Working Under the Aegis of the Criminal Justice System: Implications for Restorative Justice Practice
| Author | Dr Margarita Zernova |
| Pages | 67-79 |
66
Working under the aegis of the Criminal Justice System: Implications for Restorative Justice Practice
67
WORKING UNDER THE AEGIS OF
THE CRIMINAL JUSTICE SYSTEM:
IMPLICATIONS FOR RESTORATIVE
JUSTICE PRACTICE
Dr Margarita Zernova, Postdoctoral Research Fellow, Institute of
Applied Ethics, University of Hull
Abstract
On the basis of empirical findings resulting from a study of one family group conferencing
project this article will critically examine the implications of restorative justice operating
in the shadow of the criminal justice system. It will discuss four ways of dependence of
restorative practice on the criminal justice system: funding, referrals, legal framework and
the system-oriented practitioners. The article will argue that the reliance of restorative
practice on the criminal justice system may cause numerous problems. It may result in
restorative justice being made to serve the system’s objectives and restorative ideals being
diluted and distorted. It may produce a situation where restorative justice adopts the value
framework of the system and avoids ethical discussions beyond that framework. It may
lead to individualising problems and neutralising conflicts with social-structural roots. It
may also enable the state to exercise control over troublesome individuals in an invisible
fashion. A suggestion will be made about how these dangers could be avoided.
Introduction
One of the issues which have been hotly debated by restorative justice advocates and
critics is the relationship between restorative justice and the ‘traditional’ criminal justice
system. At one end of the spectrum are those who locate restorative justice outside the
system with only loose links to it (McCold 2000:396). They propose that restorative
programmes should be operated by way of diversion of cases from the criminal justice
system and believe that this model is best capable of preserving the purity of the
restorative ideals (McCold 2000). At the other end of the spectrum are those who wish to
firmly position restorative justice within the criminal justice system (Bazemore and
Walgrave 1999, Walgrave 1995, 1999, 2000a, 2000b, Dignan 2002, 2003). They argue
that restorative justice should be made its integral part, and the system should be
‘maximally’, ‘radically and systematically’ reformed in accordance with restorative
principles. These advocates are critical of placing restorative justice outside the system,
predicting that this would provide a recipe for marginalization.
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