Re-Thinking Access to Criminal Justice in Canada: a Critical Review of Needs, Responses and Restorative Justice Initiatives
1. The Context and Concepts of Criminal Justice: from Access to Justice to Acccess to Justice (continued)
I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets. Settlement is for me the civil analogue of plea bargaining: Consent is often coerced; the bargain may be struck by someone without authority; the absence of a trial and judgment renders subsequent judicial involvement troublesome; and although dockets are trimmed, justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised (Fiss 1984: 1075).
This classic statement by Owen Fiss about settlement and its drawbacks in the civil law context, contrasted with plea bargaining in criminal procedure, reveals many of the concerns about "private" dispute resolution in both contexts: concerns about coercion, a lack of accountability for the decision, and the absence of procedural protections provided in a "public" trial all contribute to his fear that "justice may not be done." Fiss' critique is part of a more general assessment in the literature of informal justice which identifies both benefits and also limits for "bargaining in the shadow of the law" (Mnookin in Eekelaar and Katz, eds. 1984). Although some restorative justice processes may include features that overcome many of Fiss' concerns, there may nonetheless be symbolic aspects of this "privatization of justice" which should be confronted in designing public policies for the justice system.
The literature comparing informal justice practices in pre-capitalist and modern societies suggests that, to a very great extent, there is a need for "community" to support informal justice practices. For example, Sally Engle Merry conducted comparative studies of the mediation of disputes in four small-scale societies, and drew conclusions for the adaptability of these practices to urban America (Merry in Abel 1982, ed.: 17). Among other conclusions, Merry identified the need for "the existence of a cohesive, stable, morally integrated community whose powers of informal social control can be harnessed to informally achieved settlements" (Merry in Abel, ed. 1982: 34). Yet, as she concluded, because American mediation centres were often located within large metropolitan areas, community pressures necessary to induce disputants to accept a compromise settlement were likely to be absent:
Disputants [in the USA] are rarely embedded in a close, cohesive social system where they need to maintain cooperative relationships. Even when disputants come from the same neighbourhood, unless they are integrated into a unitary social structure their conflicts in one relationship do not have repercussions for others (Merry in Abel, ed. 1982: 34).
More recently, in the Journal of Law and Society, Barbara Hudson also succinctly identified this problem of the need for "communities" in western society: "without the community, restorative justice is reduced to the competing perspectives of the victim and the perpetrator" (Hudson 1998: 251).
Yet, although the need for "community" may create problems for some informal justice practices, it may work well in others. Thus, for example, there has been positive evaluation of practices of circle sentencing within aboriginal communities in Canada (Stuart 1997; Stuart in Galaway and Hudson, eds. 1996), where it is more often possible to find a community which meets Merry's requirements of being "cohesive, stable, and morally integrated," and which may also exercise powers of informal social control. As McNamara suggested, the concept of "community" for purposes of aboriginal circle sentencing may be quite expansive; quoting from Grotsky, J. in R v. Cheekinew, he suggested that "the term 'community' ought to receive a wide and liberal construction as the term 'community' may be … a term capable of different interpretations depending on the residence … of the particular offender…" (McNamara 2000: 83). As well:
The availability of a community for the purpose of circle sentencing involves more than just being able to define the existence of a group, whether geographically or personally. Community capacity, willingness and preparedness to participate in criminal justice decision-making (and to oversee follow up) is a prerequisite for the success of community-based justice, whether in the form of circle sentencing or otherwise (McNamara 2000: 83-84).
Significantly, some informal justice practices, such as circle sentencing, are closely linked to traditional aboriginal "healing" processes. As a result, minimizing the role of the Crown in circle sentencing in aboriginal communities can represent an acknowledgement of the appropriateness of traditional aboriginal justice - it may even suggest informal recognition of aboriginal self-government (Chartrand 1995); by contrast, minimizing the presence of the Crown in other contexts may subtly suggest that the state has little interest in the concerns of the victim, the offender or the community (Marshall 1998). Thus, as McNamara argued, it is necessary to take account of all the subtle meanings in the use of circle sentencing:
That the circle carries philosophical, spiritual and cultural significance for many First Nations in Canada is widely recognized. What has been more controversial is whether the circle sentencing is appropriately seen as a product of First Nations' legal cultures based on "traditional" methods of dispute resolution and decision-making in Aboriginal communities, or alternatively, whether circle sentencing is more accurately characterised as the creation of a progressive minority within the Canadian judiciary? (McNamara 2000: 75).
Two additional concerns have been identified in relation to ideas about "community" in the context of restorative justice practices. One is the need for community members and community resources to be allocated to informal justice processes. While no one disputes that involvement in the justice system is an important aspect of a community's life, it may be less clear how to determine the relative importance of restorative justice practices, compared to other needs for scarce resources, within communities. These concerns are relevant to aboriginal circle sentencing as well as to programmes for family group counseling and victim-offender mediation - in all of these cases, both community members and other community resources are claimed by the needs of restorative justice, and, as a result, they may not be available for other needs within a community. Moreover, as Abel argued, "informalism can easily deteriorate from a mechanism for 'making rights effective' into a process of diversion whose primary goal is to curtail state expenditures devoted to enforcing … rights" (Abel 1982, ed: 8). Since restorative justice, and the involvement of communities in its processes, may appear to be less expensive than formal justice precisely because of the use of communities' resources (rather than those of the state), there may be pressures on communities to engage in restorative justice practices primarily for economic reasons.
The other concern about "community" relates to questions of power within communities. To the extent that restorative justice processes rely upon communities to exercise social control, there is a need to unpack the idea of "community" and to examine its internal power relations. As Lacey explained, to the extent that community processes are formalized, they may tend to create their own hierarchies (Lacey 1998; 1988). Moreover, as Marshall argued, these internal power relations may need to be challenged:
… The desire to dispute may itself conflict with the community's desire to suppress such altercation, and reconciliation may represent the dominance of the interests of the local 'establishment' over those of disadvantaged litigants. The greater the power differentials within a community, the greater such problems become. For all its faults, the law can be seen to be protecting individual freedom and rights, which might be threatened by community-based procedures controlled by local majority interests (Marshall 1985: 53).
This concern may not be of great significance in the context of circle sentencing in aboriginal communities, where the exercise of community power is likely to correspond to traditional authority and thus, is likely to be widely-accepted within the community. As McNamara noted, for example, there is evidence that circle sentencing reflects practices in some aboriginal communities which have existed for 500 years (McNamara 2000: 77). Yet, even in aboriginal communities, there may be unequal power relationships that need to be addressed in restorative justice programmes. As Lorraine Berzins suggested, in some of these communities, there may be:
… power imbalances and socio-economic inequities in communities, and communities when left on their own have a history of scapegoating the vulnerable, abusing the rights of the disadvantaged. We could be caught in a tug of war between those who want more power given to communities, and those who don't trust communities with that power - unless we see clearly that it does not have to be a "one-size-fits-all" solution (Berzins in Healy and Dumont, eds. 1997: 213, emphasis added).
A frequently voiced concern about informal justice practices, including restorative justice, is the extent to which they offer insufficient procedural protections (Ashworth 2000: 84). For example, victims and offenders, as well as community participants, may have differential access to economic, psychological or other aspects of individual capacity - and these differences may affect their ability to engage in restorative justice programmes effectively. Particularly in relation to victim-offender mediation, Crawford has similarly suggested that there may be differential power relations between the parties which, if they remain unchecked, may influence settlements (Crawford in Young and Wall, eds. 1996: 340). As well, Joseph suggested that domestic abuse cases might not be appropriate for mediation, in part because of the difficulty of ensuring equal bargaining power between an offender and victim in this gendered context (Joseph 1996). And, while recognizing that formal criminal justice processes may also fail to overcome inequality of power between an offender and a victim - or between an offender and the state - concerns have been expressed that the existence of multiple and inconsistent goals in restorative justice programmes may themselves create problems of inequality of power and the potential for abuse:
[Many schemes] seek to meet multiple normative and administrative aims, including the promotion of attitude change in offenders, greater involvement of the victim in the process of justice, cutting of cost to the public purse, reduction in court congestion, promotion of restorative justice, and destigmatisation. Perversely, while multiple aims enable diversionary schemes to draw upon a wide and diverse audience for support, they also constitute their Achilles heel. In seeking to meet the divergent aims that they proclaim, these schemes - particularly mediation and reparation - are pulled in different, and often competing, directions as they attempt to satisfy the divergent demands of their different constituents (Crawford in Young and Wall, eds. 1996: 343, emphasis added).
Andrew Ashworth also identified some special problems for restorative justice in the relationships which it fosters between victims and offenders (particularly in the context of victim-offender mediation). For Ashworth, the opportunities presented by restorative justice practices to permit offenders to understand, through the participation of the victim, the human consequences of what they have done may create a distortion of the process. As he explained, it is just a short step from such assertions to claims that greater victim involvement is for the benefit of the offender and of the wider community, especially as evidenced by reconviction rates:
The danger is clear: for some people, there has been a slippage between the starting point, which was to support victim-oriented initiatives and restorative justice by reference to the interests of victims, and the idea of judging these initiatives on the basis of what they do for offenders. The danger is that victims are being used in the service of offenders (Ashworth 2000: 88).
For Ashworth, the apparent neglect of victims for much of the twentieth century means that there may well be a need to reconsider the involvement of victims in criminal justice processes, including both traditional and restorative justice programmes. At the same time, he cautioned that there is also a need for a principled approach and for sound evidence in the formulation of criminal justice policies. Ashworth's comments link these concerns about victims as individual participants in restorative justice practices to broader, more ideological, concerns about the underlying messages of restorative justice practices.
Unlike the penal-welfare strategy [rehabilitation], which was linked into a broader politics of social change and a certain vision of social justice - however flawed in conception and execution - the new penal policies have no broader agenda, no strategy for progressive social change and no concern for the overcoming of social divisions. They are, instead, policies for managing the danger and policing the divisions created by a certain kind of social organization, and for shifting the burden of social control on to individuals and organizations that are often poorly equipped to carry out this task (Garland 1996: 466).
David Garland's analysis of strategies of crime control in the United Kingdom at the end of the twentieth century identified how state policies have adapted to the idea that "crime is a normal, commonplace, aspect of modern society, … an event - or rather a mass of events - which requires no special motivation or disposition, no pathology or abnormality, and which is written into the routines of contemporary social and economic life" (Garland 1996: 450). According to Garland, the state's response includes the "responsibilization strategy": abdication of direct intervention (through police, courts, prisons, social work, etc) and adoption of indirect action through non-state agencies and organizations which are encouraged to take responsibility to prevent opportunities for crime to occur (including, for example, Neighbourhood Watch programmes, retail and apartment security guards, security devices for homes and cars, etc.) "In effect, central government is … operating upon the established boundaries which separate the private from the public realm, seeking to renegotiate the question of what is properly a state function and what is not" (Garland 1996: 453). As Garland also noted, increasing rates of incarceration reveal the politicization of the state's "law and order" agenda, with the state continuing to remain responsible for punishment of crime, whilst diffusing into the community responsibility for crime control. In such a context, it is important to examine the goals and methods of restorative justice: might they represent, at least in some cases, examples of "responsabilization"? If so, is this a matter of concern? Or not?
Some of the issues raised by Garland appear similar to concerns traditionally expressed about the problematic nature of state control in the diversion of civil claims from courts to community settings. A number of scholars have argued that the creation of less formal alternatives to courts masks how the state continues to control these new settings; it is not a question of the state withdrawing from dispute management, but rather one of transforming the dispute and rendering the state's role less visible (Harrington 1985: 35). Similarly, Friedman argued that while "lay justice tends to be cheap and informal, … one of its major vices … is that it can be used as an instrument of state power, a means of extending central control into every nook and cranny of society" (Friedman in Cappelletti and Weisner 1978: 24). And Cain and Kulcsar have suggested that the use of dispute resolution processes may simply involve "a new form of state-controlled adjudication which is not accountable via the usual democratic representative and parliamentary processes" (Cain and Kulcsar 1981-82: 393). All of these comments appear to suggest, in different contexts, concerns about invisible shifts in public and private responsibilities for dispute resolution; these are similar to the concerns which Zander identified in the Hamlyn lectures about the extent to which the Treasury now defines access to justice in the United Kingdom (Zander 2000: 24). In this way, Garland's analysis of "responsabilization" may be linked to broader concerns relating to access to justice, including concerns about "downloading" of the costs of criminal justice (Crawford in Young and Wall, eds. 1996: 313).
Garland also identified another aspect of privatization in recent developments in criminal law: the ways in which greater recognition of victims' "rights" may contribute to political goals of law and order by individualizing (privatizing) the victims of crime rather than recognizing "the public" as a whole:
The crime victim is no longer an unfortunate citizen who has been on the receiving end of a criminal harm, and whose concerns are subsumed within "the public interest" that guides prosecution and penal decisions. The victim is now, in a certain sense, a much more representative character, whose experience is taken to be common and collective, rather than individual and atypical…. Whoever speaks on behalf of victims speaks on behalf of us all - or so declares the new political wisdom of high crime societies…. This vision of the victim as "Everyman" (and above all "Everywoman") has undermined the older notion of "the public," and has helped redefine and disaggregate that collective identity. It is not longer sufficient to subsume the individual victim's experience in the notion of the public good: the public good must be individuated - broken down into individual component parts (Garland 2000: 351).
For Garland, this focus on victims reveals new social trends in our ideas about crime and insecurity, and a "reworked relationship between the individual victim, the symbolic victim, and the public institutions that represent their interests and administer their complaints" (Garland 2000: 352). Such a critique raises issues about the extent to which restorative justice practices may represent privatized notions of victimization and criminality, and practices which avoid traditional protections for offenders within a public system for the administration of justice. Without ignoring the significance of the principles and goals of restorative justice, there is a need to take account of the ways in which they may be adapted, even transformed, by state interests in "downloading" the cost of justice to communities and in using victims to justify increased levels of policing and incarceration.
Traditional accounts of access to justice have linked its fundamental goals to norms of equality and efforts to achieve social justice, issues which are more fully explored in chapter 2. However, the relationship between claims about access to justice and more systemic goals of social justice is also relevant to the context of a re-assessment of ideas about access and justice. To some extent at least, a fundamental tenet for those who focus on issues of access to legal proceedings is the idea of the rule of law. Thus, for example, David Dyzenhaus argued that the basic normative justification for legal aid flows from the state's commitment to the rule of law, a commitment which he argued requires more than protections for "negative liberty" (Dyzenhaus in McCamus, Ontario Legal Aid Review 1997: 475). Yet, commitment to the rule of law may not, by itself, achieve substantive justice. As Alan Norrie suggested, particularly in the criminal law context, adherence to the rule of law may simply reinforce existing (unequal and perhaps unjust) class relationships:
When it came to developing the law, criminal law was the last area in which adherence to rational legal principle occurred…. To be sure, where it was a matter of the rights of the middle class and landowners to private property, the lawyers spoke loud and clear, but when it came to the rights of those who confronted private property as a limit upon their actual freedom and social equality, things were different…. [The] rule of (the criminal) law is primarily a mechanism for protecting the property of those who possess it from those who do not, and, more generally, of maintaining a level of social control over those whose position in society makes them victims at the same time as they victimize others…. (Norrie in von Hirsch and Ashworth, eds. 1998: 368).
These views about the rule of law reveal the tensions in traditional criminal law processes between form and substance in relation to equality goals. Similarly, in the context of designing priorities for legal aid services, Douglas Ewart argued that there is a need for lawyers to be aware of the subtle ways in which offenders may experience multiple forms of discrimination in daily life and how these experiences shape their effective participation (and substantive access to justice) in traditional criminal proceedings:
… An example is the situation of black men frequently stopped or arrested by the police. When faced with a criminal charge, they may not necessarily need a black lawyer, but they may very well need a lawyer who, through training or related experience, can appreciate what it is like to be denied opportunities because of your race, to be part of a frequently targeted community, to have been frequently stopped and questioned by the police, and to face a courtroom in which yours in the only black face. That appreciation is not just helpful to improving client confidence in the service being provided; it is vital for a variety of "traditional" purposes… (Ewart 1997: 15).
Although Ewart is focusing on the form of legal representation here - and the complexity of decisions about access to legal aid services - his comments reveal how substantive justice concerns may often interact with formal entitlements to legal representation. At the same time, Ewart's views do not call into question the fundamental inequality of the criminal justice system in the ways identified by Norrie. Thus, to the extent that restorative justice practices may relinquish formal procedural protections, including legal representation, it is important to assess whether and how they meet goals of substantive social justice. Even assuming that such goals are met, however, Norrie's question about whether these procedures address - or perhaps exacerbate - issues of fundamental inequality may remain.
Proponents of restorative justice practices also claim that these processes empower participants in ways that traditional criminal courts cannot. In this sense, empowerment per se represents a goal of equality and social justice. A decade ago, David Trubek identified the "empowered self" as an inherent feature of alternative dispute resolution for civil claims in the American context; moreover, he suggested that the rise of ADR processes offered a new and important critique of earlier ideas of access to justice, ideas which were embedded within legal liberalism. According to Trubek, the earlier access to justice movement foundered precisely because there is a "limit to how far one can go in achieving justice through enhancing what legal reformers call 'access'" (Trubek in Hutchinson, ed. 1990: 108). In looking to alternative dispute resolution practices instead, Trubek argued that it presented a fundamental questioning of "liberalism's individualistic, rights-based notion of self-empowerment;" rather, the proponents of alternative forums envisaged "possibilities for greater community, new sources of law, and a different understanding of self-empowerment":
For these radical voices, what was wrong with traditional civil procedure was not just its monetary costs, but the fact that it presumed that the enforcement of legally defined rights was both necessary and sufficient to ensure self-empowerment. These radical ADR proponents sought procedures that would both employ and develop community norms and values, allow the development of normative agreement through open dialogue, and be sensitive to the importance of social relationships in the maintenance and enhancement of self (Trubek in Hutchinson, ed. 1990: 122).
Whilst recognizing the aspirations of the ADR movement, however, Trubek concluded that, at least in some cases, traditional legal institutions had already captured and co-opted the new movement, employing its rhetoric to relieve court congestion but without making civil justice more accessible "either in monetary or existential terms. And certainly they have no radical or transformative content" (Trubek in Hutchinson, ed. 1990: 127, emphasis added). All the same, he suggested that ADR represented not just another quest to achieve justice within liberalism, but a tentative effort to expand our ideas of self and empowerment beyond its intellectual confines.
Yet, the difficult challenge of translating these challenging goals into concrete action was revealed in empirical research reported by Joel Handler in relation to client-patient empowerment: in the context of privatized health care, in community care for the elderly, and in worker safety programmes. These concrete circumstances demonstrated the complexity of relations of "power" and "empowerment", and the need to understand empowerment as more than just participation:
Participation is usually justified in process terms - autonomy, dignity, and respect. These are values in and of themselves. But I think that something more is necessary; there have to be substantive benefits from co-operation - reciprocal, concrete or material incentives. Because the power relationship is so unequal when dependent people are dealing with large-scale public agencies, unless there are strong, reciprocal, concrete incentives, including financial incentives, I don't believe that the humanistic values of mutual respect, altruism, and professional pride would be enough to sustain equal moral agency…. (Handler 1993: 262; and see also Handler 1988).
In the criminal law context, these comments raise important questions for restorative justice practices, and the extent to which they must be particularly attentive to issues of substantive equality and social justice in relation to claims about empowerment. In a recent assessment of restorative justice and social justice, for example, John Braithwaite confronted the apparent dichotomy between them. Recognizing that both offenders and victims in the criminal justice process are often poor and powerless, Braithwaite argued that "if both victims and offenders get some restoration out of a restorative justice process, that has progressive rather than regressive implications for social justice" (Braithwaite 2000:194). Such arguments clearly invoke the need to examine carefully how equality and social justice are defined, and demonstrate the need for empirical research about the effectiveness in practice of claims about restorative justice practices. For example, Richard Delgado has suggested that victim-offender mediation may "upset social expectations by casting a wider net of state control than we expect" (Delgado 2000: 761). Referring to minor cases which would ordinarily have been dismissed in the traditional criminal justice system, but which may now receive "full-blown treatment" under restorative justice practices, Delgado suggested that failure to make restitution as required might result in higher rates of incarceration for offenders (Delgado 2000: 761-762).
As well, Delgado identified the problem for restorative justice practices: the absence of potential for social transformation:
No advocate of VOM, to my knowledge, suggests that the middle-class mediator, the victim, or society at large should feel shame or remorse over the conditions that led to the offender's predicament. Of course, many offenders will be antisocial individuals who deserve little solicitude, while many victims will have well-developed social consciences and empathize with the plight of the urban poor. But nothing in restorative justice or VOM encourages this kind of analysis or understanding. In most cases, a vengeful victim and a middle-class mediator will gang up on a young, minority offender, exact the expected apology, and negotiate an agreement to pay back what she has taken from the victim by deducting portions of her earnings from her minimum-wage job. Little social transformation is likely to arise from transactions of this sort … Mediation treats the victim respectfully, according him the status of an end-in-himself, while the offender is treated as a thing to be managed, shamed, and conditioned. Most surveys of VOM programs ask the victim if he felt better afterwards. By contrast, offenders are merely asked whether they completed their work order and whether they recidivated. Offenders sense this and play along with what is desired, while the victim and middle-class mediator participate in a paroxysm of righteousness. In such a setting, the offender is apt to grow even more cynical than before and learn what to say the next time to please the mediator, pacify the victim, and receive the lightest restitution agreement possible.
The offender's cynicism may not just be an intuition; it may be grounded in reality: Informal dispute resolution is even more likely to place him at a disadvantage than formal adjudication. (Delgado 2000: 764-766).
In this context, goals of substantive equality and social justice pose hard questions for restorative justice as well as for traditional processes of criminal justice in Canada. To what extent can we measure outcomes in terms of substantive justice? Or, in Zander's words, must we simply accept that "the concept of justice in legal cases … is too deep for any research project"? These questions provide the context and conceptual framework for our discussion of "needs" and "responses" in the chapters that follow. We return to these questions in our critique in chapter 4.
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