1. Erasmus Universiteit Rotterdam Restorative Justice in the Netherlands Blockades and Opportunities Dr. J.R. Blad

2. Erasmus Universiteit Rotterdam Contents I.What is restorative justice? II. The inhospitable Dutch penal climate III. Chances for development of RJ

3. Erasmus Universiteit Rotterdam I. Restorative Justice Restorative Justice is ‘a theory of justice that emphasizes repairing the harm caused or revealed by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders.’ WWW.RESTORATIVEJUSTICE.ORG

4. Erasmus Universiteit Rotterdam What kind of justice? A lot of activities going on outside the realm of criminal justice: Mediation and conferencing in Schools Neigbourhoods The workplace Let’s call them ‘restorative practices’

5. Erasmus Universiteit Rotterdam Outside criminal justice There is an informal, substantial notion of justice at work Conflicts are often not formally defined by law There is often no public, legal interest at stake There can be ‘full party control’ of the conflict (no imposed definitions)

6. Erasmus Universiteit Rotterdam What kind of justice? A) What is the implication of speaking of ‘criminal behavior’? B) Who are the ‘stakeholders’? C) What is ‘repairing harm done’?

7. Erasmus Universiteit Rotterdam Restorative Justice A) There are formal definitions of substantial criminal law at work B) There are legal agencies who are stakeholders in view of public interest C) Also public interests are harmed and should be ‘restored’

8. Erasmus Universiteit Rotterdam Restorative Justice RJ belongs to the family of ‘justice theories’: Organizing speech and actions in terms of (legal) ‘subjects’ and ‘subjectivity’ Dealing with conflicts and what caused them (causality and responsibility) Orientation of speech strategies at ‘restoring balance’ All disciplines of law have these characteristics of ‘justice’

9. Erasmus Universiteit Rotterdam Restorative Justice Theory RJ is ‘a theory of justice’ stating that justice can be done better by: including all stakeholders and their views of the conflict at hand and its resolution communicating in every day language Allowing for emotions to show and be productive Combining negative and positive sanctions

10. Erasmus Universiteit Rotterdam Restorative Justice Sanctioning character in activating the offenders responsibility restorative procedure is a better context for effective sanctioning, addressing real causes Conferencing allows for affective relations to take influence Restorative plan = ideal combination of negative and positive sanctions

11. Erasmus Universiteit Rotterdam RJ as a challenge to CJ Criminal Justice implies Exclusive definitional powers of courts and judicial officers such as prosecutors Sub-ordination of offenders and victims and their subjective definitions of the situation at hand (‘legal discourse’) The a-priori of punishment as the most appropriate resolution of criminal conflict

12. Erasmus Universiteit Rotterdam RJ as a challenge to CJ The challenge is to make imposition of punishment the ultimum remedium of criminal justice Allow for victim and offender – and their communities of care – to share responsibilities with judicial authorities Accept a reformative agenda of ‘participatory criminal justice’

13. Erasmus Universiteit Rotterdam II. The inhospitable climate 4 factors 1)The punitive state of mind 2)Managerialism 3)Highly institutionalized Victim Support system 4)Subordination of ‘victim policies’ to dominant punitive strategy

14. Erasmus Universiteit Rotterdam 1) The punitive state of mind In contraposition to a long cultural tradition of maintaining a mild penal climate, the Netherlands are now dominated by a widespread belief in the necessity to impose (severe) punishments

15. Erasmus Universiteit Rotterdam 150 years of decarceration

16. Erasmus Universiteit Rotterdam 1985: Crime and Society Rational policy to make criminal justice ‘Consistent, consequent and Credible’ again as an institution to deal with crime Background: a strong rise in registered crime (property crime) Worries about ‘organized crime’ (drugs)

17. Erasmus Universiteit Rotterdam Assembly Line Justice Criminal justice as a chain of production Police  Public prosecutors  Courts Aim: To increase productivity (decrease of ‘law enforcement deficit’) to influence behaviour of citizens through its productive factors

18. Erasmus Universiteit Rotterdam Differentiated products Target Groups Victims Law abiding citizens Potential Perpetrators Perpetrators Production Factors Acknowledgement Normconfirmation Credible threat* Punishment * Deterrence

19. Erasmus Universiteit Rotterdam Punishment must be All production factors depend on one central product: punishment Incarceration of ‘severe’ offenders And of ‘frequent’ offenders From app. 4000 (1985) to app. 15000 cells Great increase in long prison sentences Great increase in types of community sanctions, becoming more ‘punitive’.

20. Erasmus Universiteit Rotterdam Cultural consequences Instrumentalization of punishment stress on deterrence and incapacitation Higher levels of retribution Demise of legal guarantees Demise of checks and balances in legal procedure (increase of miscarriages of justice) insatiable expansion of the penal system

21. Erasmus Universiteit Rotterdam Some prison-figures (Cells)19851990 2005 Prisons4.7007.50016.500 Juv.Inst. 250 800 2.570 TBS 420 400 1.640 Det. Cent.-------------- 1.260 Total5.3708.70021.970 (x 1,6) (x 4,1)

22. Erasmus Universiteit Rotterdam Prison Population Detainees per 100.000 inhabitants 1975: 17 1987: 33 2002: 95 2005: 123 (± 82.000)

23. Erasmus Universiteit Rotterdam 2) Managerialism Top-down ‘planning and control’ Pre-defined ‘products’ have to be produced in pre-defined ‘quantities’ (output) ‘Performance Contracts’ with police, public prosecutors office, Probation Service and courts (reducing discretionary powers) Restorative practices are not in the package of products

24. Erasmus Universiteit Rotterdam 3)Victim support system The Netherlands have one of the best EU systems of victim support (Brienen&Hoegen, 2000) But: adapted to criminal justice system Working with volunteers who are reluctant to propose a restorative meeting between victim and offender (Evaluation-report 2006)

25. Erasmus Universiteit Rotterdam 4)Subordinated victim policy Criminal law regards a conflict between ‘the state’ and a suspect Inquisitorial procedure to find out the substantial truth about the allegation Interests of victims are to be taken into account But this should not denaturalize criminal procedure

26. Erasmus Universiteit Rotterdam Room for reconciliation? Only in legal terms The verdict gives victim and offender their rightful place in the legal order Reconciliation is a possibility in the horizontal relation between victims and offenders Criminal law does not deal with that relation

27. Erasmus Universiteit Rotterdam Victim policy Gradual development of victim ‘rights’ Adapted to the supposed need for punishing offenders in the classical way ‘Most victims want their suspect to be found and punished and have no special need to meet the convicted offender.’ (5400790/06/DSP/18-8-2006)

28. Erasmus Universiteit Rotterdam III Opportunities for RJ 1.EU (2001) Framework Decision on the Standing of Victims in criminal proceedings 2.HALT sanction (juveniles) 3.Claims settlement 4.Victim-offender-talks 5.Support in the criminal justice agencies 6.The search for ‘effective sanctions’

29. Erasmus Universiteit Rotterdam 1) EU Frame decision 2001 article 10: 1.Each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure. 2.Each Member State shall ensure that any agreement between the victim and the offender (…) can be taken into account.

30. Erasmus Universiteit Rotterdam 2) Halt sanction for juveniles Art. 77e Criminal Code Participation in a ‘project’ as diversionary measure Often the project implies reparation of damages and harm Recent research: making apologies is quite effective in reducing future misconduct Restorative Practices are quite suitable here

31. Erasmus Universiteit Rotterdam 3) Claims settlement Based on PPS Directive for the care of victims As soon as possible the damages of the offence should be compensated by the offender, when found. Often administrative, financial procedure. Offers chances for offering face-to-face meetings and moral communication. NOTE: PPS does not prosecute when claims are settled in ‘not so serious’ cases.

32. Erasmus Universiteit Rotterdam 4)Victim-offender-talks Implemented on a national scale from 2007. The intended purpose is to serve only the needs of the victim With no implications for the criminal procedure Hoping for some impact of the confrontation on the offenders future conduct

33. Erasmus Universiteit Rotterdam Critique VOT’s are not ‘mediation’ in terms of the EU Frame-decision: no ‘agreement’ is intended nor input in the criminal procedure. VOT has a one-sided and narrow ‘therapeutic’ nature Excluding the possibility of negotiating a restorative agreement ‘disempowers’ both victim and offender.

34. Erasmus Universiteit Rotterdam Chances VOT’s may turn out to become VOM and provide an occasion for reconciliation Provided the offender makes voluntary gestures to make amends Recognizing the harm done and his own responsibility Expressing his responsibility in obligations, which are in turn acknowledged

35. Erasmus Universiteit Rotterdam 5) Internal support in CJS Many police officers, public prosecutors and judges recognize and support the ideas of RJ and do not support official punitive rhetorics The PPS announced in 2002 that public prosecutors would make room for restorative practices (in suitable cases) and take account of the results in their procedural decisions

36. Erasmus Universiteit Rotterdam 6) Effective sanctioning Report ‘Restorative Justice: The evidence’, (Sherman & Strang, 2006) With regard to victims: ‘Crime victims who receive restorative justice do better, on average, than victims who do not, across a wide range of outcomes, including post-traumatic stress.’ (p. 88)

37. Erasmus Universiteit Rotterdam Reducing reoffending Same report with regard to offenders: ‘In many tests, offenders who receive RJ commit fewer repeat crimes than offenders who do not’ ‘In no large-sample test has RJ increased re- peat offending, compared with CJ’ ‘RJ reduces repeat offending more consistently with violent crimes than with less serious crimes’

38. Erasmus Universiteit Rotterdam Less Punishment, More Justice ‘Diversion from prosecution to RJ substantially increases the odds of an offender being brought to justice’

39. Erasmus Universiteit Rotterdam Promoting restorative culture By doing restorative work in more and more informal settings a ‘restorative culture’ could develop in society at large Informal restorative justice can pave the road to formal restorative justice and decreasing the level of deliberate pain infliction by the state.

40. Erasmus Universiteit Rotterdam Room for Restorative Justice! Thank you for your attention John Blad Blad@ frg.eur.nl