Trust and Power-Distance: A Psychological Perspective on Fairness in Restorative Justice Conferences
Sivasubramaniam, Diane, Goodman-Delahunty, Jane, Psychiatry, Psychology and Law
Psychological research indicates that trust in the independent third party affects the way in which disputants rate the fairness of legal procedures. This article addresses procedural variation in restorative justice practices, in the context of psychological research on procedural and distributive fairness. In particular, we describe differences in the ways in which high and low power-distance participants determine fairness in conferencing procedures. This article outlines the way in which convenor variation in conferencing programs may affect participants' perceptions of bias in these conference procedures, and the moderating effect of power-distance on the consequences of this perceived bias. The authors argue that a sensitive analysis of the ability of restorative justice procedures to deliver effective justice requires consideration of individual difference factors in conjunction with situational factors.
The Restorative Justice Approach
Therapeutic jurisprudence is a mental health approach to law that uses the tools of the behavioural sciences to reshape legal processes in ways that can improve the psychological functioning and emotional wellbeing of those affected. Therapeutic jurisprudence is an approach to legal intervention that aims to apply the law in a therapeutic way so long as other values, such as justice and due process, are fully respected (Wexler & Winick, 1996).
Restorative justice practices are consistent with this approach, emphasising healing the wounds of victims, offenders and communities caused by crime. Restorative justice differs from traditional punitive justice in that it focuses on repairing the harm caused by a crime, rather than on punishing an offender for breaking a law. Restorative justice consists of a variety of practices at various stages of the criminal legal process, including diversion from court, actions taken in conjunction with court decisions, and meetings between victims and offenders at any stage of the criminal process (Daly & Hayes, 2001). Conferencing is a restorative justice practice that brings together victims (and their support persons), offenders (and their support persons) and various members of the concerned community in an attempt to repair the damage done by a crime to the victim, the offender, and the community.
Restorative justice, in its various forms, has been proposed as a mechanism for addressing a range of offence types with a range of people. Bolitho (unpublished manuscript) explores the role of responsibility and moral emotions in the restorative justice process of reparation, and addresses the conditions that are required to make 'making amends', a good or at least acceptable practice. While these are important issues in all restorative justice procedures, this article will address the way in which these issues arise in restorative justice conferencing.
Conferencing Practices in Australia
Family Group Conferences, the precursor to many Australian conferencing models, were implemented in New Zealand in 1989. They were developed in close consultation with Maori communities, from whose culture the concept originated. Ideally, discussion takes place in a context of compassion, as opposed to the more adversarial environment associated with court. Young offenders must admit to the offence in order to be eligible for conference proceedings. Their supporters (often a parent or guardian), the victim and their supporters, various community members, and a conference convenor meet to discuss the offence and its consequences.
Offenders are given the opportunity to talk about the circumstances associated with the offence. The offender's supporters discuss how the offence has affected them, as do the victims and their supporters. Members of the community may also participate. After a review of the offence, discussion ensues of an outcome agreement that the young person is expected to complete. Reparations incorporated in outcome agreements may include verbal and written apologies, paying monetary compensation or performing community service (Daly & Hayes, 2001).
Police-Convened and Other Conferencing Models
In 1990, advisors to the New South Wales Police Service proposed that New South Wales adopt features of the New Zealand Family Group Conferencing model, located within the police service (Moore & O'Connell, 1994). In 1991, a pilot scheme of police-convened conferencing was introduced in Wagga Wagga as an 'effective cautioning scheme' for juvenile offenders (Moore & O'Connell, 1994). This version of conferencing became known as the Wagga model. Intense debate arose in the early 1990s about the merits of police-convened conferencing (Daly & Hayes, 2001). While many states trialled police-convened models, very few have retained them. The reasons for this have centred on legal arguments about the administration of this process within the criminal justice system. For example, in the Young Offenders Act 1997 (NSW), responsibility for the Youth Justice Conferencing Scheme was given to a subdivision of the Department of Juvenile Justice (DJJ). The rationale was that, since the DJJ was primarily responsible for the welfare of young people, and the Police Service was responsible for the regulation of crime, neither agency could credibly claim neutrality with regard to young offenders. The Youth Justice Conferencing Directorate was therefore established specifically to implement and administer conferences in New South Wales (Trimboli, 2000). New South Wales, therefore, operates a non-police-convened conferencing scheme for summary offences.
In 1989, independent of New Zealand legislation that introduced Family Group Conferencing, an Australian scholar proposed the development of criminal justice processes that increase the likelihood of reintegrative shaming, rather than stigmatic shaming of offenders (Braithwaite, 1989). The Reintegrative Shaming Experiment (RISE project) operated the police-convened conferencing scheme in the ACT. These conferences were convened by officers of ACT Policing, a branch of the Australian Federal Police (Sherman et al., 1997).
Variations between conferencing models around Australia are not limited to the distinction between police-convened and civilian-convened models. In most states and territories in Australia, conferencing represents one component in a hierarchy of responses to juvenile crime. However, conferencing differs among Australian jurisdictions in the kinds of offences that are conferenced, the amount of time allowed to complete outcome agreements, and the upper limits on outcome agreements. For example, Western Australia, which operates under the Young Offenders Act 1994 (WA), tends to conference a high number of less serious cases. On the other hand, South Australia, operating under the Young Offenders Act 1993 (SA), conferences some serious cams, including sexual assault, and has the highest maxima of community service hours permitted (300). In all jurisdictions, the outcome is legally binding, but jurisdictions vary on which people, at a minimum, must agree to the proposed outcome. For example, agreement is required from the young offender and the police officer in South Australia, the young offender and the victim in New South Wales, and the victim, the young offender and the police officer in Queensland (Daly & Hayes, 2001).
In addition, objectives for conferencing programs vary substantially among jurisdictions. For example, in Western Australia, conferencing is a 'second-tier' diversionary option, reserved for use with the offenders for whom informal or formal police cautions are not considered sufficient (Stubbs, 1997). This is also the case in New South Wales, where conferencing is seen as an intermediate sanction between caution and court (Chan, Bargen, Luke, & Clancey, 2004). The Wagga model, on the other hand, operates as a form of police caution for all but serious offenders (Stubbs, 1997).
Daly and Hayes (2001) argue that, while some people may desire greater jurisdictional uniformity in conferencing legislation and method, there is strength in experimenting with a variety of practices. One focus of this article is the way in which these variations in the enactment of particular restorative justice procedures, such as conferencing, may influence people's reactions to those procedures, and affect the degree to which people perceive that justice has been delivered.
Evaluations of the Effectiveness of Conferencing Programs
Evaluations of conferencing schemes have shown reductions in recidivism and increases in participant satisfaction. In a large meta-analysis, Latimer, Dowden and Muise (2001) reviewed eight conferencing and 27 victim-offender mediation programs, and found that conferences yielded higher levels of participant satisfaction and lower levels of recidivism than non-restorative approaches to criminal behaviour. In addition, Maxwell and Morris (2001), in an evaluation of the New Zealand Family Group Conferencing (FGC) scheme, found that 29% of offenders who had participated in conferences in 1990-1991 had never been reconvicted. From multivariate analyses conducted to sort out predictors of reconviction and pathways to reoffending, Maxwell and Morris (2001) concluded that FGC can contribute to lessening the chance of recidivism, even when other important factors are taken into account, such as adverse early experiences and subsequent life events. Evaluations of the police-convened RISE project and the civilian-convened New South Wales conferencing scheme have been favourable. In both cases, evaluations concluded that conferencing met its objectives. That is, participant satisfaction increased and recidivism decreased (Sherman, Strang, & Woods, 2000; Trimboli, 2000).
The RISE project evaluated the police-convened conferencing model in operation in the Australian Capital Territory (Sherman et al., 2000). An experimental design was used in which the Australian Capital Territory courts randomly assigned participants to either a conferencing or a court condition. The RISE project examined four major types of offences: violent offences, drink driving offences, juvenile property offences (personal victims) and juvenile property offences (non-personal victims, such as shoplifting offences). The largest category was drink-driving offenders, comprising 900 (64%) of the 1402 offenders who participated. Participants in each condition were compared on: victim satisfaction with the process, perceptions of procedural fairness by victims and offenders, and patterns of repeat offending (the rate of detected and self-reported reoffending in the 12 months post-conference, versus 12 months pre-conference). Across all types of offences, victim satisfaction and participants' perceptions of procedural fairness were higher in the conferencing than in the court condition. For violent offences, recidivism in the conferencing condition decreased by 49%, compared in 11% in the court condition (Sherman et al., 2000).
An evaluation of the New South Wales conferencing scheme was conducted by the New South Wales Bureau of Crime Statistics and Research (Trimboli, 2000). These conferences are convened by civilians from the Youth Justice Conferencing Directorate, and are applicable to all summary offences by juveniles, provided that they have received the appropriate number of warnings and cautions consistent with the Young Offenders Act 1997 (NSW). This evaluation used a non-experimental survey design, and examined conference participants' satisfaction with the process, their satisfaction with the outcomes of the proceedings, and the acceptance of responsibility by the offender after the proceedings. There were 969 participants: 330 offenders, 256 victims, and 383 support persons. The study examined data from 391 conferences between March and October of 1999. A high proportion of participants who went through the conferencing process (79%) were satisfied with the way their case was handled by the justice system, and 89% were satisfied with the outcomes of their conference proceedings. In addition, 94.2% of offenders reported that 'after the conference, they had a proper understanding of the harm caused to the victim', and 77.7% of victims reported believing that 'after the …
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Publication information: Article title: Trust and Power-Distance: A Psychological Perspective on Fairness in Restorative Justice Conferences. Contributors: Sivasubramaniam, Diane - Author, Goodman-Delahunty, Jane - Author. Journal title: Psychiatry, Psychology and Law. Volume: 13. Issue: 2 Publication date: November 2006. Page number: 203+. © 2008 Taylor & Francis Group, LLC. COPYRIGHT 2006 Gale Group.
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