ICOPA XIIHoward League for Penal Reform

Creating a scandal: Prison abolition and the policy agenda

King’s College London, 23-25 July 2008

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What is punishment for?Time for a restorative philosophy

of sentencing?

Martin Wright

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What is crime?

• an action or omission (usually harmful) where the legislature authorizes the state to take action against the perpetrator if the parties cannot resolve it themselves;

• and which, in addition, a court has classified as falling within that definition.

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What is punishment?

• deliberate infliction of a measure intended to be painful, such as a fine or imprisonment.

• measures such as rehabilitation, reparation or containment may deprive a person of time or money, but that is not their primary purpose

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Purposes of sentencingCJA 2003, s. 142(1)

a) The punishment of offenders [? incl. to express condemnation, impose retribution]

b) The reduction of crime, incl. deterrence [?individual and general]

c) The reform and rehabilitation of offendersd) The protection of the publice) Reparation by offenders to persons affected

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Problems with punishment

• Doesn’t work unless … (see Restoring respect for justice, chapter 2)

• No fair way to decide how much (ibid. Ch. 5, 6)

• Unintended consequences• Collateral damage• Makes compliance harder• Especially prison

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Prison doesn’t work

Previous 1-yr re-offending rate, custodial adults convicted in Q 1 2005sentences: total n = 44,3230 26.0 5 62.7

1 43.0 6-10 68.62 51.7 11+ 78.33 57.04 60.8 Source: MoJ

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Amount of conventional sentences

a) condemnation no logical basisb) retribution no logical basisc) deter individual conviction,

48 hours, ∞d) deter others conviction, ∞e) rehabilitate individual ? weeks, months,

not nec. prisonf) heal victim not relevantg) public protection no logical basis

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Reform conventional system

Justice re-investment• Gatekeeper: pre-sentence report• Identify offenders’ needs• Establish programme to meet needs• Funding linked to reduction in prison pop.

(transfer from prison budget)• Safeguards: clear selection criteria,

independent evaluation

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Restorative basis for sentences

a) heal victim R J, reparation, not nec. prisonb) hold individual R J, conviction accountable c) rehabilitate individ. Rehab, not nec. prison, ? RJ d) public protection, restrict liberty, restorative

enforcement detentione) condemnation reparation, c’ty service

[? corrective (reparative) labour]

f) reparation R J, work for victim or c’tyg) deter others prevention, conviction

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Aims: Sentencing Act 2002, NZ

a) Promote sense of responsibility for itb) Hold offender accountable for harmc) Provide for interests of victimd) Provide reparation for harme) Denounce conductf) Deter offender or others, protect community,

assist rehab, reintegrationg) Take account of any restorative outcomes

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How it would work

• Bring case straight to mediation centre, or• Prosecutor diverts from CJS to R J conf., or• For serious cases, court conviction, then R J

conference before sentence, which normally endorses conference agreement, or

• R J before release from prison• Use insights from R J process as impetus for social

reforms (see Froestad & Shearing in Mackay et al., below)

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What it needs

• R J services available nationwide (largely provided by Third Sector)

• Learn from R J meetings about social deficits, and tackle them

• Community resources to enable offender to make reparation

• New philosophy of social relationships

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New philosophy of social relationships

• Not control by fear, force, threat of punishment, stigma, ‘Don’t do as I do, do as I tell you’, but

• Persuade, enable, include, role models, deliberative decisions (coercion as last resort)

• Beginning with restorative problem-solving in schools.

-=oOo=-

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Websites

• www.restorativejustice.org.uk [Restorative Justice Consortium]

• www.restorativejustice.org [Prison Fellowship International, US]

• www.euforumrj.org [European Forum for Restorative Justice]

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Recent publications

• L Walgrave. Restorative justice, self-interest and responsible citizenship. 2008

• G Maxwell and J H Liu, eds. Restorative justice and practices in New Zealand: towards a restorative society. Wellington, NZ, 2007

• M Liebmann. Restorative justice: how it works. 2007

• M Zernova. Restorative justice: ideals and realities. 2007.

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Publications (cont’d)

• R Mackay et al., eds. Images of restorative justice theory. Frankfurt am Main, 2007

• M Wright. Making good: prisons, punishment and beyond. Reprinted with foreword by Vivien Stern. 2008 enquiries@watersidepress.co.uk

• - “ - Restoring respect for justice. 2nd ed with foreword by Howard Zehr, 2008

• - “ - Justice for victims and offenders: a restorative response to crime. 2nd ed, 1996

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