12 July 2001   +61 7 3875-5625  3216-1630 (ho)  k.daly@mailbox.gu.edu.au

Forthcoming in Punishment & Society

This paper is revised from a plenary address given to the Scottish Criminology Conference,

Edinburgh, 21-22 September 2000. My thanks to the conference organisers, Lesley McAra

and David J. Smith, for the invitation; and to Emilios Christodoulidis, Neil Hutton, Ian

Loader, Richard Sparks, and the anonymous reviewers for their comments on earlier

versions.

KATHLEEN DALY is Associate Professor, School of Criminology and Criminal Justice,

Griffith University, Brisbane. She directed a major research project on conferencing in South

Australia in 1998-99, and has begun a second major project on the feminist and

indigenous/race politics of restorative justice in Australia, New Zealand, Canada, and the

United States. Among her publications are Gender, Crime, and Punishment (Yale University

Press, 1994) and an edited collection, with Lisa Maher, Criminology at the Crossroads:

Feminist Readings in Crime and Justice (Oxford University Press, 1998).

1

Advocates' claims about restorative justice contain four myths:

(1)     restorative justice is the opposite of retributive justice,

(2)     restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice,

(3)     restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice' (or masculine) response, and

(4)     restorative justice can be expected to produce major changes in people.

Drawing from research on conferencing in Australia and New Zealand, I show that the real story of restorative justice

connections between retribution and restoration (or reparation), restorative justice should not

be considered a pre-modern and feminine justice, strong stories of repair and goodwill are

uncommon, and the raw material for restorativeness between victims and offenders may be in

short supply. Following Engel (1993: 791-92), myth refers to a true story; its truth deals with

'origins, with birth, with beginnings ... with how something began to be'. Origin stories, in

turn, 'encode a set of oppositions' (p. 821) such that when telling a true story, speakers

transcend adversity'. By comparing advocates' true story of restorative justice with the real

story, I offer a critical and sympathetic reading of advocates' efforts to move the idea

forward. I end by reflecting on whether the political future of restorative justice is better

secured by telling the mythical true story or the real story.

restorative justice, conferencing, retributive justice, myths about justice

2

3

Much has been written in recent years that damns and sings the praises of restorative justice.

In contrast to the voluminous critical and advocacy literatures, there is a thin empirical record

restorative justice, one that reflects what has been learned from research on youth justice

in proposing to tell the real story of restorative justice. There are many stories and no real

one. I shall recount what I have learned on my journey in the field, which began in the early

1990s (Braithwaite and Daly, 1994) and intensified in 1995 when I moved to Australia to

work with restorative justice researchers at the Australian National University and to initiate

my own program of research.

It has taken me some time to make sense of the idea of restorative justice. Initially,

my questions centred on what was happening in the youth justice conference process. What

were victims, offenders, and their supporters saying to each other? How did they relate to

one another? What did the professionals (the coordinators and police) think was going on?

Did the critiques of conferencing, especially from feminist and indigenous perspectives, have

merit? I began to observe conferences in 1995; since then, I have observed close to 60 of

them; and as part of a major project on conferencing in South Australia, members of my

research group and I observed 89 youth justice conferences and interviewed over 170 young

people (offenders) and victims associated with them, in 1998 and again, in 1999 (Daly et al.,

1998; Daly, 2001b).

The more I observed conference processes and listened to those involved in them,

attended sessions on restorative justice in professional meetings, and read about restorative

justice, the more perplexed I became. I discovered that there was a substantial gap between

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what I was learning from my research in the field and what the advocates and critics were

saying about restorative justice. This moves me to tell the real story, and I do so by

analysing four myths that feature in advocates' stories and claims:

1. Restorative justice is the opposite of retributive justice.

2. Restorative justice uses indigenous justice practices and was the dominant form of

pre-modern justice.

3. Restorative justice is a 'care' (or feminine) response to crime in comparison to a

'justice' (or masculine) response.

4. Restorative justice can be expected to produce major changes in people.

Although I focus on advocates' claims, there can be as much distortion by the critics, as well.

Moreover, there are debates among the advocates on the meaning and practice of restorative

justice; thus, my characterisation of the advocacy position is meant to show its general

emphasis, not to suggest uniformity.

I use the concept of myth in two ways. First, myth can be understood simply as a

partial truth, a distorted characterisation that requires correction by historical or contemporary

evidence. Second, myth can be understood as a special form of narrative. Following Engel

(1993: 790-92), myth 'refers not to fantasy or fiction but to a "true story" ... which is sacred,

exemplary, significant'. 'The "truth" of myth differs from the "truth" of historical or scientific

accounts'. Engel suggests that myths 'differ from other forms of storytelling' in that they 'deal

with origins, with birth, with beginnings ... with how something ... began to be'. He discovers

in his analysis of the 'origin stories' of parents of children with disabilities that they 'perceive

the world in terms of a set of oppositions that originate in the diagnosis of their child' (p.

821). A recurring origin story is that the professional (a doctor) is wrong about the initial

diagnosis, and 'the parent's insights have ultimately triumphed over those of the professional'

(p. 821). As such, when parents retell their stories, 'the triumphant ending will be achieved

5

again'. 'The very act of retelling is a way to ensure that ... values and outcomes in the myth

will triumph over pain, opposition, and disorder'. Engel says that this sense of triumph

reveals the 'affirmative, creative power of myth', where myth 'abolishes time' and 'the work of

myth [transcends adversity]' (pp. 823-24).

When I began this paper, I used the concept of myth as partial truth, a foil against

which I could write a more authoritative story. But in analysing the myths, I began to see

them in a different light, in Engel's terms, as origin stories that 'encode a set of oppositions'

(p. 822). While I shall spend more analytical time telling the real story of restorative justice,

using myth as partial truth, I also offer a sympathetic reading of advocates' true story of

restorative justice by viewing myth as a creative device to transcend adversity. I end by

reflecting on whether the political future of restorative justice is better secured by telling the

real story or the mythical true story.

Restorative justice is not easily defined because it encompasses a variety of practices at

different stages of the criminal process, including diversion from court prosecution, actions

stage of the criminal process (for example, arrest, pre-sentencing, and prison release). For

virtually all legal contexts involving individual criminal matters, restorative justice processes

have only been applied to those offenders who have admitted to an offence; as such, it deals

with the penalty phase of the criminal process for admitted offenders, not the fact-finding

phase. Restorative justice is used not only in adult and juvenile criminal matters, but also in a

range of civil matters, including family welfare and child protection, and disputes in schools

and workplace settings. Increasingly, one finds the term associated with the resolution of

broader political conflicts such as the reconstruction of post-apartheid South Africa (South

6

African Truth and Reconciliation Commission, 1998; Christodoulidis, 2000 for more critical

appraisal), post-genocide Rwanda (Drumbl, 2000), and post-sectarian Northern Ireland

(Dignan, 2000: 12-13).

Given the extraordinarily diverse meanings of the term and the contexts in which it

has been applied, it is important for analytical purposes to bound the term to a particular

context and set of practices. In this article, I discuss its use in the response to individual

crime (as compared to broader political conflict); and in reviewing what is known about

restorative justice practices, I focus on studies of youth justice conferencing in Australia and

New Zealand, giving particular emphasis to my research in South Australia. Even with a

narrowed focus on responses to individual crime, there remain problems of definition. One

reason is that because the idea of restorative justice has proved enormously popular with

governments, the term is now applied after the fact to programs and policies that have been in

place for some time, or it is used to describe reputedly new policing and correctional policies

(e.g., LaPrairie, 1999 for Canada; Crawford, 2001 for England and Wales). Until careful

empirical work is carried out, we cannot be certain what is going on or the degree to which

any of these newer or repackaged practices could be considered 'restorative'.

There is great concern among restorative justice advocates to distinguish practices

that are near and far from the restorative ideal, and there is debate over how to draw the line

on a continuum of practices. One definition, proposed by Marshall (1996: 37), is that

restorative justice is 'a process whereby all the parties with a stake in a particular offence

come together to resolve collectively how to deal with the aftermath of the offence and its

implications for the future'. This definition, which McCold (2000: 358) associates with the

'Purist' model of restorative justice, has been criticised by other restorative justice advocates

who say that the definition is too narrow because it includes only face-to-face meetings, it

emphasises process over the primary goal of repairing a harm, and actions to repair the harm

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may need to include coercive responses (Walgrave, 2000: 418). These latter advocates call

for a 'Maximalist' model, where restorative justice is defined as 'every action that is primarily

oriented towards doing justice by repairing the harm that has been caused by crime'

(Bazemore and Walgrave, 1999: 48). In this debate, advocates are considering the uses of

restorative justice in youth justice cases only; and yet we continue to see debate and

uncertainty over the optimal size of the restorative justice 'tent' and which practices should be

included in it.

McCold (2000: 401) constructed a venn diagram to distinguish practices that he

considers to be fully, mostly, or only partly restorative. He suggests that fully restorative

practices occur at the intersection of the three circles of 'victim reparation', 'offender

responsibility', and 'communities of care reconciliation'. At that intersection are practices

such as peace circles, sentencing circles, and conferences of various types. Outside the

intersection are practices he defines as mostly restorative (e.g., truth and reconciliation

commissions, victim-offender mediation) or only partly restorative (reparation boards, youth

aid panels, victim reparation). The three circles relate to the three major 'stakeholders' in the

aftermath of a crime: victims, offenders, and 'communities' (which include victims' and

offenders' family members and friends, affected neighbourhoods, and the broader society).

Using McCold's diagram, the research reviewed here are of practices associated with a 'fully

restorative' model, although as McCold points out (and I concur), this is no guarantee that

actual practices are 'restorative'.

A selected review of the many lists of 'core elements' of restorative justice (e.g.,

Dignan, 2000: 4-7; McCold, 2000: 364-72, 399-406; Nova Scotia Department of Justice,

1998: 1-2; Zehr, 1995: 211-12, to name a few) shows these common elements: an emphasis

on the role and experience of victims in the criminal process; involvement of all the relevant

parties (including the victim, offender, and their supporters) to discuss the offence, its impact,

8

and what should be done to 'repair the harm'; and decision-making carried out by both lay and

legal actors. While definitions and lists of core elements of restorative justice vary, all

display a remarkable uniformity in defining restorative justice by reference to what it is not,

and this is called retributive justice.

When one first dips into the restorative justice literature, the first thing one 'learns' is that

restorative justice differs sharply from retributive justice. It is said that

justice focuses on punishing an offence;

whereas retributive justice is characterised by adversarial relations among the parties;

and

role, whereas for retributive justice, 'the community' is represented by the state.

Most striking is that all the elements associated with restorative justice are good, whereas all

those associated with retributive justice are bad. The retributive-restorative oppositional

contrast is not only made by restorative justice advocates, but increasingly one finds it

canonised in criminology and juvenile justice textbooks. The question arises, is it right?

On empirical and normative grounds, I suggest that in characterising justice aims and

practices, it is neither accurate nor defensible. While I am not alone in taking this position

(see Barton, 2000; Duff, 2001; Miller and Blackler, 2000), it is currently held by a small

number of us in the field. Despite advocates' well-meaning intentions, the contrast is a highly

misleading simplification, which is used to sell the superiority of restorative justice and its set

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of justice products. To make the sales pitch simple, definite boundaries need to be marked

ugly (rehabilitative) justice. Advocates seem to assume that an ideal justice system should be

Before demonstrating the problems with this position, I give a sympathetic reading of what I

think advocates are trying to say.

Mead's (1917-18) 'The psychology of punitive justice' contrasts two methods of

responding to crime. One he termed 'the attitude of hostility toward the lawbreaker' (p. 227),

which 'brings with it the attitudes of retribution, repression, and exclusion' (pp. 226-27) and

which sees a lawbreaker as 'enemy'. The other, exemplified in the (then) emerging juvenile

court, is the 'reconstructive attitude' (p. 234), which tries to 'understand the causes of social

and individual breakdown, to mend ... the defective situation', to determine responsibility 'not

to place punishment but to obtain future results' (p. 231). Most restorative justice advocates

see the justice world through this Meadian lens; they reject the 'attitude of hostility toward the

lawbreaker', do not wish to view him or her as 'enemy', and desire an alternative kind of

justice. On that score, I concur, as no doubt many other researchers and observers of justice

system practices would. However, the 'attitude of hostility' is a caricature of criminal justice,

which over the last century and a half has wavered between desires to 'treat' some and 'punish'

others, and which surely cannot be encapsulated in the one term, 'retributive justice'. By

framing justice aims (or principles) and practices in oppositional terms, restorative justice

advocates not only do a disservice to history, they also give a restricted view of the present.

They assume that restorative justice practices should exclude elements of retribution; and in

rejecting an 'attitude of hostility', they assume that retribution as a justice principle must also

be rejected.

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When observing conferences, I discovered that participants engaged in a flexible

incorporation of multiple justice aims, which included:

encourage future law-abiding behaviour?), and

up for what he or she did to the victim?).

When reporting these findings, one colleague said, 'yes, this is a problem' (Walgrave,

personal communication). This speaker's concern was that as restorative justice was being

incorporated into the regular justice system, it would turn out to be a set of 'simple

techniques', rather than an 'ideal of justice ... in an ideal of society' (Walgrave, 1995: 240,

245) and that its core values would be lost. Another said (paraphrasing), 'retribution may

well be present now in conferences, but you wouldn't want to make the argument that it

should be present' (Braithwaite, personal communication).

These comments provoked me to consider the relationship between restorative and

retributive justice, and the role of punishment in restorative justice, in normative terms.

Distilling from other papers (e.g., Daly and Immarigeon, 1998: 32-35; Daly, 2000a, 2000b)

and arguments by Barton (2000), Duff (1992, 1996, 2001), Hampton (1992, 1998), and

Zedner (1994), I have come to see that apparently contrary principles of retribution and

reparation should be viewed as dependent on one another. Retributive censure should ideally

occur before reparative gestures (or a victim's interest or movement to negotiate these) are

possible in an ethical or psychological sense. Both censure and reparation may be

experienced as 'punishment' by offenders (even if this is not the intent of decision-makers),

and both censure and reparation need to occur before a victim or community can 'reintegrate'

an offender into the community. These complex and contingent interactions are expressed in

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varied ways and should not be viewed as having to follow any one fixed sequence.

Moreover, one cannot assume that subsequent actions, such as the victim's forgiving the

offender or a reconciliation of a victim and offender (or others), should occur. This may take

a long time or never occur. In the advocacy literature, however, I find that there is too quick

a move to 'repair the harm', 'heal those injured by crime' or to 're-integrate offenders', passing

over a crucial phase of 'holding offenders accountable', which is the retributive part of the

process.

A major block in communicating ideas about the relationship of retributive to

restorative justice is that there is great variability in how people understand and use key terms

such as punishment, retribution, and punitiveness. Some argue that incarceration and fines

are punishments because they are intended deprivations, whereas probation or a reparative

measure such as doing work for a crime victim are not punishment because they are intended

to be constructive (Wright, 1991). Others define punishment more broadly to include

anything that is unpleasant, a burden, or an imposition of some sort; the intentions of the

decision-maker are less significant (Davis, 1992; Duff, 1992, 2001). Some use retribution to

describe a justification for punishment (i.e., intended to be in proportion to the harm caused),

whereas others use it to describe a form of punishment (i.e., intended to be of a type that is

some (e.g., Braithwaite and Pettit, 1990) eschew retributivism, favouring instead a freeranging

consequentialist justification and highly individualised responses, while others wish

to limit restorative justice responses to desert-based, proportionate criteria (Van Ness, 1993;

Walgrave and Aertsen, 1996). For the form of punishment, some use retribution in a neutral

way to refer to a censuring of harms (e.g., Duff, 1996), whereas most use the term to connote

a punitive response, which is associated with emotions of revenge or intentions to inflict pain

on wrong-doers (Wright, 1991). The term punitive is rarely defined, no doubt because

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everyone seems to know what it means. Precisely because this term is used in a

commonsensical way by everyone in the field (not just restorative justice scholars), there is

confusion over its meaning. Would we say, for example, that any criminal justice sanction is

by definition 'punitive', but sanctions can vary across a continuum of greater to lesser

punitiveness? Or, would we say that some sanctions are non-punitive and that restorative

justice processes aim to maximise the application of non-punitive sanctions? I will not

attempt to adjudicate the many competing claims about punishment, retribution, and

punitiveness. The sources of antagonism lie not only in varied definitions, but also the

different images these definitions conjure in people's heads about justice relations and

practices. However, one way to gain some clarity is to conceptualise punishment, retribution,

and punitive (and their 'non' counterparts) as separate dimensions, each having its own

continuum of meaning, rather than to conflate them, as now typically occurs in the literature.

Because the terms 'retributive justice' and 'restorative justice' have such strong

meanings and referents, and are used largely by advocates (and others) as metaphors for the

bad and the good justice, perhaps they should be jettisoned in analysing current and future

justice practices. Instead, we might refer to 'older' and 'newer' modern justice forms. These

terms do not provide a content to justice principles or practices, but they do offer a way to

depict developments in the justice field with an eye to recent history and with an appreciation

permit description and explanation of a larger phenomenon, that is, of a profound

transformation of justice forms and practices now occurring in most developed societies in

the West, and certainly the English-speaking ones of which I am aware. Restorative justice is

only a part of that transformation.

By the old justice, I refer to modern practices of courthouse justice, which permit no

interaction between victim and offender, where legal actors and other experts do the talking

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and make decisions, and whose (stated) aim is to punish, or at times, reform an offender. By

offenders (and others) together in a process in which both lay and legal actors make

decisions, and whose (stated) aim is to repair the harm for victims, offenders, and perhaps

other members of 'the community' in ways that matter to them. (While the stated aim of

either justice form may be to 'punish the crime' or to 'repair the harm', we should expect to

one of several developments in a larger justice field, which also includes the 'new penology'

(Feeley and Simon, 1992) and 'unthinkable punishment policies' (Tonry, 1999). The field is

fragmented and moving in contradictory directions (Crawford, 1997; Garland, 1996;

O'Malley, 1999; Pratt, 2000).

A common theme in the restorative justice literature is that this reputedly new justice form is

'really not new' (Consedine, 1995: 12). As Consedine puts it,

Biblical justice was restorative. So too was justice in most indigenous cultures. In

pre-colonial New Zealand, Maori had a fully integrated system of restorative justice ...

It was the traditional philosophy of Pacific nations such as Tonga, Fiji and Samoa. ...

In pre-Norman Ireland, restorative justice was interwoven ... with the fabric of daily

life ... (p. 12).

Braithwaite (1999: 1) argues that restorative justice is 'ground[ed] in traditions of justice from

the ancient Arab, Greek, and Roman civilisations that accepted a restorative approach even to

homicide'. He continues with a large sweep of human history, citing the 'public assemblies

... of the Germanic peoples', 'Indian Hindu [traditions in] 6000-2000 B.C.', and 'ancient

14

Buddhist, Taoist, and Confucian traditions ...'; and he concludes that 'restorative justice has

world's peoples' (p. 1, my emphasis). What an extraordinary claim!

Linked with the claim that restorative justice has been the dominant form of criminal

justice throughout human history is the claim that present-day indigenous justice practices

fall within the restorative justice rubric. Thus, for example, Consedine (1995: 99) says

A new paradigm of justice is operating [in New Zealand], which is very traditional in

its philosophy, yet revolutionary in its effects. A restorative philosophy of justice has

replaced a retributive one. Ironically, 150 years after the traditional Maori restorative

praxis was abolished in Aotearoa, youth justice policy is once again operating from

the same philosophy.

Reverence for and romanticisation of an indigenous past slide over practices that the modern

'civilised' Western mind would object to, such as a variety of harsh physical (bodily)

punishments and banishment. At the same time, the modern Western mind may not be able

to grasp how certain 'harsh punishments' have been sensible within the terms of a particular

culture.

Weitekamp (1999: 93) combines 'ancient forms' of justice practice (as restorative) and

indigenous groups' current practices (as restorative) when he says that

Some of the new[] ... programs are in fact very old. ... [A]ncient forms of restorative

justice have been used in [non-state] societies and by early forms of humankind.

[F]amily group conferences [and] ... circle hearings [have been used] by indigenous

people such as the Aboriginals, the Inuit, and the native Indians of North and South

America. ... It is kind of ironic that we have at [the turn of this century] to go back to

methods and forms of conflict resolution which were practiced some millennia ago by

our ancestors ...

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I confess to a limited knowledge of justice practices and systems throughout the

history of humankind. What I know is confined mainly to the past three centuries and to

developments in the United States and several other countries. Thus, in addressing this myth,

I do so from a position of ignorance in knowing only a small portion of history. Upon

reflection, however, my lack of historical knowledge may not matter. All that is required is

the realisation that advocates do not intend to write authoritative histories of justice. Rather,

they are constructing origin myths about restorative justice. If the first form of human justice

was restorative justice, then advocates can claim a need to recover it from a history of

'takeover' by state-sponsored retributive justice. And, by identifying current indigenous

practices as restorative justice, advocates can claim a need to recover these practices from a

history of 'takeover' by white colonial powers that instituted retributive justice. Thus, the

history of justice practices is re-written by advocates not only to authorise restorative justice

as the first human form of justice, but also to argue that it is congenial with modern-day

indigenous and, as we shall see in Myth 3, feminist social movements for justice.

In the restorative justice field, most commentators focus specifically (and narrowly)

on changes that occurred over a 400-year period (8th to 11th centuries) in England (and some

European countries), where a system of largely kin-based dispute settlement gave way to a

court system, in which feudal lords retained a portion of property forfeited by an offender. In

England, this loose system was centralised and consolidated during the century following the

Norman Invasion in 1066, as the development of state (crown) law depended on the

collection of revenues collected by judges for the king. For restorative justice advocates, the

transformation of disputes as offences between individuals to offences against the state is one

element that marked the end of pre-modern forms of restorative justice. A second element is

the decline in compensation to the victim for the losses from a crime (Weitekamp, 1999).

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Advocates' constructions of the history of restorative justice, that is, the origin myth

that a superior justice form prevailed before the imposition of retributive justice, is linked to

their desire to maintain a strong oppositional contrast between retributive and restorative

justice. That is to say, the origin myth and oppositional contrast are both required in telling

the true story of restorative justice. I do not see bad faith at work here. Rather, advocates are

trying to move an idea into the political and policy arena, and this may necessitate having to

utilise a simple contrast of the good and the bad justice, along with an origin myth of how it

all came to be.

What does concern me is that the specific histories and practices of justice in premodern

societies are smoothed over and a lumped together as one justice form. Is it

appropriate to refer to all of these justice practices as 'restorative'? No, I think not. What do

these justice practices in fact have in common? What is gained, and more importantly, what

is lost by this homogenising move? Efforts to write histories of restorative justice, where a

pre-modern past is romantically (and selectively) invoked to justify a current justice practice,

are not only in error, but also unwittingly reinscribe an ethnocentrism their authors wish to

avoid. As Blagg (1997) and Cain (2000) point out, there has been an orientalist appropriation

of indigenous justice practices, largely in the service of strengthening advocates' positions.

A common, albeit erroneous, claim is that the modern idea of conferencing 'has its

direct roots in Maori culture' (Shearing, 2001: 218, note 5; see also Consedine, 1995). The

real story is that conferencing emerged in the 1980s, in the context of Maori political

challenges to white New Zealanders and to their welfare and criminal justice systems.

Investing decision-making practices with Maori cultural values meant that family groups

(whanau) should have a greater say in what happens, that venues should be culturally

appropriate, and that processes should accommodate a mix of culturally appropriate practices.

New Zealand's minority group population includes not only the Maori but also Pacific Island

17

Polynesians. Therefore, with the introduction of conferencing, came awareness of the need to

incorporate different elements of 'cultural appropriateness' into the conference process. But

the devising of a (white, bureaucratic) justice practice that is flexible and accommodating

toward cultural differences does not mean that conferencing is an indigenous justice practice.

Maxwell and Morris (1993: 4), who know the New Zealand situation well, are clear on this

point:

A distinction must be drawn between a system, which attempts to re-establish the

indigenous model of pre-European times, and a system of justice, which is culturally

appropriate. The New Zealand system is an attempt to establish the latter, not to

replicate the former. As such, it seeks to incorporate many of the features apparent in

whanau decision-making processes and seen in meetings on marae today, but it also

contains elements quite alien to indigenous models.

Conferencing is better understood as a fragmented justice form: it splices white,

bureaucratic forms of justice with elements of informal justice that may include non-white (or

non-Western) values or methods of judgment, with all the attendant dangers of such 'spliced

justice' (Blagg, 1997, 1998; Daly, 1998; Findlay, 2000; Pavlich, 1996). With the flexibility

of informal justice, practitioners, advocates, and members of minority groups may see the

potential for introducing culturally sensible and responsive forms of justice. But to say that

conferencing is an indigenous justice practice (or 'has its roots in indigenous justice') is to reengage

a white-centred view of the world. As Blagg (1998: 12) asks rhetorically, 'Are we

once again creaming off the cultural value of people simply to suit our own nostalgia in this

age of pessimism and melancholia'? A good deal of the advocacy literature is of this ilk:

white-centred, creaming off, and homogenising of cultural difference and specificity.

18

Myths 2 and 3 have a similar oppositional logic, but play with different dichotomies. The

following chart shows the terms that are often linked to restorative and retributive justice.

pre-modern modern

indigenous (informal) state (formal)

feminine (care) masculine (justice)

eastern (Japan) western (US)

superior justice inferior justice

Note the power inversion, essential to the origin myth of restorative justice, where the

subordinated or marginalised groups (pre-modern, indigenous, eastern, and feminine) are

aligned with the more superior justice form.

Many readers will be familiar with the 'care' and 'justice' dichotomy. It was put

forward by Gilligan in her popular book, In a Different Voice (1982). For about a decade, it

seemed that most feminist legal theory articles were organised around the 'different voice'

versus 'male dominance' perspectives of Gilligan and MacKinnon (1987), respectively. In

criminology, Heidensohn (1986) and Harris (1987) attempted to apply the care/justice

dichotomy to the criminal justice system. Care responses to crime are depicted as

personalised and as based on a concrete and active morality, whereas justice responses are

depicted as depersonalised, based on rights and rules, and a universalising and abstract

morality. Care responses are associated with the different (female) voice, and these are

distinguished from justice responses, which are associated with the general (if male) voice.

In her early work, Gilligan argued that both voices should have equal importance in moral

reasoning, but women's voices were misheard or judged as morally inferior to men's. A

19

critical literature developed rapidly, and Gilligan began to reformulate and clarify her

argument. She recognised that 'care' responses in a 'justice' framework left 'the basic

assumptions of a justice framework intact ... and that as a moral perspective, care [was] less

well elaborated' (Gilligan, 1987: 24). At the time, the elements that Gilligan associated with

a care response to crime were contextual and relational reasoning, and individualised

responses made by decision-makers who were not detached from the conflict (or crime). In

1989, I came into the debate, arguing that we should challenge the association of justice and

care reasoning with male/masculine and female/feminine voices, respectively (Daly, 1989). I

suggested that this gender-linked association was not accurate empirically, and I argued that

it would be misleading to think that an alternative to men's forms of criminal law and justice

practices could be found by adding women's voice or reconstituting the system along the lines

of an ethic of care. I viewed the care/justice dichotomy as recapitulating centuries long

debates in modern Western criminology and legal philosophy over the aims and purposes of

punishment, e.g., deterrence and retribution or rehabilitation, and uniform or individualised

responses. Further, I noted that although the dichotomy depicted different ideological

emphases in the response to crime since the nineteenth century, the relational and concrete

reasoning that Gilligan associated with the female voice was how in fact the criminal law is

interpreted and applied. It is the voice of criminal justice practices. The problem, then, was

not that the female voice was absent in criminal court practices, but rather that certain

relations were presupposed, maintained, and reproduced. Feminist analyses of law and

criminal justice centre on the androcentric (some would argue, phallocentric) character of

these relations for what comes to be understood as 'crime', for the meanings of 'consent', and

for punishment (for cogent reviews, see Coombs, 1995; Smart, 1989, 1992). While feminist

scholars continue to emphasise the need to bring women's experiences and 'voices' into the

criminological and legal frame, this is not the same thing as arguing that there is a universal

20

'female voice' in moral reasoning. During the late 1980s and 1990s, feminist arguments

moved decisively beyond dichotomous and essentialist readings of sex/gender in analysing

relations of power and 'difference' in law and justice. Gilligan's different voice construct,

though novel and important at the time, has been superseded by more complex and

contingent analyses of ethics and morality.

But the different voice is back, and unfortunately, the authors who are using it seem

totally unaware of key shifts in feminist thinking. We see now that the 'ethic of care'

(Persephone) is pitched as the alternative to retributive justice (Portia). One example is a

recent paper by Masters and Smith (1998), who attempt to demonstrate that Persephone, the

voice of caring, is evident in a variety of restorative responses to crime. Their arguments

confuse, however, because they argue that Persephone is 'informed by an ethic of care as well

as an ethic of justice' (p. 11). And toward the end of the article, they say 'we cannot do

without Portia (ethic of justice), but neither can we do without Persephone' (p. 21). Thus, it is

not clear whether, within the terms of their argument, Persephone stands for the feminine or

includes both the masculine and feminine, or whether we need both Portia and Persephone.

They apparently agree with all three positions. They also see little difference between a

'feminine' and a 'feminist approach', terms that they use interchangeably. In general, they

normally credit 'relational justice as a distinctly feminine approach to crime and conflict' (p.

13). They say that 'reintegrative shaming can be considered a feminine (or Persephone)

theory' and that there is a 'fit between reintegrative shaming practice and the feminist ethic of

care' (p. 13, my italics since the authors have shifted from a feminine ethic to a feminist

ethic). Toward the end of the paper, they make the astonishing claim, one that I suspect my

colleague John Braithwaite would find difficult to accept, that 'reintegrative shaming is

perhaps the first feminist criminological theory'. They argue this is so because the 'practice of

21

reintegrative shaming can be interpreted as being grounded in a feminine, rather than a

masculine understanding of the social world' (p. 20).

There is a lot to unpick here, and I shall not go point by point. Nor do I wish to

undermine the spirit of the paper since the authors' intentions are laudable, in particular, their

desire to define a more progressive way to respond to crime. My concern is that using simple

gender dichotomies, or any dichotomies for that matter, to describe principles and practices

courthouse justice works with the abstraction of criminal law, but must deal with the messy

world of people's lives, and hence, must deal with context and relations. 'Care' responses to

offenders or for some victims or they may also be oppressive and unjust for other offenders

and victims. Likewise, with so-called 'justice' responses. The set of terms lined up along the

'male/masculine' and 'female/feminine' poles is long and varied: some terms are about

process, others with modes of response (e.g., repair the harm), and still others, with ways of

thinking about culpability for the harm.

I am struck by the frequency with which people use dichotomies such as the male and

female voice, retributive and restorative justice, or West and East, to depict justice principles

and practices. Such dichotomies are also used to construct normative positions about justice,

where it is assumed (I think wrongly) that the sensibility of one side of the dualism

necessarily excludes (or is antithetical to) the sensibility of the other. Increasingly, scholars

are coming to see the value of theorising justice in hybrid terms, of seeing connections and

contingent relations between apparent oppositions (see e.g., Bottoms, 1998; Daly, 2000a;

Duff, 2001; Hudson, 1998; Zedner, 1994).

Like the advocates promoting Myth 2, those promoting Myth 3 want to emphasise the

importance of identifying a different response to crime than the one currently in use. I am

22

certainly on the side of that aspiration. However, I cannot agree with the terms in which the

position has been argued and sold to academic audiences and wider publics. There is a loss

of credibility when analyses do not move beyond oppositional justice metaphors, when

claims are imprecise, and when extraordinary tales of repair and goodwill are assumed to be

typical of the restorative justice experience.

I have said that attention needs to be given to the reality on the ground, to what is actually

happening in, and resulting from, practices that fall within the rubric of restorative justice.

There are several levels to describe and analyse what is going on: first, what occurs in the

justice practice itself; second, the relationship between this and broader system effects; and

third, how restorative justice is located in the broader politics of crime control. I focus on the

first level and present two forms of evidence: (1) stories of dramatic transformations or

moving accounts of reconciliation and (2) aggregated information across a larger number of

cases, drawing from research on conference observations and interviews with participants.

Several reviewers of this paper took issue with Myth 4, saying that 'advocates are less

likely to claim changes in people' or that 'there is no real evidence that restorative justice of

itself can be expected to produce major changes in people'. Although I am open to empirical

inquiry, my reading of the advocacy literature from the United States, Canada, Australia, and

New Zealand suggests that Myth 4 is prevalent. It is exemplified by advocates' stories of

how people are transformed or by their general assertions of the benefits of restorative

justice. For example, McCold (2000: 359, 363) reports that 'facilitators of restorative

processes regularly observe a personal and social transformation occur during the course of

the process' and 'we now have a growing body of research on programs that everyone agrees

are truly restorative, clearly demonstrating their remarkable success at healing and

23

conciliation'. McCold gives no citations to the research literature. While 'personal and social

transformation' undoubtedly occurs some of the time, and is likely to be rare in a courtroom

proceeding, advocates lead us to think that it is typical in a restorative justice process. This is

accomplished by telling a moving story, which is then used to stand as a generalisation.

Consedine (1995: 9) opens his book by excerpting from a 1993 New Zealand news story:

The families of two South Auckland boys killed by a car welcomed the accused driver

yesterday with open arms and forgiveness. The young man, who gave himself up to

the police yesterday morning, apologised to the families and was ceremonially

reunited with the Tongan and Samoan communities at a special service last night.

... The 20-year old Samoan visited the Tongan families after his court appearance to

apologise for the deaths of the two children in Mangere. The Tongan and Samoan

communities of Mangere later gathered at the Tongan Methodist Church in a service

of reconciliation. The young man sat at the feast table flanked by the mothers of the

dead boys.

Consedine says that this case provides 'ample evidence of the power that healing and

forgiveness can play in our daily lives. ... The grieving Tongan and Samoan communities

simply embraced the young driver ... and forgave him. His deep shame, his fear, his sorrow,

his alienation from the community was resolved' (p. 162).

Another example comes from Umbreit (1994: 1). His book opens with the story of

Linda and Bob Jackson, whose house was broken into; they subsequently met with the

offender as part of the offender's sentence disposition. The offender, Allan, 'felt better after

the mediation ... he was able to make amends to the Jacksons'. Moreover, 'Linda and Bob felt

less vulnerable, were able to sleep better and received payment for their losses. All parties

24

were able to put this event behind them'. Later in the book, Umbreit (1994: 197-202) offers

another case study of a second couple, Bob and Anne, after their house was burglarised a

second time. He summarises the outcome this way:

Bob, Anne, and Jim [the offender] felt the mediation process and outcome was fair.

All were very satisfied with participation in the program. Rather than playing passive

roles ... [they] actively participated in 'making things right'. During a subsequent

conversation with Bob, he commented that 'this was the first time (after several

victimisations) that I ever felt any sense of fairness. The courts always ignored me

before. They didn't care about my concerns. And Jim isn't such a bad kid after all,

was he?' Jim also indicated that he felt better after the mediation and more aware of

the impact the burglary had on Bob and Anne (p. 202).

Lastly, there is the fable of Sam, an adolescent offender who attended a diversionary

conference, which was first related by Braithwaite (1996) and retold by Shearing (2001: 214-

215). Braithwaite (1996: 9) says that his story is a 'composite of several Sams I have seen';

thus, while he admits that it is not a real story of Sam, it is said to show the 'essential features

... of restorative justice' (Shearing, 2001: 214). This is something like a building contractor

saying to a potential home buyer, 'this is a composite of the house I can build for you; it's not

the real house, but it's like many houses I have sold to happy buyers over the years'. What the

composite gives and what the building contractor offers us is a vision of the possible, of the

perfect house. Whether the house can ever be built is less important than imagining its

possibility and its perfection. This is the cornerstone of the true story of restorative justice,

like many proposed justice innovations of the past.

Sam's story, as told by Braithwaite, is longer than I give here, and thus, I leave out

emotional details that make any story compelling. Sam, who is homeless and says his parents

abused him, has no one who really cares about him except his older sister, his former hockey

25

coach at school, and his Uncle George. These people attend the conference, along with the

elderly female victim and her daughter. Sam says he knocked over the victim and took her

purse because he needed the money. His significant others rebuke him for doing this, but

also remember that he had a good side before he started getting into trouble. The victim and

daughter describe the effects of the robbery, but Sam does not seem to be affected. After his

apparent callous response to the victim, Sam's sister cries, and during a break, she reveals that

she too had been abused by their parents. When the conference reconvenes, Sam's sister

speaks directly to Sam, and without mentioning details, says she understands what Sam went

through. The victim appreciates what is being said and begins to cry. Sam's callous exterior

begins to crumble. He says he wants to do something for the victim, but doesn't know what

he can do without a home or job. His sister offers her place for him to stay, and the coach

says he can offer him some work. At the end of the conference, the victim hugs Sam and

tearfully says good luck, Sam apologises again, and Uncle George says he will continue to

help Sam and his sister when needed.

Many questions arise in reading stories like these. How often do expressions of

kindness and understanding, of movement toward repair and goodwill, actually occur? What

are the typical 'effects' on participants? Is the perfect house of restorative justice ever built?

Another kind of evidence, aggregated data across a larger number of cases, can provide some

answers.

Here are some highlights of what has been learned from research on youth justice

conferences resulted in agreed outcomes, and 80 percent of young people completed their

agreements. From New Zealand research in the early 1990s (Maxwell and Morris, 1993),

26

conferences appeared to be largely offender-centred events. In 51 percent of the 146 cases

where a victim was identified, did the victim attend the conference (p. 118). Of all the

victims interviewed who attended a conference (sometimes there were multiple victims), 25

percent said they felt worse as a result of the conference (p. 119). Negative feelings were

linked to being dissatisfied with the conference outcome, which was judged to be too lenient

toward the offender. Of all those interviewed (offenders, their supporters, and victims)

victims were the least satisfied with the outcome of the family conference: 49 percent said

they were satisfied (p. 120) compared with 84 percent of young people and 85 percent of

parents (p. 115). Maxwell and Morris report that 'monitoring of [conference] outcomes was

generally poor' (p. 123), and while they could not give precise percentages, it appeared that

'few [victims] had been informed of the eventual success or otherwise of the outcome' and

that this 'was a source of considerable anger for them' (p. 123). Elsewhere, Maxwell and

Morris (1996:95-96) report that 'the new system remains largely unresponsive to cultural

differences' in handling Maori cases, which they argue is a consequence, in part, of too few

resources.

The most robust finding across all the studies in the region (see review in Daly,

2001a) is that conferences receive very high marks along dimensions of procedural justice,

that is, victims and offenders view the process and the outcomes as fair. In the Re-

Integrative Shaming Experiments (RISE) in Canberra, admitted offenders were randomly

assigned to court and conference. Strang et al. (1999) have reported results from the RISE

project on their website by showing many pages of percentages for each variable for each of

the four offences in the experiment (violent, property, shoplifting, and drink driving). They

have summarised this mass of numbers in a set of comparative statements without attaching

their claims to percentages. Here is what they report. Compared to those offenders who went

to court, those going to conferences have higher levels of procedural justice, higher levels of

27

restorative justice, and an increased respect for the police and law. Compared to victims

whose cases went to court, conference victims have higher levels of recovery from the

offence. Conference victims also had high levels of procedural justice, but they could not be

compared to court victims, who rarely attended court proceedings. These summary

statements are the tip of the RISE iceberg. In a detailed analysis of the RISE website results,

Kurki (2001) finds offence-based differences in the court and conference experiences of

RISE participants, and she notes that RISE researchers' reports of claimed court and

conference differences are not uniform across offence types.

Like other studies, the South Australia Juvenile Justice (SAJJ) Research on

Conferencing Project finds very high levels of procedural justice registered by offenders and

victims at conferences. To items such as, were you treated fairly, were you treated with

respect, did you have a say in the agreement, among others, 80 to 95 percent of victims and

offenders said that they were treated fairly and had a say. In light of the procedural justice

literature (Tyler, 1990; Tyler et al., 1997), these findings are important. Procedural justice

scholars argue that when citizens perceive a legal process as fair, when they are listened to

and treated with respect, there is an affirmation of the legitimacy of the legal order.

Compared to the high levels of perceived procedural justice, the SAJJ project finds

relatively less evidence of restorativeness. The measures of restorativeness tapped the

degree to which offenders and victims recognised the other and were affected by the other;

they focused on the degree to which there was positive movement between the offender and

victim and their supporters during the conference (the SAJJ measures are more concrete and

relational measures of restorativeness than those used in RISE). Whereas very high

proportions of victims and offenders (80 to 95 percent) said that the process was fair (among

other variables tapping procedural justice), 'restorativeness' was evident in 30 to 50 percent of

conferences (depending on the item), and solidly in no more than about one-third. Thus, in

28

than restorativeness. As but one example, from the interviews we learned that from the

victims' perspectives, less than 30 percent of offenders were perceived as making genuine

apologies, but from the offenders' perspectives, close to 60 percent said their apology was

genuine.

The SAJJ results lead me to think that young people (offenders) and victims orient

themselves to a conference and what they hope to achieve in it in ways different that the

advocacy literature imagines. The stance of empathy and openness to 'the other', the

expectation of being able to speak and reflect on one's actions, and the presence of new

justice norms (or language) emphasising repair -- all of these are novel cultural elements for

most participants. Young people appear to be as, if not more, interested in repairing their

own reputations than in repairing the harm to victims. Among the most important things that

the victims hoped would occur at the conference was for the offender to hear how the offence

affected them, but half the offenders told us that the victim's story had no effect or only a

little effect on them.

How often, then, does the exceptional or 'nirvana' story of repair and goodwill occur?

I devised a measure that combined the SAJJ observer's judgment of the degree to which a

conference 'ended on a high, a positive note of repair and good will' with one that rated the

conference on a 5-point scale from poor to exceptional. While the first tapped the degree to

which there was movement between victims, offenders, and their supporters toward each

other, the second tapped a more general feeling about the conference dynamics and how well

the conference was managed by the coordinator. With this combined measure, 10 percent of

conferences were rated very highly, another 40 percent, good; and the rest, a mixed, fair, or

poor rating. If conferencing is used routinely (not just in a select set of cases), I suspect that

29

the story of Sam and Uncle George will be infrequent; it may happen 10 percent of the time,

if that.

Assessing the 'effects' of conferences on participants is complex because such effects

change over time and, for victims, they are contingent on whether offenders come through on

promises made, as we learned from New Zealand research. I present findings on victims'

sense of having recovered from the offence and on young people's re-offending in the postconference

period. In the Year 2 (1999) interviews with victims, over 60 percent said they

had 'fully recovered' from the offence, that it was 'all behind' them. Their recovery was more

likely when offenders completed the agreement than when they did not, but recovery was

influenced by a mixture of elements: the conference process, support from family and friends,

the passage of time, and personal resources such as their own resilience. The SAJJ project

finds that conferences can have positive effects on reducing victims' anger toward and fear of

offenders. Drawing from the victim interviews in 1998 and 1999, over 75 percent of victims

felt angry toward the offender before the conference, but this dropped to 44 percent after the

conference and was 39 percent a year later. Close to 40 percent of victims were frightened of

the offender before the conference, but this dropped to 25 percent after the conference and

was 18 percent a year later. Therefore, for victims, meeting offenders in the conference

setting can have beneficial results.

The conference effect everyone asks about is, does it reduce re-offending? Proof (or

disproof) of reductions in re-offending from conferences (compared not only to court, but to

other interventions such as formal caution, other diversion approaches, or no legal action at

all) will not be available for a long time, if ever. The honest answer to the re-offending

question is 'we'll probably never know' because the amounts of money would be exorbitant

and research methods using experimental designs judged too risky in an ethical and political

sense.

30

To date, there have been three studies of conferencing and re-offending in Australia

and New Zealand, one of which compares re-offending for a sample of offenders randomly

assigned to conference and court and two that explore whether re-offending can be linked to

categories studied (violent offences compared to drink driving, property offences,

shoplifting), those offenders who were assigned to a conference had a significantly reduced

rate of re-offending than those who were assigned to court (Sherman, Strang, and Woods,

2000).

As others have said (Abel, 1982: 278; Levrant et al., 1999: 17-22), there is a great

faith placed on the conference process to change young offenders, when the conditions of

their day to day lives, which may be conducive to getting into trouble, may not change at all.

The SAJJ project asked if there were things that occurred in conferences that could predict reoffending,

over and above those variables known to be conducive to lawbreaking (and its

detection): past offending and social marginality (Hayes and Daly, 2001). In a regression

analysis with a simultaneous inclusion of variables, we found that over and above the young

person's race-ethnicity (Aboriginal or non-Aboriginal), sex, whether s/he offended prior to

the offence that led to the SAJJ conference, and a measure of the young person's mobility and

marginality, there were two conference elements associated with re-offending. When young

people were observed to be mostly or fully remorseful and when outcomes were achieved by

genuine consensus, they were less likely to re-offend during an 8- to 12-month period after

the conference. These results are remarkably similar to those of Maxwell and Morris (2000)

in their study of re-offending in New Zealand. They found that what happens in conferences

(e.g., a young person's expressions of remorse and agreeing [or not] with the outcome, among

other variables) could distinguish those young people who were and were not 'persistently

reconvicted' during a 6-1/2 year follow up period.

31

Advocates want to tell a particular kind of story, the mythical true story of restorative justice.

This story asks people to develop their 'caring' sides and to 'resist tyranny with compassion'

(Braithwaite, 1999: 2). It suggests that amidst adversity, there is great potential 'for doing

good' for self and others (Braithwaite, 1999: 2, paraphrasing Eckel, 1997). It rewrites the

history of justice practices by celebrating a return to pre-modern forms, and it re-colonises

indigenous practices by identifying them as exemplars of restorative justice. The true story

offers some hope, not only for a better way to do justice, but also for strengthening

mechanisms of informal social control, and consequently, to minimise reliance on formal

social control, the machinery and institutions of criminal justice.

In order to sell the idea of restorative justice to a wide audience, advocates have

painted a dichotomous, oppositional picture of different justice forms, with restorative justice

trumping retributive justice as the superior one. There is a certain appeal to this framing of

justice: it offers two choices, and it tells us which side is right. With this framing, who could

possibly be on the side of retribution and retributive justice? Only the bad guys, of course.

When we move from the metaphors and slogans to the hard work of establishing the

philosophical, legal, and organisational bases of this idea, and of documenting what actually

occurs in these practices, the true story fails us. It lets us down because simple oppositional

dualisms are inadequate in depicting criminal justice, even an ideal justice system. With

respect to youth justice conferencing, extraordinary tales of repair and goodwill may occur,

but we should not expect them to occur as frequently as the advocates would have us think.

The real story of restorative justice is a more qualified one. Empirical evidence of

conferencing in Australia and New Zealand suggests that very high proportions of people

find the process fair; on many measures of procedural justice, it succeeds. However, I am

finding from the SAJJ project that it is relatively more difficult for victims and offenders to

32

find common ground and to hear each other's stories, or for offenders to give sincere

apologies and victims to understand that apologies are sincere. There appear to be limits on

'repairing the harm' for offenders and victims, in part because the idea is novel and unfamiliar

for most ordinary citizens. For youthful lawbreakers, the limits also inhere in the salience of

any legal process or adult exhortations to 'stay out of trouble', and the problems that

adolescents may have in 'recognising the other', an empathetic orientation that is assumed to

be central to a restorative process. For victims, the limits reside in the capacity to be

generous to lawbreakers and to see lawbreakers as capable of change. A variety of

observational and interview items from the SAJJ project suggests that a minority of

conferences have the necessary raw material for restorativeness to occur. (One needs to be

careful in generalising: the frequency of restorativeness would depend greatly on whether a

jurisdiction uses conferences selectively or routinely and what kinds of cases are in the

sample, that is, the mix of violence and property, the degree of seriousness, and victimoffender

relations.) Overall, the real story of restorative justice has many positives and has

much to commend, but the evidence is mixed. Conferencing, or any new justice practice, is

not nirvana and ought not to be sold in those terms.

In the political arena, telling the mythical true story of restorative justice may be an

effective means of reforming parts of the justice system. It may inspire legislatures to pass

new laws and it may provide openings to experiment with alternative justice forms. All of

this can be a good thing. Perhaps, in fact, the politics of selling justice ideas may require

people to tell mythical true stories. The real story attends to the murk and constraints of

justice organisations, of people's experiences as offenders and victims and their capacities

and desires to 'repair the harm'. It reveals a picture that is less sharp-edged and more

equivocal. My reading of the evidence is that face-to-face encounters between victims and

offenders and their supporters is a practice worth maintaining, and perhaps enlarging,

33

although we should not expect it to deliver strong stories of repair and goodwill most of the

time. If we want to avoid the cycle of optimism and pessimism (Matthews, 1988) that so

often attaches to any justice innovation, then we should be courageous and tell the real story

of restorative justice. But, in telling the real story, there is some risk that a promising,

fledgling idea will meet a premature death.

34

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43

Consedine (1995), Umbreit (1994), Van Ness and Strong (1997), and Zehr (1995). Among

the skeptics and critics are Ashworth (1993), Blagg (1997), Delgado (2000), Hudson (1998),

Levrant et al. (1999), and Pavlich (1996). Because the modern idea of restorative justice is

new, publications reporting findings from research are few. Among them are contributors in

collections edited by Bazemore and Schiff (2001), Crawford and Goodey (2000), Hudson et

al. (1996), and Morris and Maxwell (2001).

his/her supporters, and relevant other people come together to discuss the offence, its impact,

and what sanction (or reparation) is appropriate. The conference, which is run by a

coordinator and attended by a police officer, is typically used as diversion from court

prosecution, but it may also be used to give pre-sentencing advice to judges and magistrates.

Police-run diversionary conferencing is highly atypical of Australian and New Zealand

conferencing, whereas it is more typical in UK and North American practices. See Bargen

(1996), Daly and Hayes (2001), and Hudson et al. (1996) for overviews of jurisdiction

variation in Australia and New Zealand.

with the prosecution of paradigmatic violations of human rights', Drumbl (2000: 296) is

unable to avoid using the term 'retributive' to refer to responses that should be reserved for

the few.

justice advocates tend to use retributivism to mean 'repayment' (to which they add a punitive

44

kick) whereas desert theorists, such as von Hirsch (1993), use retributivism to mean

'deserved' and would argue for decoupling retribution from punitiveness.

stage of the criminal process; they are used almost exclusively for the penalty phase.

Some comparative claims about restorative justice practices (e.g., they are not adversarial

when retributive justice is) are misleading in that restorative justice attends only to the

penalty phase when negotiation is possible. No one has yet sketched a restorative justice

process for those who do not admit to an offence.

Canada. She defines new justice initiatives as representing a 'shift away from a justice

discourse of punitiveness and punishment toward one of reconciliation, healing, repair,

atonement, and reintegration' (p. 147), and she sees such developments as part of a new

emphasis on 'community' and 'partnership' as analysed by Crawford (1997). There may be

better terms than the 'old' and 'new justice' (e.g., Hudson, 2001, suggests 'established criminal

justice' for the old justice), but my general point is that the retributive/restorative couplet has

produced, and continues to produce, significant conceptual confusion in the field.

a crucial distinction between a civil and criminal harm, the latter involving both a harm and a wrong (Duff, 2001).

forms (both in an empirical and normative sense), and thus, the disappointment I speak of

reflects a disenchantment with the theoretical enterprise to adequately reflect particularity and

variation in the empirical social world. This is a longstanding problem in the sociological

field. What troubles me, however, is the construction of theoretical terms in the justice field,

which use dualisms in adversarial and oppositional relation to one another.

45

Strang et al. (1999) for the ACT and the RISE project, and the results reported here for the

SAJJ project in South Australia. See Daly (2001a) for a review of these and other studies.

Space limitations preclude a review of the methods of each study and a detailed analysis of results.

Zealand, where conferences are routinely used from other jurisdictions (like Victoria and

Queensland), where conferences are used selectively and in a relatively few number of cases

(although Queensland practices are undergoing change as of April 2001). When conferences

are used routinely, we should not expect to see 'restorativeness' emerging most of the time.

studies; rather general findings are summarised.