Restorative justice may not work for all young offenders

Young offenders may not be equipped with the skills to help them deal with restorative justice. Flickr/Pandham

Educating young offenders about the consequences of their crimes is a key way to ensure they don’t re-offend. But bringing them face to face with their victims may not always be the right way to go.

Young offenders often suffer long-term abuse or neglect. They frequently fail to achieve academically, and have few, if any marketable employment skills. They face elevated risks of mental health problems and early and problematic substance abuse.

A fair system

It’s often said that the mark of a civilised society is the way in which it looks after its weak and vulnerable. We can take solace from the way young offenders are “managed” in Australia.

In the main, youth justice legislation in our states and territories recognises that young people who fall foul of the law are in many respects victims, as much as they are perpetrators.

In Victoria, we can be particularly proud of the fact that we have a unique (in Australia, and possibly in the world) “dual track” system which enables magistrates, in some circumstances, to sentence 17 to 20 year olds into the youth justice system, in an effort to delay or (preferably) prevent their entry into the adult corrections system.

Restorative justice conferencing

In the last 10 to 15 years in Australia, there has also been a strong shift away from traditional adversarial approaches to justice administration with young offenders, towards (amongst other approaches) the use of Restorative Justice Conferencing (RJC).

RJC allows the young offender to have a conversation with his or her victims in an effort to heal (even in part) the emotional damage done to others and to repair the tear in the social fabric that has been created by their wrongdoing. A trained facilitator will oversee the meeting.

In order to be offered it as an alternative to a community-based or custodial order, the young person must plead guilty. What could possibly be “wrong” with such a progressive and therapeutically-oriented approach?

Unfortunately, many interventions look good at face value and seem to make intuitive sense, but in practice can be problematic, and may not deliver as intended.

Lack of understanding

Research in the last decade in Australia, the USA and the UK has also shown that young offenders represent a group at high-risk of unidentified oral language impairments.

In other words, they have problems expressing themselves verbally by accessing appropriate vocabulary, formulating meaningful sentences, and adequately understanding the complex language we often use.

To complicate matters further, much of what transpires between us as speakers and listeners in everyday life is not literal in meaning – we use idioms and a range of other linguistic devices such as sarcasm, irony and various kinds of humour.

My own research has indicated that in both community and custodial samples of young male offenders, such problems reach clinical thresholds in about 50 per cent of cases.

This is not to say that RJC shouldn’t be used with young offenders. But evidence on the oral language ability of this group raises important questions about the extent to which such young people can be assumed to have the skills needed to genuinely engage in a highly conversational process that is intended to be restorative in nature – both for the victim(s) and for the young person.

What good is it doing?

In the case of young people who have been maltreated and not received the care they need when growing up, one might indeed wonder about what is being restored.

Has this young person ever had empathy displayed towards them when they have been wronged and are distressed? Have they learnt the language of empathy and remorse and how to use this under pressure? If they are unable to access words that express these sentiments, how can they appear genuine in their remorse? How will it be perceived if the young person shrugs his shoulders and gives mono-syllabic responses? What does all of this mean for the young offender’s experience of the RJC and for that of their victim(s)?

Like most social scientists, I am well aware of the evidence that shows us that simply punishing young people for their wrong-doing does not lead to reduced recidivism or the adoption of socially acceptable values and behaviour.

But we need to take great care, and apply high standards of critical thinking, when seeking approaches that are a good philosophical fit with our desire to promote better outcomes for young offenders.

One size does not fit all

RJC is no doubt an appropriate and helpful approach for some young offenders and their victims, but may not be so for all.

Further research is needed to elucidate ways of identifying which young people, in which circumstances, will benefit most from this approach.

Above all, however, in the meantime, primum non nocere – “first do no harm”.