In the first part of RPI’s series on Restorative Justice and Youth Offending, we look at some of the more predominant myths about restorative justice and explain restorative conferencing. Our goal is to provide a plain-language overview of restorative justice as used with young people in Australia. However, we recognise restorative justice depends on a community of practitioners, advocates, and scholars. As such, our goal is also to make sure the information in this series is correct and up to date. We thus welcome any comments, suggestions, and criticisms on things we may have missed, gotten wrong, or should clarify.
We start with myths about restorative justice for two reasons. Primarily, restorative conferencing has been used in all states and territories for over two decades. Yet we regularly see statements in the media, comments by policymakers, and information in other forums thatmischaracterise its use and goals. Here, we do not mean criticisms per se, and in the later parts of the series we examine some of these critiques and problems in more detail. Rather, we mean information that distorts or mischaracterises the use, design, and goals of restorative justice. Following on this, as practitioners and scholars, we are also stuck by how little is known about restorative justice by the public, and even by those that work in other spaces with young people.
Thus, we take “myths” as a starting point to address some of the more common misconceptions about the use of restorative justice with young people in Australia. We also use this as an opportunity to explain the primary goals of restorative conferencing, and how the conferencing process works to try and meet these goals.
Myth 1: Restorative Justice is “soft” on crime
Restorative justice is not designed to be “hard” or “soft” on youth crime. Rather, it is designed to allow those most directly involved in an offence to have decision-making about what should happen to meet the needs and interests of victims, young people, and others directly impacted by harms that have been caused.
This decision-making takes the form of a conference where victims, offenders, supporting parties, community members (in some cases) and a facilitator agree to meet and discuss what has happened, why it happened, and what needs to be done to make things right to the degree possible. This is different from a court where a magistrate decides the outcomes for everyone involved. Most conferences are face-to-face. However, in some cases other forms of dialogue may be used, such as shuttle mediation where the facilitator may go back and forth between parties.
Prior to the conference, the facilitator meets with each of the parties individually to explain the purpose of the conference, what will happen, and what will be expected of them. Along with other states and territories, in Queensland, the young person is required to admit to the offence prior to the conference. It is expected the young person will also demonstrate accountability for this in the conference. Thus, conferences are different from alternative dispute resolution in that blame has already been acknowledged by the young person as a condition of the conference.
Accepting blame is a prerequisite for young people, but it is only the beginning of the conference process. In the conference, victims are given the opportunity to explain the harms caused to them and to ask the young person questions. Young people are expected not only to admit blame, but explain what happened from their perspective, and respond to questions and statements from victims and other participants. This is a unique process within the criminal justice system where victims can directly address young people that have harmed them, explain the impact of these harms, and seek information directly from the young person.
After everyone has spoken and questions have been clarified, the facilitator generally moves the conference towards the question of what should happen in order to make things right for victims, to the extent possible. Sometimes this begins with apologies from young people, although this is not always the case. While good restorative practice does not force people to do things they do not want to do, facilitators recognise that genuine apologies are often a core component of successful conferences. For this reason, they often work in the “pre-conference” meeting with young people to explain the importance of apologies and other demonstrations of empathy as part of what is called “symbolic restitution.”
Symbolic restitution is important for victims because it communicates the young person “gets it” in terms of the harms they have caused. However, victims often suffer financial harms or losses and well, and monetary restitution is often also a part of the discussion about how to repair harms. In many jurisdictions, including Queensland, monetary reparations are generally discussed in terms of what is appropriate for the harms caused, but also in terms of what is possible for the young person. This is because it is not realistic for a young person with no financial resources to agree to pay 15,000 dollars, for example, only to have them pay nothing because it is unachievable.
In this regard, youth conferencing is often pragmatic in attempts to achieve “some justice” for victims, rather than no justice, which is often the case in conventional court practices.Agreements between parties thus allow for more flexibility than is often possible in court settings. For example, if a young person is not able to directly pay restitution, they may sometimes be able to perform work directly for the victim related to the offence. Victims also sometimes ask for other outcomes related to the offence, for example participation in a drug or alcohol program in cases where the offence was related to misuse of these substances.
Finally, in Queensland, conferencing can be used for all types of youth offences, excluding homicide. In more serious cases, restorative conferencing is generally not used as a stand-alone intervention. Rather, it may be accompanied by other court-imposed requirements such as community supervision, rehabilitative interventions, or youth detention. In most other jurisdictions, with the exception of South Australia, conferencing for young people is generally used for less serious offences.
Myth 2: Restorative Justice does not hold offenders accountable
This myth often follows from the one above, in the argument that young people do not receive enough punishment or consequences to get them to understand the impacts of their offences or deter them from future offending.
Restorative justice has a different view of accountability. It is not designed to administer punishment as a form of accountability. Rather, the focus is on making young people directly accountable to those they have harmed by taking blame for the offence, giving an accounting of these harms and explaining their actions, and participating in discussion as to how to make things right to the degree possible.
Restorative practitioners thus recognize it is sometimes not possible for young people to fully “restore” the harms they have caused. Rather, the emphasis on “active” accountability is intended to provide a better opportunity and forum for victims that wish to participate to gain information, explain harms caused to them, and have these harms directly addressed by the young person. In most cases, the result of this dialogue is an “agreement” on what the young person will do to make amends and demonstrate responsibility for their wrongdoing. In cases where the young person does not complete their agreement, the matter is generally returned to the children’s court where they may face further accountability in terms of administratively imposed sanctions.
Finally, restorative justice practices recognise there may be other goals that cannot be met through conferences. Community safety is one such goal, and restorative conferences are not designed to make decisions about whether a young person represents an immediate risk to the community. In Australia, including in Queensland, these decisions are the purview of children’s court magistrates. However, restorative justice theory and practices also recognise the large majority of young people that commit offences are not an immediate risk to the community, and most of these young people desist from offending in their transition to adulthood.
In summary, restorative conferencing is designed to help young people understand the impacts of their actions by being “directly” accountable to those they harmed. Research shows that victims tend to perceive this accountability to be better than in conventional court processes, and while not all conferences work well for victims, a majority of victims report the processes as helpful and worthwhile.
Myth 3: Restorative justice does not work for victims
This myth underscores a primary problem of the criminal justice system more broadly, in that victim needs and interests are diverse. Australia, like all commonwealth countries (and the United States), has an “adversarial” justice system. This means offenders are generally afforded rights, including the right of due process. Victims, on the other hand, do not generally have “standing” in criminal proceedings, although they may be asked to serve as a witness, to provide other information, and may have other rights as set forth in legislation.
Historically, this has created a very inflexible system for victims. Victims are often in the dark about their cases and receive little or no information from the police or prosecutors. They often have little say about what will happen, or opportunity to provide input into what they think should happen.
Yet contrary to one-dimensional depictions by news media or policymakers of victims wanting “more justice,” studies show victims needs and interests are very diverse. Many wantinformation about what happened to them and why. Some want to see the offender punished harshly, others want to see something done to help the offender stop committing crimes. Some victims are financially impacted and have an interest in restitution, others are less so and may be more focussed on other harms caused to them, for example concerns about their ongoing safety.
Restorative justice is designed to be a more flexible approach to addressing the impacts of crime for those directly involved. This flexibility means two things. First, restorative conferences are less formal than conventional court proceedings. Victims are able to explain the harms caused to them, ask young people questions, and challenge these answers when they are not satisfactory.
Second, victims are able to explain their needs and interests in terms of what they think should happen in the conferencing agreement. For example, if a young person has smashed a car window, the victim can ask for reparation for the costs of replacing the window. Moreover, if it becomes clear in the conference that the young person committed the offence as a result of alcohol or drug abuse, the victim can ask that services be provided to the young person to address these underlying issues of offending.
However, there is usually some degree of proportionality built into conferencing agreements. For example, a young person that has stolen a bicycle would not be expected to be placed in youth detention because the victim wants them to learn a lesson. On the other hand, the victim would be able to explain the impacts of this harm on them – perhaps the bicycle is very important to their child, or a primary mode of transportation for the victim. They would be able to ask for restitution if the bicycle had not been returned in good order. And they would be able to ask for recognition from the young person that these things matter. Most approaches to youth conferencing today use pre-conferencing meetings to help explain thissense of proportionality to participants in terms of possible agreements.
It is important to note restorative conferences are usually not “nirvana stories” for victims. Rather, they can be emotionally difficult settings for all involved, and most conferences meet some, but not all of the goals of participants. A smaller number of meetings do not work well for victims. On the whole, however, dozens of Australian and international studies that have compared victim experiences in restorative justice experiences in conventional court practices have consistently found more victims prefer restorative justice. There are a few reasons for this, including:
• Information – Victims often have unanswered questions, concerns, and fears. Compared to conventional court practices, restorative conferencing allows victims to receive more information about their case, including what happened to them and why. This information in turn often helps victims to understand what happened, make decisions about what they want to see happen in the conference, and allay fears and anxieties about the young person that has harmed them.
• Participation – In Australia, victims have limited rights or legal standing. Police are often unable or unwilling provide more than cursory information to victims, especially where this may compromise victim testimony. In court, victims cannot generally “tell their story.” Rather they are legally a “witness” to the crime and must answer questions only as asked from the prosecution or the defence. As witnesses, they are also usually not allowed to attend other parts of preliminary hearings or the trial. Restorative justice meetings, on the other hand, provide opportunity for victims to tell their story, ask questions directly to the young person, and suggest ways for the young person to make amends for the harms they have caused.
• Validation – The adversarial nature of police investigations and court processessometimes make victims feel that no one believes them or that they have to prove what has happened to them. Restorative conferences are often helpful in validating victim experiences and emotions because victims can hear, and push if needed, for truth-telling about the harms caused to them by the young person. Moreover, the establishment of such harms and culpability from the young person is spoken or put in writing for others to witness, including parents or caregivers of the young person, victim supporters, and the facilitator.
Myth 4: Restorative Justice does not reduce reoffending
In its inception, restorative justice conferencing was not designed to reducing reoffending. It is not a therapeutic or rehabilitative intervention for young people. Rather, as discussed above, the primary goals of restorative conferencing are to help facilitate a more “active” accountability from young people, provide victims and others directly impacted by the offence an opportunity to voice harms caused and ask question to the young person, and to give the young person an opportunity to make amends for the harms they have caused.
In principle, restorative conferences that meet these goals should in turn help young people better understand the impacts of their wrongful behaviours and desist from further offending. There is a large body of research on the impact of restorative justice on reoffending. This research shows when young people take “active” accountability, offender genuine apologies, and participate in a “consensus” decision about agreements, they are less likely to reoffend.However, as noted prior, conferences do not always meet all of these goals. Thus, not all conferences work to help young people desist from crime. At the same time, the larger body of research nevertheless shows restorative justice tends to do no worse, and often slightly better than conventional court sanctions. This is important for two reasons.
First, even where restorative justice may not do better than conventional court sanctions, there is little research showing it does worse. Given the other benefits of restorative justice, in particular for victims that participate, there are good reasons to use restorative justice aside from this one measure.
Second, as noted above, restorative justice is not designed to be a therapeutic or rehabilitative intervention for young people. Many young people that commit offences demonstrate significant histories of abuse, neglect, and other adverse childhood experiences. In Queensland, over half of young people that enter the youth justice system also have experiences in child safety and family services (often referred to as “crossover kids”). Drug and alcohol abuse is likewise common in many young people that commit crimes.
In such cases other interventions and approaches may be useful in addressing the needs and vulnerabilities of young people. These may include comprehensive or “wrap-around” services for young people and their families, as well as trauma-informed approaches in cases of abuse or other evidence of post-traumatic distress. Wrap-around and similar approaches can be resource intensive, but they also have a good record of addressing underlying causes of offending and also improving the wellbeing of young people. In the case of Australia, given the massive overrepresentation of Aboriginal and Torres Strait Islander young people in the justice system, on-country and other programs developed by Indigenous communities for Indigenous young people are also vital, although as we discuss in later sections, they also remain significantly underfunded and under-utilised.
Unfortunately, in some cases including Queensland, policymakers have positioned restorative conferencing as the primary solution to reducing reoffending in young people. Yet restorative practitioners recognise that a one-to-two-hour conference is not likely to have significant impact in the lives of young people with significant needs and disadvantages. This is why RPI Queensland, like many restorative advocacy organisations, supports proven youth crime prevention and early intervention strategies as primary approaches to reducing youth crime before it happens. When youth crime does happen, conferencing can be most effective when young people are safe, supported, and able to cognitively and emotionally understand the impacts of the harms they have caused to others.
Myth 5: Restorative Justice is only useful for minor offences
This myth is often used to argue against the use of restorative justice for more serious types of offences such as violent crime, domestic and family violence, and sexual violence. Such arguments are often presented as if restorative justice is the sole intervention used in such cases. This is rarely the case for youth offenders, however, who generally face other court-imposed interventions or sanctions for violent offending.
In most Australian states and territories, restorative conferencing is largely used for as a diversionary practice for lessor offences. The use of diversion has a long history in Australia, stemming from decades of research that shows most young people that do not commit serious or violent crimes tend to “age out” of their delinquency in early adulthood. Putting young people into “the system” for less serious offences can be counterproductive in labelling them with criminal identities and placing them in settings such as detention that can be criminogenic.
At the same time, even while these young people may age out, their offences often still cause harm to victims and others. Thus, the use of restorative conferencing as a diversionary practice is intended to keep young people out of the system, while also holding them directly accountable to victims and providing opportunity to make amends for the harms they have caused.
However, two states – Queensland and South Australia – do use restorative conferencing for more serious offences. While these cases represent a smaller number of overall conferences, they are important for several reasons. Primarily, in such cases, conferences are often at the request of victims. While victims are never required to participate in conferences, in cases of serious and violent crime, restorative practitioners generally do not proceed unless there is a clear sense the conference will not result in further victimisation and will help to meet victim needs and interests. Also, as noted above, in cases of more serious and violent offending restorative conferencing is generally not used as a “stand alone” intervention. Other sanctions or interventions remain the purview of the children’s court.
Finally, restorative conferencing is used in a smaller number of cases for domestic and family violence, and sexual violence. These cases are often difficult as they may involve multiple incidents of harms, difficult family dynamics, and in some cases significant power imbalances between the wrongdoer and the victim. For these reasons, when conferencing is used, it is often with a different format than the one described above, and with further safeguards in place for the wellbeing of victims. We discuss these types of cases in more detail in the next section of this special topic, where we look at more in-depth research and practice on the role and impacts of restorative conferencing on victims.
