Reconciling the Notions of Restorative Justice and Imprisonment
| DOI | 10.1177/0032885514548010 |
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| Subject Matter | Articles |
research-article2014
Article
The Prison Journal
2014, Vol. 94(4) 479 –505
Reconciling the Notions
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DOI: 10.1177/0032885514548010
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Imprisonment
Theo Gavrielides1
Abstract
Restorative justice (RJ) in the secure estate is widespread internationally,
although piecemeal and inconsistent in its application. It exists in the form
of many practices such as mediation, conferencing, circles, and panels. As
the interest in RJ continues to grow, this research takes a step back to
ask how reconcilable RJ is with incapacitation. Through a combination of
normative thinking, literature review, and primary research that applied
qualitative methodologies over a 3-year period, the article examines where
the two notions meet in their intentions and expected outcomes. A new
classification of restorative practices in prisons is proposed, placed in the
context of case studies of existing programs from around the world.
Keywords
restorative justice, incapacitation, restorative practice programs
Problem Statement
The increasing number of prisoner suicides, the deepening racism and inequal-
ity in the secure estate (Elliott, 2011), prison overcrowding and the inhumane
conditions to which prisoners are subjected,1 high rates of reoffending (e.g., see
Barabás, 2012; Barabás, Fellegi, & Windt, 2012; Elliott, 2011), and the rising
costs of incapacitation as a policy and philosophy for crime control2 are some
1Independent Academic Research Studies, London, UK
Corresponding Author:
Theo Gavrielides, Founder and Director, Independent Academic Research Studies (IARS),14
Dock Offices, Surrey Quays Road, London SE16 2XU, UK.
Email: T.Gavrielides@iars.org.uk
480
The Prison Journal 94(4)
of the factors quoted by reformists from around the world in their search for
new avenues of justice, one of which is restorative justice (RJ).
RJ was reborn in the 1970s (Braithwaite, 1999; Gavrielides, 2011a), produc-
ing an unprecedented volume of academic and policy discussions on its poten-
tial. Many definitions have been developed since (Daly & Immarigeon, 1998;
Gavrielides, 2007; Johnstone, 2002). For the purposes of this article, we accept
that RJ is “an ethos with practical goals, among which is to restore harm by
including affected parties in a (direct or indirect) encounter and a process of
understanding through voluntary and honest dialogue” (Gavrielides, 2007, p.
139). I have argued elsewhere that RJ “adopts a fresh approach to conflicts and
their control, retaining at the same time certain rehabilitative goals” (p. 139).
The application of RJ in the secure estate is widespread internationally (see
Table 3), although piecemeal and “ in the margins” (see Dhami, Mantle, & Fox,
2009; Edgar & Newell, 2006; Elliott, 2011; Gavrielides, 2012b; Guidoni, 2003;
Johnstone, 2007). The limited literature on the evaluation of RJ practices in
prisons suggests that when applied properly, they can render benefits for the
offender, the victim, and the community (see Barabás, 2012; Gavrielides,
2012b; Liebmann & Braithwaite, 1999; Toews, 2006; Van Ness, 2007). This is
not to say that there is not a strong sense of skepticism in the literature (e.g.,
Guidoni, 2003; Hirsch, 1999). It is not the intention of this article to engage
with this debate. The focus of our research was somewhat different.
Dhami et al. (2009) noted that one of the reasons that RJ has been kept
under the radar of prison governors, reformists, and prison policy makers is
the identifying of in-prison programs as restorative. However, Van Ness
(2007) countered that a number of prison projects self-identifying under the
banner of RJ have nothing to do with the notion’s fundamental principles and
outcomes.
In fact, the consistent message from the literature is that there is a frag-
mented picture of RJ in the secure estate (see also Gavrielides, 2012b;
Johnstone, 2002), as its application is inconsistent and under the radar of
research and evaluation. If this ambiguity is indeed a hindrance in RJ’s fur-
ther development within the secure estate, then why is this the case? This
question provided the impetus for the study.
However, we were not concerned with issues of conception in the narrow
sense. We know that since its inception, RJ has struggled with definitional
ambiguity, and this extends far beyond its application in the secure estate (see
Gavrielides, 2008; Johnstone, 2002; Mackay, 2002). As Daly and Immarigeon
(1998) put it,
Over the last two decades, RJ has emerged in varied guises with different
names, and in many countries; it has sprung from sites of activism, academia,
Gavrielides
481
and justice system workplaces. The concept may refer to an alternative process
for resolving disputes, to alternative sanctioning options, or to a distinctively
different, new model of criminal justice organised around principles of
restoration to victims, offenders and the communities in which they live.
(p. 21)
We saw RJ’s conceptual ambiguity in the secure estate as a by-product of
the wider question of how reconcilable its paradigm is with the concept of
incapacitation. On the face of it, RJ and imprisonment appear to be in opposi-
tion. As early as 1977, Barnett spoke about a “paradigm shift,” claiming that
we are living a “crisis of an old paradigm,” and that “this crisis can be restored
by the adoption of a new paradigm of criminal justice” (p. 244). Braithwaite
(1999), Christie (1977), and Zehr (1990) spoke about the transformative
potential of the RJ paradigm and its “changing lenses” of how we view crime.
However, it is widely accepted that imprisonment is based on the philoso-
phy of incapacitation, which, in simple terms, posits that if criminals are in
prison, or under intense surveillance in the community, they will find it dif-
ficult to reoffend (Smith & Natalier, 2005). Incapacitation is not driven by the
need to restore harm doing. It places emphasis on the criminal and the pre-
vention of further crime by the convicted or other potential criminals who
will hopefully observe punishment and be deterred (Elliott, 2011).
In posing our research question, we did not expect a straightforward
answer, but rather to develop knowledge around the normative foundations
underpinning the practices that we call RJ and imprisonment. This is not to
say that without these foundations the RJ practice will not continue to exist
within prisons. As it will be argued, RJ has done so for years. However, it is
impossible to expect any further progress for the RJ practice (mediation, con-
ferencing, circles, etc.) within prisons, if it refuses conceptually to accept the
basic principles that drive incapacitation and vice versa.
As more and more governments are investing in RJ within the secure
estate, this paper raises concerns around the reasons that drive policy reform
in the secure estate. For instance, in 2011, the U.K. government gave £1.3
million to roll out training on RJ in all prisons,3 while Belgium has already
spent millions of Euros to introduce an “RJ consultant” in all its prisons.4
Research Method and Caveats
In considering this project’s research strategy, qualitative research was judged
to be the most appropriate method. It was not our intention to paint a quantita-
tive picture of RJ in the secure estate. If such a study was ever possible, it
would require an incredible amount of resources and time. In fact, some have
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The Prison Journal 94(4)
argued that it is highly unlikely that such a scientific analysis of RJ in prisons
can ever be achieved due to an array of factors such as sampling limitations,
movement in the sample population, definitional confusion, access barriers,
agreement on outcomes, and issues of confidentiality and ethics (see
Gavrielides, 2007; Marshall & Merry, 1990).
According to Miles and Huberman (1994), qualitative research can “per-
suade through rich depiction and strategic comparison across cases, over-
coming the abstraction inherent in quantitative studies” (p. 41). The qualitative
approach also demanded that an adequate level of freedom was left to the
respondents, allowing them to discuss and think at length and in their own
terms. This could not have been achieved through the application of a quan-
titative design, mainly because this would have approached the investigated
matters not through the examination of the substance of the sample’s
responses, but of variables. In addition, our small-scale project had to allow
for the possibility of issues emerging spontaneously from the data without
being forced through fixed theoretical frames. Although the questions were
intended to follow up the preliminary data from the literature, they merely
aimed at stimulating imagination, providing an opportunity of identifying the
sample’s thoughts, images, hopes, and fears.
The research design aimed to combine normative thinking with various
qualitative methods, with a view to ensuring that our results were as accurate
as possible. The research adopted a “nonprobability sampling” method and,
more specifically, the rules governing “convenience sampling.” Therefore, it
was essential that the limitations surrounding this approach were acknowl-
edged. Bryman (2004), for instance, warned that the generated data cannot be
used as the only basis for generalized conclusions. The yielded...
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