Reintegration ceremonies revisited (2)

3rd National Conference on Restorative Justice

June 2011 Raleigh NC

*Dr. Stephen Mugford is a Visiting Fellow in Military Sociology at the Centre for Defence

Leadership & Ethics, Australian Defence College in Canberra, Australia. A former academic

sociologist he is also a consultant specialising in executive coaching, team building and

change management. Email to : [email protected] or [email protected]

** Dr. Nova Inkpen is currently with the Department of Justice and Community Services

of the ACT Government in Canberra, Australia. Nova has extensive experience in restorative

justice in both Australia and London, England. Email: [email protected]

Reintegration Ceremonies Revisited: Experience

and Theory for Advancing the Argument

Stephen Mugford* and Nova Inkpen**

If real success is to attend the effort to bring a man to a definite position, one must first

of all take the pains to find him where he is and begin there. This is the secret of the heart of

helping others. Anyone who has not mastered this is himself deluded when he proposes to

help others. In order to help another effectively, I must understand what he understands. If I

do not know that, my greater understanding will be of no help to him. If, however, I am

disposed to plume myself on my greater understanding, it is because I am vain or proud, so

that at bottom, instead of benefiting him, I want to be admired. But all true effort to help

does not mean to be a sovereign but to be a servant, that to help does not mean to be

ambitious but to be patient, that to help means to endure for the time being the imputation

that one is in the wrong and does not understand what the other understands. . . . For to be

a teacher does not mean simply to affirm that such a thing is so, or to deliver a lecture, etc.

No, to be a teacher in the right sense is to be a learner. Instruction begins when you, the

teacher, learn from the learner, put yourself in his place so that you may understand what he

understands and in the way he understands it. . . .

Soren Kierkegaard, cited in Kegan (1994)

Learning to explain phenomena such that one continues to be fascinated by the failure of

one's explanations creates a continuing cycle of thinking, that is the crux of intelligence. It

isn't that one person knows more than another, then. In a sense, it is important to know less

than the next person, or at least to be certain of less, thus enabling more curiosity and less

explaining away because one has again encountered a well-known phenomenon. The less

you know the more you can find out about, and finding out for oneself is what intelligence is

all about.

Roger Schank

2 Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancing the Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC

Note to the reader

This paper has a work-in-progress character in that it draws some conclusions about the

direction in which change might move but does not seek to fully establish what all these

changes might be. There are several reasons for this. Of these, this the most important is

that its aim is to stimulate discussion at the conference which will help to develop some of

the contours for change. A later version will aim to make more contribution to describing

directions, once the benefit of the conversations have been enjoyed.

Abstract

Nearly 20 years ago, the senior author co-wrote a paper on “reintegration ceremonies”

with John Braithwaite (Braithwaite and Mugford, 1994, hereafter B&M) that has been

widely cited, generally with approval. The present paper revisits B&M fondly but critically,

suggesting that despite positive and constructive intent its application has revealed

limitations.

Based on the experience of the junior author in researching and facilitating restorative

justice processes that are diversionary and/or occur in parallel to a juvenile court process,

we describe cases and offenders where the logic just ‘does not work’. While process can be

glossed, producing positive results as the outcome for victims, in the junior author’s

experience there has been enough instances of relative failure for the offender to accept

that the application of the original model is not describing the majority of restorative justice

processes.

Two factors inform this conclusion. First, B&M underplays the difference between its

inspiration—Garfinkel’s ‘degradation ceremonies’—and the re-integrative task. For

degradation the consciousness and intent of the central target person is not important.

However, for reintegration it is important. Second, by using a sociological model, B&M

overplays the role of the ceremony and underplays the impact that an offender’s individual

capacity to morally comprehend their actions and consequences can have on the process

and its outcomes.

The response to these identified shortcomings rests on linking reintegration to

psychology and neuroscience arguments, some of which were around in 1994 but many of

which are more recent. By linking to cognitive development, sense of self and dual systems

of cognition, the paper argues for respecifying the reintegrative task, creating a better

understanding of how the ceremony can work, for whom and under what circumstances.

Introduction


In the early 1990s, John Braithwaite and the senior author of this paper (SKM) were both

working in Canberra on linked aspects of action research restorative justice projects. In an

informal setting at an American Society of Criminology conference which they both

attended, SKM mentioned that he had been thinking of “rejigging that old Garfinkel idea

about ‘successful degradation ceremonies’ (Garfinkel, 1956) to create successful re-

integration ceremonies”. John reacted with interest and amusement—he too had been

thinking the exact same thing. And so was born what was to become the 1994 BJC paper we

now revisit . In the time since that paper appeared, it has become something of a classic—

widely cited in an approving fashion, reprinted in several contexts and commended as a

guide to practice.

In the meantime, while both authors continued to reside in Canberra and stay in

occasional touch, their careers moved in different directions. John remained in academe

and unfolded his interests into regulation more broadly and importantly into research on

peace building at the nation state level. SKM, meanwhile, left academe to become a full

time consultant undertaking team building and change management work with a variety of

organisations, especially the Australian military. By various twists and turns, this work led to

a wide range of literatures that were new to him and a major part of this ‘revisit’ is driven by

interrogating the B & M model with ideas derived from those other literatures.

Meanwhile, the junior author has been involved throughout with a variety of projects in

the restorative justice area. Her doctoral thesis was associated with the Canberra based RISE

project and has she subsequently worked as an RJ researcher with the Justice Research

Consortium in London and as a practitioner in Canberra. Her focus has been on the use of RJ

with juvenile offenders.

At the outset, it is important to say that the value we attach to the B & M is very

positive. We see it as a morally desirable and optimistic enterprise which set itself against

negative, cynical or pessimistic views of deviance and those labelled deviant, views which

might point only to retribution and ‘warehousing’ as useful responses to the offender.

Assuming that with few exceptions (such as psychopaths) most people are capable of a

normal range of emotions including empathy and regret, the model seeks to finds ways to

support a restorative justice approach; that is, to combine redress for the victims of crime

with rehabilitation of the offender, acknowledgement by and apology from the offender for

the harm and hurt and where possible reparation in some form for damage caused, as well

as forgiveness from the victim.

This is a complex undertaking, but one that has been met with success in numerous

cases. In B & M we sought to point to successful cases and, using the broad template

suggested by Garfinkel’s conception of successful ceremonies, devise by induction and

reflection a ceremonial recipe that would move to achieve these desirable goals.

An important point to stress, and one that shapes our coverage of material to report,

centres upon the fact that a considerable amount of the application of reintegration

ceremonies had linked to the juvenile justice area. There are two obvious reasons why this

is the case. First, a strong argument can be made for linking reintegrative efforts to

supporting the prevention of recidivism and, for those who experience repeated contacts

with the justice system avoiding the cycle of ‘deviance amplification’. In simple terms, if


young offenders can be restored to the straight and narrow before they become habitual

criminals, so much the better.

Second, the reintegrative approach is strongly, although by no means only, linked to the

idea of ‘family group conferencing’ (FGC). The practical relevance of this link is twofold.

Ideally, it provides the young offender with guidance, support and role models which will

help him or her to make the necessary restorative and reintegrative moves. And in cases

where the existing family processes are not as organised and constructive as they might

be—commonsensically, parenting is sub-optimal—the role of the FGC can be to strengthen

the family effectiveness both by increasing skills and motivations and also, where a wider

network is involved, by supporting the parents and parental efforts.

A strong test case for the model then, rests on its successful application in juvenile cases

and it is to this the paper now turns.

The formula revisited: how does it stand up to practical application?

The following four case studies were selected because they are emblematic of common

themes in the practical experience of the junior author (NI) and because they highlight

themes that are relevant to our inquiry here—namely to ask to what extent the B&M model

can be sustained in practice.

The stories, written in the first person singular by NI are based on case notes and include

both observation and interpretation. Pseudonyms are used throughout the case studies. In

each study to maintain anonymity. The period covered is the restorative justice process that

occurred after the offender was identified and admitted guilt and up to the point where an

outcome was agreed with the participants in the case. Some comments on outcome

honouring are included where relevant.

Case Study 1: Ride/Drive Motor Vehicle & Theft

Summary: three offenders were involved: an empathetic, fully engaged offender

together with a disengaged offender and an immature offender both of whom were

incapable of understanding the impact of their behaviour on their victims. The conference

was a mixed experience for the victims.

Overview: This court referred case involved three co-offenders aged 14, two of whom,

Lachlan and Andrew, participated in a face-to-face conference and one of whom, Jack,

participated through an indirect process. In the conference process, Lachlan and Andrew

met one of their victims whose garage they had broken into and car they had stolen. The

boys also participated in an indirect conference with another victim. The experience of the

three offenders represents the kinds of complicated positive and negative outcomes that

can exist in restorative justice cases.

The young offender Jack, an indigenous youth, was hard to take through a restorative

justice process. NI was not able to meet with his parents and had to be creative about how

to meet with him face to face. In a lot of cases referred by the court the ACT’s Office of


Children Youth and Family Support are involved in managing the young people while they

are on remand waiting to be sentenced. It is common for the restorative justice facilitators

to work collaboratively with the youth justice case workers to make appointments for the

young person and their family. In this case involving Jack, it was not possible to meet with

anyone other than Jack and, consequently, it was very difficult to take him through a

meaningful restorative justice process. Although committing to an agreement it was very

difficult to get Jack to understand what had occurred and he subsequently did not comply

with this agreement – namely to write a letter to the victim1.

The second young offender, Andrew, although having a mother, older and younger sister

in his life needed a great deal of assistance. His mother was having a great deal of difficulty

coping with Andrew’s behaviour and, on the one hand was trying to get help from various

agencies to assist with her son and on the other hand would become suddenly disengaged

and lie on his behalf to avoid attending appointments or facilitating his attendance at

medical appointments or educational programs. Andrew was a polite young person but

lived a very chaotic life in which his mother would overshare his medical difficulties (he was

14 and wet the bed) and be on his side one day and frustrated and ‘over’ his difficult

behaviour the next. He participated well in the conference but had extreme difficulties

following through on the commitments he and his mother had made in the conference.

The third young offender, Lachlan, was a very engaging and polite young man. The

opportunity to participate in a restorative justice conference was timely as it resulted in him

making a commitment to a program that he claimed years later (when he was still involved

with the program) had taken him away from committing burglaries and stealing cars.

Lachlan’s family were supportive of him and encouraged him to face his victims and take

ownership of his behaviour. He understood the consequences of his actions and engaged

openly and honestly with his victims in the conference. He answered their questions and

accepted their requests to put things right.

Here is a description of their face-to-face and indirect conferences. Both young people

had their mothers at the conference to support them and the victims, a retired couple, also

participated.

What happened?: The young people described being in a laneway way near a house and

decided to break into it “because it was two storey and looked rich”. They knocked on the

door and no-one answered. They then went around the house and saw a car parked in the

garage. They agreed that if they found the keys to the car they would take it and not take

anything from the house. After Jack broke the front door, Andrew went upstairs and found

the car keys. They then went to garage, opened the door and drove away from the house

The young people, who were all 14 years old at the time of offence, talked about how

they took it in turns to drive the car. They revealed that none of them were wearing seat

belts. At this point, the victims and the young people’s mothers expressed their shock. The

discussion turned to the potential injury or death they could have caused to someone else

on the road or to themselves.

Both young people talked about how their actions were stupid and that they wished it

had never happened.


Who was affected and how? The young people then discussed how the victims would

have felt scared and angry about the burglary. They also talked about the impact of the

offence on their mothers. Andrew talked about how his mother had quit her job to make

sure he behaved himself. He also discussed how his mother had lost a lot of trust in him.

Lachlan spoke of how his mother had missed a lot of work running him around to all his

criminal justice appointments. He also talked about how she was upset and angry.

Mary, the victim, started to talk about the impact of the offence and became upset as

she described coming down the drive way and seeing that the garage door was open and

the car not in the garage. She talked about her lingering anxiety about whether anything

was taken from the house. Drawers had been opened when the young people were looking

for the car keys. Both young people stated that they didn’t take anything from the house

other than the car. Mary went on to explain that she felt scared being in the house and slept

fully clothed for the three nights after the burglary. She also recounted how she would lock

doors within the house so she could feel safe and didn’t want to leave the house in case it

was broken into again.

Both the young people’s mothers talked about the difficulties they were experiencing

with their sons prior to them being caught. They talked about how they tried all sorts of

things to stop their sons from getting into trouble but nothing seemed to be working.

At this point Lachlan said to the victims “sorry for what I have done” and to his mother

“sorry you have had to take so much time off work”. Andrew then stated “sorry for making

you scared. I wish I had never done it.”

The victims then thanked the young people for coming to the meeting and said they

hoped the boys would stick with their schooling, as they both seemed to have promising

futures.

How to make things right?; The following restorative justice outcome agreement was

reached at the conference:

A verbal apology was given and accepted by the victims (this included the verbal

apology given indirectly by Jack to the victims).

Lachlan and Andrew agreed to pay $300 each to the victims within six months.

Lachlan paid his money. However, Andrew did not pay any money despite attempts

to help him get a part time job.

Lachlan and Andrew agreed to abide by a curfew until Christmas to be home

weekdays by 7pm and weekends by 10pm – Lachlan completed this agreement.

Andrew did not – he was rearrested shortly after the conference for other offences

committed when he should, under curfew, not have been out and about.

Lachlan and Andrew agreed to participate in the Police Citizens and Youth Club

Go-karting program. It was agreed that if the young people started to fulfil some of

their agreements for their victims they could enrol and participate in the program.

Lachlan fulfilled this commitment with the facilitator’s help by getting a casualjob at

McDonalds and paying back the victims.

Reflection: In Lachlan’s case, this process worked as the model would wish. His

recognition of his culpability was positive both for him and for the victims. He contributed to


recompensing them and to easing their fears and, importantly, he turned his life around. It

would be hard to imagine a more satisfactory outcome.

At the same time, the process was not successful for either Andrew or Jack. In Jack’s

case, the complexities of his indigenous status created barriers that, while of great interest

in themselves, are not really germane to our task here. For Andrew’s case—where minimal

participation was followed shortly by reoffending—two features seem to stand out:

His emotional and cognitive immaturity;

His enmeshed relationship with his mother who herself seems not to have a fully

developed repertoire of cognitive and life skills.

In neither aspect does it seem likely that the conferencing process failed in its own terms

nor does it seem that repeated iterations would, of themselves, have reached a point where

suddenly Andrew would ‘get it’. Instead, a suspicion lingers that unlike Lachlan, Andrew

couldn't get it, and maybe his mother couldn't either. We will return to this later.

Case Study 2: Burglary and theft

Summary: a socially and morally immature offender but a victim who benefitted

financially and psychologically from participating in a conference).

Overview: This court referred case involved Dylan, a smug, lazy seventeen year old,

whose over-protective mother allowed him to successfully complete his outcome without

taking any emotional responsibility or being held accountable for the consequences of his

actions on his victim. Dylan was a difficult young person to work with as his “couldn’t care

less” attitude was confronting. When pitched next to a mother who was overcome with

shame for what her son had done it was hard to decide if this young person should be

considered suitable to participate in a restorative justice process. Despite his attitude the

facilitator’s experience led her towards going ahead with the process and trusting that what

Dylan would find out from the conference may strike a chord with him and get him thinking

about the impact his criminal behaviour was having on his mother and his victim.

The victim was informed of the young person’s attitude from the start but felt it was

important to tell him her story and, further to this, the victim understood that she was in a

position to receive financial compensation which may not otherwise be forthcoming

through the normal court process.

Through an indirect process the young person heard how the victim felt like she had

been violated and had experienced a great deal of anxiety while waiting for the broken

glass from the smashed window to be repaired. The victim described how she found it

difficult to leave her home and go to work and even cancelled a holiday for fear of leaving

her home vacant and experiencing another break-in. Finally, the main consequence the

victim wanted the young person to know about was the effect of the offence on her stress

levels while under cancer treatment. The young person listened to the consequences of his

action. However, his reaction over time to the commitments he made through the

conference were indicative of someone who did not understand his wrong doing and found

the experience of participating in a conference an irritant in his life. He paid his money after

the agreement date and also provided his letter after the agreed date after much prompting


from the facilitator. However, what this case did do was help a victim come to terms with

the impact of the crime on her life. She received a letter of apology that she felt adequately

addressed her questions and needs. She received $300 which covered the excess she had

paid on her insurance to have the window replaced. She also took comfort in the knowledge

that Dylan had taken the time to investigate a getting a job that he could build into a long

term career.

This was a case that was worth undertaking for the victim. It did not have the desired

impact on the offender.NI is confident that with hindsight, even if the process had have

been face-to-face, that Dylan was not willing, nor did he have the capacity, to take on board

how his actions had affected others.

Reflection: a case like this indicates the power of a restorative model for the victim.

Receiving compensation and apology was important for her in achieving closure. But in no

sense was this successful at ‘reintegrating’ the offender. Again, Dylan just didn’t and

perhaps couldn’t get it, and like Andrew in the previous case, his enmeshment with a

mother who also seemed not to ‘get’ what needed to happen was not productive.

Case Study 3: Take motor vehicle and reckless driving

Summary: An empathic engaged offender and a young victim who related well to the

offender and received a positive outcomes from the conference

Overview: This court referred case involved Daniel, a seventeen year old youth, who had

taken a red Toyota MR2 sports car from an apartment block. Daniel was being raised by his

father who was involved with the conference and embraced the opportunity to focus his

son’s attention on his education and staying out of trouble. Daniel was disengaged from

school and needed to have the process explained in very simpl terms. However, in his

conference, facing his victim, who was not much older than he was, he was very remorseful

for what he had done and wanted to do the right thing. One of the positive unintended

consequences out of this conference case was that by engaging in education through a

more alternative school program Daniel met a law abiding girlfriend who had a good

influence on keeping Daniel out of trouble.

What happened?Daniel explained that he was cutting through apartments when he

came across a red Toyota MR2. Daniel used scissors to make the car start. He stated he

hadn’t been driving the car for more than five minutes when the police saw him and turned

the sirens on and indicated that he should pull over. He said at this point he panicked and

was scared about getting into trouble so he tried to get away from police. He said the

pursuit lasted around 10 minutes and he failed to turn a corner, hit the gutter and crashed

the car. He was arrested on the spot and taken to the City Watch House.

The group talked about the fact that Daniel, who was not wearing a seat belt, could have

killed or injured someone or himself.

The victim asked what Daniel would have done with the car if he had not been seen by

police. Daniel said he probably would have left it near where he found it after driving it

around and maybe showing it to a friend. The group talked about how people try to re-

badge cars or wreck or burn them. Daniel said he could not have done those things to the


car. His father agreed that it would be out of character for Daniel to do those kinds of things

to a car.

Who was affected and how?The victim talked about how he really loved the car and

enjoyed owning it. At this point Daniel said “I am heaps sorry”. Then the victim explained

that he was getting to the point where he was going to sell the car but if this incident had

happened a couple of years ago “it would have crushed me…[as the car]…used to be my

life”. The victim explained that the thing that was a real issue for him now was the monetary

side of things. The car was worth around $8000 and was written-off by the mechanic as the

cost to repair it would have exceeded the value of the car. The facilitator recounted the

costs of the damage in the conference and this contributed to discussions regarding what

should be agreed to at the final stage of the conference.

The victim said to Daniel that he didn’t want him to think that “he had ruined his life” or

that “I hate you”. Daniel replied by saying “I don’t blame you if you do”. The victim wanted

to make it clear to Daniel that what has been hard is the financial loss. The victim does not

currently have a car and is saving to buy one.

How to make things right? Daniel had not been in school for more than eight months. It

was agreed he would attend the Youth Education Program based at the Youth Centre. The

victim was prepared to help Daniel get a part-time job at a fast food outlet. The group also

felt that Daniel abiding by a curfew would assist him to settle into a routine of going to

school and getting used to a part-time.

A restorative justice outcome agreement was reached at the conference and was

substantially complied with by the young person.

Daniel apologised to the victim and the victim accepted his apology

Daniel applied for a part-time job at a fast food outlet

Daniel attended the Youth Education Program to complete his Yr10 certificate for

20 hours per week

Daniel repaid the victim $1100 of the $1500 requested by the victim to help pay

for damage to the car as a result of the crash.

Daniel adhered to a curfew to be home by 10pm on weekends and weekdays for

a month.

Reflection: this story is an example of how, when it works, the restorative justice

ceremony works well. Daniel ‘got it’ and acted appropriately as a consequence of getting it.

Case Study 4: Theft

Summary: two female offenders, one fully engaged and the other a challenging young

female offender who was possibly intellectually impaired and without parental support. The

case also involved a young female victim who was not satisfied unless she received financial

compensation for the theft.

Overview: Natalie and Kylie, accessing their friend, Jessica’s, spare house key, broke into

her home and stole her key card. They then withdrew $600 out of Jessica’s bank account

and spent it on, among other things, clothes. Both girls participated in an indirect process.


Natalie co-operated fully and had already written a letter of apology and paid back half of

the money withdrawn from Jessica’s account prior to the referral to restorative justice. The

process provided a formal mechanism through which the letter of apology was more openly

received by the Jessica and her family.

Kylie was difficult to meet with and appeared to have limited understanding of the

consequences of her actions on Jessica or Jessica’s family – a conclusion the facilitator

reached over a six month period. Kylie had a long history of being in and out of the care and

protection system and, despite working consistently with her over a six month period,

alongside other agencies, it proved too difficult to engage her in education or employment.

It took time for Kylie’s lack of understanding to come forward. At times the facilitator

would talk with Kylie and she appeared engaged and able to describe the impact of her

actions on Jessica. However, either later in the same meeting or at a follow-up meeting Kylie

would appear to forget what she had said or disagree with a view about the theft that either

she had previously raised herself or agreed to with the facilitator. Although writing an

adequate letter of apology begrudgingly accepted by Jessica early in the agreement phase,

Kylie was unable to pay the $300, her share of the money taken from Jessica’s account.

Jessica was very unhappy with this result - despite the facilitator making it very clear from

the outset of the process that Kylie may be unlikely to pay the money. It was a frustrating

process for all concerned and it concluded with the facilitator writing to the court and

stating that Kylie was ultimately unsuitable for restorative justice on the grounds that she

lacked the capacity to comprehend what she had done and what was required of her to

participate in a restorative justice process.

Reflection: this process worked, in some senses, for Natalie, although her process of

apology and path to reintegration had already commenced and the ceremonial aspects per

se were confirmatory as much as causal. For Kylie, she clearly didn’t get it and again it seems

she couldn’t although her lack of capacity may be based on a less common feature (some

form of chronic impairment) than may usually be the cause. The process has not worked

well for the victim—her focus is mainly on an extrinsic recompense and does not seem to

include reconciliation so the emotional and moral core of the reintegration process is

missing. Since her recompense was limited, her satisfaction was limited.

Theoretical re-evaluation

Four case studies of themselves are not a ‘proof’ of the success or otherwise of the logic

contained in the B &M model. Nonetheless, as indicated at the outset, these were selected

as emblematic. Without making any specific claim as to exact statistical representativeness,

what they are meant to illustrate are common difficulties that are occurring in the daily

work of an experienced RJ facilitator who is committed to using the model. Even in that

‘sympathetic’ application context, then, there is evidence that is that in a number of cases,

when it is applied it “just doesn’t work” (see also Rossner, 2011).

If that is the case, a key decision gate lies in front of us: should one seek to ‘abandon it’

or ‘fix it’? We choose to consider the latter. For reasons noted earlier in the paper we

believe that this optimistic and constructive model has much to offer, so it is worth getting it


right. After examining a variety of issues as well as carefully re-reading the paper with new

eyes, there seems to be two ways the paper might be ‘fixed’. In brief, the argument can be

re-examined:

to see whether it overlooked anything and/or made any assumptions that seem

with hindsight not to be warranted;

for its congruence with recent developments in social and biological science,

especially with regard to advances in psychology and neuroscience, that may help us

better ‘understand’ the participants;

Each of these is now examined in some detail.

What was overlooked and/or was an unwarranted assumption?

On reflection, there are several factors that may have been overlooked in the original

model. This section examines two, the first quite briefly.

‘Recipes for a cool climate’: A theoretically minor but practically important matter can

be dealt with at the outset under this heading. This concerns the process of routinisation

that has occurred around RJ processes. As Garland (1990) observed in his coverage of both

Weber and Foucault as theoretical resources for understanding punishment, a common

feature of justice processes is that they become routinised and bureaucratic. As Garland

argues, in contrast to Durkheim’s idea that punishment should be an emotionally ‘hot’

phenomenon that expresses the concern of the community, the reality is that once justice

and punishment become areas of professional expertise and employment, they rapidly

‘cool’ and become routine work. This can be a very important consideration for restorative

justice. In many cases, successful conferencing, especially FGCs, rest upon some

combination of charismatic organisers and/or an extra-governmental organisation (a

church, a community, etc.)

For the model to survive when used by government agencies and agents (albeit, as with

NI, people with moral concern for all involved) it needs to be sufficiently robust and reliable

a ‘recipe’ for use by a wide range of people2.

Labelling versus ‘calling out identities’: A much more crucial issue is the adaptation in

the original paper of Garfinkel’s model of degradation ceremonies. Garfinkel argues that the

degradation ceremony seeks to attach a negative label to the offender in the form of an

‘identity’ and discusses various ways in which this identity is likely to be successfully

conferred. In B &M, this focus is changed and the question is posed in another form. B & M,

noting that an individual has multiple identities by virtue of her many social roles such as

daughter, sister, school girl, friend neighbour and so on seek a different mode. They ask how

is it possible to describe and label the offence in a suitably negative way while at the same

time sustaining the offender in her other identities, thus opening a path to re-integration? In

simple terms, how can we find ways to ‘hate the sin’ while at the same time ‘loving the

sinner’?

Stepping back to this original move, with the benefit of hindsight we may see two

problems that remain unaddressed. The first of these problems can best be understood by


thinking of the degradation ceremony as relation between three social elements: the

degrading agent A carries out the identity transformation (labelling) of the offender B in the

sight of the audience member C. In so doing, not only is B socially transformed but at the

same time C receives messages designed to ‘call out’ specific responses. C is invited and

persuaded to think of himself—in contrast to the deviant B—as a decent, law abiding citizen

who is horrified by B’s action. At the same time C is reminded not to offend himself lest he

be next in line for degradation and punishment.

This is a familiar argument in the literature on punishment. From Foucault’s argument

about regicide in the opening pages of Discipline and Punish (1975) through the ghastly

spectacles recounted by classical scholars such as Coleman (1990) writing about ‘fatal

charades’ in the Roman amphitheatre, we are well versed in the idea of powerful agents

sending messages to third parties through the punishment of offenders. It is important to

note that the process described in these analyses is largely social. That is, labelling and

punishment take place at the level of socially created and shared meanings. The

psychological level is less central: whether any given member of the audience does in fact

have certain feelings, thoughts and motives ‘called out’ is not regarded as problematic.

Successful ceremonies assume that calling out takes place and rely in part on mechanisms

like peer pressure and emotional contagion to produce these effects in the majority of the

audience. Furthermore, what B thinks of all this does not really matter very much. B is a

surface onto which messages maybe written by the exercise of power.

In B &M, however, A does not punish B in the sight of C. Instead, A invites B and C into a

dialogue in which they separate B’s action from B’s identity and, when the process is

successful, agree to pillory the action but not the actor, the offence but not the offender.

This is quite a different move. Now the ‘calling out’ process which will produce feelings,

thoughts and motives is imagined to operate not merely on ‘any old C’ but on the particular

Cs who are present in the ceremony—the victim, her friends and relatives, etc. Even more

crucially it assumes the success of calling out feelings, thoughts and motives in B as well. This

is quite a different enterprise. Two crucial differences are:

The reintegration ceremony shifts the focus from the generalised C to specific Cs

and also brings B into the equation where s/he did not feature before;

The process relies on not simply upon attaching identities/labels to actors

(especially B) but also successful calling out the requisite feelings, thoughts and

motives. In this sense, a comment made by Clifford Shearing back in the early ‘90s—

and mentioned in B & M—takes on extra significance. Clifford observed in passing

that the conferences he was seeing were about the ‘soul of the offender’ and about

‘capturing that soul’. At the time, that comment was noted and remembered but

only with hindsight does its full significance resonate. It links to another comment

that he made (pers. comm.) about the need to analyse social settings to ask exactly

how each one ‘hails out’ identities, motives and so forth. This hailing out is not

examined in B & M, but perhaps it should be.

These two differences are crucial because without a successful management of these

two aspects—the different thrust with regard to identities and the calling out of feelings,


thoughts and motives—the reintegration ceremony cannot be expected to work. Or more

precisely, cannot necessarily be expected to work in a single, predictable fashion.

Focussing on the triadic character of the ceremony, then, brings the first problem out as

a central question: is it in fact possible to refocus on identities this way and successfully call

out the feelings, thoughts and motives in B and in the varied Cs that are present such that

the ceremony ‘works’?

This leads directly into the second and more detailed problem. In the Garfinkel model,

there is no specification of the properties of B or C. They are ciphers, elements in a social

triad and subject to triadic forces in ways that Simmel (1950) would surely have recognised.

If the properties of Bs and Cs are variable any significant way, this is not likely to have a

major impact. Indeed, if we think only of B, whether she is clever and gifted or dull and

clueless is not important. Her capacity for insight is similarly irrelevant as is her level of

moral development.

The reintegration ceremony is quite different. Now insight and capacity become crucial,

as some of the cases cited above indicate. An offender who is (to use the terms directly

above) dull and clueless, lacking insight and of a low level of moral development may not

participate in a ceremony as fully and effectively as one who is clever and gifted, has insight

and is morally more developed.

But dull, clueless, and lacking insight are general, common sense labels. To focus the

question more specifically, then: what if the ceremony can succeed in the form imagined

only when participants have the necessary psychological attributes, skills and knowledge?

This immediately points to two, intertwined and unexamined assumptions in B & M:

that people are equivalent in certain important capacities. While this is admirably

democratic in its intent, it is quite possible that there are key psychological

properties of individuals—such as cognitive development, self-awareness and so

on—which vary widely to the degree that some people can and others cannot,

participate in the fashion that the original ceremony recipe hopes for.

that such changes in individuals that do occur, occur at the level of discursive

consciousness rather than at some deeper level. This is a common sociological

assumption wherein ‘identities’ and ‘contexts’ are linked with little or no reference

to underpinning psychological or neurological elements. In a recent comprehensive

and well framed examination of the link between recidivism and reintegrative

shaming theory, Robinson and Shapland (2008) can be seen to make the same sort

of assumption:

[It] ..is also being recognized that the kinds of factors or elements which promote desistance,

particularly in the sharp down-turn of the age-crime curve in the early twenties, are not

always the same factors which protect against becoming strongly involved with crime in

adolescence … Though the social context and practical aspects of desisting are important

and have always been recognized … agentic elements such as taking a decision to try to

desist, self-perceptions of the possibility of leading a non-offending life, and considering a

possible new self and social identity are currently becoming seen as also critical. … We do

not yet have clear evidence as to the causal order between cognitive decisions to desist,


identity changes and behavioural desistance … largely because most studies have used

retrospective reports from desisters, with concomitant problems of people trying

potentially to minimize their cognitive dissonance …. ‘ hooks for change ’ deriving from

personal attachments may create identity transformation, which itself promotes offending

being seen in a more negative light … (Robinson and Shapland, 2008: 347-348. Emphases

added. Note this selective quotation is not meant to fully represent their argument but only

to highlight an assumption under it.)

Close examination of this passage reveals that, with exception of the germane

reference to cognitive dissonance theory, the mechanisms at work here are largely

those of conscious, and to a degree rational choice.

Anyone, of course, can in principle make any choice they see in front of them, albeit

with many factors pressing in on their choice making mechanism. Indeed, both Pareto and

Weber gave up economics and developed (independently) the foundations of sociology

because they argued that since marginal utility had solved the problem of rational choice

and yet did not exhaust the explanation of human life, the task remained to find a theory of

the non-rational elements.

Here, however, the question that is not being asked is whether in fact people do see the

choices ‘in front of them’. Consider a comparative metaphor: if a person who is colour blind

is asked to make red/green choices they cannot do so. It is not a matter of will or intellect

but rather of capacity. How would it be if the same logic applied to choices that arise in

some reintegrative justice ceremonies? In short, what if some people not only “don’t get it”

but actually “can’t get it”?

Recent developments in psychology and cognitive neuroscience

This section is necessarily in the form of a sketch since the material in it would need

several books to fully develop. The form it takes is a series of four linked assertions,

something akin to a syllogism. Each assertion is supported by exemplary references rather

than an exhaustive list.

Assertion 1: The capacity of any individual to act meaningfully in a social context depends in

a significant part on the level of cognitive development s/he has attained. With respect to

issues such as the capacity to take the social role of the other, display real empathy,

understand moral responsibility and exercise moral choice this capacity is based on more

than ‘knowledge’ in a simple sense. Furthermore, while cognitive development is strongly

associated with chronological age and to degree intellect, the relation is not perfect. One

person’s maturity at age 16 may be another’s at age 35 and vice versa.

Principal exponents of this view include Kegan (esp. 1994) with his five stage model of

development and Kohlberg (1984) with his seven stages of moral reasoning. Four of Kegan’s

five stages are shown in outline form in the table that follows.


As argued by Bartone (2010) in his analysis of abuses at Abu Ghraib, we ignore this

feature at our peril. If we expect people (e.g. young soldiers) to make complex choices that

they are not equipped to make, we risk direct, problematic consequences for them and

others. Kegan is especially strong on the view that it is commonly the case that failure to

engage in morally expected ways may often be a result of incapacity more than poor

character. In short, people cannot rather than will not re/act ‘properly’.

Table 1: Kegan’s second through fifth stages of development3

Stage and

name

Characteristics Age typically

attained

2: Self-

Centred

I ‘am’ what I want and need. I know about rules

and punishments and respond to these to avoid

‘pain’.

Childhood

towards early

adolescence

3: Self-

Reading

I ‘am’ what others think of me and treat me. I

‘read’ the self via those reflections and reactions ‘.Can

reflect on childish ass-umptions that the self is

identical with one’s needs and desires.

Adolescence

to early

adulthood.

4: Self-

Authoring

I ‘am’ who I make myself to be by honouring my

values and judging how to balance these and

obligations. Standards are self generated. Can reflect

on the role that other people, ideas and values can

have one making one who one is.

Adulthood (if

at all)

5: Self-

Revising

While “I ‘am’ who I make myself to be by

honouring my values and judging how to balance

these and obligations” I also know that I am

responsible for monitoring this and realigning it with

my environment and other people’s frameworks. Can

reflect on the idea that idea that “a fully adequate

identity for all times and places” may be too simple

and there is no one answer.

Latter years

(for a few)

Examination of this table against the case studies mentioned above is intriguing, for it

makes sense of some of the reactions. In many cases it seems that offenders are not fully

into stage 3 let alone anything higher. So far as that is true, it may that they cannot ‘get it’.

Assertion 2:At any level of development beyond the infant, actions reflect inner tensions

between different parts of the self. It is a truism that people wrestle with their impulses, an

idea familiar centuries before Freud began to introduce the struggle between desire, ego

and superego. In recent times this concept has been well expressed by Tim Wilson who

discusses the adaptive unconscious and its role in everyday life, concluding that we are

Strangers to Ourselves (Wilson, 2002).


Perhaps the most elegant metaphor that expresses inner conflict was (re)introduced by

Haidt (2005) who drew on an original idea by the Buddha, calling the domain of conscious,

articulated thoughts and emotions “the rider” and the domain of unconscious, unarticulated

thoughts and emotions “the elephant”. This metaphor grasps many of the core elements of

an internal dynamic which is widely experienced in daily life. The elephant is a large,

powerful beast which, even when tamed (in human terms, socialised into wider norms,

values and expectations), can take a good deal of control by the rider. Riders often imagine

themselves in control—and in some key ways are in control—yet often the elephant

pursues its goals and desires and leaves the rider explaining (more accurately

‘confabulating’), the reasons why an action or inaction occurred. A link between

confabulation (psychological term and process) and sociology can easily be made if we recall

several classics of sociological accounts of explanations for one’s deviance, such as Mills

(1940), Scott and Lyman (1968 and Sykes and Matza (1957). A tendency of the rider then, is

to retrospectively account for the elephant’s impulsive actions and the extent to which that

account is simplistic or sophisticated and can or cannot be reconciled with wider obligations

will be set in some part by the interaction of cultural repertoires and cognitive

development. Of course, which action the elephant gets into, the degree of control the rider

exerts over it and the exculpatory stories the rider later tells is heavily influenced by the

level of cognitive development achieved. In simple terms, the less ‘mature’ the actor the

more self-centred the action is likely to be and the cruder the explanatory tale.

This is not the end of this story. Drilling deeper still, research into unconscious

processing carried out by leading researchers such as Bargh indicates the vast array of ways

that the unconscious can be influenced in its perceptions, actions and reactions, ways that

frequently escape conscious perception and lead to the ‘unbearable automaticity of being’

(Bargh&Chartrand, 1999).

In short, this area of psychology makes problematic the links between consciousness,

action, accounts and identities in ways that are congruent with much sociological work but

also go beyond it.

Assertion 3:The inner tension between conscious and unconscious motivation and

morality can be understood in terms of brain structure and development. The human brain

has three discernible components—the brain stem, the limbic system and the cortex—which

have different cell structures and properties. For example, different drugs affect different

parts, different radio opaque dyes are absorbed differentially the three elements and hence

show differently on scans, et cetera. Most importantly, the three elements broadly

correspond to different phases in evolutionary history and have quite different roles in daily

life. The brain stem is responsible for much of the automatic functioning of the body

(breathing, heartbeat, etc.), the limbic system underpins a wide range of emotional

responses and the cortex underpins a wide range of higher order processes such as complex

perceptions, judgements, rational thought et cetera.

MacLean (1973) famously described this three element system as ‘the triune brain’,

indicating that the elements are interlinked yet not fully and seamlessly integrated. Drawing

attention to the evolutionary history of humans, Maclean argues there have been:


… three major evolutionary periods in the

development of the brain that are characterized by

three recognizably distinct ways of solving adaptive

challenges). Under this model, the "neocortex"

represents that cluster of brain structures involved in

advanced cognition, including planning, modeling and

simulation; the "reptilian brain" refers to those brain

structures related to territoriality, ritual behavior and

other "reptile" behaviors; and "limbic brain" refers those

brain structures, wherever located, associated with

social and nurturing behaviors, mutual reciprocity, and

other behaviors and affects that arose during the age of the mammals. The three brains are

said to act in coordination or competition in this variation

http://en.wikipedia.org/wiki/Triune_brain

The three areas are referred to by a number of more or less illuminating labels. Of these

the most graphic is to refer to the brain stem as the reptilian brain, the limbic system as the

mammalian brain and the neo-cortex as the primate brain, thus encapsulating various

‘stages’ of evolution in the naming system.

While the recapitulation of evolution that this implies is not an exact representation

either of evolution or of the current brain structure, the best view of the model is that it

appears to be an excellent heuristic for discussing the varied brain elements and their

impact on behaviour (Panksepp, 1998). Central to the argument that is relevant for our

purposes is that the three elements pull the individual in different directions at different

moments and under pin what cognitive scientists call System 1 and System 2 thinking (akin

to the rider/elephant model mentioned above):

In System 1 thinking, one relies heavily on a number of heuristics (cognitive

manoeuvres), key situational characteristics, readily associated ideas, and vivid memories to

arrive quickly and confidently at a judgment. System 1 thinking is particularly helpful in

familiar situations when time is short and immediate action is required.

While System 1 is functioning, another powerful system is also at work, that is, unless

we shut it down by abusing alcohol or drugs, or with fear or indifference. …"System 2," this

is our more reflective thinking system. It is useful for making judgments when you find

yourself in unfamiliar situations and have more time to figure things out. It allows us to

process abstract concepts, to deliberate, to plan ahead, to consider options carefully, to

review and revise our work in the light of relevant guidelines or standards or rules of

procedure. While System 2 decisions are also influenced by the correct or incorrect

application of heuristic manoeuvres, this is the system which relies on well-articulated

reasons and more fully developed evidence. It is reasoning based on what we have learned

through careful analysis, evaluation, explanation, and self-correction. This is the system

which values intellectual honesty, analytically anticipating what happens next, maturity of

judgment, fair-mindedness, elimination of biases, and truthseeking. This is the system which


we rely on to think carefully through complex, novel, high- stakes, and highly integrative

problems

http://www.telacommunications.com/nutshell/cthinking5.htm

System 1 is, biologically speaking, ‘fast, feral and frugal’ and there is an inherent

preference to make many quick and routine judgements by utilising it as opposed to system

2 which is slow, considered and bio-chemically expensive. In a well-developed and sensible

adult, system 1 contain numerous useful heuristics that are partly derived from training and

experience and system 2 operates as thoughtful oversight.

Crucial to the application of these ideas to our task at hand, however, is the fact that the

primate brain or neo cortex does not complete its development in people until some time in

their 20s and develops differentially from one person to another, with some people never

developing as fully as others. For this reason, the capacity of System 2 to override and

monitor system 1 is not fully in place until past adolescence, if ever. In addition, the

components that make up system 1, which is at least partly based on experience, are also

more limited in younger people with less experience of life.

Understanding these biologically based aspects of development gives both support and

sharper focus to the model of development derived from Kegan, Kohlberg and others. We

are able to see that the stages of development that the cognitive psychologists identify via

observation are themselves grounded in biological development.

Assertion 4:The structure of the brain gives rise to a parallel structure of moralities. The

most direct application of this model is found in the work of Darcia Narvaez (e.g. Narvaez,

2009), although a number of other scholars make similar arguments.

Narvaez suggests that each part of the brain gives rise to a distinct ‘ethic’: the reptilian

brain, which is largely instinctual, gives rise to an ethic of security, the mammalian brain to

an ethic of engagement and the primate brain to an ethic of imagination.

The Security Ethic represents the most primitive moral sense that humans

display. It is rooted in the oldest parts of the brain, [which] drives territoriality,

struggles for power, imitation, deception, and maintenance of routine and following

precedent. Emotion systems related to fear, rage, and seeking (exploring) reside

here.

The Ethic of Engagement represents the heart of morality. …[developed fully it ]

leads to values of compassion, tolerance, and openness to others

The Ethic of Imagination represents the mind of morality, with its fullest

expression in the human species. The real work of moral judgment and decision-

making has to do with the coordination of instincts, intuitions, reasoning and goals

by the deliberative mind – the work of the Imagination Ethic. Deliberative reasoning,

one capacity of the Imagination Ethic, relies on explicit memory and develops slowly

through experience and training. The Imagination Ethic uses at least two powerful

tools. One is “free won’t,” the ability to countermand instincts and intuitions, an

ability that allows humans to choose which stimuli are allowed to trigger emotional

arousal or action sequences. A second tool of the Imagination Ethic is the ability to

frame behaviour, to explain the past and imagine the future, which contribute to


building a life narrative and motivating the self. Cultural narratives are often adopted

and translated into personal narratives, propelling behaviour. (Narvaez,

2009)Narvaez summary table of the characteristics of these three ethics is shown in

Appendix 1

It is not quite correct to map precisely these three ethics onto the various stages given

by either Kohlberg or Kegan, but there is clearly a very strong link (and Narvaez herself is

‘Kohlbergian’). Yet without exploring the complexities, it is clear at a rough and ready level

that the staged progression from (in Kegan’s terms) self-centred to self-reading and thence

to self-authoring involves a progression in which the ethic of security is supplanted more

and more by the ethic of engagement and eventually the ethic of imagination.

So what?

It is now possible to pull together these threads in relation to restorative justice models

and especially the B & M view of reintegration ceremonies. Using the terms introduced

above, we can consider the extent to which an offender might be successfully drawn into a

reintegrative shaming process. In the RJ process, let us recall, we ‘love the sinner and hate

the sin’ and the offender (and others) ‘get’ that. The offender is able to separate themself

from their action, accept its ‘badness’ and feel some shame for what they did and who they

hurt. Even if they cannot fully change as a consequence nor fully apologise for their actions,

they can own those actions and consequences enough for the victims and their supporters

to feel that apology is real, redemption is possible and re-offending is unlikely. When this

happens, the RJ process is at its best and can be considered a success.

Conversely then, if that does not happen, must it be a failure. Sometimes, but not

always.

Two issues emerge, focused respectively around the victim and the offender. Where the

victim is concerned we need to see that by no means all instances of RJ have to have a fully

engaged offender. This arises because of a pair of (sometimes intertwined) factors:

1. In some cases, the victim is focused around ensuring that offender hears their

point of view and accords them some respect, perhaps accompanied by a degree

of apology and restitution. In such cases, the fact that the offender does not fully

‘get it’ may be of limited significance,

2. Many victims feel that the main benefit of an RJ process lies in prevention more

than redress4. This emerged strongly in papers at this conference given by

Jessalyn Nash, Kaaren Williamsen and Mary Koss among others. For example, in

Koss’ presentation she described a case where an offender apologised and also

made good on a number of promises to change his life. The victim felt that the

apology was hollow and formulaic but nonetheless was very satisfied with the

overall outcome because when the offender honoured the promises to undergo

the agreed developmental experiences, she felt the he would not reoffend.


If the offender does not absolutely need to be fully engaged, it may be the case then

that this does not vitiate the process, especially if the victim understands this and will work

with it. For example, a simple but powerful option is to clue the victim into this fact and

allow them to make choices about how the process moves forward, if it does. This course is

adopted by experienced mediators such as Jon Powell (pers. comm.) and is efficacious as a

practical step in creating value form a process otherwise threatened by lack of capacity on

the part of the offender.

At times, however, with an offender who has barely gotten out of being self-centred and

whose ethic is security and base level engagement we may be confronted with someone

who is very unlikely to ‘get it’ or be a good subject for reintegrative shaming. Indeed, we

could explore whether they are capable of shame in the full sense or capable of really

grasping reintegration.

The strong suggestion we make is that many adolescent may fit this description. (As a

matter of fact, it may also be true that quite a few ‘adults’ don’t either5.) So far as they do

not get it, the process may be ‘wasted on them’ and, if it has no direct value for an informed

victim, may be counterproductive as well as presenting dangers to the RJ process.

What is the risk if the offender is not fully engaged?

Demonstrating that some categories of offender may not be fully capable of engaging in

the sort of RJ process imagined by B & M may not, of itself, vitiate the process. As we show

above, it is well understood that the process can be of value even when the offender does

not really ‘get it’. Indeed, the junior author’s doctoral thesis which examined FGC style

approaches to drink driving argued strongly for the educative impact that they often had on

those who attended other than the offender themselves (and, of course, DUI style offences

lack a victim in the simple sense.)

Furthermore, as the original paper argued and much of Braithwaite’s other work attests,

there may well be value is making a number of attempts to reintegrate a young offender:

simply giving up after one iteration is not fully in the spirit of restorative justice.

The junior author’s experience also shows that is that it is frequently possible to make

something useful out of cases which are not ‘successful’ attempts at reintegrative shaming

in the sense we would normally understand. Frequently, what happens is that the young

person who is self centred’ and more focused on the ethic of security or of engagement in

the narrow sense. can be moved in something like the right direction by discussing “what’s

in it for me” after the facilitator has covered off “what’s in it for the victim”. A common way

of helping a young person who is not able to empathise with the victim is to ask them to

think about what the Magistrate will think if they have helped the victim by answering the

victim’s questions and working towards meeting the victim’s needs. This self-centred appeal

can take a young person towards a state of action that will produce positive results for the

victim. But the question is, if this is the only outcome from the restorative justice process, is

that enough?

If a young offender’s capacity for self-authoring is not hailed out or their ethic of

engagement tapped into what is the longer term of the restorative justice process on


something as crucial as reoffending? For example, drawing on the earlier case studies, in

the junior author’s experience she expects that Andrew, Dylan and Kylie will re-offend.

We suggest that this may, therefore, not be enough. If moves of this nature have value,

then they are worth making and may constitute part of an alternative—as yet unspecified—

model. But it is not enough to make do and hope that partial outcomes, squeezed by

methods ancillary to the main model are the way forward. The reason for this comment is

that there is a serious risk of counter-productive outcomes for both victims and for RJ

processes more general.

To make this point let us consider a hypothetical case, constructed from elements of real

experiences that have been seen in practice:

Johnny was a 15 year male from a dysfunctional home. He had been involved in a number of

illegal episodes of minor violence and serious property damage before an incident in which he set

fire to a shed on a property near his home. Johnny did not have the foresight to realise that the

shed was close enough to the owner’s house to be a threat. Soon after the blaze broke out and

before the occupants detected it, a wind sprang up and fanned the flames which ignited the

timbered home. The four year old child in the corner bedroom was trapped by the flames and

suffered smoke inhalation and serious, disfiguring burns before fire crews rescued her. The case

attracted widespread publicity in the local media

After his apprehension, Johnny was arrested and confessed to setting the fire. He was

included in an RJ based process based on FGC. Months of work went into creating the conference

and into talking with the offender. Throughout the process, Johnny was engaged but showed

limited capacity to really understand the issues. He displayed limited remorse and empathy with

the victim and her family and did not move beyond the view that he ‘never meant to hurt

anyone’.

Considerable efforts were made to move him and an apology was forthcoming along with

agreements to undertake various counselling and remedial education as well as taking a part

time job. As a result, court mandated punishment was restricted to a limited probation. The

victims were sufficiently mollified by this to accept the outcome, realising that conventional

punishment options were unlikely to be productive. Media reports on the case were mixed, with

suggestions that this showed the value of RJ contrasted with others that questioned if justice had

been done.

Johnny seemed to benefit from the programs he was in and clearly gained some insight and

new skills. Nonetheless fifteen months later, while still on probation Johnny was arrested and

convicted of creating a second major fire. He and friends were playing with fire crackers in some

grassy wasteland on a day when there was a high fire danger. The grass caught fire and spread

towards a local school. Fortunately, fire crews were able to douse the flames before life or

property was seriously threatened. Again, this received wide publicity.

What does one make of such cases? For the family of the child victim, Johnny’s re-

offending in a similar thoughtless event risks adding insult to injury. Will they become

campaigners against this foolish and failed process? What of the media? Will they run

campaigns against the softness of the justice system? Both ‘insult on injury’ and backlash

publicity are serious costs of a failed intervention with someone who may have been

intrinsically incapable of fully participating in the FGC for the sorts of reasons outlined in

previous sections.


Conclusion

The argument of this paper is not that the original B & M model is wrong. There is still

much to be said for concerning ourselves with how best to execute appropriate RJ

procedures and understanding them as ceremonies with preconditions remains useful.

Nothing we have found in the literature suggests that the original formulation of these

conditions is in error.

At the same time, much remains to be done. On the one hand, understanding the

dynamics of how to unfold the process is important because without attention to this is is

uncertain how effectively one can ‘call out’ identities, emotions, etc. that make the process

work. In this context, the work by Rossner (2011) using the Randall Collins model of

interaction is a major contribution. She notes at least these elements as important in the

process:

This conference fits a model of a successful interaction ritual. The participants become

engrossed with each other over time, moving from hesitant and awkward conversation to

instances of high solidarity and shared emotion. While Terry is initially resistant, there is an

identifiable turning point when Christy speaks. Although she dominates the interaction, and at

times subverts Anne’s status as victim, Anne and Terry respond positively, engaging in high-

solidarity interaction with Christy and Anthony.

The current analysis uses systematic micro methods to show that the elements of a

successful interaction ritual can be empirically observed, documented and analysed. This

advances the ritual perspective proposed by Braithwaite and Mugford (1994), using interaction

ritual theory … to develop a micro-level theory of restorative justice. Elements of the theory

include:

1. Shared focus through conversational rhythm. Although initially disjointed, over time,

participants settle into a turn-taking dynamic marked by a lessening of stutters and silences.

They begin to share a common focus and communicate with each other directly.

2. Conversational and power balance. All participants feel empowered to contribute, and no

one is dominated. In this conference above, Christy talks more than anyone else, but this does

not alter the balance of the conference. All participants continue to engage with each other and

do not withdraw from the conversation.

3. Turning point. Strong expression of emotions acts as a high point for participants,

providing a common focus and drawing them all into the rhythm and the flow of the interaction.

4. Public displays of solidarity. After a rhythm has developed and the interaction has reached

a crescendo, participants engage in high-solidarity interactions, such as touching or sustained

eye contact. (Rossner, 2011: 115-116)

On the other hand, and importantly as we believe we have shown, care needs to be

exercised in asking who can successfully be engaged by particular forms of RJ. In particular

we think it important to consider the extent to which any given individual displays sufficient

cognitive development for the process to be engaging of them. For those, especially

juveniles, whose cognitive development is limited it may be that the process is simply one

they cannot get.


The point is not that these young people should not benefit from RJ but rather that a

model of reintegrative shaming is not driving the outcomes in cases where the offender may

not be morally developed to a sufficient point to “get it”. In these situations, at best we can

produce positive outcome for victims (a worthwhile endeavour given victims are more likely

to be better financially, morally and emotionally compensated through RJ for “less serious

crimes” compared to court). At worst a situation could be created that risks the benefits for

the victim through exposure to an insincere, morally underdeveloped offender who is

incapable of understanding the consequences of their actions to their victim, victim’s family,

their own family and themselves. RJ programs, like the ACTs, work hard to assess and

screen out this type of offender. However, it is an issue of serious consideration that can

add insult to injury and harm the very core of restorative justice processes. How can we

explain what is happening here? Are these cases worth doing? What could we do

differently? Can we do better?


References

Bargh, J. A., &Chartrand, T. L. (1999). The unbearable automaticity of being. American

Psychologist, 54, 462-479.

Bartone, P. T. (2010) Preventing Prisoner Abuse: Leadership Lessons of Abu Ghraib'

Ethics &Behavior, 20: 2, 161 — 173

Coleman. K.M., (1990) Fatal Charades: Roman Executions Staged as Mythological

Enactments, The Journal of Roman Studies Vol. 80, pp. 44-73

Foucault, M. (1975). Discipline and Punish: the Birth of the Prison, New York: Random

House.

Garland, D (1990)Punishment and Modern Society: A Study in Social Theory, Chicago,

University of Chicago Press.

Haidt, J. (2005) The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom, Basic Books, NY

Kegan, R. (1994). In over our heads: The mental demands of modern life. Cambridge, MA:

Harvard University Press

Kohlberg , L. (1984 ). Essays on moral development, Volume 2: The psychology of moral

development. San Francisco : Harper & Row .

MacLean , P. D. ( 1973) . A triune concept of the brain and behavior. Toronto: University

of Toronto Press .

Mills, C. Wright. 1940. Situated action and vocabularies of motive. American Sociological

Review, 5:904-913.

Mugford, S. (2003) The butterfly’s wing, bread pudding and justice: the relevance of

complexity theory to ADR processes, VCAT Mediation Newsletter, 9 (Nov): 19-23.

Narvaez, D. (2009). Triune Ethics Theory and moral personality. In D. Narvaez & D.K.

Lapsley (Eds.), Moral Personality, Identity and Character: An Interdisciplinary future (pp. 136-

158). New York: Cambridge University Press.

Panksepp , J. ( 1998 ). Affective neuroscience: The foundations of human and animal

emotions. New York : Oxford University Press .

Rossner, M. (2011) Emotions and interaction ritual: A micro analysis of restorative

justice, British Journal of Criminology. 51, 95–119

Scott, M.B. and S. Lyman, (1968) Accounts.American Sociological Review, 33 (1 ):46-62.

Simmel, G., 1950, The Sociology of Georg Simmel, Compiled and translated by K. Wolff,

Glencoe, IL: Free Press.

Sykes, G.M and D. Matza (1957) Techniques of neutralization: a theory of delinquency,

American Sociological Review, 22: 664-670

Van Vugt, E., J. Gibbs, G. J. Stams, C. Bijleveld, J. Hendriks and P. van der Laan (2011)

Moral Development and Recidivism: A Meta-Analysis. International Journal of Offender

Therapy and Comparative Criminology published online 21 February 2011, DOI:

10.1177/0306624X10396441


Wilson, T. D. (2002) Strangers to Ourselves: Discovering the Adaptive Unconscious,

Belknap Press, Cambridge, MA,


Appendix 1: Narvaez’ detailed model of the three ethics


Endnotes 1The Restorative Justice Unit has recently received funding to involve an Indigenous Guidance Partner to

assist indigenous young people and their families through a restorative justice process. 2On the link between complexity, chaos and ‘recipes’ in this area, see Mugford (2003)

3This table is a composite of various versions of representing the complex stage model. This one focuses

on the dynamic metaphor of reading and writing to make the point. 4 In turn, this raises questions about whether what is practiced here is restorative justice or innovative

justice, since restoration is not the focus. 5 This is quite a complex matter. Kegan claims that up to 60% of people never get beyond stage 3. He

bases this on response to the subject-object interview method, claiming that only a minority can articulate

positions at stage 4 or stage 5. Other approaches, based on the view that ‘we know more than we can say’,

would suggest that this mislabels some people who ‘get’ stage 4/self authoring even if they cannot clearly

articulate that in complex speech.

Reintegration ceremonies revisited (2)

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