Rehabilitation and restorative justice: friends or foes?

Professor Theo Gavrielides

Understanding restorative justice

In The Complete Sherlock Holmes, Sir Doyle said through his leading character, ‘it is a capital mistake to theorise before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.’ How true these words sound for restorative justice, which returned in the 1970s to make claims for a better criminal justice and justice experience (Gavrielides, 2011c). 

There are many definitions of restorative justice. While some tend to be narrow in scope, focusing only on processes within the criminal justice system, others offer a more expansive view, encompassing a broader vision of how we conduct ourselves in the presence of others. At the Restorative Justice for All International Institute that I founded and direct, we adopted the following maximalist definition: 

Restorative Justice is an ethos with practical goals, among which is to repair harm by including affected parties in a (direct or indirect) encounter and a process of understanding through voluntary, safe and honest dialogue. Restorative justice adopts a fresh approach to conflicts and their control, retaining at the same time certain rehabilitative goals (Gavrielides, 2007b).

In its practical manifestation, restorative justice is primarily articulated through victim-offender mediation, circles, and family group conferences. It is embedded in legislation and is applicable to all types of offences, regardless of whether they fall under the adult or youth justice systems.

Understanding rehabilitation

To understand rehabilitation, we must first examine the various punishment theories. In summary, there are four main arguments for explaining punishment in modern society. (Gavrielides, 2005b, 2013b):

• Deterrence: Either specific to the given offender or ‘general’ for the society that watches the offender being punished.
• Incapacitation: Removing the offender from society, making it physically impossible to harm others, even for a specific period.
• Retribution or ‘just deserts’: encapsulating the Old Testament saying, ‘an eye for an eye.’
• Rehabilitation: …the idea of curing an offender of his or her criminal tendencies. It consists, more precisely, of changing an offender’s personality, outlook, habits, or opportunities so as to make him or her less inclined to commit crimes (von Hirsch & Ashworth, 1998: 1).

If we shift our focus from criminal law to psychology, the definitions for rehabilitation change. For instance, according to Ward, Mann and Gannon, rehabilitation ‘refers to the overall aims, values, principles, and etiological assumptions that should be used to guide the treatment of offenders, and translates how these principles should be to guide therapy’ (2007: 89). They see rehabilitation theory as the broader framework within which therapy and treatment should be placed. The latter two terms, they argue, are narrower in scope and refer to the process of applying psychological principles and strategies to change the behaviour of offenders in a clinical setting.

Rehabilitation in restorative justice

It has been almost 50 years since the first restorative justice practice emerged, and we have more evidence on its promises than for any other criminal justice or justice policy, as well as numerous academic writings advocating for or against it. And yet, a grey area within this extensive restorative justice literature relates to its relationship with rehabilitation. Ward and Langlands argue that the ‘comparative neglect of offender rehabilitation theory and principles within the restorative justice literature is problematic because evidence-based rehabilitation programmes are effective in reducing recidivism’ (2009: 206). 

I argue that restorative justice and rehabilitation theory are not foes, as we accept that ‘restorative justice adopts a fresh approach to conflicts and their control, retaining at the same time certain rehabilitative goals’ (2007b: 139). My aim here is to advance the restorative justice field, its tools, practices, and evaluation techniques by bringing rehabilitation theory into its normative debates and vice versa. Rehabilitation also has much to gain from an alternative approach to antisocial behaviour, such as restorative justice, positive psychology and positive criminology. This is particularly relevant to any criminal law barrister.

Zooming in on the compatibility of restorative justice with punishment theories more broadly, the literature has been rich (Gavrielides, 2008b). For the sake of brevity and to clarify my position, I will attempt to categorise the numerous views on this matter into two broad categories. The first denies that restorative justice measures can, in any way, be punitive (e.g. Wright, 1996). The second argues that restorative justice is not an ‘alternative to punishment,’ but an ‘alternative punishment’ (Duff, 1992). The first group argues that the primary purpose of restorative justice measurers is to be constructive. Therefore, they are not inflicted ‘for their own sake’ rather than for a higher purpose. The second group, however, has argued, ‘this purported distinction is misleading because it relies for its effect on the confusion of two distinct elements in the concept of intention. One element relates to the motives for doing something; the other refers to the fact that the act in question is being performed deliberately or wilfully’ (Dignan, 2003: 179).

I argue that this approach is not constructive, as it serves very little legal practitioners such as barristers. If we take a step back, we will realise that this division is merely a construct of historical events and populist agendas. For example, I have argued that today’s dominant understanding of punishment as retribution is the outcome of historical events and the demands of modern society. In Europe, what is believed to have caused this change was the increasing power of kingships as trans-local and trans-tribal institutions (Gavrielides, 2011c). This is mainly because they united the tribes and large areas, thereby changing the structure of societies from communitarian and tribal to hierarchical and feudal.

In the pursuit of increasing the success of the criminal justice system as outlined above, crime control was formalised in communities. Cohen (1985) describes how justice and social control were reconstructed from being informal, local control systems to becoming a centralised machinery of processing justice.

Consequently, as the state’s rights gradually overshadowed those of the victim, the concept of punishment placed less emphasis on restoring the harmed and healing the community. Offender-focused rehabilitation was further developed as a monopoly in the hands of the state. What also emerged from this development was the division of law between public and private. Subsequently, crime is now mainly dealt with as an act against the state and the public interest, while offences against individuals’ rights are pursued separately as torts through private law. The terms ‘offender’ and ‘victim’ began to be used within the public law sphere.

Reconciling restorative justice with rehabilitation and punishment

In 2005, to reconcile the divisive debate on whether or not restorative justice constitutes punishment, I introduced a different type of punishment. I argued that there are two kinds of punishment. ‘The first is what we experience today, as the outcome of a criminal process, and is based on the understanding of the punitive paradigm. The second is what we experience in a restorative justice process, and has little to do with what retribution and other punishment theories deal with (Gavrielides, 2005b: 91). I called the latter type ‘restorative justice pain’ (Gavrielides, 2005b: 91). Irrespective of whether we decide to go with the group of critics who deny that restorative measures are punitive, or with the group who claim that they are alternative punishments, we still have to accept that restorative justice is surely neither punishment nor is it interested in it, at least in the form that it has taken under the punitive paradigm of our criminal justice systems. I concluded that restorative punishment aims to restore the harm done.(Gavrielides, 2005b: 93). Deterrence (general or specific), just desserts, and rehabilitation might be side effects of restorative justice. However, I pointed out that they are not among the primary goals of restorative measures.

In 2013, I further developed the notion of restorative justice punishment (Gavrielides, 2013a). ‘Restorative justice does entail pain, but of a different kind; Not pain that is triggered by state and top-down punishment, as we understand it through the current paradigm. Restorative justice triggers pain that is personal and specific to each participant, a consequence of their actions, behaviour, self-observation, and self-reflection. This pain is a gift. It cannot be imposed, but it can be nurtured’ (Gavrielides, 2013a: 321).

To sum up, the concept of ‘restorative justice pain’ (Gavrielides, 2005b, 2013b) offers a theoretical model that can be used to explain the connection between desistance and restorative justice. Through this model, restorative justice becomes a natural doorway into longer-term desistance. Subsequently, this leads to behaviours that indicate potential further change, beyond offender rehabilitation.

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