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Published online by Cambridge University Press: 24 April 2015
A former police chief and a criminologist confirm a famous remark by Margaret Mead when they write: “The initiation of restorative reforms is often based upon the conversion of one key professional in a criminal justice agency.”
New Zealand district court judge Fred W.M. McElrea personalized this rule in his account of how he stumbled on a restorative procedure in the case of a young man in Auckland, who was a Maori and son of a bishop, and who confessed to the crime of robbing a woman's purse. She happened to be a Quaker, and she appeared in court as a gesture of friendship for the offender. When the time came for sentencing, McElrea wondered out loud if there were a way for the young man to be monitored, without imprisonment, by some competent person who knew him. At that, Douglas Mansil, local Presbyterian minister, also present in the courtroom, stood and volunteered his services. Mansil had been the longtime “streetwise” pastor of a congregation in that Auckland neighborhood, known for furnishing the courts with more than a few youth offenders. Together with the Quaker victim of the crime, he kept track of the young man and reported regularly to the court. It was the beginning of McElrea's dedication to restorative justice (RJ) for young offenders in New Zealand. He and other judiciary leaders pay tribute to the influence of Howard Zehr's visit to New Zealand (NZ) in 1994 and Zehr's book, Changing Lenses, which McElrea first read during a sabbatical leave at Cambridge University. Zehr's book and his work in the U.S. had great impact on New Zealand legal officials, many of whom, like McElrea, often give him credit for inspiring shifts to RJ in their thinking about law, judicial process, and ethics.
1. Hines, Dave & Bazemore, Gordon, Restorative Policing, Conferencing, and Community, in Police Practice and Research, Vol. 4, No. 4, p. 411-27, 416 (2003)CrossRefGoogle Scholar. Hines is former police chief of Woodbury, MN and Bazemore teaches at Florida Atlantic University. In reply to the comment, “Social change often begins with two or three people,” Mead said, “Never believe that a few caring people can't change the world. For, indeed, that's all who ever have.”
2. Zehr, Howard, Changing Lenses (Herald Press 1990, 1995,2005)Google Scholar.
3. Zehr, Howard, The Little Book of Restorative Justice 25 (Good Books 2002)Google Scholar. His address to NZ judges and government officials was particularly influential.
4. Zernova, Margarita & Wright, Martin, Alternative visions of restorative justice, in Handbook of Restorative Justice 96 (Routledge 2007)Google Scholar.
5. Marshall, T., “Restorative Justice: An Overview,” as quoted by Raye, Barbara E. & Roberts, Ann Warner, Restorative processes, in Handbook of Restorative Justice 216–17 (Routledge 2007)Google Scholar.
6. Van Ness, D. & Strong, K., “Restoring Justice,” as quoted by Raye, Barbara E. & Roberts, Ann Warner, Restorative processes, in Handbook of Restorative Justice 217 (Routledge 2007)Google Scholar.
7. Johnstone, Gerry & Ness, Daniel W. Van, The meaning of restorative justice, in Handbook of Restorative Justice 9–13 (Routledge 2007)Google Scholar. Scholars and practitioners vary in their definitional stresses on RJ as a process or as an intended outcome. Neither, in our opinion, deserves neglect.
8. Report of Ministerial Committee of Inquiry into the Prison System, 1989 (Te Arahou: the New Way) (copy on file with the authors); p. 35Google Scholar, as quoted by NZ District Judge Stan Thorburn, “The arrival of Restorative Justice in the Courts,” a paper delivered in 2003 at the Institute of Crime Prevention and Control, Nanjing University, pp. 8-9 (Dec. 16-17, 2003).
9. Minister Bill English speaking to a Families Commission, May 11, 2011, repeating this judgment three days later in a television interview; and Rt Hon Dame Sian Elias, Chief Justice of New Zealand, Annual 2009 Shirley Smith Address: “Blameless Babes,” at 7 (July 2009) (copy on file with the authors).
10. Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Color Blindness 6 (New Press 2010)Google Scholar; and Elias, supra note 9, at 8 (2009). The NZ rate, she points out, is higher than that of Australia, the U.K., and Canada, though the rate of NZ imprisonment of its indigenous Maori is close to the overall U.S. rate. Some half of New Zealand's 8400 prisoners are Maori.
11. The New Zealand research quoted in this article can be usefully compared to that recorded in a large recent (2007) international survey of studies in English-speaking countries, Lawrence W. Sherman & Heather Strang, “Restorative Justice: the Evidence,” sponsored by the Smith Institute, London. Their survey encompasses “36 direct comparisons to conventional criminal justice (CJ)” procedures in the U.K., Canada, Australia, New Zealand and the U.S. Their summary conclusions are that these sociologically sophisticated RJ-vs-CJ studies demonstrate:
-substantially reduced repeat offending for some offenders, but not all;
-doubled (or more) the offences brought to justice as diversion from CJ;
-reduced crime victims' post-traumatic stress symptoms and related costs;
-reduced crime victims' desire for violent revenge against their offenders;
-reduced the costs of criminal justice, when used as diversion from CJ;
-reduced recidivism more than prison (adults) or as well as prison (youths).
These findings are compatible with NZ studies quoted here, with the striking exception of this study's conclusion that RJ works to reduce repetition of violent crime among adults more than among youth. This finding encourages the attempts, in NZ and elsewhere, to extend RJ into the whole CJ system. Sherman and Strang conclude: “The evidence on RJ is far more extensive, and positive, than it has been for many other policies that have been rolled out nationally. RJ is ready to be put to far broader use. …” (p. 4, “Abstract”).
12. Ministry of Justice Paper, “Restorative Justice” pp. 1–2 (2009)Google ScholarPubMed (copy on file with the authors). In this year some 1800 conferences were held across 36 district courts with the facilitation of 23 community provider groups, whose trained members were compensated modestly (NZ $200.00-$300.00 per conference). The total MOJ 2009 budget for conferences was NZ $2.55 million, or about U.S. $2 million. For keeping those 80% of young offenders out of court this amounted to a budgetary bargain.
13. From Marshall, Chris, Bowen, Helen & Boyack, Jim, How Does Restorative Justice Ensure Good Practice?, in Critical Issues in Restorative Justice 265–76 (Zehr, H. & Toews, B. eds., Criminal Justice Press 2004)Google Scholar.
14. Id. at 266.
15. Three acts of 2002 mandated attention to RJ principles in the legal system: The Sentencing Act, the Parole Act, and the Victim Rights Act. “All three Acts make explicit mention of restorative justice and place an expectation on state agencies to accommodate, encourage, and support restorative justice processes.” Id. at 265. Some government advocates, says Christopher Marshall, a leading New Zealand scholar on RJ, (see supra note 13 and infra text accompanying note 56), believes that the time has come for the MOJ to identify minimum standard principles for RJ practice by all volunteer facilitators. Adjustment of practice to local circumstances and cultural differences remains an issue here, especially for those who fear too much professionalism and bureaucracy in what has essentially been a locally-initiated movement.
16. Generally speaking, law in NZ and the U.S. assumes that the most serious crimes—especially murder, sexual assault, family violence—are not subject to RJ processes but deserve extended imprisonment. This does not cancel the hope of many RJ advocates, that, inside prison, these offenders can benefit from restorative programs, especially as a possible condition of parole.
17. She became a group facilitator in the so-called Sycamore Tree program of Prison Fellowship, bringing six victims together with six prisoners who, over weekly conversations, develop new images of each other. The Sycamore Tree program gets its title from the New Testament incident in Luke 19:1-10, when Jesus invites himself to dinner with a much-despised tax collector named Zacchaeus, who climbs a sycamore tree to get a better view of Jesus' arrival in Jericho. The visit results in dramatic repentance by Zacchaeus.
18. The 2011 research of the Ministry of Justice concluded that “a third of young people who have been through a FGC (Family Group Conference) did not reoffend in the two years following their seventeenth birthday. Another third only offended in a minor or medium way.” The Youth Court and Youth Justice in New Zealand 4 (July 2011) (copy on file with the authors).
19. The 2011 research of the Ministry of Justice concluded that “a third of young people who have been through a FGC (Family Group Conference) did not reoffend in the two years following their seventeenth birthday. Another third only offended in a minor or medium way.” Id.
20. Hines & Bazemore, supra note 1, at 424. “[I]t is most likely the community that supplies the ingredient that makes the mix work so well.”
21. A remark of Professor H. Richard Niebuhr in a class on Christian Ethics at Yale University Divinity School, Spring 1956.
22. Umbreit, Mark & Armour, Marilyn Peterson, Restorative Justice Dialogue: An Essential Guide for Research and Practice 224 (Springer 2010)Google Scholar.
23. Janet Sim Elder, “The Challenge of Changing the Justice Landscape,” an address at the New Zealand Presbyterian Research Network KCML, Knox College, Dunedin New Zealand, Nov. 2011 (copy on file with the authors). Ms. Elder, former Moderator of the Presbytery of Dunedin, before which this address was given, is a veteran facilitator of group conferences. Suitably told without actual names, this account of a FGC is a rare detailed publicized narrative, given the rule that conferences are confidential.
24. Cf. Greenwood, Jean E., Restorative Justice and the Dynamics of Faith, Vol. LXXVII1, No. 6The Clergy J. 71 (04 2001)Google Scholar: “Incarcerated offenders were asked, ‘If you were given a choice between imprisonment and meeting the victim of your crime, which would you choose?’ An overwhelming majority said they'd choose prison. Restorative processes are sobering, an effective and humane way of ‘getting tough on crime.’”
25. Elder, Janet Sim, Punitive or restorative Justice: which do we want for New Zealand?, 47 Spanz 21 (06 2011) (magazine of the Presbyterian Church of Aotearoa New Zealand)Google Scholar.
26. For an introduction to the growing literature on the social-political prominence of apology in recent world affairs, see Tavuchis, Nicholas, Mea Culpa: A Sociology of Apology and Reconciliation (Stan. Univ. Press 1991)Google Scholar.
27. Umbreit & Armour, supra note 22 at 153, quoting from Morris, A. & Maxwell, G., Family Group Conferences and Convictions (Victoria Univ. Inst. Criminology 1997)Google Scholar.
28. Interview, Mar. 20, 2012.
29. Johnstone, & Ness, Van, The meaning of restorative justice, in Handbook of Restorative Justice 5–23 (Routledge 2007, 2011)Google Scholar, “The meaning of restorative justice.”
30. Elder, Janet Sim, “The Challenge of Changing the Justice Landscape,” p. 8Google Scholar. Ironic to some of us is the comment she adds: “Never more was I aware of that than when I was Moderator of (Dunedin) Presbytery for two years!” The remark confesses that one of the sections of society that needs a cultural transformation from an ethic of punishment to an ethic of restoration is the Christian church. See supra note 23.
31. The four are District Judges Fred McElrea and Stan Thorburn, Parole Board Head Sir David Carruthers, and Youth Court Head Judge Andrew Becroft.
32. Thorburn, Stan, “Merciful Justice,” a presentation to the Vision Network Congress, Waikanae, NZ, 03 2008 (copy on file with the authors)Google Scholar.
33. Matt 5:38, quoting Exod 21:24. Among Christians and others, invoking of this Exodus passage has achieved the status of a debate-stopper. Not only does this pious ploy amount to a dismissing of the teachings of Jesus but also a dismissal of the overall teaching in this section of Exodus, where forms of restitution—rather than tit-for-tat—are specified as substitutions for literal imitations of the crime. Furthermore, the Exodus context of this ancient lex talionis makes clear that it mandates a limit to revenge, to the human propensity to resort to “an extra eye for good measure.” In various other texts Hebrew law called for compensations that obviated sheer revenge, e.g. the provision for cities of refuge to which accused murderers could flee, e.g. Num 35:9-15, which distinguishes between unintended manslaughter and murder. Cf. Christopher Marshall's discussions of these passages in Beyond Retribution 207 (Eerdmans 2001)Google Scholar. He quotes the view of American legal scholar David Llewellyn:
After comparing these provisions with those employed in the American legal system, David Llewellyn concludes that “in the areas of evidence, judgment, and sentencing the Mosaic law code functions more restrictedly than the American judicial system. Fewer people would be convicted under the Mosaic code than under the penal codes of any of our fifty states.”
All of which is to say that Christians who put great store by the Bible have often been guilty of not reading it beyond their favorite verses.
34. Justice David Baragwanath, “Overview: the Treaty and the Police,” 11 8-10, in Nelson, NZ**Google Scholar. The treaty is the one named after its 1840 place, Waitangi. On RJ and this treaty, cf. infra, Sect. VIII (copy on file with the authors).
35. Cf. Niebuhr, H. Richard, Christ and Culture (Harper 1951)Google Scholar.
36. Umbreit & Armour, supra note 22, at 230. The following quotations come from pp. 230-35 in this section of the book.
37. Most theologians insist that forgiveness is always a free gift from one party to another and that the urgency, “You should forgive” has the danger of burdening others with a duty that they may not be ready to shoulder. Cf. an incident recorded in Shriver, Donald W. Jr., The Lord's Prayer: A Way of Life 77 (John Knox Press 1983)Google Scholar: The father of a young man murdered in front of his own Catholic church said to a reporter the next day:
My faith in religion is one of forgiveness, turn the other cheek [Matthew 5:39]. … It's what one has to do as a Christian, but it's not easy to do … My own personal belief goes along with [New York] Governor Carey's. I don't believe in capital punishment. I do believe in life imprisonment.
Pressing this father summarily to forgive would be acknowledged by most pastoral theologians as premature and uncaring.
38. Umbreit & Armour, supra note 22, at 231, quoting Exline, J.J., Worthington, E.L Jr., Hill, P. & McCullough, M.E., Forgiveness and justice: A research agenda for social and personality psychology, 7 Personality & Soc. Psych. Rev. 337, at 339CrossRefGoogle ScholarPubMed.
39. Shriver, Donald W. Jr., An Ethic for Enemies: Forgiveness in Politics 9 (Oxford Univ. Press 1995)Google Scholar.
40. The irony will not be lost on any reader that there is another, cruder “f-word” in street parlance that most of us avoid in our conversations and in print.
41. Rae, Murray A., The War on Terror in Ruatoki, 2 Int'l J. Public Theology 288 (2008)Google Scholar.
42. Umbreit & Armour, supra note 22, at 233.
43. The Poetry of Robert Frost 176–78 (Lathem, Edward Connery ed., Henry Holt & Co. 1975)Google Scholar.
44. Kim Workman, former head of the NZ Corrections Department, now an advocate of abolishing most prisons, concedes that about 5% of current inmates probably have to be imprisoned for the security of society. Interview, Mar. 16, 2012. Cf. There Has to Be a Better Way: Rethinking Crime and Punishment 3. This powerful pamphlet dispels 12 myths about the alleged benefits of imprisonment to inmates and society itself. Workman, a Quaker with Maori roots, has been a leader in the NZ Prison Fellowship movement.
45. King, Michael, The Penguin History of New Zealand 41 (Penquin Books 2003)Google Scholar.
46. Baragwanath, supra note 34, at 10-11.
47. Interview, Mar. 28, 2012.
48. Cf. MOJ Report, “Restorative Justice” 1 (n.d. circa 2011) (copy on file with the authors).
49. Elias, supra note 9.
50. Interview, Mar. 20, 2012.
51. Id.
52. “Is ‘Three Strikes’ Sinful?,” the Common Good, A newspaper of the Christchurch Catholic Worker, No. 53, Pentecost, 2010. Consedine has been a prison chaplain in Christ Church for twenty-three years. He is the founding coordinator of the nationwide Restorative Justice network whose members include the facilitator volunteers who lead RJ conferences.
53. Chief Youth Court Judge Andrew Bancroft, interview, Mar. 19, 2012.
54. Anglican Synod Report of 2010, “Incarceration in New Zealand” 8 (copy on file with the authors). The statistics on public opinion are taken from a study by social scientists working for the Ministry of Justice, Dec. 2003.
55. Id. at 9.
56. Marshall is St. John's Professor in Christian Theology and Head of School, School of Art History, Classics and Religious Studies, Victoria University of Wellington, NZ. His new book is Marshall, Christopher, Compassionate justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice (Cascade Books 2012)Google Scholar. The two parables are the Good Samaritan and the Prodigal Son (Luke 10 & Luke 15).
57. California's overcrowded prisons: The challenges of ‘realignment,’ The Economist 33–34 (05 19, 2012)Google Scholar.