Restorative justice with
serious crimes
Based on
Lode Walgrave (2008), Restorative Justice, Selfinterest and Responsible Citizenship, Cullompton
(UK): Willan Publishing
Introduction

RJ is implemented mostly for benign
offences
1) serious crimes, more than other, must be
responded by a punitive sanction
2) most rj processes only deal with the
“private” dimension of the crime
Experience and research do not
exclude RJ for serious offenders
 Rj meetings can happen after serious crimes
 Victims are better off
 Better results regarding reoffending
Why not for serious cases? (1)
1. Ineffective to influence offenders?
2. Retribution?
- From vengeful emotions to retributivist theories
But emotions are faded away and only public dimension
of offence is dealt with
Public dimension is important, which does not include
the necessity for punishment
- A moral obligation?
Norm transgression must be censured (but not
necessarily through infliction of pain)
An intuitive moral balance must be restored (which can
be done by seeing RJ as inversed constructive
retributivism)
Why not for serious cases?(2)
3. Victims’ need for punishment?
Most research and experience show great willingness to participate
in RJ programmes
Victims want
- public recognition that injustice has been done to them,
- the opportunity to express fully their emotions about that
- reasonable emotional, social and material reparation.
4. Some offenders are too dangerous
RJ philosophy can be limited by concern for security
Incapacitation or punishment?
The difficulty with incapacitation
Towards a kind of “actuarial” punishment?
Provisional conclusion
 There is no principled reason to reject the
applicability of RJ processes in cases of
serious crime.
 On the contrary, the more serious the crime,
the more need there is for thorough
reparation
 Concern for security can overrule the priority
for restorative responses
RJ for serious juvenile crimes
Two examples
 New Zealand (CYPFA 1989)
Police-
cautioning
FGC (YJC)
-Execution
-Youth court
Youth Court – FGC – Youth Court
Youth Court cannot impose any measure or sanction
without FGC being tried.
All offences (except manslaughter and murder)
including multirecidivists
 Results
Arrests
1987
8000
1990
2000
2001
3000
Court (N/10.000)
400
200
240
Convictions
1318
269
234
Custody (adults court)
295
104
73
 Family Group Conferences spread over the
world as “restorative conferences”,
“diversionary conferences” and other…
 Mostly as diversion, but not in NZ
 In NZ
- Located in the heart of the procedure
- Police presence in proper role of
representative of public order
- Lawyers are present
Hergo in Flanders (Belgium)
 FGC according to NZ model
 Intensive research follow up January 2002-
October 2003. Less intensive follow up till
December 2005.
 Research methods (dossier analysis,
questionnaires with facilitators, observation of
conferences, structured interviews with
participants, open interviews with
professionals)
FGC in Belgian procedure?
 Referred by court
 Provisional Order that “potentials of FGC must be




tried out”
Outcome is “Declaration of intention”
Submitted to court, confirmed by formal judgement
Execution begins after judgement
New judgement to close dossier
Well accepted and used. Endorsed by court of appeal
Feasible in Belgian context?
Till october 2003 (+ period 2004/2005)
- 98 referrals by 9 judges (+ 53 referrals)
- 53 conferences for 58 juveniles (+ 39 for 51
juveniles)
- Average 16 yrs old, all male, serious offences
- Victims in 26 meetings, represented in 10 other (+ 32
and 2 representations)
- All end in DI, all confirmed by judgement
- Professionals express their contentment
Since then:
- More FGC’s, confirmation of potentials
- inserted in New Law
Rights respected?
 Judicial confirmation
 Juvenile’s lawyers in all but 3 conferences.
They find that they can play their role
 Victims’ lawyers attended seldomly.
Victims did not feel this as a disadvantage
 Participants felt that their rights were
respected (one exception)
 Participants feel high rates of “procedural
justice” (Tyler)
Positive answers on Procedural justice
questions (%)
Vict.
Off.
N=39
N=48
Did you find the FGC honest?
Did you understand what happened?
Could you say what you had to say?
Have you been treated with respect?
77
95
95
100
83
90
69
91
Satisfaction?
 Vast majority expresses satisfaction with information received,
with support during the process and found that the FGC
responded to their needs.
 85% of juveniles, 89% of victims and 89% of parents would
participate again.
 77% of juveniles and 66% of victims think that FGC should be
offered in all cases.
11 of the 17 interviewed non-participating victims think that as
well.
 One victim and one offender expressed overall very negative
feelings (not the same session)
Positive answers about Declaration of
Intention (DI)(%)
Off. Vict.
Par.
(N=48) (N=39) (N= 44)
Did you understand the DI?
97
Did you agree?
90
Do you find it just?
Is it hard for you?
Has the harm been repaired?
Are you satisfied with the DI?
75
37
97
97
89
78
75
80
55
77
84
Reoffending?
 No adequate control group
 Comparing conferenced juveniles with those refused
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for conferencing
Registered reoffending 6 trough 18 months after
conference
Conferenced: 22% new registrations
Refused: 58% new registrations
But no conclusion possible
In general not be naive.
CONCLUSION
 the reach of restorative justice goes beyond
benign youth offending.
 Its main advantage is the confronting and
responsibilizing approach, in a secure,
respectful and supportive climate.
 More experience is needed. Potentials are
partly dependent on local characteristics
 Some general conclusions
 Seriousness of crime is not a reason to exclude victims and


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
offenders from restorative potentials.
Threat to public safety is a reason to limit the restorative caliber
of an intervention .
There is a tendency to overestimate the threat to public safety.
Too many young people are locked in too long; too many victims
and offenders are excluded from rj potentials.
Also in very serious crimes, rj processes can yield constructive
outcomes which are beneficial for the victims, peacemaking in
community and reintegrative for the offender.
Not all restorative justice processes have the same potentials to
deal with serious offenders. The more serious the offence, the
more there is need for a clear community and state involvement.