Skyrocketing incarceration rates, over-representation of ethnic minorities, a fixation on punishment rather than rehabilitation—this isn't describing the modern criminal justice system in the United States. It's New Zealand's in the 1980s.
After watching its criminal justice system devour six times more indigenous Maori youth than their white counterparts, New Zealand passed the Children's and Young People's Well-Being Act in 1989. The legislation, which limited police power to arrest youth and implemented restorative justice practices over formal court proceedings, was the first of its kind. While the results were not perfect—the overall number of youth arrested, charged, and incarcerated fell significantly, but the Maori remain disproportionately represented—the act illustrates a powerful alternative to the criminal justice system in the U.S., which continues to ravage black and brown communities while doing little to prevent crime or rehabilitate offenders.
In a new report, the National Juvenile Justice Network, a Washington, D.C.-based criminal justice non-profit, examines the Children's and Young People's Well-Being Act and draws from it lessons that can be used in re-imagining criminal justice in the U.S. Report author and NJJN senior policy counsel Melissa Goemann spoke with Pacific Standard about what alternatives to incarceration look like, and how they might be implemented in the U.S.
What is restorative justice and how has New Zealand implemented it?
Restorative justice is commonly known as "a process whereby parties with a stake in a specific offense collectively resolve how to deal with the aftermath of the offense and its implications for the future." The specific practices associated with restorative justice vary and can include mediation, conciliation, conferencing, and sentencing circles. However, the principles are largely consistent within a triangular approach that equally takes into account the experiences of the community, the victim, and the person who committed the harm. Restorative justice views crime not as a violation against the state, but as a violation of relationships. It acknowledges that there was a rupture in the seams of society, creating a sense of betrayal and anger, and it seeks to mend back together the interwoven threads of safety and justice through inclusive, collaborative processes. Restorative justice also examines the root causes of why the individual inflicted the harm.
New Zealand integrated restorative justice practices into the youth justice process through the Family Group Conference. The FGC brings together the youth and their family with their lawyer, social worker, and others who can offer support, as well as the person harmed, if they choose to attend. It is used as the standard mechanism for processing serious cases where a youth does not deny their charges.
How does a Family Group Conference function?
FGCs are organized and led by a youth justice coordinator, who is employed by the Department of Social Welfare and expected to be an impartial facilitator. Participants in the FGC include the youth and can include anyone who plays an important role in their life, as well as others who may be able to offer support or services, including the young person’s lawyer and social worker, members of the family and "whānau" [extended family], and other professionals, such as teachers or health-care workers. The victim and supporters also are invited to attend.
FGCs are intended to be adapted to the needs and perspectives of the participants, so there is no specific model that must be used. Generally, it may open with a prayer, depending on the cultural or religious background of the family. The police officer then often reads the report out loud and, if the youth agrees, the FGC will go forward (otherwise the police will handle or it will be charged in court, if charges have not already been filed). The participants will then discuss the offense and the impact it has had on both the victim and the young person's family. The victim will share ideas on how the young person can address the harm. The coordinator may also make available expert reports regarding education, health, and welfare. The family and the young person then take time out to discuss a plan to bring back to the others at the FGC. The plan is then discussed further with the wider group, which will attempt to find an appropriate resolution before it is finalized and brought to the court. The plan is supervised by someone the group selects, such as a family member.
The plans generally enable the young person to make amends and can include community service or getting a part-time job to help pay for damages. The plan can also address needs the young person may have, such as anger management or substance abuse programs. Finally, the plan helps the young person to set goals for the future, such as life skills, education, and employment.
The court is required to consider the plan but does not have to adopt it—though it does in the vast majority of cases. If the court adopts the FGC plan, then it monitors the plan on a regular basis. If the court finds that the agreement has been successfully fulfilled, then the case will be formally withdrawn and no formal court order imposed. In the case of non-compliance, the case will be referred back to the court for formal sanctioning.
What are the advantages of restorative justice over traditional, retributive justice?
Restorative justice seeks to repair the breach between the young person and the harmed party and community. If done well, it often results in the harmed party feeling more satisfied because their experience was addressed directly and the young person is placed in a better position to move forward positively because the issues that contributed to their offense are addressed and they have learned to take responsibility for their actions.
The retributive system has many negatives. Youth who are incarcerated are at risk of physical and sexual victimization, suicide, disruptions to their mental and physical development and education, and negative impacts on employment. Even youth who are not incarcerated can suffer the collateral consequences of a juvenile delinquency record, such as challenges re-enrolling in school, graduating, and obtaining employment. Incarceration is also very expensive. It is much more cost-effective to provide community-based alternatives.
What were the results of New Zealand's implementation of restorative justice practices?
New Zealand was able to significantly shrink its youth justice system through a combination of limiting youth arrests and requiring FGCs in most cases that are serious enough for prosecutors to consider charging youth with an offense. Arrest only occurs in approximately 12 percent of all cases of youth offending. Most of the offenses by children and young people are now handled by police warnings or pre-arrest diversion without court referral. New Zealand uses formal court processing as a last resort, except in cases of murder or manslaughter. They have not been able to effectively handle the underlying disparities, however, and continue to work to address this issue. The indigenous Maori youth are disproportionately represented at every stage of the justice process, as they were before implementation of restorative justice practices. While the overall number of Maori youth in the system has shrunk, it has not declined as significantly as the overall number of youth of European ancestry, leading to even greater disparities.
How can restorative justice practices be implemented more widely in the U.S.?
Restorative justice has slowly gained attention in the juvenile justice field as an effective solution to reduce recidivism, prevent children from entering the justice system, reduce cost for taxpayers, and improve conflict resolution. It can be introduced at different points in justice proceedings and has the potential to be life-changing for all of those involved. In the U.S., although there is strong support for restorative justice in some local jurisdictions, it remains a marginally supported justice practice at the level of state policy. Restorative justice should be integrated as a core underlying process in youth justice systems and not an add-on, as it is often used, for more minor cases only. It should be coupled, as in New Zealand, with other measures to help shrink the system to be most effective.
This interview has been edited for length and clarity.