Trajectories and typologies of pre-sentence restorative justice rituals
| Author | Jasmine Bruce,Meredith Rossner |
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| DOI | 10.1177/0004865817749263 |
| Subject Matter | Articles |
Article
Trajectories and typologies
of pre-sentence restorative
justice rituals
Meredith Rossner
Department of Law, London School of Economics, UK
Jasmine Bruce
School of Law, University of New South Wales, Australia
Abstract
Enthusiasm for restorative justice has seen conferencing brought in to the mainstream of
criminal justice systems around the world. This raises concerns over how integration into
criminal justice will impact conference dynamics. In this article, we present new findings from
a study of restorative justice conferences at the pre-sentencing stage for adult offenders.
By documenting the interactional dynamics of conferences it reveals the emotional
trajectories that conferences take, and the factors that shape immediate conference
outcomes. Our results show both the positive aspects of what restorative justice is capable
of achieving as well as the tensions that arise when it is integrated within conventional
criminal justice. We offer a refined vision of what success can mean in restorative justice
at the pre-sentence stage.
Keywords
Conferencing, justice rituals, pre-sentencing programmes, restorative justice
Received 23 November 2017; accepted 23 November 2017
Introduction: Restorative justice and criminal justice
Early advocates of restorative justice conceived of it as a radical alternative for resolving
conflict (Zehr, 1990), with differences in philosophy, method, and practice from tradi-
tional criminal justice. Practitioners and scholars wrote with revolutionary fervor about
Corresponding author:
Meredith Rossner, Department of Law, London School of Economics, Houghton Street, London WC2A 2AE, UK.
Email: m.rossner@lse.ac.uk
Australian & New Zealand
Journal of Criminology
2018, Vol. 51(4) 502–518
!The Author(s) 2018
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DOI: 10.1177/0004865817749263
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the potential to provide healing and fairness for offenders, victims and communities
(Bazemore & Umbreit, 1994; Galaway & Hudson, 1990). As it grew in popularity,
scholarship shifted to consider whether restorative justice was compatible with the
goals of contemporary criminal justice (Aertsen et al., 2006; Von Hirsch et al., 2003).
As these arguments continue (see Armstrong, 2014; Daly, 2013), practices are eclipsing
the normative debates with restorative justice programmes integrating into criminal
justice (Rossner, 2017).
In many jurisdictions, restorative justice was initially offered as part of a diversionary
approach to juvenile offending with police cautions and conferencing (Maxwell, 2007;
Richards, 2010). Trends in Australia and New Zealand show the emergence of restor-
ative justice practices within adult criminal justice systems at both the pre- and post-
sentencing stages (see Bruce et al., 2012; Halsey et al., 2015). Similarly, the UK Ministry
of Justice is promising restorative justice to victims of crime (in juvenile and adult cases)
at any stage in the criminal justice system (Ministry of Justice, 2014), and information
about restorative justice for all victims (Ministry of Justice 2015, Shapland et al., 2017).
Restorative justice has moved from the ‘margin to the mainstream’ (London, 2011) as it
is increasingly incorporated into the sentencing process. For instance, the New Zealand,
2002 Sentencing Act recognizes restorative justice as an option for adult offenders
(McElrea, 2007), it has been a component of the Northern Irish system since the
early 2000s (O’Mahony & Campbell, 2006), and England and Wales have recently
implemented pre-sentence pilot programmes (Wigzell & Hough, 2015).
The placement of restorative justice within the criminal justice toolkit can present a
challenge to fundamental principles (Zernova, 2007). Core elements include informality,
a process driven by lay people, with an emphasis on democratic participation, yet when
set against the backdrop of a court hearing at the pre-sentence stage, the process can take
on a more formal, professional, and potentially coercive tone (Shapland et al., 2006). The
normative assumptions that participants have about what a criminal justice encounter is
‘supposed’ to be like (Shapland et al., 2006), can impact the ritual and emotional dynam-
ics of a conference, particularly when discussing outcomes. This is a challenge to the
mainstreaming of restorative justice, as the potential for a powerful ritual of redemption
and restoration is one of its key strengths (Maruna, 2011; Rossner, 2013).
This article explores the dynamics that develop when restorative justice rituals are
situated within a sentencing regime. Using data from an Australian study of pre-
sentence restorative justice conferences, we demonstrate ways that participants can
effectively resolve conflict, antagonize, or even bore each other, sometimes in the
same encounter. We identify tensions that arise when restorative justice is practiced
within the structure of a judicial sentencing process, and also suggest ways to avoid
or manage some of these tensions.
Successful restorative justice rituals
There is ongoing debate about what it means to achieve restorative justice. Some argue
that the process should be judged on a continuum from less restorative to fully restor-
ative (McCold & Wachtel, 2003). Others question whether relationships can be restored
in the urbanised, anomic conditions of late modernity (Johnston, 2011). Daly (2002)
suggests that ‘fairness’ may be easier to achieve than ‘restorativeness’, especially where
Rossner and Bruce 503
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