More to offer where the most serious harm has occurred

This is the fourth, concluding article of the  “Questions we don’t dare to ask” series. You can read the introduction to the series, and  Siri Kemény's opening text on the role of the mediator here; Judah Oudshoorn's  considerations about our understanding of the foundations of restorative justice here; and Tim Chapman's views on restorative justice programmes for children here. 

Dave Gustafson has worked in the areas of crime, prisons, victimology, criminology and trauma recovery for over 30 years. He holds a PhD in Criminological sciences from KULeuven, Belgium. Dave’s primary research interests continue to be in the fields of trauma and recovery, the related brain science and the impacts of facilitating therapeutic dialogue between victims and offenders in crimes of severe violence. Most recently, Dave has become involved in researching and developing processes based upon Restorative Justice foundations (values and principles) for dealing with iatrogenic harms, i.e., harms suffered by patients in the health care system at the hands of those whose mandate and oath is to Heal, and to ‘Do no further harm.’ Even during the current pandemic, Dave can often be found training, consulting and facilitating complex cases at the invitation of Indigenous Community leaders across the Canadian North, the sort of engagement he truly prizes.

Since Canada is considered one of the pioneers of the contemporary restorative justice movement — and Dave has been one of the pioneers of restorative justice in general and its implementation after serious crimes in particular for years — we wanted to ask his views on the current state of restorative justice, what his criticisms are and what changes or developments he would like to see.

That experience led, in turn, to the idea of doing research into whether victims and offenders (1) might be willing to engage in restorative processes in more serious and often much more violent offences. In 1988, together with one of our Community Justice Initiatives (CJI) staffers, I conducted a research project  in which we asked crime victims and offenders convicted of serious crimes, matched by offence,

• whether they would be willing to meet one another in a safe setting (likely within the prison walls);
• whether they could see such a meeting being therapeutic for them and/or the other and
• what, if any, other benefits they might imagine coming from such an encounter (Gustafson and Smidstra, 1989).

Some respondents nuanced their ‘Yes’ or ‘No’ responses, but the findings indicated that 87% of offenders surveyed and 82% of the victims believed that such a process would be beneficial for themselves and for the ‘other,’ and would participate if such a programme were established.

That piece of research was sufficiently persuasive that the then Commissioner of the Correctional Service of Canada (CSC), Ole Ingstrup, was prepared to have us develop and pilot a Victim Offender Mediation Programme (VOMP) model in Canada’s Pacific Region (British Columbia and the Yukon Territory). Thus began the contract for a two-year demonstration project. That was thirty years ago. The programme has been continuously delivered ever since.

Roberts (1995), one of the programme’s first research evaluators, reported to the federal government that in his experience of over thirty years of programme evaluation he had never experienced such unanimously and overwhelmingly positive support from respondents. Over the next fifteen years, the findings of a number of evaluations were proving the earliest hypotheses true: the melding of the best of trauma recovery processes and of restorative justice values, principles and best practices, was producing highly beneficial outcomes for both victims and offenders.  The rest, as they say, is history. CSC determined that perhaps victims — and not just offenders — were to some degree their clients, too.

Largely as a result of those very positive evaluations, CSC expanded the service and in 2004 rolled it out coast-to-coast in Canada under its new moniker, Restorative Opportunities (RO), following the specialised training which we, that is, Sandi Bergen, then my co-director and co-facilitator at CJI, Revd Jamie Scott, a seasoned pioneer and programme developer and myself, conducted for a new cadre of facilitators. Seeing the beneficial outcomes, especially in terms of trauma recovery and resilience for victims and what appears to be clear impact on offender recidivism, has caused most of the early detractors — even some of the most vocal sceptics — to acknowledge that at least for the persons among their constituencies who  choose to engage in this process, it has produced outcomes which are truly beneficial.

Restorative justice after complex and sensitive crimes is starting to gain momentum. When you consider your own journey in this area and then look at the current developments, are there issues that worry you when it comes to restorative justice after serious harm?

Yes, indeed. I am reminded of one evening, many years ago, when I had just completed a basic St John’s Ambulance First Aid Course as a young Royal Canadian Air Force Cadet. As he passed out our certificates, the instructor quite dramatically pulled a hatchet from his briefcase, brandishing it and holding our certificates high in the air, saying, ‘This is a BASIC certificate: it does not qualify you to use your little hatchets and perform open-heart surgery.’ Point made: know your limit!

Even after almost four decades (Did I blink? Where does the time go?) of immersion in this field, I am constantly struck by the complexity of the cases referred to us over the years by prison staff and victim serving agencies. Because of those complexities, at the very least, I believe, those facilitating cases involving severe violence should have a thorough grounding in 

• the trauma syndromes,
• the impacts of long-term imprisonment,
• Adverse Childhood Experience (ACE) (often a complicating factor in the trauma experience of both victims and offenders) and
• mediation/facilitation skills at an advanced level.

That’s for starters.

From the very beginning, our facilitators worked in teams of two: one man, one woman (unless the participants’ needs dictated otherwise). I’m still convinced of the merits of co-mediation, for many reasons. Deeply respectful, gentle curiosity, hearts and minds open to what one’s programme participants will teach you (they are the experts in their own experience, after all) and the humility required to be a constant student will take you a long way. It doesn’t take long to recognise that what you’ll be engaged in as a facilitator in these cases may be more akin to specialised open-heart work than you might have imagined. The learning curve is steep and never ends.

One issue that some restorative justice experts are concerned about, and which was also raised in Tim Chapman’s article, is the increasing ‘McDonaldisation’ of restorative justicethat is occurring in some regions. Is this also one of your concerns or what are your thoughts on this issue?

As far as I know, the term the ‘McDonaldization of Restorative Justice’ (the application of management principles used in the global corporate system to improve efficiency and cost-effectiveness) was coined by Martin Wright in a 1996 article and later used by Mark Umbreit (1999) to refer to the ‘industry’ of restorative justice in juvenile justice systems. Schweigert (1999), Braithwaite and Strang (2001) and Roche (2003) suggest that restorative justice practice has led, and possibly exceeded, restorative justice theory. It is discussed in some victim-offender mediation programmes in the USA, as well as the effect this has on victims involved.

It is something which has concerned a number of commentators for over twenty-five years and, in its present day expression, is a concern I share. One can either opt for ‘Billions Served’ or the quality and nutritional value of what is served up — probably not both simultaneously. Part of the difficulty seems to be that restorative justice programmes, however they are described, are now ‘a dime a dozen.’

Some of the proliferation has seen at least some programmes built on different definitions and quite different (and sometimes antithetical) values sets. It has become difficult to describe one’s programme helpfully as ‘restorative’ because restorative justice has become kind of an Alice-in-Wonderland ‘muchness,’ to the degree that in describing one’s programme there is almost a need to differentiate it from the types of programmes that it is not. For example, within a one hundred kilometre radius of my office, you would find fifteen prisons with programmes where our (CJI’s) VOMP/RO model is operational. And, within that geographical compass, there would also be programmes run by community agencies (some very good ones) dealing with referrals limited to just minor criminal offences, and some run under the umbrella of policing authorities which (at least in the earlier days) embraced the notion of shaming young offenders as the way to correct their behaviour. Many of these ‘justice forums’ went ahead whether the victims participated or not. Perhaps that could have been described under the rubric of Disintegrative Shaming. Each of these programmes might be described as an restorative justice programme, but (Oops!) we’ve come to the place where one virtually has to define exactly what is meant by Restorative Justice in your particular case, and where each needs to examine where its practice falls along the spectrum from fully retributive to fully restorative.

Whatever the outcome of that exercise, practices and approaches that tend toward the fully restorative end have a tremendous amount to offer all along the spectrum of human conflict and crime — even to the point of bringing about healing and reconciliation in transitional societies in the aftermath of internecine conflict and crimes against humanity. In fact, a growing body of restorative justice research would indicate that its values and principles may have more to offer where the most serious harm has occurred. In the meanwhile, by all means, the multiplication of programmes is a good thing, as long as along the entire spectrum their builders have taken the time to dig deep and build well, as opposed to throwing up McDonaldized temporary shelters according to a cost-benefit analysis.

If only we could divert the rivers of money being poured into business as usual — the crime control industry, streaming at least some of that colossal expenditure instead into research, development, training and implementation of best practice restorative justice models …

Another area that is always discussed is the level of training and professionalism required for facilitators/mediators and whether they should be professionals or lay people. The ‘lay model’ still seems to be highly valued in many places. Do you think this model can be maintained given the increasing complexity and severity of the harm being addressed, or do you think changes are needed in this area?

Because someone is a ‘lay’ person does not have to mean that they are ignorant, incompetent, unlearned, unwise or unwary. Competencies are the issue, along with self-awareness and knowing one’s limits.

For many years through the 1980s and 1990s, we had a good-sized cadre of volunteer mediators at CJI, some who might describe themselves as ‘just plain working folks from the community’ and some seasoned professionals (one who had held almost every senior post in the Correctional Service of Canada and two or three professional probation officers) all of them having been trained — no matter their credentials — in our model and its processes. At the time, we had a rigorous training regimen, a three level mediator certification programme and on-going inservice training. To have attained Senior Mediator status at CJI was no small thing. Whether professional or lay persons, these mediators were turning out equally remarkable results. The point here is that all of them were highly competent because they were highly trained and well suited to the work.

One of my dearest friends and colleagues, a highly educated and credentialed psychologist, when he discovered that I was working in the serious crime programme with a prisoner convicted of multiple rapes, practically exploded with ‘I would gladly cut his head off.’ I think he was somewhat surprised at his own vehemence, but it served to indicate to me that not all professionals, even those who might seem best equipped academically, would necessarily make suitable candidates as mediators, capable of withholding judgement and working with ‘dual partiality,’ equally committed to the well-being of both/all parties. It would be important to the future of the programme that all participants be able to navigate the process and emerge with their heads.

However one comes by it, through academic work or rigorous training, I firmly believe that anyone entering into facilitation of serious criminal offences — whatever their background — needs a thorough grounding in understandings of trauma (that suffered by both victims and offenders). Perhaps one does not necessarily need to mount up professional degrees to equip oneself for this work, but I know that I am immensely grateful for the education that qualified me for my own, and for those of the facilitators who now work with me in our prison based programme or across the nation under the auspices of the CSC. The most seasoned professionals facilitating RO cases in Canada also consult and act as mentors for others. Their counsel is highly prized; they are seen as experienced process guides who contribute to the safe passage of the nation’s VOMP/RO programme participants.

My next question is also related to the previous question regarding the need for training. In recent years there has been a slowly growing movement calling for trauma-informed justice systems. Considering that in restorative justice we also work with traumatised people and especially after severe harm often with highly traumatised people, do you think this is an area that can contribute to the development of restorative justice practices after severe harm? Is there a need for more training in this area, or is restorative justice inherently trauma-informed?

I don’t think that restorative justice is inherently trauma-informed. But, if one plumbs the depths of the values and principles of restorative justice, and consistently adheres to them, one’s practice might have a great deal in common with Trauma Informed Care (TIC).

It is interesting to observe how the ‘watchwords’ of today, such as Trauma Informed Care, are eclipsed or replaced by the new understandings of tomorrow. For example, some folks in the trauma and recovery field are now suggesting that while TIC has a great deal to recommend it, Healing Centred Engagement (HCE) really ought to be what one is engaged in and what any of us committed to healing would want to aspire to. Is it just semantics?

Almost from the beginning of the history of developments in Canada now thought of as ‘restorative’, some of the pioneering practitioners were suggesting what was then a radical notion, i.e., that healing ought to head the list as a primary objective. For me, as a clinician specialising in trauma recovery and resilience, this not only rang true, it began to fundamentally shape our practice and the training curriculum my colleagues and I were writing. Many years later, while doing a literature review as part of publishing my own research, I discovered the German language expression ‘heilende Gerechtigkeit’ (lit., ‘healing justice’) which Weitekamp and Parmentier (2016, p. 145) concluded by clearly advocating:

"… for the interpretation of restorative justice in terms of healing justice. In our view, this terminological substitution would make utmost sense, not only for historical reasons . . . but also for conceptual ones as ‘healing justice’ explains in a more convincing and tangible way what its objectives and processes in the context of conflict resolution stand for. We are of course aware that the term ‘healing justice’ may generate substantive and substantial criticism from various sides . . . In our view, however, healing justice cannot be limited to focusing on emotional harm and psychological redress, but is bound to address all types of harm (physical, material, emotional etc.) inflicted on all stakeholders involved (victims, offenders, community, society). Hence it is far broader concept than previously understood and it is likely to generate many new ways of thinking about dealing with these multiple dimensions. As a result, we submit that the future of healing justice approaches looks quite interesting and even promising."

What would the ideal implementation of restorative justice look like to you? What changes do we need to consider in our practice to truly meet the needs of victims, offenders and their communities (rather than our own or the system’s)? 

The ideal implementation for me would look very much like the one envisaged by Weitekamp and Parmentier (2016). Referrals would be ‘triaged,’ with co-mediators trained and equipped to handle the issues presenting in that case along the spectrum from less serious young offender cases and relatively minor property offences to cases involving traumatic wounding and post traumatic symptom perseveration for the victims/survivors who had suffered them. Facilitators in these cases would be competent to do the case preparation and facilitation work with such care that triggering or re-traumatising the survivor would be highly unlikely. They would eschew judgement, being equally partial to the offenders and their healing and ultimate well-being, recognising that ‘judgement kills compassion.’

At the far end of the spectrum would be practitioners who would constitute teams as needed for work in transitional societies: experts in international law, alongside care givers willing to sit, for example, on the grass in a Rwandan Gacaca court for days together with trusted indigenous leaders bringing together the former combatants. The team might include trauma recovery therapists, perhaps, if the situation called for the inclusion of professionals at that level.

And, as in the vision they describe, one ‘interesting and promising’ indeed, cases would not be limited to those that pass the definitional bar as crimes or even war crimes. The triage intake process might identify other sorts of harms crying out to be addressed: racism, misogyny, violence of any sort brewing or having broken out; cases involving violence against nature and environmental degradation.

Perhaps this is a vision entirely too utopian, but our reach must exceed our grasp as we vision new realities. There is room for dreamers, and those who bear the values that can call us to a quest for upward nobility, for entire societies, for nations and the in-between spaces across borders.

Respect, empathy, mercy, compassion, confession, absolution, forgiveness, love, with just such foolish things as these the peacemakers can and do restore what is broken. Any system that holds that punishment, that violence, will cure violence rather than beget more of the same needs to be challenged. There is much to accomplish to move the responses to conflict, crime and wrongdoing from models based in retribution to those which truly — and demonstrably — heal and restore. Maybe we’ll discover what Paulo Coelho (2014) asserts to be true: ‘When a person really desires something, all the universe conspires to help that person to realize his dream.’

As one of my chaplain friends asks, ‘If this kind of healing is possible, is it moral for a country to say it attempts to do justice for its citizens when it denies them access to such a resource? When the overwhelming majority of the budgets of its criminal justice and corrections systems are consumed in dealing with only one side of the justice equation: the offender--and even that without demonstrably effective, equitable, just or healing outcomes?’

As T.S. Eliot (1934) would have it, there is ‘much to cast down, much to build, much to restore.’

Thank you very much, David, for this profound and rich interview that offers many points for reflection. Thank you so much for taking the time in the midst of a busy schedule to give us insight into your extensive, decades-long experience.

David L. Gustafson is the Executive Director, Fraser Region Community, Justice Initiatives Association (FRCJIA), Langley, B.C. Canada and and Adjunct Professor, School of Criminology, Simon Fraser University, he is an ordained pastor and a Registered Clinical Counsellor (psychotherapist)
Contact: davidgustafson@cjibc.org

He was interviewed by: 

Claudia Christen Schneider, the President Swiss RJ Forum and a Criminologist. 
Contact: swissrjforum@gmail.com

(1) A caveat concerning the use of the terms ‘victim’ and ‘offender’ as I understand and have written about the prolonged and profoundly negative impacts of labelling. I choose to use these terms because we are dealing with something other than minor ‘harmdoers’ and ‘those who’ve suffered the harms.’ We are dealing with serious criminal offences and with a litany of terms used by the key actors in the various systems. At a policing or investigatory stage one might hear ‘person of interest,’ ‘suspect’ or ‘alleged perpetrator’; at a prosecutorial level ‘the accused’ (until guilt is determined), then ‘the defendant;’ if sentenced and incarcerated ‘convict’, ‘inmate’, ‘prisoner’; when released: ‘parolee’ or ‘probationer.’

As well, most ‘harm doers’ I work with have been convicted of the serious crimes for which they were charged, or have pleaded guilty. They do not want to be called ‘inmates’ as a rule, and will be glad to tell you why. They tend to identify themselves as ‘prisoners’, do not seem to balk at ‘offenders’ and recognise that they now have criminal records (as opposed to a record of ‘harms done and for which I accept responsibility’).

On the victim side, individuals may actually want and need the legal designation ‘victim’ for a variety of purposes. In Canada the term conveys rights under the 2015 Canadian Victims Bill of Rights or legal standing in criminal and civil courts. The designation might also be needed for insurance purposes or to qualify for victims’ compensation or for disability claims. Criminal trauma survivors seeking such remedies, with whom I also deal, choose, at least for a time, to identify as ‘victims.’

Some individuals, on the other hand, find the term ‘victim’ pejorative or diminishing and prefer terms that are more empowering. Respondents in my doctoral research (Gustafson, 2018) described their Victim Offender Mediation programme (VOMP) experience as having enabled significant trauma recovery for them . . . setting them ‘Free at last [and] enabling them to move from a view of themselves as ‘victims’ to ‘survivors’ or ‘thrivers’.’

References

Braithwaite, J. and Strang, H. (2001). Introduction: Restorative justice and civil society. In: H. Strang and J. Braithwaite (eds.) Restorative justice and civil society, chap. 1, pp. 1–13. Cambridge: Cambridge University Press.

Coelho, P. (2014). The Alchemist: Translated by Alan R. Clarke 25th Anniversary Edition. San Francisco: HarperOne.

Eliot, T.S. (1934). The Rock: A pageant play . . . Book of words. London: Faber & Faber.

Gustafson, D.L. and Smidstra, H. (1989). Victim offender reconciliation in serious crime: a report on the feasibility study undertaken for the Ministry of the Solicitor General (Canada). Unpublished report.

Roberts, T. (1995). Evaluation of the Victim Offender Mediation Project, Langley B.C.: Final Report. Victoria, BC: Focus Consultants.

Roche, D. (2003). Accountability in restorative justice. Oxford: Oxford University Press.

Schweigert, F.J. (1999). Learning the common good: principles of community-based moral education in restorative justice. Journal of Moral Education 28(2):163–183.

Umbreit, M.S. (1999). Avoiding the marginalization and “McDonaldization” of victim-offender mediation: a case study in moving toward the mainstream. In: G. Bazemore and L. Walgrave (eds.)

Restorative juvenile justice: repairing the harm of youth crime, pp. 213–234. Monsey, NY: Criminal Justice Press.

Weitekamp, E.G.M. and Parmentier, S. (2016). Restorative justice as healing justice: looking back to the future of the concept. Restorative Justice: An International Journal 4(2):141–147. Https://doi.org/10.1080/20504721.2016.1197517.