Summary II
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APA References: Richards, K. (2011). Restorative Justice and ‘Empowerment’: Producing and Governing Active Subjects through ‘Empowering’ Practices. Critical Criminology, 19(2), 91-105. doi:10.1007/s10612-010-9106-8
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Crit Crim (2011) 19:91–105
DOI 10.1007/s10612-010-9106-8
Restorative Justice and ‘‘Empowerment’’: Producing
and Governing Active Subjects through ‘‘Empowering’’
Practices
Kelly Richards
Published online: 14 September 2010
Springer Science+Business Media B.V. 2010
Abstract During the last quarter-century, restorative justice has emerged as a widelyutilised response to crime in Western nations. This article, which stems from a Foucauldian
genealogy of restorative justice, argues that its embeddedness within the discourse of
‘‘empowerment’’ renders restorative justice a politically acceptable response to crime.
‘‘Empowerment’’, it is argued, is one of many conditions of emergence of restorative
justice. The discourse of ‘‘empowerment’’ underpins restorative justice in tangible ways,
and has informed legislation and policy in Western jurisdictions. This article seeks to
problematise the taken-for-granted nature of this discourse. It argues that the discourse of
‘‘empowerment’’ produces restorative justice subjects who are increasingly governed and
governable. As ‘‘empowering’’ restorative practices are targeted towards ‘‘disempowered’’
individuals and communities, concerns are raised about the potential of restorative justice
to disproportionately impact upon socially marginalised populations and to increase social
exclusion.
Introduction: The Rise and Rise of Restorative Justice
During the last quarter-century, restorative justice has emerged in numerous localities
around the globe as a new approach to criminal justice. The last 10–15 years in particular have witnessed the rapid proliferation of restorative practices.1 Van Ness’ (2005)
Overview of Restorative Justice Around the World demonstrates the widespread implementation and global reach of such practices. According to Van Ness (2005),
1
Although the definition of restorative justice is contested, many adopt Marshall’s (1996): 37 definition—
that it 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’’. Practices such
as victim-offender mediation, victim-offender reconciliation, youth justice conferencing and circle sentencing are widely accepted to be examples of restorative justice.
K. Richards (&)
Centre for Restorative Justice, Australian National University, GPO Box 2944, Canberra ACT 2601,
Australia
e-mail: Kelly.Richards@anu.edu.au
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approximately 100 countries now utilise restorative justice as a response to crime. The
website of the Center for Restorative Justice and Peacemaking (2008) estimates that
there are over 300 victim-offender mediation programs in the United States of America,
and over 700 in Europe. Even supranational bodies such as the Council of Europe
(2006), the European Union (2001) and the United Nations Economic and Social Council
(1999, 2002) have encouraged the increased use of restorative practices throughout their
member states.
Around the globe, restorative practices have been adopted for use—albeit haphazardly—at nearly every stage of the criminal justice system: from diverting first-time or
minor juvenile offenders from the courts, to being used as a sentencing option for adult
offenders, to dealing with crimes of violence such as sexual assault and sexual abuse
(Cossins 2008; Daly 2006; Daly and Stubbs 2007), domestic violence (Coker 2006; Stubbs
2007), homicide (Eschholz et al. 2003; MacGregor 1996; Molhan 1996; Pranis 2001; Swift
1994), and other acts of severe violence (Umbreit et al. 1999, 2003a) including hate crimes
(Dixon and Ray 2007; Umbreit et al. 2002, 2003b; Volpe and Strobl 2005). Restorative
justice has even been utilised in cases involving prisoners on ‘‘death row’’ (Beck et al.
2007; Umbreit and Vos 2000).
Thus although restorative justice remains in the margins of the criminal justice system
in many jurisdictions, there is no denying its rapid proliferation in recent years, particularly
in Western countries in North America, Europe and Australasia. This sudden expansion
prompted Freiberg (2002) to joke that restorative justice has become so prevalent that
when human beings land on Mars, there will be a restorative circle there to greet us. It is
safe to suggest, therefore, as Shapland et al. (2006: 505) have done, that restorative justice
is among the most ubiquitous new approaches for dealing with offending in the West.
The substantial body of literature that has emerged on restorative justice reveals a
number of remarkable details about its origins and proliferation. Firstly, restorative practices did not emerge in a single location or context and then spread to others. Rather there
was a ‘‘near simultaneous discovery of restorative processes in far-flung corners of the
globe from wholly independent sources’’ (McCold and Wachtel 2002: 110). A number of
historical accounts of restorative justice highlight the concurrent emergence of restorative
practices in diverse locations and contexts (see, for example, Immarigeon 1994; Umbreit
1995).
Secondly, in many locations in which it emerged, restorative justice enjoyed support
from across the political spectrum (Braithwaite and Mugford 1994; Garkawe 1999; Nyp
2004; Pollard 2004; Roche 2004). As Roach (2000: 262) argues:
Liberals on the left tend to stress restorative justice as an alternative to destructive
forms of imprisonment and a means in which offenders can be healed or rehabilitated. Conservatives on the right stress restorative justice as an alternative to costly
forms of imprisonment and as a means to ensure that offenders are made to account
to victims and communities.
The political appeal of restorative justice was confirmed by the effortless passage of
restorative justice legislation through parliaments in many jurisdictions in the West. New
South Wales’ Young Offenders Act (1997), for example, progressed through parliament
with bi-partisan support. Transcripts of parliamentary debate indicate that this legislation,
which formalised the use of restorative practices for juveniles across the state, received
support from the liberal Greens and Democrats parties, both the major parties, and even the
very conservative Call to Australia party (New South Wales Legislative Council 1997).
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Washington state legislation to facilitate judicial referrals of cases to victim-offender
mediation also received bi-partisan support (Haley 2002), as did Colorado’s more recent
restorative justice legislation (Office of Governor Bill Ritter Jr 2008).
Thirdly, the restorative justice literature highlights that in addition to extensive political
acceptance, restorative justice has enjoyed widespread support from the public. Exponents
of restorative justice often cite public opinion research that indicates community support
for restorative justice in support of this concept (Roberts and Stalans 2004; Strang 2000;
Umbreit 2001; Walgrave 1995). Having reviewed the research literature on public opinion
and restorative justice, John Braithwaite (1996: 328), one of its most widely-regarded
supporters, claimed that ‘‘the evidence is now strong that ordinary citizens like restorative
justice’’.
Given the reappearance of ‘‘just deserts’’ (Garland 2001), and the increasingly punitive
backdrop against which restorative justice emerged, these features of the origins of
restorative justice—its simultaneous emergence in diverse contexts and locations, and its
capacity to attract widespread political and public support—demonstrate its anomalous
nature.
This conundrum—the emergence and widespread acceptance of a way of ‘‘doing justice’’ that appeared so divergent from the dominant criminal justice paradigm—raises
important questions about how restorative justice emerged as an acceptable way of
responding to crime. As discussed below, this formed the basis a large research study on
restorative justice.
Research Questions, Methodology and Method
The research study from which this article stems took this phenomenon—the emergence
and widespread acceptance of restorative justice in criminal justice systems in the West—
as its central focus. The research primarily aimed to address how restorative justice harnessed such broad political and popular support; that is, how it emerged as an accepted way
of ‘‘doing justice’’ in diverse ways and multiple locations around the globe.
In order to address this research question, the study developed a Foucauldian genealogy
of restorative justice. The aim of genealogical research is to describe the ‘‘‘polyhedron’ of
intelligibility’’ (Foucault 1981: 6) of its object of study; that is, to articulate the multiple
discourses that make phenomena intelligible. The research therefore aimed to produce a
history of discourse of restorative justice. My aim was to identify and articulate some of
the multiple and disparate discourses that have enabled restorative justice to emerge as a
legitimate response to crime in the West.
Using extensive historical documentary analysis and interviews with key figures in the
restorative justice field in Australia, Canada, New Zealand, the United Kingdom and the
United States of America, the research identified and explored marginalised or silenced
discourses in the development of restorative justice. Drawing on Foucault’s later writings
on ‘‘governmentality’’, the research analysed the multiple relationships between these
discourses, the subjectivities they produce, and the ways in which these subject positions
govern and are governed. It used this analysis to destabilise accepted ‘‘truths’’ about
restorative justice, and to construct the beginnings of an alternative, genealogical account
of restorative justice. In addition, it sought to examine how the discourses within which
restorative justice is embedded may disproportionately impact on marginalised subjects of
restorative justice.
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I have presented the beginnings of this genealogical account of restorative justice
elsewhere. I have argued that restorative justice emerged as an accepted criminal justice
practice partly because it is informed by a number of therapeutic discourses (for example,
self-help and new age discourses) that have gained currency in contemporary Western
cultures (Richards 2005, 2007). I have also argued that a contrasting discourse—the
responsibilisation of parents—also operates to legitimise restorative justice practices, albeit
in competing, diverse and haphazard ways (Richards 2006, 2007).
This article seeks to add another layer to these analyses of restorative justice by
positing ‘‘empowerment’’ as a discursive construct via which restorative justice is
legitimated. I also seek in this article to begin to analyse the relationships between these
discourses, the subjectivities they produce, and the ways in which these subject positions
govern and are governed. Although ‘‘empowerment’’ by no means represents an intrinsically repressive technology of power, as I discuss in detail below, its taken-for-granted
and ‘‘invisible’’ nature makes the practices it legitimates—in this case, restorative
practices—potentially ‘‘dangerous’’, particularly for the socially marginalised subjects of
restorative justice.
The Discourse of ‘‘Empowerment’’ as a Condition of Emergence of Restorative
Justice
The discourse of ‘‘empowerment’’ is fundamental to the restorative justice ethos. That all
the key participants in restorative practices—victims, offenders, parents, families and
communities—need to be ‘‘empowered’’ via participation in restorative processes is reiterated almost constantly in the literature on this topic. As Zernova (2007: 492) argues, one
key aspiration of restorative justice advocates is ‘‘to craft a model of criminal justice which
would empower stakeholders in crime—victims, offenders and their communities’’. The
International Institute for Restorative Practices’ (n.d.) definition of restorative practices is
also heavily steeped in the discourse of ‘‘empowerment’’. In the following description, the
Institute virtually equates these two concepts with one another: ‘‘in the criminal justice
field…innovators use the term ‘restorative justice’…in social work they advocate
‘‘empowerment’’….these phrases are related to a similar perspective about people, their
needs and their motivation’’.
The full gamut of restorative justice authors—from evangelical supporters (see, for
example, Dignan 2005: 6; van Wormer 2004), to ‘‘sympathetic doubters’’ (Hudson 2003:
207) to government and non-government agencies (Home Office 2003: 9, 29; New Zealand
Department for Courts 2002: 11; New Zealand Ministry of Justice 2004: 16; Restorative
Justice Network 2004: 25; Restorative Justice Sub-Committee Of The ACT Sentencing
Review Committee 2003: 4) utilise discourses of ‘‘empowerment’’ in their work. Even
those scholars we might consider critical of restorative justice unproblematically refer to
the notion of ‘‘empowerment’’ (see, for example, Ashworth 2002: 578; Parkinson and
Roche 2004: 512; Pavlich 2002: 1).
Importantly, the discourse of ‘‘empowerment’’ underpins restorative justice practices
in tangible ways. A great deal of restorative justice policy and legislation incorporates
the idea of ‘‘empowerment’’ into rationalisations for the implementation of restorative
approaches to crime. In Australia, both New South Wales’ and the Australian Capital
Territory’s restorative justice legislation incorporate the concept of ‘‘empowerment’’.
New South Wales’ Young Offenders Act (1997)—upon which a state-wide restorative
approach to juvenile justice was premised—includes among its principles ‘‘the need to
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empower families and victims in making decisions about a child’s offending behaviour’’
(s. 34(3)(d)). The first listed objective of the Australian Capital Territory’s Crimes
(Restorative Justice) Act (2004) is ‘‘to enhance the rights of victims of offences by
providing restorative justice as a way of empowering victims to make decisions about
how to repair the harm done by offences’’. Good practice guidelines developed by the
Youth Justice Board for England and Wales (2001: 1) similarly stress the role restorative
processes should play in ‘‘empowering’’ participants, particularly victims. Wilcox and
Hoyle’s (2004) National Evaluation of the Youth Justice Board’s Restorative Justice
Projects demonstrates that this concept actively underpins a number of restorative justice
projects in the United Kingdom, including those in Plymouth, Hampton, Southwark, and
Derbyshire and Derby City. In the United States of America, Nashville’s Victim
Offender Reconciliation Program aims to ‘‘help the parties come to terms with their
disputes in a way which offers to both an experience of justice and empowerment’’
(Metropolitan Government of Nashville and Davidson County n.d.). Canada’s Little
Manual of Restorative Justice (Just Equipping 2008: 30) recommends that restorative
justice processes ‘‘encourage victims and offenders to come out of their isolation and to
become a community with others who are suffering as they are’’; in doing so, the
offender will be ‘‘empowered to live’’.
‘‘Empowerment’’ might therefore be understood as a condition of emergence of
restorative justice. That is, the emergence and ascendancy of restorative justice, in some of
its guises at least, has occurred in part because of the widespread acceptance of the
discourse of ‘‘empowerment’’ in the criminal justice realm and more broadly. The takenfor-granted nature of ‘‘empowerment’’ enables restorative justice—which is partly premised upon it—to emerge as an approach to crime control that ‘‘makes sense’’ to criminal
justice legislators and policy-makers.
The Invisibility of ‘‘Empowerment’’
‘‘Empowerment’’ discourses are therefore ‘‘invisible’’ in the restorative justice field. Here,
I mean ‘‘invisible’’ in the Foucauldian sense: ‘‘the sort of thing that nobody even asks
about’’ (Hacking 1995: 95). Discourses of ‘‘empowerment’’ are so taken-for-granted in the
restorative justice field that they are rarely considered, critiqued or challenged, despite their
powerful status as discourses through which restorative practices are justified. In the
restorative justice field, ‘‘empowerment’’ discourses are so taken-for-granted that their
existence has been rendered utterly unproblematic.
This invisibility stems at least partly from the ability of the discourse of ‘‘empowerment’’ to effortlessly traverse political boundaries. In the restorative justice field,
‘‘empowerment’’ seems apolitical perhaps partly because all key participant cohorts—
victims, offenders, parents, families and communities—are deemed in need of ‘‘empowerment’’. Whereas traditionally, victims’ groups have been aligned with conservative
politics, and offender issues have been the domain of liberals, for example, the discourse of
‘‘empowerment’’ appears to traverse these boundaries.
The unproblematic status of ‘‘empowerment’’, however, is precisely the problem with it;
that is, the apolitical fac¸ade of ‘‘empowerment’’ renders covert the discourses that inform
and enable it. Potential ‘‘dangers’’ linked to these discourses make the practices they
legitimate—in this case, restorative practices—potentially ‘‘dangerous’’ by extension.
Some of these potential ‘‘dangers’’ will be outlined later in this article.
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Restorative Justice, ‘‘Empowerment’’ and Active Bodies
Without proposing a concrete definition, I want to suggest that in the restorative justice
realm and elsewhere, ‘‘empowerment’’ might be understood as being inherently linked to
the activity of its targets. The documentary analysis I undertook in order to piece together a
genealogy of restorative justice suggests that the discourse of ‘‘empowerment’’ is directly
linked to the engagement, participation and activity of its key subjects—victims, offenders,
parents, families and communities. This article therefore contends that restorative practices
produce active bodies via the discursive construct of ‘‘empowerment’’. I expand on this
argument below.
One of the ‘‘problems’’ with the dominant criminal justice system that restorative justice
purports to ‘‘solve’’ is the lack of participation/activity of its subjects—particularly
offenders, victims, parents and families. The court system is dysfunctional, we are told,
largely because of its failure to engage these groups; the trouble with court is that offenders
are passive and victims are absent. Offenders’ lack of engagement with the criminal justice
system is, in particular, constructed as problematic.
Stewart’s (1993: 45) widely-cited work on restorative justice, for example, championed
New Zealand’s family group conference scheme on the grounds that young offenders are
often so removed from court proceedings that ‘‘on enquiring from them what had happened
[in court] we often received the information that they had been ‘astonished and discharged’
(admonished and discharged)’’. Barton’s (2003) proposed ‘‘empowerment’’ model of
restorative justice is also premised on the perceived problem that stakeholders in the
criminal justice process—offenders, victims, and their respective supporters—are not
provided opportunities to become adequately engaged.
In this context, ‘‘accountability’’ is posited by proponents of restorative justice as the
mechanism through which offenders’ lack of engagement with criminal justice processes
ought to be countered. The discourse of accountability—which is fundamental to restorative justice in many of its guises—is thus premised on this perceived problem. In a rare
attempt to define accountability, Zehr (1990: 40) suggests that it requires ‘‘an intrinsic link
between the act and the consequences’’ (see also Zehr 2003: 69–70). One could argue,
therefore, that accountability is predicated on the idea of offenders engaging with criminal
justice procedures in an active manner. This, perhaps, is the difference between serving a
prison term and completing a restorative outcome plan: while prison is imposed upon an
offender, and potentially endured passively by him/her, restorative consequences demand
the active engagement and participation of the offender (see Zehr 1990: 40; Zehr 2003:
70). As van Wormer (2004: 117) puts it:
Unlike standard criminal justice practices…[restorative practices]…are empowering….At its heart, restorative justice builds on active involvement by offenders in
their rehabilitation; this process of accepting responsibility for one’s actions and
making amends to the victim and the community can be empowering for all
concerned.
Consider in relation to this the way in which Morris and Young (2000: 17–18)contrast
restorative justice with a court appearance:
Restorative justice processes require more than the presence of the offender: they
require their inclusion. They are expected to directly participate in the process, to
speak about their offending and matters associated with it, to interact with the victim,
to express their remorse about what has occurred, to apologise for what they have
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done, and to contribute to decisions about the eventual outcome. From all this,
offenders are expected to have a better understanding of their offending and its
consequences, to become accountable for the offending in ways which they understand and to contribute to making amends to the victim (see also Parkinson and
Roche 2004: 510; Tauri and Morris 2003: 44).
This discourse has been pervasive in the restorative justice ethos both during its earlier
phase of rapid development and expansion, and more recently. Shapland et al. (2006: 514,
518) research, for example, found that victims were more likely to accept apologies by
offenders in restorative conferences where they involved ‘‘remorse through action’’, and
highlighted offenders’ ‘‘taking [of] responsibility and agency’’ as a positive aspect of
restorative procedures. Action and agency on the part of offenders are thus posited as
desirable outcomes in restorative justice fora.
Conversely, in restorative justice procedures, passive behaviour on the part of offenders
is frowned upon: ‘‘the process is not restorative if key participants are required to remain
silent or passive’’ (Restorative Justice Network 2004: 25). Behaviours such as remaining
silent and/or staring at the floor during a conference are deemed inappropriate and inimical
to the purpose of restorative practices (see, for example, Umbreit and Greenwood 1997: 5).
In a pilot conferencing scheme in the Northern Territory, a ‘‘low level of interest in offence
proceedings’’ (Fry 1997: 68) on the part of offenders was even considered grounds to deny
the offender a diversionary option and, presumably, proceed directly to court. In addition,
offenders’ outcome plans are usually of the active variety, requiring the offender to
undertake work for the victim or community, write apology letters and/or participate in
therapy or training, for example. The focus is thus on what offenders need to do in order to
‘‘put things right’’ rather than what might be done to the offender.
This is how a number of restorative justice supporters distinguish restorative approaches
from retributive or rehabilitative approaches: while retributive measures inflict punishment
on offenders (‘‘to’’), and rehabilitative measures seek to help offenders (‘‘for’’), restorative
justice approaches aim to work with participants (McCold and Wachtel 2002: 113; McCold
and Wachtel 2003; Wachtel 2004). According to Cunneen and White (2007: 332–333),
while a ‘‘justice’’ approach to juvenile justice is ‘‘something that is done to you’’, and a
‘‘welfare’’ approach is ‘‘something that is done for you’’, restorative justice is ‘‘something
that is done by you’’.
I would argue, therefore, that restorative justice, informed by discourses of ‘‘empowerment’’, promotes activity and produces active bodies. In advocates’ narratives,
‘‘empowerment’’ is usually premised on the participation of subjects. One cannot be
‘‘empowered’’, it seems, unless they act; one cannot be passively ‘‘empowered’’ or have
‘‘empowerment’’ bestowed upon them. To be ‘‘empowered’’ is to act. As Morris and
Maxwell (1993: 77) argue in favour of victim participation in family group conferences,
‘‘by providing victims with information and facilitating their participation in the process,
the system will increase victim satisfaction….It is this participation which empowers
[italics added]’’ (see also Zehr and Mika 2003: 42).
Of course, that one of the aims of restorative justice is to increase the participation of
offenders, victims and others in the justice process probably comes as no surprise to those
familiar with the field. Increased engagement and participation is entirely taken-for-granted
as an ideal that restorative practices should strive to achieve (see Home Office 2002: 125).
The increased involvement of key players in the justice process is thus often construed as a
strategy from which all participants will benefit (Department of Health and Human
Services Tasmania 2001: 3; Youth Justice Board for England and Wales 2001: 1; Home
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Office 2003: 50). In particular, restorative justice advocates take it for granted that all
victims desire increased involvement in the criminal justice system, despite a body of
research to the contrary (Coates and Gehm 1989; Cook et al. 1999; Galaway 1989; Gardner
1990; Hoyle et al. 1999). While there is a substantial body of research literature that
demonstrates that involvement in legal decision-making processes is highly valued by
participants in the criminal justice system (see, for example, MacCoun 2005; Tyler et al.
2007), this may not be the case for victims of minor offences, to whom restorative justice
processes are most often applied (see Richards 2009).
‘‘Empowerment’’ and the Increasing Governability of Subjects
My conceptualisation of ‘‘empowerment’’ as linked to the activity of its subjects is neither
absolute nor universal. Nonetheless, in the context of this research, this conceptualisation
offers a new ‘‘lens’’ through which to view ‘‘empowering’’ restorative practices. What is
more significant than recognising the potential for ‘‘empowerment’’ to be imposed on the
subjects of restorative justice, is recognising that ‘‘empowerment’’ is often readily adopted
as a goal by key participant cohorts of restorative practices themselves. In contrast to
rehabilitation and retribution, ‘‘empowerment’’ represents a strategy that is attractive to the
subjects of restorative justice. Restorative practices, underpinned by discourses of
‘‘empowerment’’, are sites at which the goals of the state and those of its subjects are
aligned.
The activity/participation that restorative justice facilitates via the discourse of
‘‘empowerment’’ may consequently render its subjects increasingly governable. Here, I
mean governable in the Foucauldian sense; that is, the direction of the possible fields of
action of individuals or groups (Foucault 1982). Via ‘‘empowerment’’, the actions of
‘‘empowered’’ subjects are increasingly amenable to direction; their conduct more amenable to being conducted (Foucault 1991). Although the impotency of parents and victims
in the traditional court process is regarded as unenlightened and even unnatural by
restorative justice supporters, their involvement in restorative practices opens up the
possibility of increased responsibilisation, among other potentially negative consequences.
There is evidence, for example, that in some instances, parents of juvenile offenders have
agreed to participate in an ‘‘empowering’’ restorative process, only to find themselves
responsibilised by the process, to the extent that they apologise on behalf of their child and/
or commit to undertaking restitution for their child’s offence (see Cook 2006; Crawford
and Newburn 2003; Prichard 2002).
Although the increasing governability of subjects may not be the intention of
restorative programs or those who initiate them, it nevertheless exists as a potential
consequence of programs’ implementation or programmers’ actions. The discourse of
‘‘empowerment’’ is therefore important to highlight as a condition of emergence and
legitimating rationality of restorative justice; its seemingly apolitical and benign nature
potentially masks a range of ‘‘dangers’’. As I argue later in this article, disadvantaged
individuals and groups may be further marginalised via ‘‘empowering’’ strategies of
governance in a number of ways.
It should be noted first that while (Tyler et al. 2007) has amassed an extensive body of
research evidence that demonstrates that procedural fairness is important to participants in
criminal justice procedures (see MacCoun 2005 for a review), and that participants who
perceive such procedures as fair are more likely to adhere to the outcomes of these
procedures, there is a ‘‘dark side’’ to procedural fairness:
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The concern is that authorities can use the appearance of fair procedure (dignity,
respect, voice) as an inexpensive way to coopt citizens and distract them from outcomes that by normative criteria might be considered…unfair or biased (MacCoun
2005: 189).
Waldman’s (1999) critique of alternative dispute resolution processes, for example,
demonstrates that while members of cultural minority groups consistently experience
poorer outcomes, they rate such processes as more fair than do non-minority participants.
These critiques are important to consider in relation to the argument being made in this
article. ‘‘Empowerment’’ is not something forced on participants in restorative justice
processes, but something participants may aspire to. As such, the deliberate co-option of
restorative justice participants is not necessary. As Cruikshank (1993: 330–331) argues,
while provisions exist through which subjects can be coerced into ‘‘empowerment’’, just as
often, it is something that is willingly aspired to. This may be particularly the case for
Indigenous people, for whom restorative justice practices are often deemed most appropriate, and to whom strategies of ‘‘empowerment’’ are most readily applied. Importantly,
therefore, ‘‘empowerment’’ represents neither the ‘‘false consciousness’’ on the part of
participants described by MacCoun (2005), nor a conspiracy on the part of governments to
control those involved in the criminal justice system. Instead, it is a strategy of governance
that is ‘‘thinkable and practicable both to its practitioners and to those upon whom
it….[is]….practiced’’ (Gordon 1991: 3). Such techniques are usually underpinned by good
intentions on the part of policymakers, but can implemented in an unfair manner or result
in marginalisation (O’Malley 1994), as I argue below.
Empowering the Disempowered
I argued above that disadvantaged individuals and groups may be further marginalised via
‘‘empowering’’ strategies of governance. I provide two examples of my argument in this
section.
Firstly, I want to argue that ‘‘empowering’’ strategies of governance may inadvertently
responsibilise the ‘‘disempowered’’ individuals and groups they are directed towards in the
restorative justice sphere.
The discursive constructs of ‘‘empowerment’’ and responsibilisation, which are often
presented as separate, even conflicting, concepts, are not nearly so discrete. Consider, for
example, Braithwaite’s (1995: 7) claim that the ‘‘political feasibility of the family group
conference is that it empowers families and sharpens family responsibilities [italics
added]’’, and O’Connell et al.’s (1999: 21)description of New Zealand’s youth conferencing scheme as a ‘‘bold experiment in empowering families to take greater responsibility
for their own children [italics added]’’.
In addition, much restorative justice legislation and policy contains overlapping notions
of ‘‘empowerment’’ and responsibilisation. Both Tasmania’s Youth Justice Act (1997) and
Western Australia’s Young Offenders Act (1994), for example, emphasise the importance
of ‘‘enhancing’’ and ‘‘reinforcing’’ parents’ responsibilities towards their children. Western
Australia’s legislation states that ‘‘responsible adults should be encouraged to fulfil their
responsibility for the care and supervision of young persons, and supported in their efforts
to do so [italics added]’’ (s. 7). The Home Office’s (2008) Youth Crime Action Plan, under
which a variety of restorative justice measures for juveniles were launched, even offers
‘‘non-negotiable support and challenge’’ to parents of anti-social juveniles.
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It is almost impossible to establish the parameters around these concepts—to ascertain
where and how we might distinguish ‘‘empowerment’’ from responsibilisation. Thus
although some restorative justice proponents may promote ‘‘empowerment’’ and responsibilisation as discrete concepts, the two concepts appear to exist in a mutually dependant
relationship. If ‘‘empowering’’ strategies are aimed at ‘‘disempowered’’ individuals and
groups, therefore, then it stands to reason that those deemed in need of ‘‘empowerment’’
will be most vulnerable to responsibilising strategies also. The discourse of ‘‘empowerment’’, then, may extend the potential for disadvantaged populations to be responsibilised,
due to its seemingly apolitical nature.
In relation to restorative justice, moreover, one can see that a piece of legislation such as
New Zealand’s landmark Children, Young Persons and their Families Act (1989), which
many claim was designed to ‘‘empower’’ Ma¯ori families to manage the offending of Ma¯ori
young people (Morris and Maxwell 1993: 74–75), might also result in the disproportionate
responsibilisation of Ma¯ori parents and families. Although this is difficult to measure
empirically, Tauri (1999: 164) claimed that during the decade after family group conferencing was implemented in New Zealand, there was no significant decrease in Ma¯ori
dissatisfaction with the criminal justice system (see also Morris and Maxwell 1993: 87).
The same might be said about other localities in which restorative practices target
Indigenous populations. McInnes’ (1996: para 56) account of the development of family
conferencing in South Australia, for example, clearly demonstrates the emphasis on
‘‘empowering’’ Aboriginal families:
The view was taken that if participation and empowerment was needed by
Aboriginal families trying to cope with children who had become young offenders as
recommended…then it was probably also needed by the families of non-Aboriginal
children.
That consideration was only later given to non-Aboriginal families indicates the intention
of some restorative programs to ‘‘empower’’ those deemed ‘‘disempowered’’—in this case,
Aboriginal families in South Australia. Again, therefore, while this may be a laudable goal,
it opens up possibilities for such groups to be unfairly targeted, and perhaps responsibilised
for the criminal activity of their young people.
Secondly, I want to argue that it is important to consider what might become of those
who resist ‘‘empowerment’’—those whose subjectivities fall outside of those favourable or
advantageous to restorative justice. As discussed above, restorative justice constructs
various subjectivities via discourses such as ‘‘empowerment’’. While some of these subjectivities—the active parent or offender, for example—are celebrated, others are not.
What then, might become of those who resist ‘‘empowerment’’ via restorative justice? This
is especially important to consider given what some research indicates about the relationship between ‘‘effective’’ restorative practices and rates of recidivism. Analysis of
Morris and Maxwell’s early data, for example, suggested to Morris and Young (2000: 19)
that:
Those offenders who apologised to victims were three times less likely to be reconvicted four years later than those who had not apologised and that those offenders who
participated in conferences with victims were more than four times less likely to be
reconvicted four years later than those where no victims had been present.
Here, the subjectivities of apologetic offenders and active, ‘‘empowered’’ victims are
clearly linked. If the presence of victims and apologies by offenders are deemed necessary
to reduce recidivism—the hallmark of a successful criminal justice intervention—it stands
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101
to reason that these will be encouraged by restorative practices. Opposing subjectivities—
such as unapologetic offenders or ‘‘uncooperative’’ victims might thus be marginalised or
excluded from restorative practices.
If we take the Kansas Juvenile Justice Code (2001) as a further example, we can see that
the production of ‘‘empowered’’ and active parents—those who are willing to participate in
and even pay for their own and their child’s mediation and/or counselling—is clearly the
intention. Despite not having committed a criminal offence, parents must employ legal
representation and request a court hearing if they wish to challenge the court’s decree that
they participate in such ‘‘empowering’’ programs. Here, those who refuse the ‘‘empowering’’ strategy of a restorative justice procedure are effectively criminalised. This may also
be the case under the United Kingdom’s Youth Crime Action Plan, which states that ‘‘for
those [parents] who are struggling we will offer more support; but for those who do not take
their responsibilities seriously we will challenge them to do so’’ (Home Office 2008: 5).
This demonstrates that in some instances, there may be important consequences for those
whose subjectivities are inimical to the ‘‘empowering’’ restorative paradigm.
Conclusion
I have argued in this article that the discourse of ‘‘empowerment’’ forms one condition of
emergence of restorative justice. The cultural currency of ‘‘empowerment’’ enables those
social programs and reforms premised upon it to benefit from its taken-for-grantedness,
and to become acceptable ways of responding to social problems—in this case, crime.
I have posited ‘‘empowerment’’ as a strategy via which the subjects of restorative justice
are exhorted to become active participants. Although this may not be inherently problematic, the invisibility of ‘‘empowerment’’ as a discursive construct underpinning
restorative practices raises a number of important implications. As I have argued here,
‘‘empowering’’ strategies of governance may disproportionately impact upon marginalised
groups and individuals. Specifically, they may inadvertently responsibilise the ‘‘disempowered’’ subjectivities they target, and may result in negative consequences for those
whose subjectivities resist the ‘‘empowering’’ ideal of restorative justice. These issues are
important to consider if restorative justice is to continue as the progressive alternative to
traditional criminal justice processes it is championed as.
A number of strategies might be considered to address the problems that I have outlined
in this paper. Firstly, an acknowledgement that restorative justice is embedded in the
discourse of ‘‘empowerment’’, and increased scholarly engagement with this aspect of the
restorative justice project is important if restorative processes are to be applied in a
progressive and effective fashion, and avoid becoming repressive and responsibilising
mechanisms. Secondly, consideration should be given by legislators, policy-makers and
practitioners as to whether restorative practices are intended to ‘‘empower’’ participants,
and how this might be achieved in practice. Clear guidelines about the ‘‘empowerment’’ of
participants may limit the potential for ‘‘empowering’’ practices to become repressive.
Finally, safeguards around how to prevent ‘‘empowerment’’ resulting in respsonsibilisation
of participants in restorative justice processes could be implemented. As I have argued
elsewhere in relation to parents of young offenders in restorative justice fora (Richards
2006), for example, a highly adaptable and individualised approach to restorative practices,
coupled with an appropriate level of resourcing, may assist practitioners to facilitate
processes that are genuinely ‘‘empowering’’ and avoid responsibilising marginalised
families.
123
102
K. Richards
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