the reforms there was another alternative measure provided. Introduced in 1991, by 1994 the option of community service was available all over the country. It is discussed among scholars whether community service is part of restorative justice. Walgrave (1994) argues in favour, as according to him the offender can restore some of the harm done, if not to the victim, than to the community. Others do not include community service as restorative, as indeed it does not include the victim and because it is still a sentence with a coercive character. In the Finnish system community service is an alternative for imprisonment, with the aim to decrease imprisonment rates (Lappi-Seppälä, 2007). It does not include a re-socialization option and is not an instrument to change the offenders behaviour but just another form of punishment. So in the case of Finland community service can not be seen as a measure of RJ. The introduction of these practices are based on the desire to reform the punitive criminal justice system. In order to decrease the high imprisonment rates pragmatic choices 43 There are some exceptions, for instance sexual crimes where children are involved (Livari, 2010). 45

47 are made on cost-benefit analysis (Lappi-Seppälä, 2007; Livare, 2010). Although this approach might incorporate the risk of a focus on budget, some of the Finnish characteristics made this approach successful. Firstly it is in line with the Finnish egalitarian and inclusive ethos that costs and benefits are not just material, but also include immaterial costs and benefits for victims, society and offenders, thereby taking into account their rights and needs. Livare (2010) mentions that (material) costs may be involved in mediation but that society will benefit when criminal behaviour diminishes. Purpose The aim of the policy is twofold: the minimization of the costs and harmful effects of crime and of crime control and fair distribution of these costs among the offender, society and the victim (Lappi-Seppälä, 2007, p. 8). The last option does include reparation of the harm done and addressing the rights and needs of all involved, victims, offenders and society (see method). Responsibility This is in line with the key elements of RJ whereby offenders accept responsibility for having caused harm Method VOM, under guidance of a mediator, whereby the parties try to find a mutually satisfactory solution in order to redress the mental and material harm the victim has suffered because of the crime (Livari, 2010, p. 98). Decisions Agreements between the parties are made under the guidance of the mediator who has the duty to provide information, legal assistance and all other services necessary to come to a satisfactory solution. Emotional Power The aim of indirect prevention is best served by a system of sanctions which maintains a moral character and which demonstrates the blameworthiness of the act. The mechanisms require a system that is enforced with fair effectiveness and that follows procedures which are perceived as fair and just and which respects the rights and intrinsic moral value of those involved (Lappi-Seppälä, 2007, p. 9) Outcome Victims satisfaction by confronting their offenders with the harm done. Offenders repair harm for instance by compensation to the victim. Discourage offenders from re-offending (Livari, 2010). Table 6: Some of the key elements of restorative justice by Sherman (2003) applied for the Finnish situation. The second aspect is the expert-orientation of Finland. It is this characteristic that makes it a logical step to integrate research in developing policy and practices. Research is not just seen as cost item, the benefit of the outcomes are also taken into account. When the three parties policy, practice, and research cooperate this will contribute to the quality of the total. 46

48 In doing so VOM has become a full-fledged restorative element in the Finnish crime prevention policy. 47

49 Chapter 6: Reflection of the case studies towards the Dutch situation A comparison between the three case studies The three case studies, each representing a certain regime, were chosen because of their different political, social and economic background, so as to learn from their different approaches, especially because the Netherlands seemed to be shifting between different ideologies. In order to reflect these case studies towards the Dutch situation firstly a comparison will be made between the examples on several aspects that came forward during the study. The assumption at start was that the underlying regime of the analysed countries might play an important role in the penal policies. The case studies showed that indeed the regime is reflected in the norms and values of the population. In neo-liberal England the people traditionally already have a more punitive stand, preferring exclusion and tough reactions to crime. This is reflected in the imprisonment rates of the country, which does not mirror the level of crime but the attitude towards crime and offenders. In social-democratic Finland inclusion and equality are fully integrated in the system. With a more lenient stand towards crime and a low level of fear Finland also displays low imprisonment rates. The Belgium position, showing rates in between those extremes, is somewhat in the middle, preferring inclusion and equality to a certain degree but with some exceptions. One of the remarkable aspects noticed with regard to the development of penal policies was the influence of political rhetoric and public opinion. In England no politician dares to risk getting depicted as being soft on crime. By result Anglo-Saxon tough penal politics have developed on attitudinal oversimplifications, false premises, and the dubious value commitments of populist proposals (Lappi-Seppälä, 2007, p. 19). The contrast with the Finnish situation is large. Finns are hardly influenced by populist sentiments (Castells and Himanen, 2002), nor do politicians come forward with strong rhetoric. Lappi-Seppälä (2012) argues that it is the social-democratic regime, providing social and economic security, that works as a bulwark against public fears and penal populism (p. 221). Finnish people also are less sensitive for populist arguments because they traditionally rely more on expert opinions. Therefore Finnish politicians do not need to manipulate public opinion on crime control in order to gain their vote, and they can hold on to policies that are substantiated with solid research. Developments thus can be consistent with a long term perspective and do not 48

50 follow the whim of the day in a stop-go-policy as Cavadino and Dignan (2006) observed in England. However, as noticed in chapter 4, Finland has not been immune for global tendencies, nor do other Western countries. By the turn of the millennium all countries had their share of populism. The development of the penal culture in Belgium is complex, due to the political structure. The tension within the country does not provide the strong identity or the secure feeling that is known to the Finns. This is reflected in the still growing imprisonment rates. However the tension within the country also does encourage negotiations which is important in countering the one-sided truth of populism. Also Belgium, like the Finns, includes proper research in developing and monitoring policies and practices, thereby providing a solid backbone to long-term implementations against the whim of the day. Another aspect that has came forward especially in relation to England is the role of the media 44. Although England has some quality papers (one of them is even used as a reference for this thesis) the tabloids are influential. Tonry (2006) points at the voice of these tabloids bringing forward fearful crime issues on the front pages, screaming for punitive solutions and blaming government for not responding properly. This angry and punitive stand is not common in other European countries (at least not at the level of the UK), but in England has highly contributed to an increasingly punitive public opinion and by consequence an increasingly strong rhetoric by politicians. In Finland quality papers have a dominant role, reporting more sober on crime and, in line with the Finnish expert orientation, provide expert opinions rather than simplifications (Lappi-Seppälä, 2007). The media in Belgium, and this is the situation for the Netherlands as well, are mixed. There are tabloids serving their public with populist opinions, but there are also quality newspapers that provide background information and expert opinions, encouraging a critical attitude. However since the end of the 1990s new developments have gained ground. Social media, not restricted by national borders, can easily spread messages on alarming crime topics, thereby demanding tough measures. All countries, including the Netherlands, by the change of the millennium have been influenced by a global mind set of insecurity that led to a call for tougher reactions on crime. The politics responded to this public demand, which is 44 A minor detail but with considerable consequences is the distribution of newspapers. Lappi-Seppälä (2007) points at the public distribution in the UK, forcing the newspapers to gain buyer s attention by sensational news coverage, as where in Finland almost 90% of the distribution is based on subscriptions, which diminishes the need to cover crime in populist one-liners and sensational items. 49

51 visualized by figure 4, showing the development of imprisonment rates of the chosen countries since the beginning of the 21 st century. The graph shows an upward movement for each country, but as noted by Cavadino and Dignan (2006) there is a clear dividing line between the different types of political economy as regards imprisonment rates (p. 21). Where Cavadino and Dignan (2006) halfway the first decade of the 21 st century wondered whether penal policies would become harder in general, they can be reassured to some extent as the rates show that the upward movement has come to a halt in England, and it even reversed in Finland and the Netherlands imprisonment rates rd ed th ed th ed th ed 2005/06 7th ed th ed 2010/11 9th ed th ed Belgium NL England Finland Figure 4. Imprisonment rates development in the 21 st Century for Belgium, England, Finland and the Netherlands. Source: The World Prison Population Lists, 3 rd 10 th Editions. The law of the handicap of a head start The expression the law of the handicap of a head starts originates as wet van de remmende voorsprong from the Dutch historian Romein, who described the phenomenon in his essay de dialectiek van de vooruitgang 45. It refers to the handicap that is involved if one is an early starter in a certain field, and thereby has to self-experience and -develop all the ins and outs, whereas the followers benefit from those experiences and developments. All countries have, while reforming penal policies, in the early 1980s implemented some form of RJ. The Netherland has not followed accordingly but is now, both due to governmental budget cuts as well as European regulations, introducing RJ practices. Can the 45 Source: a related expression is the Law of the stimulative arrears, used by Erik van der Hoeven in a book with the same title. 50

52 Netherlands benefit from the experiences of the other countries and thereby take another step, developing a RJ 2.0? The case studies show that in all countries the early initiatives developed to a diversity of practices, both in content as in quality. In Belgium the first initiatives originated within the cooperation of youth justice and supporting organizations whereby the main concern was on rehabilitation of the individual offender and prevention of criminal behaviour (Aertsen, 2006; Put et al., 2012). In England the first initiatives also started with organizations working with young offenders, but particularly came forward out of the need to keep them out of the already overcrowded prisons (Cavadino and Dignan, 2006). In Finland both arguments played a role at the introduction of RJ practices in the early 1980s, re-socialization of the offender and the more pragmatic reason, diminishing the prison population, whereby the Finnish initiative was not restricted to young offenders (Livari, 2010). All three countries needed some legal framework to fully adopt the practices. In England already in the late 1990s RJ practices were registered in two Acts, the Crime and Disorder Act 1998 and the Criminal Evidence Act 1999 (Dignan, 2010). In Belgium and Finland it took until the midst 2000s to register RJ practices. In Belgium law improvements in 2005/-06 fully included mediation in the legal system for adults, and the Youth Justice Act 2006 (YJA) determined that RJ would be the primary approach to juvenile delinquents (Van Doosselaere and Vanfraechem, 2010) while in 2006 in Finland VOM for all offenders became registered in the Act on Mediation (Livari, 2010). For all countries counts that RJ has not replaced the criminal justice system but has been integrated 46 within the system. The legal framework does provide the support for a full implementation, but as noticed in the Belgium case, when it means that all is organized topdown, whereby all measures are fixed, this can be a risk for process and outcome. Organizations that deliver public services nowadays have to deal with many aspects like critical public opinions, shifting political climates, the role of the media, and the market strategy of governments with a focus on efficiency and value for money, and thereby seem to operate in a glass house (Vermeulen, 2013, p. 382). Public mistrust can lead to stricter rules and top-down control, which will make these organizations freeze rather than innovate (Vermeulen, 2013, p. 372). This threatens the RJ practices as RJ requires commitment, time investment, flexibility, and cannot function with standardized practices or strict procedures (Aertsen, 2006; Put et al., 46 In Finland as part of the social justice system in co-operation with the Criminal Justice system. 51

53 2012). The legal framework should provide an autonomous organizational structure that encourages interaction within the field and includes research, both to evaluate the framework as to promote further developments (Put et al., 2012). For the Netherlands, implementing a new policy in a mistrusting public and political climate, does place high demands. In developing RJ practices it is important to be aware of these aspects. Moore (2013) has developed the strategic triangle (figure 5) to define effective policies that can built on public approval and support. The experiences of the neighbouring countries can help to determine which approach works best for the Netherlands. The first aspect to define is the public value. Related questions are : what is the goal of this policy; is it what we want; when is this policy successful. The second aspect is the legitimacy and the support for the practices. In all the countries we have seen that nowadays the RJ is implemented within a legal framework on a national level. However there is an increasing influence of European Union legislation 47. The last aspect is on how the policy is implemented, the organizational capacity. By defining these three aspects in the development of policies they will go beyond value for money and efficiency, but will include a clear starting-point and a solid foundation for future developments. Figure 5. The strategic triangle (Moore, 2013) When applying this model to the development of RJ policy for the Netherlands, the first aspect to examine is the purpose of the policy for the Netherlands. Thereby several aspects come forward: the budget cuts by the government (as RJ is less expensive than imprisonment), the increasing public demand to respond to victims rights, but also the role of the offender. Several authors have noted the Dutch movement towards a tougher penal policy (Cavadigno & Dignan, 2006; Pemberton, in press), however when taking a closer look the 47 The European Directive by the end of 2015 should be implemented by all EU countries. 52