Criminal Justice 2008

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Robert Shaw: Restorative justice in prisons: responsibility, restoration, reintegration, rehabilitation

Feltöltve: 2010. 04. 22.


This paper is based on a combination of participant-observation within high security prisons in England following my wrongful conviction and study since my release on appeal of research which might help to explain what I observed. Though it draws on my experiences in the company of male prisoners, I have included any evidence relating to female offenders that I have encountered in my research. It is offered as a framework for further research into the potential for restorative justice processes in prison and in particular with serious offenders

1. Victims and offenders - Victims and offenders normally come from the same community and often from the same family; they may themselves be both victims and offenders (Sanders and Young, 2007) but they are thrown into a ‘profound . . . uninvited, unhealthy, and deeply resented, relationship . . . born of the criminal event itself’ (Marshall, 2005, p. 6). Their reactions to the offence are influenced by common human responses to stressful situations: denial, heightened and oscillating emotions, guilt, anger and adaptation (Osterweis et al., 1984; Parkes, 1998).

Denial is a well-known process induced by, among other things, ‘illness, injury and loss’ (Horowitz, 1982). It is a natural, and necessary, part of being a human being; if we allowed the seriousness of an accident to overwhelm us the moment it happened, we would be unable to call for help or assist anyone at the scene and people would die because we were being overwhelmed. Denial helps us to cope with the immediate aftermath of a shock and to come to terms with the emotional impact of a situation gradually. Denial can last for a few seconds — as when someone we least expect pays us a compliment — or for several years in the case of some major shocks
Denial can create difficulties for victims, for offenders and for those concerned with them; unless there has been a time lapse between an offence and an arrest for questioning, it is likely that denial will influence an offender’s initial responses. How long this will last will depend on many factors, the seriousness of the allegations, the ways which offenders have developed over time to deal with difficult situations and the sort of support that they are receiving from others, particularly family and friends.

1.1. Victims

Victims vary from those who are ‘forever scarred’ to those who are ‘seemingly untouched’ by almost identical experiences (Dziech and Hawkins, 1998, pp. xvi, xvii). A small number of victims forget the offence (Loftus and Davis, 2006); some rise above it, many experience adverse consequences such as
• material harm, including financial loss and ill-health
• emotional harm such as fear of re-victimisation or re-offending
• anger
• loss of confidence and trust
• shame
which can be lessened by restorative justice (Strang, 2002); a few suffer permanent harm. Maas and Kuypers (1974) found that those better able to deal with stress had experienced moderate stress in the past.

In other words, an offender can never know the amount of stress they are causingby their offence nor the time it might take the victim to recover and the use of ‘victim impact statements’ in court is unlikely to add any ‘fairness’ to dealing with an offence or its consequences.

Strang (2002) found that victims of criminal offences want:
• a less formal process where their views count
• more information about both the processing and the outcome of their cases
• to participate in their cases
• to be treated respectfully and fairly, to be accorded dignity and respect and to
have their views represented
• material restoration and
• emotional restoration and an apology.

Marshall (2005) argues more generally that victims have seven needs:
1. a safe space to speak of their experience
2. validation and vindication
3. answers to their questions
4. genuine truth-telling
5. empowerment
6. restitution or reparation and
7. hope of a better future.

1.1.1. A safe space to speak
As victims go through the period of heightened emotion from denial to adaptation which can include strong feelings of despair, guilt or anger, the intensity of these feelings can be very frightening. They may think they are going mad when in reality they are simply going through the normal human reactions to a very stressful situation. They need a safe space in which they can give vent to these feelings, not with the intention of turning
any of them into action, but in order to enable them to acknowledge the reality of those feelings and the need to deal with them in ways which will not make victims of anyone else. This can be difficult for
• men who in some cultures are supposed to keep their feelings under control and who normally think about ‘doing something’ (Tannen, 1992) to deal with their feelings
• women who do not have access to a peer group where norms of trust will protect them from exposure to others
• victims who do not feel safe from the offender and who may not feel that they can give vent to their true feelings without risking retribution from the offender
• anyone who goes through a criminal justice process which normally limits what and how a victim may speak about the offence and may subject the victim to hostile questioning about the event.

Whatever the obstacles to obtaining a safe space, these need to be overcome as without it the victim will find difficulty in moving forward.

1.1.2. Validation and vindication
To recover from victim-hood, former victims need validation that what they experienced was an offence, particularly where the alleged offender denies than an offence took place, and vindication that any decision they made to get out of a relationship was the correct one.

Former victims will experience difficulties if family members, members of their peer group or members of any organisation to which they belong do not share their view that what they experienced was an offence or that it was serious enough for the former victim to have taken the steps they have taken. Denial and victim-blaming often happen, particularly in cases where the offence was a random event, because others do not wish to believe that they could be a victim of such an event and so either deny that it took place or blame the victim for being in the wrong place at the wrong time (Dziech and Hawkins, 1998; Shaw, 2008)

In some cases they may find that the prosecuting authorities do not take their account of the offence seriously enough to bring proceedings against the alleged offender. In some cases their therapist may not think that what they suffered was very significant and suggest that, unless they can think of something more serious, they do not merit further treatment. In some cases they may join a victim support or survivors group and find that other members of the group claim to have had far more serious experiences of abuse than they have had and begin to feel that their experience of abuse was not really
abuse at all.

In all these cases former victims become vulnerable to becoming victims yet again as they seek alternative routes to validating the offence, sometimes unconsciously creating false memories of more serious offences (Loftus and Davis, 2006), sometimes consciously creating more serious accounts of the offence as a way of gaining the validation they seek.
By doing this they may gain validation of their status as victims but they do not gain validation that what happened to them was an offence because their status now depends not on something that happened to them but on something invented, consciously or unconsciously, and they thereby confirm their status as victims rather than as former victims.

Those who do not get validation that what they suffered was an offence can never move on to vindication but some of those whose status as a victim has been validated may still not find vindication. Family members, members of their peer group or members of the organisation of which they are a part may all agree that what they suffered was an offence but may not want the former victim to draw attention to what is going on or to expect others to change. Former victims need both validation and vindication to move on.

1.1.3. Answers to their questions
If they do not already know, victims want to understand how they came to be victims and, in some cases, how they came to be victims for so long. Even if they do know, they may still want to hear it from those who committed offences against them or who stood by while the offences were being committed. Only family members, members of their peer group or members of their organisation and the offender can answer these questions. Reconciliation between victims and offenders is often advocated for its benefits to offenders but victims stand to gain far more from it when the offender, whether convicted or not, is prepared to answer their questions honestly.

1.1.4. Genuine truth-telling
Former victims need to hear the truth in any answers they are given to their questions. Both offender and former victim may find this difficult and it may need to be phased over some time. It is not uncommon for some people to stand by knowing that offences are being committed but not feeling able for whatever reason to intervene. This may be very difficult for the former victim once they realise how many people were prepared to stand by but, if the former victim is to understand the current circumstances of the offence, they need to know about the behaviour of the others who were part of the situation.

They also need to hear the truth from the offender, not explanations or excuses or reasons for the offence, but a factual description of the circumstances of the offence from the offender’s perspective and an account from the offender of how they now see those circumstances differently and so now realise that they did have an alternative way of acting in those circumstances. Offenders are sometimes encouraged to meet victims, not necessarily their own, before they have reached the point at which they have genuinely ‘repented’ or ‘changed the way in which they think about something’ and they may benefit from that meeting in the sense that it may help them to change the ways they think about their victim (Feasey and Williams, 2009) but it is far more important for
the former victims to meet the offenders in their situations after they can show that they do now think about the circumstances of the offence differently because only that can give former victims the hope that the offender will never do it to anyone else again.

1.1.5. Empowerment
Because being a victim is intensely dis-empowering, it can be difficult for some victims to take the essential step of deciding that they are not going to be a victim. So former victims need to be encouraged to take their own decisions about what they are going to do; this may be difficult in the initial stages when strong feelings of guilt and anger may be filling every aspect of the former victim’s life. But once former victims have received validation and vindication, they need to be given the space to make their own decisions, not instructed to follow a formulaic process; apart from the initial needs of a safe space to talk and validation and vindication which really have to be met before former victims
can move on, all the other needs can be met in any order and in a wide range of ways.

Former victims should not feel dependent on anyone else to satisfy these needs but be able to find their own ways of satisfying them.

1.1.6. Restitution or reparation
Having been in a damaging relationship, former victims need help to repair the damage that has been done to their own relationships, not only with the offender but in some cases with those who may have stood by while the offence was taking place. Part of that repair may come in an apology from the offender or from others who stood by while the offence was taking place, an apology which is as important for the victim to receive as it is for offender or those who stood by to make (Strang, 2002).

Any apology must arise out of a change in the way the offender, or those who stood by, sees the offence and so recognises that they could have acted differently. An apology without any acknowledgement that the offender or those who stood by could have acted differently does not signify any change in the way the offender thinks about the circumstances of the offence and thus offers no hope to the former victim. An apology which acknowledges that the offender could have acted differently also signifies that the offender is taking responsibility for their actions and is saying that there was an alternative way of acting in those circumstances which the offender could have taken but did not.

An apology couched in these terms must be accepted. In accepting such an apology,the former victim is saying that s/he holds the offender responsible for the offence and that s/he acknowledges that the offender accepts that responsibility. If a former victim fails to acknowledge the value of an apology, s/he runs the risk of nullifying all the work the offender has done to get to the stage of accepting responsibility for their actions. Similarly an offer of restitution made in these terms must be accepted unless it is unrealistic or absurdly onerous in which case more realistic or reasonably onerous acts of restitution should be suggested.

1.1.7. Hope of a better future
Throughout the whole process of dealing with the circumstances surrounding the offence, former victims have to hope that they will
• never be a victim again
• never be let down by those close to them
• never find themselves in the circumstances where someone is tempted to commit offences against them and
• be released from the bitterness and resentment that their experience has left them with.

Those who are unable to be released from their bitterness will remain vulnerable to becoming victims once again (Bettelheim, 1943).
From the offender, victims need hope from the assurance, born out of restoration with the offender, that no one else will suffer as they have. From society, they need hope that society will pay attention to the circumstances which contribute to offences taking place and will not respond to these circumstances with crude slogans which do nothing to change the circumstances in which the offences took place or to promote the rehabilitation of offenders.

1.1.8. Meeting victims’ needs
Criminal justice systems normally fail to provide a safe space to speak and may not provide validation or vindication of the victim’s experience because
• victims may be prevented by the needs of the judicial process from telling their
story as they wish
• only a partial story may be presented because that is enough to achieve a conviction and
• victims may be subject to cross-examination which challenges their account of their experience (Sanders and Young, 2007).

So victims may, unlike those who have able to participate in a restorative justice process prior a judicial process, come to restorative justice processes in prison with a series of adverse experiences related to their victim-hood. It is not clear how far these experiences might impact on their approach to restorative justice in prisons.

However, to obtain answers to their questions and genuine truth-telling, they need to be able to meet an offender who has accepted responsibility for their offending and is able to enter into a new and constructive relationship with their victim(s).

1.2. Offenders

Typically those who commit a serious offence cannot immediately take in what they have done; many will say that they did what they did at the time because they thought it was the only way out of the situation in which they found themselves. So, even though they may ‘know’ that they committed the act, they do not see themselves as having sometimes because they regard themselves as having been provoked into doing what they did by the circumstances of the situation in which they found themselves. Sometimes they have not yet accepted what they did in fact do because, if they did, it would change their whole self-image.

Committing a serious offence is a life-changing event, not just for the victim(s) and their families and friends but also for the offender, for their family, for their friends and for the communities of which they have been a member. Those who have been associated with a serious offender, particularly a murderer or a sex offender, will have questions about themselves and their relationships to answer both among themselves and from those outside. The offender will have to answer questions not just from the police and their legal team but also from fellow prisoners.

Just as the important thing in the aftermath of a car accident is to deal with its consequences, to tend the victims and clear the carriageway to prevent further accidents, so the important thing in the aftermath of a serious offence is to deal with its consequences rather with than the circumstances of the offence itself. Denial offers a protective blanket for the offender to deal with the immediate consequences rather than the offence itself. While denial does not help the police to deal with offenders, its implications for the offender’s family and friends and for the victim(s) and their family and friends are less clear cut because all of them are having to come to terms with the situation and almost certainly going through a phase of denial, however brief, as they come to terms with the consequences of the offence(s).

Thereafter, the phases in coming out of denial and coming to acceptance of responsibility follow a pattern similar to that described 3,000 years ago by David, King of Israel, in Psalm 51 (Table 1.1) after he had been confronted by the prophet Nathan over his seduction of Bathsheba and murder of her husband, Uriah. Accepting the caution in Osterweis et al. (1984) that we should think in terms of possibly overlapping phases, not all of which may be present in every case, we nonetheless have a framework which is attested in one of the earliest accounts of someone coming to terms with a serious offence and in modern accounts of coming to terms with a stressful situation (Osterweis et al., 1984; Parkes, 1998) which can give us some understanding of the place of denial in coming to terms with a serious offence.

Once the offender has moved out of the phase of denial to realisation of the enormity of what they have done, they may make strenuous efforts to mitigate the consequences of their actions in various ways but at this stage they are only accepting responsibility for the consequences of their actions, not for their actions. They may ask for help, for example, to have treatment for whatever caused them to behave in the way they did, or they may seek to bargain about the degree to which they were responsible before they reach the point of accepting their responsibility not just for the consequences of their actions but also for their actions.

Denial may get in the way of police investigations, may mislead family and friends and may distress victims but it is a phase. Virtually all those convicted of serious offences will pass through this phase and their passage through the later phases before they reach acceptance may be accompanied by what is often called ‘minimising’ but which is equally misunderstood.

‘Minimising’ in this case is a symptom of the difficulty the offender is having coming to terms with their realisation of the implications of what they have done. This may involve trying to find ways to reduce the significance of the event or their contribution to it to avoid having to accept personal responsibility for such a devastating act against others. In other words, it is a positive indication that the person has moved past the denial phase and is on the way towards acceptance. It may be some time before they reach acceptance but they are on their way. Minimising is not pathological, anymore
than denial is; it is a normal feature of the phases between denial and acceptance.

Reaching acceptance may take years; some of the murderers who mentioned a time to me spoke of four years but others are known to have taken much longer. And it is not the end but rather the beginning of another process, that of finding out the person you want to be in future, the changed self-image you need for yourself after what you have done, as recounted by Anne Perry to Ian Rankin (2002).

Because a person guilty of a serious offence may initially deny the offence, some ‘not guilty’ pleas may arise from the speed with which a case is brought to court and the lack of time for the offender to come to terms with what they have done; but that is not an argument for delaying trials as we cannot predict how soon anyone is likely to come out of denial. Rather it is a plea to recognise that, just because an offender starts by denying their offence, it does not mean that they always will.

Occasionally a guilty person’s initial denial may lead family and friends to pronounce her/him ‘innocent’ and a guilty prisoner may become trapped in their family’s perception of them as ‘innocent.’ Whether because they fear distressing close family members or losing all support from the family by acknowledging their guilt, they never acknowledge it and are unable to make any further progress on the journey towards acceptance of responsibility.

Note that innocent prisoners may, like offenders, remain ‘in denial’ about the seriousness of their situation for many months after their convictions but, unlike offenders, what they are ‘in denial’ about is not an offence but the reality of their situation and until they begin to move towards acceptance of that reality, they are ‘in denial.’ They may, of course, be candidates for restorative justice if those who fabricated their convictions are prepared to acknowledge their guilt.
However, two groups of prisoners present particular difficulties in relation to restorative justice processes:
• those convicted of a combination of offences and
• those incapable of accepting responsibility.

1.2.1. Those convicted of a combination of offences
A person guilty of certain offences but convicted of one or more for which they are not responsible finds themselves in a complex emotional situation, in particular where they have had to wait some time for their case to come to court because, on the one hand, they may have got some, if not all, of the way down the road towards acceptance of their responsibility for the offences they did commit by the time of their conviction but, on the other hand, like the innocent prisoner, they may not have realised the implications of the
other charges. So they may not have taken the trouble to defend themselves adequately or assumed that, because they were so open about the offences they did commit, they would not be convicted of the others.

In some cases, they may have decided to change their plea at the last minute, sometimes because they assumed, or were told, that changing their plea would get them a reduced sentence and they have already accepted that they are going to prison anyway for the offences they did commit and sometimes to spare members of their family the publicity that will be generated by a contested trial. In other cases, they have proceeded with the trial on the assumption that they would not be convicted of those offences.

The first group can be in immediate trouble because their family are stunned by the change of plea and don’t know what to make of it but, however they come to have been convicted of offences they did not commit, the immediate problem is having to manage two parallel processes of moving to acceptance — one on which they may have embarked earlier and one which, even with a change of plea, is a new process; in some cases, the convictions for the offences they did not commit will have come out of the blue in much the same way as happens to an innocent person.

Unfortunately, they often find themselves indiscriminately described as ‘deniers’ or ‘minimisers’ which adds a further layer of confusion to the emotional turmoil through which they are already going. Unlike wholly innocent people, those who maintained their innocence of some charges throughout the trial are usually advised that there is no point in appealing against their convictions; this may heighten the feelings of anger they have at a system which, as they see it, is so blatantly unfair, particularly if they had pleaded guilty at the outset and co-operated fully in respect of the offences of which they were guilty. In a few cases, these feelings come to dominate their whole approach to their
imprisonment, often with an adverse effect on their behaviour during their imprisonment and subsequent rehabilitation.

It is normally possible by listening carefully to what they are saying to be able to recognise that the ways in which they talk about certain offences are quite different from the ways in which they talk about the others and this should give a clue to the existence of the parallel processes and therefore of the possibility that, when they say they only committed some of the offences, they are in practice telling the truth. Indeed, one obvious clue is that they never ‘minimise’ the offences of which they are not guilty; since there was no offence for which they have to accept responsibility, there is no psychological benefit in ‘minimising’ a non-existent event. So, if a professional thinks they have detected ‘minimising,’ they need to listen carefully to the offences in respect
of which they think that is happening; unless the prisoner is mentally disturbed, these will be the offences the person committed and the fact that they are minimising is a sign that they are on the way to accepting responsibility for those actions. Where there is no minimising, they have either accepted full responsibility or the alleged offence did not take place.

Note that this situation can have a damaging effect on the false victims who lied in court about offences that were not committed and who, once the prisoner has accepted responsibility for the non-existent offences, normally have no way of acknowledging their offending behaviour, not least because they will normally be threatened with perverting the course of justice if they confess their crimes.

At least innocent prisoners may have their convictions quashed; with a partially innocent prisoner, that is almost never an option and false victims have to live with that for the rest of their lives.

1.2.2. Those incapable of accepting responsibility
Some prisoners are incapable, by virtue of adverse emotional experiences, of accepting responsibility for anything; typically, their unwillingness to accept responsibility is associated either with having been used as scapegoats, being ‘blamed’ as children for things that went wrong in the family that were not their fault, or with having internalised blame for what is going wrong in the world around themselves. This typically leads to them being rejected by their peers and missing out on positive peer group experiences which might have counteracted the adverse emotional experiences they were having at
the hands of their parents or carers.

Though the evolutionary mechanism of denial may operate normally immediately after an offence, such prisoners never experience denial in the way that the other groups do because they are incapable of accepting any responsibility even for the consequences of their actions, good or bad, and this blocks the normal process of moving from denial to acceptance. These prisoners are easily recognisable because their inability to accept any responsibility for anything, while often being hypercritical of others, is visible in all their daily interactions, not just those related to their offences.

Unfortunately, they rarely receive any help in prison not just because they deny their responsibility for anything for which they might need help but also because the prison service tends to deny that any of its inmates are themselves victims and trying to deal with such deep-seated emotional damage is beyond the capabilities of most professionals in or out of prison. Rather than being dismissed as ‘in denial,’ they need intense psychological help to deal with the emotional abuse they have suffered; this is the only effective way of helping them to avoid committing further offences and the only way of restoring their emotional health to a state which would enable them to contemplate accepting responsibility for their actions. Given that they have spent most of their lives avoiding responsibility for anything, this is likely to take a long time and the easy option is incorrectly to dismiss them as ‘deniers’ rather than to see them as genuine victims who have never received the help they need to deal with their victim-hood.

Fortunately these form a small proportion of serious offenders and in most cases denial eventually gives way to realisation which is the prelude to the most difficult and dangerous part of this journey for some people.

We are grateful to Mr. Shaw for sharing his work with us, the full paper can be downloaded in pdf format here.

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