Altering Course: New Directions in Criminal Justice: Sentencing Circles and Family Group Conferences
| Published date | 01 December 1995 |
| Author | Carol Laprairie |
| DOI | 10.1177/00048658950280S111 |
| Date | 01 December 1995 |
| Subject Matter | Article |
Altering Course: New Directions in Criminal
Justice
Sentencing Circles and Family Group
Conferences
Carol
LaPrairie’
This paper‘ is a preliminary exploration of
two
new approaches in criminal
justice which have impoftant implications for indigenous and Aboriginal
communities
-
sentencing circles in Canada and family group conferences
in Australia. It discusses the emergence of restorative justice and locates
these directions within this new paradigm of justice. The creation, theoy,
principles and procedures of the
two
approaches are described and some of
the critical evaluation questions are identified. The paper examines the role
of victims in sentencing circles and family group conferences and discusses
briefly some victim responses to new initiatives. It concludes by arguing that
sentencing circles and family group conferences will have to prove
themselves before declaring success in redressing concerns with the
mainstream criminal justice system upon which the restorative justice
movement is based, while, at the same time, recognizing the merit in
exploring new approaches.
Introduction
An interest in recent years in exploring new directions in criminal justice
reflects a growing disenchantment with, and lack of confidence in, the ability
of the criminal justice system to satisfactorily reduce crime, settle disputes,
rehabilitate offenders,
or
address the concerns of victims and communities.
These new directions are variously titled ‘popular’
or
‘restorative’ justice and
incorporate a reliance on the ‘communitarian nature of problem-solving’
(Sherman, Braithwaite
&
Strang
1994:6).
The driving force behind new
approaches is that the criminal justice system as it presently operates ignores
the social context in which crime and disorder occur and, in doing so,
de-contextualizes the offence and marginalizes various players. In contrast,
restorative justice, as it is referred to in this paper, is designed to provide the
context for ensuring that social rather than legal goals are met. The expected
end result is that communities and individuals are empowered in dealing with
their problems and in influencing the direction
of
the criminal justice process,
so
formal punishment and incarceration become less relied upon sanctions.
At opposite ends of the globe and at different stages
of
the criminal justice
process, two models’ of popular or restorative justice have emerged which, in
varying degrees, reflect the disenchantment with the mainstream retributive
system and the adoption of restorative justice. In New Zealand and Australia,
these are family group
conference^;^
in Canada, they are sentencing
circle^.^
~
*
Aboriginal Justice Directorate, Department
of
Justice,
130
Albert
St,
Ottawa, Ontario,
Canada.
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Crime, Criminology
and
Public
Policy
79
The former are based on traditional Maori concepts of conflict resolution and
on recent theoretical work about the role of shame in social control and about
the need to reintegrate and not ostracise offenders. The latter are generally
thought to be based on traditional indigenous healing and talking circles, and
on the belief that traditional forms of dealing with disorder, referred to
compendiously
as
‘aboriginal justice systems’, used circles to facilitate
reconciliation and peace, rather than for purposes of retribution and
deterrence’ (James
1993:20).
Family group conferences, first conducted in New Zealand but
subsequently transported
to
Australia where they underwent various
modifications, emerged out of a need to deal more effectively with young
offendem6 Sentencing circles, on the other hand, have been driven largely by
reform-minded judges concerned with what has come to be regarded as the
failure of the criminal justice system and justice system goals, and the
perceived needs of aboriginal people and communities in relation to the
system (see
R
v
Moses,
(1992)
11
CR
(4th)
357
(Yukon Terr Ct)). Neither
approach is exclusively aboriginal although efforts have been made to
accommodate some customary practices and concepts in both.7 There is some
similarity in the use of traditional practices as each recognizes shame and
attempts to turn it to positive ends. Both involve an expanded vision of
community. The differences are primarily in relation to the development,
guidelines and definitions of community, and to the conduct of circle and
conference ceremonies. These will be explored later.
While not aboriginal-specific, sentencing circles have occurred in more
aboriginal than non-aboriginal communities in Canada, and have involved
more aboriginal people, in part, because of interest in self-government and a
strong movement toward justice initiatives in aboriginal communities. More
young adult than youth offenders have been sentenced in circles. In Australia,
more non-Aboriginal than Aboriginal people have participated in family
conferences (although the opposite is true in New Zealand) and the approach
appears less tied to political or community-based concerns than to providing
police with another option for dealing with youth, and meeting public and
professional concerns about more effective social control. At the heart of each
is the desire to improve the quality of justice dispensed for both individual
offenders and victims, as well as for communities of care and concern.
The purpose of this paper is to explore the two approaches along a number
of dimensions. It examines similarities and differences and some of the
challenges facing each.
General theory
The ‘communitarian tradition’, or what John Braithwaite has labeled a
‘republican system of justice’, provides the context within which models of
restorative justice, such as family group conferences and sentencing circles,
have emerged. The communitarian tradition ‘embraces an ideology and
assumption set which promise a quality of justice
.
.
.
that cannot be achieved
or [is] difficult to achieve through the more conventional, formal justice
apparatus of the state’ (Depew
1994:2).
The pursuit is for social rather than for
strictly legal justice; the focus is on empowerment of those marginalized by
mainstream legal systems; the objective is to contextualize justice; the goal is
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