05 November 2024 :
October 10, 2024
Two years after the enactment of the Law on Restorative Justice, the so-called Cartabia Law or Cartabia Reform, Hands off Cain publishes 2 interviews with experts in the field, Patrizia Patrizi and Gemma Varona. In some passages the terminology can be very specific, footnotes have been added, but overall the current condition of Restorative Justice in Italy and beyond is meticulously outlined.
Professor Patrizia Patrizi, full professor of Legal Psychology and Restorative Justice Practices at the University of Sassari, is an expert psychotherapist and mediator in restorative justice with training qualification from the Ministry of Justice. A past president of the European Forum for Restorative Justice[1], and a member of the HoC Board of Directors, she is one of the leading exponents of Restorative Justice in Europe.
She has just published the second edition of the book “Restorative Justice. Psychology and law for the well-being of individuals and communities."[2].
The volume devotes a specific chapter to the Organic Discipline[3] of Restorative Justice, but the norm is also the subject of reflection in other parts of the volume that argue some of its currently critical aspects.
We have read his book, and we have noted his and some of his co-authors' concerns about the penalistic view that risks permeating the process of a restorative program. Is there really a risk that it is “formal” justice that will encompass “restorative” justice, while everyone hoped it would be restorative justice that would transform “formal” justice, the simple retributive concept of punishing and incarcerating?
I would not speak of risk, but of evidence. It is not only happening in Italy: everywhere there is a gap between the social progress theories of restorative justice, and the (legitimate) interests of states to reduce the length of trials, and to affect recidivism. These goals are also of great relevance to the people involved in a trial, and to the community more generally. It is crucial, however, that restorative justice and the justice system, maintain their independence in terms of values and organization. And, with respect to this, I believe that the Organic Rules have overstepped the point of being a primary norm: they have gone into too much detail, even about how meetings should take place, how many mediators, their training, etc.
Does the legal system care about deflating the courts and reducing recidivism? Well, restorative justice, respecting all the values and principles that characterize it, can perhaps have a relative impact with respect to the deflative goal, but it can also have implications in reducing recidivism, especially in responding to the needs of the victim to have a voice and answers, and with respect to the possibility for the person named as the perpetrator of the offense to feel accountable to the offender. We will continue to do what we do well, to work with people, with relationships. Work on large numbers is something else. Although, on the big numbers and over time, restorative justice can make an impact, through better satisfaction of victims and perpetrators, as evidenced by research data from countries where restorative justice has been active the longest.
In the relationship between the two systems (criminal and restorative) one issue, which is coming up in the current debate, is, for example, that of the “instrumentality” with which the person named as the offender might decide, ask to participate in a restorative justice program. I personally believe that this is a false problem. The eventual instrumentality, and I emphasize “eventual,” cannot be attributed to the person, but to the criteria of the penal system itself, which will be able to evaluate the participation in the restorative justice program and its outcome, both as a restorative agreement and as fidelity to the agreement itself, with respect to the measures provided for in the trial and execution of punishment. But this mechanism I do not think can be attributed to the person, rather to the logic of the system in which the person is in. Would we consider work done properly and, perhaps, with passion, instrumental to salary or career advancement?
Can you elaborate on this “instrumentality problem”?
As I have already said, on the concept of instrumentality I am highly critical, because if I am inside a criminal system, and inside a trial in which I have to prove my innocence, because that's what we tend to try to do when we are guilty of any action, even of non-criminal significance, how could there not be instrumentality? Everything is instrumental in the criminal context, but inevitably I would say, just as it is difficult for the victim to accept a meeting or even request one. Unless it has been explained to her first and well what restorative justice means, unless she has at that moment a need that has been intercepted, she says, “I have to participate in this program to do good to the offender? No way!” A rate of instrumentality and difficulty is ineradicable, and therein lies the skill and experience of the facilitator/facilitator.
The important thing is to work on it well so that, for example, all judges, all lawyers know what it is all about, really know what restorative justice is all about, really know/recognize its human-relational dimension, values, principles, and put it forward with knowledge (I would like to say really believing in it, with sincerity).
Staying on the issue of the criminal justice system incorporating restorative justice, it is likely that at first some lawyers will look at it with suspicion (this is happening) or will only remit to their clients the “legally convenient” effects ... I remember that something similar happened when, in 1988, in the provisions on juvenile criminal trial (Presidential Decree 448/88), the suspension of trial with probation was introduced for the first time (Art. 28). I was working in the juvenile field at the time. The Presidential Decree provides that if the outcome of the probation is positive, the offense is extinguished. Especially in the first application phase, lawyers suggested that juveniles participate, even if they did not recognize themselves as responsible: this is obviously an instrumental use that has nothing to do with the goals of probation, which are empowerment, development of prosocial orientations, personal growth. Psychologically but especially from the restorative perspective, this is a relevant issue.
Instrumentality is the other side of accountability. It is written on the Ministry of Justice's official website: “Restorative Justice by introducing the dimension of accountability to the other offers a great opportunity in the field of treatment” ... as you say, professor, it will be very rare for a person at the center of a criminal trial to be able to be really sincere, and avoid instrumental attitudes, even unknowingly. But you are familiar with the subject from the time when the first restorative practices were introduced in the juvenile field....
However, in juvenile, acknowledging responsibility, again mentioning Article 28, means that I feel, I become aware of the harm I have caused or at least that I have acted in a certain way.
In the adult sector, the issue is more complicated. In juveniles, there is always the focus on the juvenile person, on the growth of the personality, on his or her development; therefore, of the responsibility itself, the developmental dimension is recognized: starting from the active degree of responsibility, how to develop the psychological variables that can support his or her development? Hence the provision of probationary programs that can foster learning of responsibility.
As Professor Gemma Varona says, in people who have already been convicted, there is more time to work, and perhaps a bit more resignation that pushes toward sincerity... if we understand correctly, juveniles before being put on probation were convicted, in the sense that in any case someone must have found them guilty... the law for adults, on the other hand, provides for access to restorative justice even before the trial...
Actually no, they were not “automatically” convicted. Let's say more correctly that, beyond judicial pardon, there were no institutions in place to reduce the presence of the criminal justice system in an adolescent's life. The one you refer to is probably the alternative measure of probation to social service: that one did and does intervene after conviction (as in the adult sector). The suspension of the trial with probation has another meaning, for that, it interrupts the trial to start a path of growth and empowerment, reducing the risks of institutionalization and stigmatization (the extinction of the offense by successful completion of the trial is the highest expression of the principle of de-stigmatization).
Returning to restorative justice, the norm speaks of “the person named as the offender,” and this choice correctly takes into account the principle of presumption of innocence, and this is correct. But the procedural phase is particularly delicate: if I access restorative justice, am I perhaps admitting that I am guilty? If I don't go, am I perhaps not responding to this proposal, so how am I evaluated? This seems to me to be a particularly sensitive and critical issue.
When we say that the criminal justice system has appropriated restorative justice (recalling a well-known statement by H. Zehr, father of restorative justice), it is that in some ways it has brought it back to its own rules, because taking responsibility, acknowledging responsibility during the process in a traditional criminal justice system, is discouraged, and mind you this is not to say that a restorative program cannot go very well with a person who does not acknowledge responsibility, because arrangements are made and the victim is satisfied, or perhaps during the process the perpetrator is particularly active with respect to what are the consequences caused, however, this is a language of restorative justice, it is not of the criminal justice system.
You say that the traditional criminal justice system “discourages” accountability... actually a confession guarantees mitigating factors, but it is true that defendants, knowing that they can also count on an Appellate and a Cassation trial, prefer to try the Russian roulette of the trial: it's all or nothing, who cares about a slight mitigating factor for the confession, better not to confess...
And that is why the terms are different and must remain different. For a magistrate it is called “confession,” for those who advocate restorative justice it is called “accountability”. Thus, it is not just to the law, something that many perceive as abstract, but to those who have suffered and to the community: people.
The concept, mentioned by John Braithwaite, of reintegrative shame, is also highly relevant. Actually reintegrative shame is about both, the victim because anyway a little bit is blamed (when I had a burglary in my apartment, I remember the first thing the neighbor asked me, “but you too ... besides the grates, you have iron shutters: why didn't you close them”). I'm talking about the guilt, the guilt that the victim finds himself because he always has to have done everything right anyway; and the reintegrative shame of the perpetrator, which is not the stigma, because the stigma prevents even feeling sorry and ashamed, because it's so strong the stigma, it's so deleterious, traumatizing, that it accompanies you in all contexts, to get a job, papers, that's pure stigma. The reintegrative shame is when in front of the person, in front of the community you feel so bad and you take on even more that responsibility, but also the possibility to reintegrate, for example there is a restorative program that I think is also done in some parts of Italy, for sure in Milan, in Bollate prison, and I don't remember what other places. I'm referring to the Circles of Support and Accountability, that's where the value of support and accountability is, that is, I ask you for accountability... but at the same time I offer you support. And the Circles of Support and Accountability are very useful tool in terms of accountability, they are structured for exactly that, active reintegration with community involvement, because reintegration is one of the most difficult things after you've been disengaged: it's difficult for people coming out of prison, it's difficult for people close to you, for the community.
And above all, you are asked to reintegrate, but you have to find the way yourself, because the state has never created intermediate structures, pathways for gradual reintegration...
That's right, with no chance, with a community that in turn defends itself, there is the community that just wants revenge and doesn't want to know about the fact that you got out of jail “too early.” We have to work on active reintegration, which also involves the community members, because it is not only a matter of the offender, his family ... it affects all of us and all of us, society and institutions. Unfortunately, even today this is not the case....
A community that is too hostile damages itself, because, by rejecting too brutally a small occasional criminal, it will cause him to feel that he has no alternative, and gradually, but quickly, he will turn into a professional criminal. And this is surely a detriment to everyone, even to those who believe that it would be enough to build new prisons....
Yeah, because if there is the hostile community, if you don't find anything, if you think that that stigma you will have to carry it for the rest of your life, things get worse for everybody. That, if it is possible, has to be prevented. That is why there is also a lot of work with communities, there are some very interesting programs. The work with communities can be called healing because, in effect, you are not just working to repair the consequences of a single incident, of a single “offending” of a single “offender,” but to support a larger “healing” process that can still be in place when someone else harms the community. In what does this healing also consist? Well, in that, too, in the fact that among the values is precisely that of support, solidarity and responsibility, so I support you, you take responsibility, but I support you.
How does the recognition of the Centers take place? How is it done?
Through a reconnaissance of the services operating and restorative justice activities already taking place initiated by Local Conferences[4] with the involvement of municipalities, UEPE[5], USSM[6].
It is on the basis of this reconnaissance (which is expected to be completed by October 31) that the Centers in compliance with the provisions of the norm and the LEPs (Essential Levels of Performance of Restorative Justice Services[7], elaborated by the National Conference[8]) will be recognized and centers will be established in the localities lacking them. There will be only one center per district of the Court of Appeals. Others may arise, but they will not be supported by the funds currently allocated.
I have no further information on this point. It might certainly be more useful to ask some “historical” centers that I think have more knowledge. I am thinking of the one in Trentino, the one in Turin, the one in Milan.
In other places - and here we create a new disparity between north, south, center, islands - there is nothing, there are small associations that maybe used to do something, so now if I think of Sardinia you have to figure out where the centers will be established, keeping in mind that the island is large, and travel is inconvenient, because a person from Oristano is not going to Cagliari... you envision branch offices. The small associations in our area will have to structure themselves in a more stable way to comply with the legislation, funds will be needed for activities that instead until now have been almost entirely managed as social volunteering, or thanks to specific funding, e.g., from Cassa delle Ammende or Local Authorities.
The Cartabia law provides for 26 Restorative Justice Centers, one in each district of the Court of Appeal. Sardinia has the district in Cagliari, and a “branch office” of the district in Sassari, so, it should have at least these two Centers, Cagliari and Sassari...
You mentioned Tempio Pausania, a town in Gallura in whose suburbs the Nuchis prison was opened in 2012, intended to house inmates in AS3[9], which took the place of an old 19th-century prison with 50 low-security inmates. Today Nuchis has 200 places, 50 of which are “reserved” for “Ostativo” lifers (Life With Out Parole, translator’s note), that is, those excluded from rehabilitation and reintegration programs...
Yes, and it is precisely in this place, which the law would like “hopeless,” that we have been running a program in and out of high security prison for years, which is that restorative practice of the circle between community and offender, so the victim is not there. He's also not there because of a problem of remoteness: organized crime offenders almost never come from the surrounding area. In the case of Nuchis, there is a question of “geographic isolation”: in the north of Sardinia, far from the port and airport of Olbia, far from the airport of Alghero... the inmates of Nuchis almost all come from the “mainland,” from the South... imagine a victim who would consider participating in a restorative program, just think of the time and money it would cost her to come to Nuchis...
The victims live far away, and sometimes the victims don't even exist, in the sense that organized crime has its main business in drug trafficking...who is the “individual” victim of a member of a mafia or mafia-like association that imports narcotics?
Of course, victims, when identifiable, often live far away...should we facilitators go to see them? Come to them to meet us? And then the next steps, the meetings in prison... how much time, how much expense... there you see, so we can finish with the talk about the needs of the various parties involved in a restorative dialogue... some situations present almost insurmountable logistical difficulties, and this creates disparities, sometimes enormous disparities, in comparison with other situations where bringing the parties together is much easier... we in Nuchis, it is undeniable, also suffer great difficulties of this kind.
The policy of removing detainees considered “dangerous” from their regions is motivated by “security reasons,” and is done on purpose to make it more difficult for them to keep in touch with family members, who could be links with accomplices. However, this also leads to difficulties for the lawyers, and as you say, also for any restorative path...in short, security is made to take precedence over any other consideration. For you, who already have to do a difficult job, everything thus becomes even more difficult....
Yes, we have been following the affairs of the Nuchis House of Detention since the moment it was earmarked for high security, and the local community feared that it would disrupt the surrounding area, with the arrival of criminals not only inside the walls, but somehow also outside. It was from there, from that period that we started working to “shorten the distance” with the community ... and while we were also addressing, as the university of the area, of that area, the fears of the local community, we started almost immediately to be able to work with the “restricted” community as well, and there we were involved in the basic needs of the inmates.
The inmates were suffering because they were away from their families, away from their town, grafted into another community that was strongly angered by these presences and possible criminal infiltration; there was discontent in a community that would not want that kind of prison. We, therefore, initiated work that gradually took other forms as well, depending on needs and opportunities as they emerged.
Consistent with what restorative justice provides, the active program in Nuchis started from a need. As mentioned earlier, the transformation of the institution into “high security” had generated a widespread sense of malaise in the community. The program was therefore born to address a kind of social conflict, hence its distinctiveness, which, starting with inmate-community-worker meetings, gradually saw the emergence of awareness-raising at schools (two chapters in the book discuss this) and the establishment of a Restorative Service. The municipal guarantor of persons deprived of their liberty was established on a unique occasion: the holding of a municipal council right within the prison. And, in the introduction of the founding document, it contains a reference to restorative justice. Now Tempio Pausania is also recognized internationally as a restorative city. And, many initiatives inspired by the values of restorative justice take place in that city (I mention among them a project desired by the municipality within an ANCI network). Of course, in order for restorative justice to be recognized and spread, it requires the sensitivity of institutions, their support! And in Tempio Pausania it has been so: starting from the first director of the Institute who strongly wanted the start of the restorative program (in a conference convened in the period of malaise, she had called the whole community and institutions together), to the Municipality (from the Municipal Council in prison, to the establishment of the Guarantor, to the support of activities also in schools, to the constant availability towards every initiative of our Team of restorative justice practices).
Tempio Pausania, the town of which Nuchis is a suburb, has the record of being the first Italian city to declare itself a “Restorative City” ...
Exactly, among the few restorative cities, we are the first in Italy.
Consider that restorative cities are paths under construction. Almost all the ones I know of cannot be defined as Hull, England, the first named restorative city. A true restorative city should have set all services in that key like Hull, however, the restorative city is not that a norm defines it, it is a city that progressively organizes itself in a restorative key. And here we have the municipality of Tempio Pausania, which is particularly sensitive and active, which recognizing the importance of restorative justice, because of having had direct experience with it, encourages the development of restorative justice everywhere. We work in schools, with the prison, with the municipality we have done various meetings also with the citizenry, it is a process under construction. I think in the dedicated chapter of my book you can sense that; even when we say that we have modified the conceptual model, because as we proceed you also modify things, basically this is the work of an intervention in the heart of the community, if we want to call it that.
Always talking about his work, which we said has been really prolific, and in a prison that houses maximum security inmates, so where there are also mafiosi, for example, Cartabia, in the law, provides that restorative justice programs can be applied to everyone regardless of the type of crime, so in theory it does not exclude any crime, but can the maximum security prisoners, the so-called 41bis, really access it?
The organic framework does not provide for preclusion in access to restorative justice. To “remedy” a provision that perhaps smelled too much like openness ... the securitarian thinking of the so-called Prisons Decree[10] intervened, amending Art. 41bis, adding, by letter f-bis, “exclusion from access to restorative justice programs.” This preclusion seems to have nothing to do with the motivation behind Article 41-bis, the purpose of which is to avoid contact with organized crime. So what is the rationale behind f-bis? Alleged contacts with organized crime? Non-confidence in the impartiality of mediators? I feel I want to state that this amendment is a serious attack on the rights of the detainee and his victim, as well as on the ethics and professional rigor of those who mediate.
As a decades-long Restorative Justice activist, however, you must have encountered these resistances at any level, resistances that seem unwilling to take into account, out of partisanship, the medium- and long-term positive effects of restorative practices. Tim Chapman for example in your book reports accurate scientific data on how the restorative approach produces results: reductions of 25 percent on recidivism are documented, thus a large economic benefit in terms of the penal and prison system, but more importantly, documented just as incontrovertibly, high approval ratings from victims who were able to access well-structured programs, and psychological benefits compared to the “bureaucratic coldness” of traditional penal systems...
If we think about the benefits, at the base, there is certainly that of having a voice. People need to talk, they need to tell their experience, their reading of how things went. So especially for the victim, but also for the perpetrator, because we can say that both victim and perpetrator are “mistreated” by the criminal justice system: the victim is not considered, except when he has to testify; the perpetrator is framed because he is, rightly, asked to tell the truth, thus to take responsibility, to “incriminate” himself, in some ways. A kind of paradox, in practice, at least from a psychological point of view, because that truth will have punishment as its consideration.
The victim, moreover, often goes through a process of double victimization. Just when he is called to testify. She must stick strictly to the facts, and in order for her to stick to the facts, she is often subjected to grueling questioning. In a restorative context, on the other hand, she has the opportunity to tell her truth, not just “report facts” ... this I think is a basic need of our existence. It is the same mechanism that is created in a therapy, in therapy I can say what I feel, I am not censored, I can say even hallucinatory things because they are what I feel, that oppress me, then there having a voice is fundamental.
For the victim, it is crucial to be able to ask, to be able to get answers. Also for the perpetrator it is important to be able to have a voice, to talk about himself, about the action committed, to be able to say what happened, how come from his point of view: in the process he “can't” do that, but in the context of restorative practice he is not judged, it is the action that is condemned. In that context, and from the different narratives, together we can reconstruct a new narrative oriented toward the future, how to restore justice, precisely from the injustice suffered and acted upon. Both need each other.
The victim also needs information (her being able to ask questions, get answers). To know why specifically to her, to know the reasons, to know if the person who hurt her has repented. Even to know only that maybe that person wants not to repeat that crime, or even to know that person's condition, his reasons, which do not justify, however they are reasons that “make me think that you were not really mad at me,” as in, you were mad at me because you were mad at women, because I don't know. There can be so many different situations, for example: why did you go inside my house? why did you have to get a fix? but you didn't really think about the fact that you were violating the place where I live and that, now, I am afraid? Those who have suffered need to have information, and the restorative justice experience is based precisely on listening, with utmost respect for human dignity. Respect for human dignity is a core value of restorative justice. And it is a core value for both parties. Think of the perpetrator: yes I committed the crime, but I do not correspond to my crime, I am not my crime, we are talking about the harm, we are talking about the consequences of my action, but not about me as a person. Similarly the victim, yes I am the one who may not have been able to defend myself, but I basically suffered this, I continue to be afraid now... I remember this year in class a girl who had a wonderful path because until the end she kept saying: “No but I don't want to meet that one, because he came inside my house, because this restorative justice, I don't understand it,” at the end of class she added, ”because then it was a person I knew, but I couldn't tell, but I understood from so many things that it was him, and I see that he continues to greet me when we pass each other on the street.” Think about that girl, think about when she carries around--and in a therapy she can tell her therapist endlessly, but she hasn't solved the problem--she'll solve it maybe when she can say to that person, “Look we know each other as well, shall we say it now that the process is over? Because I can't greet you like this, I meet you and I feel bad.” Understand that the power of direct dialogue is different from that of therapy. Direct dialogue, facilitated so that neither party gets hurt, can have great healing power.
Criminal trial, prison execution include many more victims...they produce them. Even those who generated the harm may feel victimized, because of the consequences they have to pay (prison, for example, and we are well aware of the detrimental condition of human dignity that many people are forced to live in prison). But let's also think about the fallout on the children, the family, because it's clear that from that moment on they all feel, and maybe are, victims... I think about how my children are, I think... the first thought that comes, I don't know to the kids, the stigma, it's a terrible thing, how can I, how can I put myself in the shoes even or only mostly of the person I have harmed? I remember Massimo Pavarini's reflections on vulnerability: in the moment of the crime the vulnerable person is the victim, in the trial it becomes the defendant, in the moment of conviction it is the convicted person. The “safe” place of restorative justice is a context where people come together to face something very difficult, but it is from the encounter of truth that we can think about possible reparation.
Talking about the difference between transformative effects and therapeutic effects, and the highest recommendation not to confuse the two, in your book there is a juxtaposition with positive psychology ... so by tracing it back to positive psychology, so instead of focusing on the disorders that can afflict people we want to focus on the potential, on what is positive, and by tracing it back to the context of community, we mean that restorative justice is fully restorative when everyone is there, the dialogue is among everyone, in the community...
Bringing it back to positive psychology, two aspects come to mind, the sense of self-efficacy and the sense of collective efficacy. Meanwhile, justice should be closer to the members of the community. Justice is predominantly experienced far away, not always accessible and understandable. In restorative justice, the community has the opportunity to talk, to ask and even to reassure. Otherwise, the person who committed that crime in my mind is always a threat, and I am not reassured even if he is in jail because I think he might have friends around, and anyway sooner or later he will get out, so, my sense of security is always very relative, low I would say... The same people we hear “they are all delinquents, these teenagers go around, they steal to buy drugs, they steal the purse etc.” If you spend time to explain, make sure that they can know, be able to have the experience, know the story of that perpetrator, that teenager. Let's make an argument by thinking, for example, about community service, which is still a sentence imposed by a judge. The person does community service, but he does it because it is a sentence, the community nothing knows that it is a criminal measure, maybe he imagines that he was released earlier and also has a job, and maybe he thinks that that young person is there to prey ... it is not like that because it is community service. Imagine how different it would be if that measure, instead of being decided by a judge, was, albeit issued by the judge, but the result of a community meeting...then maybe people would also be more comfortable to see in the streets of their neighborhood people who are doing community work, as a kind of giving back. This could be an example that could restore a sense of efficacy to the person who has been confronted with a community need, and, to the community, a sense of efficacy-collective as a belief that a goal (active re-integration, restitution) can be successfully achieved because of the contribution of all parties involved.
In addition to positive psychology, an important spillover of restorative methodology is empowerment, the restoration of a sense of “power” to the victim. And why not, also to the offender, who perhaps felt that he was just a pawn in a game bigger than himself, where it was others who dealt the cards and established the roles, and discovers that he has margins of freedom...
Also in terms of self-efficacy, we mentioned the sense of self-efficacy and control, but not control in the negative sense of the word. I, victim, can affect so that this perpetrator does not reoffend, because I am cooperating with respect to his change and I also feel more effective and more active as a citizen, as a citizen. A psychological advantage for the victim, certainly, who comes out of the condition of total passivity. Courage (another construct of positive psychology): many victims prefer to call themselves survivors, precisely because they have regained power over their lives, they have had courage to confront those who harmed them, to ask, tell, “demand” answers, they derive a sense of personal efficacy and courage from this.
If empowerment of the victim is important, something similar is good to happen for the perpetrator as well. At the end of the day, suffering a conviction is simply a passive thing; one just suffers it. And the perpetrator ends up feeling deresponsibilized, which is especially serious given that even before the affair began he/she had not acted responsibly with respect to the consequences of his/her action to his/her “peers,” to the community. Allowing him/her to claim “I did this,” brings him/her back into the role of “active player,” understanding that it was he/she who made choices, they were not the choices of others, of the “system” that punishes him/her. To do this, to “claim one's deeds,” even the offender needs courage. But, in prison, any responsibility is practically denied him/her because he/she “has no right” to the decision-making. He/she can, certainly, confront the staff that the prison system delegates to “treatment.” (Treatment is the Italian term for rehabilitating practices inside prisons, translator’s note). Few people, well trained, but under-staffed, certainly not able to follow everyone with the attention they would need ... but then, above all, the staff is perceived as “part of the state,” so not neutral, so someone with whom you have to get along or else they don't let you out, maybe they don't write a positive report for access to alternative measures. In the prisoner-prison staff relationship, even the civilian staff, the most trained staff, there is always a certain level of passivity in the person who is serving the sentence. He cannot decide for himself what to do.
“Prison treatment” is the viaticum to return to freedom, but it is something the perpetrator undergoes, not chooses. It is practically a TSO (Involuntary Psychiatric Treatment, translator's note): I apologize for this juxtaposition, but would it really be possible to escape it? In restorative justice, on the other hand, the victim finally feels like a protagonist, and even the perpetrator can confront himself by expressing his responsibility, he makes a gain in terms of courage, in terms of self-efficacy, in terms of feeling like an active participant in the process of change.
In the beginning, restorative justice had a setting as of a therapeutic community process, a kind of big self-help circle. Originally this discipline, 50 years ago, there were high expectations, there was a lot of optimism. Today no one would say it is a “community therapeutic process” anymore, there may be therapeutic effects on individuals, but even those are not explicitly sought, supplanted by the simpler “transformative effects” ... the offender has to change his behavior here and now, his factual behavior. Of course, his factual behavior also has psychological roots, it could not be otherwise, but it is not the facilitator's job to get into that bracket. Still, some “psychological” effects are ascertained: Chapman for example reports a British study that 85 percent of victims who have been involved are satisfied, and in some it relieves symptoms of posttraumatic stress.
Through community dialogue is there a therapeutic effect? An effect of alleviating suffering and acquiring well-being and developing the person?
I don't like the terms “therapy” and “therapeutic,” in this context: it risks being confusing. If we use the term “therapeutic” for any process of treatment and healing, it may be fine, otherwise better not to confuse: better, therefore, not to use it. Now, however, you mentioned trauma, and trauma work is an important aspect. All the international documents pay special attention to trauma and provide for professionals trained in posttraumatic stress disorder to intervene. To be honest, quoting Martin Seligman (an authoritative reference in positive psychology), I would prefer to talk about “post-traumatic growth,” rather than disturbance (disturbances nail us to our malaise, rather than orienting us to what can be done to generate our best selves). Restorative justice cannot be therapy. It doesn't have to be. But those who facilitate must also have expertise on trauma, and specific trauma intervention, by experts, may be needed as appropriate. Since I am speaking to a psychologist, I can tell you that we psychologists, perhaps, have an edge, because we have psychological knowledge and skills, even if we do not have to be therapists in that context! Just as jurists and jurists have extra knowledge and skills with respect to law, but in the context of restorative justice they do not act as jurists. If a victim's therapeutic journey on harm is needed, it will be entrusted to other people, other professionals. A therapist cannot be a therapist “inside” a restorative program, if he/she has the role of mediator, facilitator, he/she has to play that role, and deal only with the harm, he/she does not have to be a therapist. Of course it is relevant that a mediator/facilitator with good knowledge of psychology is able to dialogue with the therapist who eventually has to follow the victim, the important thing is not to mix the roles.
There is something different in restorative justice, something that binds people together in an inextricable way, and that is harm. Harm binds those who acted or suffered directly, and it also binds those who acted or suffered indirectly because they are part of the community.
Restorative justice works on the harm derived from an injustice that occurred on a particular day, at a particular time, and seeks to restore justice, well-being and power over one's life. Starting with the harm means recognizing what occurred as injustice and together working to restore justice. It addresses one day in a person's life, not the whole life. Although, what happens within a restorative practice may mean for those who participate to touch their own lives, because the harm generated that day, in that particular moment, affects us as people, with our stories, with the events of our lives. But again, this should not confuse a restorative process with a therapeutic process. Restorative justice is about right-not right, and harm-repair.
We find the distinction you make between “transformative effect” and “therapeutic effect” very interesting. In restorative mediation as it is required by the Cartabia law, and therefore by a court, one must repair a single wrong of the offender, not review his entire life. The assignment that is given by the judge is, understandably, limited, and it is also good that it is so because it would be troubling if the judge gave the assignment to change the entire life of a defendant. The fact remains that Restorative Justice has as its ultimate goal, from beyond time, a substantial change in the community, so it has, in its theoretical part, interest so that mediation has not only short-term effects on the parties, but also long-term effects. No one dares to call them “psychological changes,” but we are in the neighborhood....
It is a different work, it is a caring work. Even if there was no community it is different, even if it was just perpetrator and victim, they are not doing couples therapy. Because they don't know each other? No, because it is different work that is being done.
Rather, with respect to the transformative effect of restorative justice, I would like to recall precisely the transformative conception of restorative justice with the United Nations' definition of it[11]:
This is the broadest perspective of all: it not only embraces restorative processes and steps to repair the harm, but it also focuses attention on structural and individual injustice. It does the former by identifying and attempting to resolve underlying causes of crime (poverty, idleness, etc.). However, it also challenges individuals to apply restorative justice principles to the way they relate to those around them and to their environment. This can generate a kind of internal spiritual transformation even as it calls for external societal transformation. (p. 104) (our translation)
How is it different?
Because we start from a different premise. What is it that brings those two people, perpetrator and victim, those three people together, if we want to put the mediator/facilitator in there as well? It is the injustice, it is the harm i.e. the consequences of that injustice.
It's not the problems that one has or the other has, and it's not a problem like a couple going to therapy because as a couple they have to deal with things or a group, we go to group therapy because it's a possibility of confrontation between people and group therapy also amplifies what can be done with respect to the individual. In restorative justice on the other hand, meanwhile we start with the assumption, not only that there is harm, but that there is a matter of justice, that is, some legitimate expectation has been harmed, legitimate expectation that is a social expectation, that, for example, I don't go out on the street at night and get raped, that is my legitimate expectation.
The transformative effect and approach then refers to the possibility that individuals have of changing their perspective by going through, participating in, a Restorative Justice process and the commitment that it in turn makes to fight to reduce systemic injustice.
It may seem an oxymoron that RJ will have to continue “fighting,” but the Restorative vision distances itself from violence, without refusing to acknowledge, and more importantly know, and validate the existence of conflict and the possibility that harm may be generated/suffered.
The change of perspective, transformation by the community can and does make use of psychological processes, impossible to think of a decision-making process that is immune to psychological influence on human cognition, and this happens in the depths of each individual but also in communities.
This is because we weave relationships between individuals and between groups.
Communities in which there is dialogue and discussion of everyone's concrete needs, and there is a desire to decide on the administration of Justice, cannot be Communities in which there is no room for psychological needs. On the other hand, and here I quote James Bell, if the people you are making decisions for are not involved in the decision-making process, you are making poor choices. Imposing treatment is called TSO.
Dominance, Dominion, power. You deprive people of what is one of the core value aspects of restorative justice, which is precisely empowerment, which is absence of domination and making arrangements based on how the process unfolds, from one's own narrative perspective and because of the transformative perspective that emerges from the other person's narrative and dialogue.
Speaking of storytelling, the law reads “restorative dialogue”, then it also reads “any other dialogic program conducted by mediator,” so basically, the mediator is left free to choose the program that he feels is most appropriate in the most appropriate format and time, if he then arrives at a restorative outcome he can submit it to a magistrate who then decides whether to evaluate it as mitigation, probation, parole requests, etc.
I would put those things aside, though, in the sense that it is formal justice that has appropriated restorative justice. That the latter is used according to the punitive-premium logic of the penal system is a risk, we cannot not consider it. That the outcome, the agreement reached, is communicated is crucial. Because it is the agreement that the parties have reached and it has to be enshrined in some ways, while what happened in the meeting does not have to be reported to the judge. The two parties may have reached a purely instrumental agreement, or they may have developed a real friendship, or they may have poured into the restorative dialogue all the pains and hopes of their existence, this is not the subject of communication to the judge. Nothing should be communicated unless the parties want it, expressly.
I would add a clarification with respect to the type of restorative justice program. The person who mediates or facilitates (I prefer the term facilitator, moreover indicated in the 2018 European Recommendation) chooses according to the characteristics of the case, of the situation. That is, he chooses based on what is most appropriate for that situation.
I would like to conclude with a brief quote from John Braithwaite, moreover this year's winner of the Balzan Prize for Restorative Justice:
Restorative Justice is conceived of in this essay as a process in which all the stakeholders affected by an injustice have the opportunity to discuss the consequences of the injustice and what might be done to put them right. This is a process conception of restorative justice by which what is to be restored is left open. Rather, the form of restoration of victims, of offenders and of communities that count are those found to be important in such a restorative justice process. Beyond the process conception, there is also a values conception of restorative justice. The key value is that because injustice hurts, justice should heal. Responding to pain with ‘another spoonful of pain’1 is seen as a less satisfactory response than responding with healing or repair. A reason is that hurt tends to beget hurt, creating a vicious spiral of retribution and feuding. Alternatively, it is possible to flip this dynamic into one of healing begetting healing — a virtuous circle[12].
And in essence this is Restorative Justice: a “formal” part, and the hope that once formal agreement is reached, something substantial will also develop, all within a framework of listening to the wills of the parties... Thank you Professor
(Edited by Arianna Fioravanti)
[1] The European Forum for Restorative Justice (EFRJ or Euforum for short) is “an international nonprofit organization based at the University of Leuven (Belgium), founded in 2000, by far the first restorative think-thank in Europe, and still the most branched and important. It has more than 500 members in Europe and beyond, including more than 90 organizations, dedicated to restorative justice research, practice and policy, primarily in criminal justice settings, but also in schools, communities, families and peacebuilding."
[2] Carocci Editore, 2024
[3] The Cartabia Law, and the implementing regulations passed thereafter, including some amendments to the law in its first version in October 2022.
[4] One of the administrative-bureaucratic steps provided by the Cartabia Law for the implementation of the law.
[5] Offices of External Criminal Execution (UEPEs) represent an articulation of the Ministry of Justice and are responsible for taking charge of persons subject to measures outside the penal institution. Central within the UEPEs is the figure of the social worker, who is in charge of supervising the progress of the various alternative measures that a judge may have decided on a convicted person, from probation to assignment to socially useful work and so on.
[6] Offices of Social Services for Juveniles.
[7] Essential Levels of Performance: the standard set by the Cartabia Law for entities (companies, or cooperatives, or associations) that had already been working in the field of Criminal Mediation for some time, or newly established entities, to apply for accreditation with the Ministry of Justice, and officially become providers of “Restorative Justice” service to the Ministry itself.
[8] One of the administrative-bureaucratic steps provided by the Cartabia Law for the implementation of the law.
[9] High Security 3: the most restrictive level of the Italian prison system. houses inmates for crimes of mafia association, drug trafficking summits, kidnappers and the like.
[10] Decree Law No. 92 of July 4, 2024, converted into Law No. 112 of August 8, 2024.
[11] UNODC - United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programs (2006), p. 104 (our translation) https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf
[12] The Fundamentals of Restorative Justice, 2003.
