Reviewed by William Lyons, Professor of Political Science and Director of the Center for Conflict Management at the University of Akron. Email: wtlyons [at] uakron.edu.
DEBATING RESTORATIVE JUSTICE is the first volume in a new series called Debating Law, edited by Peter Cane, which seeks to provide two “strong and intellectually rigorous argument[s] on a topic of contemporary and ongoing debate” that will “stimulate, challenge and inform by bringing contrasting perspectives together in one volume.” In this volume, Carolyn Hoyle makes the case for restorative justice, while Chris Cunneen focuses on the limitations of restorative justice.
As a practitioner, critic and advocate of restorative justice, I was excited about the opportunity to review this volume. While the Cunneen essay is well worth reading, I was, however, deeply disappointed in the Hoyle essay on its own merits and as a counterpoint for Cunneen. For that reason, I would not assign this book to my students and recommend others consider both essays carefully before using this text.
The Limitations of Restorative Justice
Cunneen presents a carefully constructed and thoughtful critique of the substantial gap between restorative justice as a normative theory (let alone a transformative social movement) and a diverse set of practices, that at best fit comfortably within current punitive approaches or, at worst, practices that construct a ‘common sense’ legitimizaation for criminological and governance trends that reinforce existing inequalities and distort our ability to understand the complex relationship between law, governance, crime and punishment.
Cunneen argues that the gap between rhetoric and reality here obscures the informal and restorative elements of state criminal justice systems as well as the bureaucratic and retributive elements of restorative justice practice. Even more important, claims about the universality of restorative justice reveal a generalized insensitivity to context, contributing to a tendency to essentialize victims and offenders (as “unambiguous and uncomplicated individuals,” p.161) and rely on unexamined conceptual dichotomies like state and community or restorative and retributive that together create an image of restorative justice as “an international business” (p.103) designed more for reinforcing than challenging structural inequalities and injustices in our approaches to social control (p.106).
The common sense appeal of the dichotomous and fragmented perspective on identity, governance and crime in the discourse on restorative justice distorts our understanding of power and politics and “makes it difficult to understand” (p.105) how the law comes to have meaning in society. The rhetorical and common sense appeal of restorative [*394] justice as a form of background knowledge against which we debate crime control policy places great emphasis on healing victims (p.136) and revitalizing communities (pp.119-125). But, according to Cunneen, research shows that victim participation is low (p.137), in part because participation can revictimize (p.138) and victims do not control the process (p.142). In reality the state plays a significant role in the creation and management of restorative processes and, as a result, it
seems disingenuous to claim that this process somehow rebalances the focus of responding to harm away from the state and back to the community and the victim. At best it changes the players and dramaturgical script away from the court process, but it does not shift significantly the role of the state in defining and responding to criminal behavior, neither does it change the script in naming us as victims (or offenders) and placing a certain expectation, or indeed obligation, to behave in certain ways (eg remorseful, apologetic, forgiving) (p.138).The claim to rebalance the dispute resolution process and redirect it toward healing and restoration is even more difficult to sustain when we consider varying degrees of victim trauma (p.139), the unequally distributed capacities to articulate one’s own narrative in ways likely to resonate with larger cultural expectations (pp.147-49 and 157-61), and violence against women that is “part of a patterned cycle of behavior which includes contrition and apology” (p.151).
Cunneen’s most interesting contribution to our ongoing conversations is the focus not on the fact that there is a rhetoric-reality gap and that it distorts policy deliberations, but on trying to understand the political utility of restorative justice rhetoric by asking why this particular reform is emerging at this time. While the section reviews many competing and overlapping factors, Cunneen emphasizes, rightly in my view, that the rise of restorative justice tells us more about political struggle and legitimization (both intra and inter-state) and the complex relationship between consent and coercion (p.122), than it does about finding more productive ways to respond to crime and violence.
Although presented by its advocates as a reforming alternative, restorative justice fits with broader processes of governance at a distance and responsibilising individuals and communities in the task of crime control. Rather than challenging state power it allows for new modes of governance. It appeals to those who long for greater communitarian approaches, while at the same time developing a strongly moralistic framework for dealing with offenders (p.125).
This focus on the political utility for the already powerful provides a persuasive framework for understanding why nearly all restorative justice practice still focuses on minor juvenile offenses through diversion programs (p.150). And this political criminological lens (Scheingold 1998) also offers a more robust analytical perspective for understanding why the transformative promises that animated restorative justice in its early days as a social [*395] movement do not address more serious harms, like violence against women, hate crimes, and other crimes where the victim-offender relationship in grossly unequal . . . and why doing so with existing restorative justice techniques is “at best a high-risk strategy” (p.155).
Both violence against women and hate crime are closely bound to wider social constructions of gender, sexuality, race and ethnicity. On the one hand it may be the case that law and legal institutions support these forms of violence both in ideology and practice. But recognizing this is not an argument in itself for restorative justice. . . . The potential privatization of responses to both violence against women and hate crime has a range of potential negative consequences. It runs the risk of silencing the public denunciation of these offences, which for decades now activists have struggled to get on the public agenda. . . . Indeed, there are many reasons to think that a restorative justice response will be less able to address structural inequalities because of the less public accountability, fewer resources, less access to co-ordinated services and the potential perpetuation of power imbalances (pp.156-7).
Cunneen concludes that restorative justice, as practiced today, reinforces structural inequalities and injustices in the crime control process in part because, even when it does not itself deploy punitive techniques, it provides a common sense moral tale about individual responsibility, consent and community that supports and helps legitimize largely coercive, disciplinary, and actuarial approaches to crime and punishment (p.164). Within this larger context, our children are presented with diversion programs and their children “receive what they have always received – imprisonment, but now in ever-increasing numbers” (p.173).
The Case for Restorative Justice
Hoyle provides a descriptive account of what she believes is the promise of restorative justice, which unfortunately too often reads more like a practitioners’ handbook than a thoughtful defense of restorative justice. This essay is not particularly well organized and frequently raises the complex challenges Cunneen examines, only to either dismiss these by simply asserting that restorative justice, when done well, avoids the question entirely or by assuming that restorative justice can be uncritically framed as an effective counterweight to the weaknesses of criminal justice systems.
There are numerous instances where Hoyle addresses a controversy central to our ongoing conversations about restorative justice, while only lightly analyzing the issues raised before ‘resolving’ the challenge by suggesting that skilled facilitation can square the circle. For instance, while earlier in the essay Hoyle declines to “survey the use of the term” or “attempt an authoritative definition” (p.16) of community, the argument she advances depends heavily on repeated references to a powerful and specific role for ‘community’ in restorative justice. But after simply listing that community can be “a group of people organized around shared beliefs,” based on geography, kinship, lifestyles, identity, friendship, or professional affiliations, virtual or face-to-face (p.16), [*396] the author makes no effort to sort out the conflicts between inclusion and exclusion, rights and responsibilities, market-driven fragmentation and neo-liberal assumptions that communities exist. Instead, Hoyle simply states that “facilitators need to identify the most appropriate ‘community’ to include” (p.17). And, later, when describing how restorative and criminal justice can coexist, she simply asserts that “although many people today” do not participate in the activities or networks traditionally associated with community life, “they are part of communities” (p.54).
This conceptual confusion weakens the argument at multiple points, including where Hoyle recognizes the exclusivity inherent in community (which is either contradictory to restorative goals or at least a tension in need of reconciliation) only to conclude that it is not a problem about the nature of community itself but only a challenge to facilitators. “Defining places or people as ‘within’ the boundaries of a community necessarily excludes those outside. This is not a problem if people are excluded because they belong to a different ‘legitimate’ community” (p.55).
Concerns about the uneven distribution of social capital, as one way to specify concrete characteristics constitutive of community as a resource for informal social control (Lyons 1999), are similarly raised and then dismissed by the author as a “middle-class bias” and reframed as providing
something of a challenge for facilitators to identify those people from that community who do not share the offender’s norms and values, and who do not excuse or even approve of the harmful behavior. Nonetheless, in most cases, facilitators will manage to locate appropriate pro-social supporters for offenders. . . . [And yet] it may sometimes be necessary to invite those people to the restorative meeting, despite their apparent harmful influence. In such circumstances it may be appropriate for facilitators indirectly to challenge some of the norms and values of the wider community in encouraging offenders to reflect on and account for their behavior, hence improving prospects for the whole group, including the offender (pp.53-4).Rather than engage with the literature on social capital and community, Hoyle chooses to place excessive faith in the skill of facilitators to solve large social problems. This is both overly optimistic and deeply paternalistic, since it asserts an ambitious case for social engineering putatively justified on the basis of dubious agency: the “community resocializing the offender” (p.24) or the facilitator resocializing entire communities.
Finally, the second half of this essay attempts to defend the claim that restorative and criminal justice practices can productively coexist – even in addressing crimes like domestic violence – because, according to Hoyle, restorative processes give voice to victims and reintegrate offenders to restore communities (p.72). But Hoyle dismisses concerns about net-widening because restorative practices “might well divert cases from the criminal justice system” (p.46); she dismisses concerns about the assumption of community as [*397] really about facilitators selecting the “appropriate community” (p.51); she dismisses concerns about social engineering because the activities “are not dissimilar to the aims of probation officers” (p.51); and she dismisses concerns about coercion and re-victimization as simply “tricky” and even less problematic once we “link the restorative encounter to the ‘retributive sentence’“ (p.58).
In each of these cases, Hoyle simply assumes what is being contested: that restorative justice is unproblematically about healing and reintegration. This assumption allows her to propose, without examination or defense, deepening the already deep integration of criminal and restorative justice techniques that Cunneen is concerned provide a combination of consent and coercion that undermines law, justice and democratic governance. This volume would have been much more valuable had the case for restorative justice taken these and other controversies central to this debate as seriously as they were taken in the case against.
Lyons, William. 1999. THE POLITICS OF COMMUNITY POLICING: REARRANGING THE POWER TO PUNISH, University of Michigan Press.
Scheingold, Stuart. 1998. “Constructing the New Political Criminology: Power, Authority, and the Post-Liberal State,” LAW & SOCIAL INQUIRY, v23n4, pp. 857-895.
© Copyright 2011 by the author, Bill Lyons.