Motivation and emotion/Book/2018/Restorative justice and emotion
What role does emotion play in restorative justice?
Restorative justice refers to an alternative yet complimentary form of dispute resolution to the current judicial system (Webber, 2009). While the current judicial system focuses on the black and white legal question of whether a crime was committed, restorative justice focuses more on why it happened and what can be done to correct the harm done to both the victim and community (King, 2008). The most common form of restorative justice consists of a meeting similar to mediation (Sherman & Strang, 2003). In this meeting, the victim and the perpetrator meet face to face to discuss the incident (Sherman & Strang, 2003). These meetings are often attended by the loved ones of both parties (Rodogno, 2008). Though restorative justice is most often used in criminal settings, it has also been applied to many civil cases to prevent unnecessary court cases, along with bullying in schools (Morrison, 2002). The purpose of these meetings is to give the victim agency and an active role in their case, while giving the perpetrator a chance to attempt to redeem themselves by taking responsibility for the event (Webber, 2009). It also has successfully reduced reoffending rates when comparing perpetrators who have partaken in the restorative justice process to those who have not (King, 2008).
With the re-emergence of popularity surrounding restorative justice, legal and psychological professionals have begun focusing on aspects to maximise its benefit (King, 2008). As part of this focus, a variety of surveys, interviews and filmed sessions have given evidence as to the role of emotion in restorative justice (Sherman & Strang, 2003; Rossner, 2011). This chapter will focus on exploring this topic. Looking at the theories behind emotions in restorative justice, the role of specific emotions and the role of emotional intelligence, this chapter will demonstrate the practical applications the link between emotion and restorative justice has had. To conclude, this chapter will look at the major criticisms of restorative justice and its ties to emotion before suggesting future directions for the field.
History of restorative justice
|“If victims feel nobody cares about their suffering, it is in part because institutionally nobody does” (McBarnett, 1988)|
While the term restorative justice is a relatively new one, the practice has an extensive history (Sherman & Strang, 2003).
Before the 1100s, restorative justice was used in multiple cultures around the world. It was thought that by focusing on repairing damage rather than an eye for an eye method, this system could reduce retaliation and blood feuds. However, during his reign, King Henry II realised the financial benefits in making the crown a victim to all crimes. As part of this system, any funds that were previously given to victims were now given to pay for court fees. Consequently, this system offered little to no protection to the victims. As time progressed, this system continued into the court system we have today (Strang & Sherman, 2003).
Though equitable aspects have been added to the judicial system over the years, discussions surrounding the inefficiency of the system were brought to a front in the 20th century. The main concern of these discussions was dissatisfaction of the victims in the proceedings of their crime. As a result, the victim movement has increased over the last 25 years, leading to better facilities, access to counselling, modest compensation for certain crimes and minor improvements in victim’s involvement in court. It has also prioritised alternative dispute resolutions, including restorative justice (Strang & Sherman, 2003).
Why is restorative justice growing in popularity?
Despite these changes to the judicial system, the rise in the popularity of restorative justice suggests there is still something lacking. When questioned about the appeal of restorative justice, there are three common answers given.
Firstly, even with the improved circumstances, victims still feel they play a passive role in the current judicial system. As part of the current system, victims often are not told anything surrounding their case beyond what they would need to know as a witness. More concerningly, despite legal obligations often stating otherwise, some victims are not even being notified when an arrest is made in their case (Strang & Sherman, 2003). These flaws have led to most victims feeling like they have been silenced or unable to give a full account of their side of the story in a legal setting (Strang & Sherman, 2003).
Along the same lines, both victims and perpetrators are indicated that the current judicial system does not feel like it serves justice. In many cases, both parties have indicated that they are unhappy with the result given. Furthermore, the current system has high reoffending rates (Strang & Sherman, 2003). It is assumed that part of the reason for these rates are due to a lack of interaction between the victim and the perpetrator, making it easier for the perpetrator to dehumanise current and future victims (Barton, 2000).
Finally, the costs of the judicial system are often quoted as detractors of interest in pursuing cases. While the modern-day restorative justice system is being built to accompany the judicial one as opposed to replacing it, it allows for some of these issues to be minimised, especially in civil cases where it can prevent court involvement all together (Strang & Sherman, 2003).
Theoretical framework of restorative justice and emotion
|“It is ironic that our current solution for people with stressed amygdalae is to place them in an environment that inhibits any chance of further growth” (Reisel, 2013)|
When discussing the relationship between emotions and restorative justice, three main psychological theories are considered.
The first of these theories is cognitive theory. This theory surrounds the amygdala. Past research on the amygdala has shown that it plays a large role in the development of empathy. It has also shown that the amygdala reduces in size when that person is in stressful situations, including being incarcerated. However, despite previous beliefs, it is now known that the amygdala does not stop developing in childhood. Using this information, studies have indicated that by allowing prisoners to interact with their victims in a restorative justice setting, it allows them to develop their amygdala and have stronger empathy for both past and potential future victims (Reisel, 2013).
Maslow's Hierarchy of Needs
The second theory often referred to when considering emotions in restorative justice is Maslow’s hierarchy of needs. As part of this theory, in order to reach self-actualisation, individuals need to fulfil the needs of love and belonging and safety along with others (Maslow, 1943). Study conducted by the Canberra Reintegrative Shaming Experience between 1995 and 2000 indicated that as part of their restorative justice programs, both the perpetrators and victims rated higher on measures relating to love and belonging . This was because the social support brought forth by having loved ones attend made the victim feel less alone while also making the perpetrator feel that they are still loved and can change as it was the action being looked down upon, not them. These studies also indicate that victims felt safer upon participating in the program. When comparing results, victims were significantly less frightened of the perpetrators after partaking in the restorative justice system. The largest difference was found in victims of violent offences who dropped down from a 38% fear rate to 14% (Strang & Sherman, 2003).
Bandura's Moral Disengagement Theory
The final but most widely used theory when discussing the emotional ties to restorative justice is Albert Bandura’s Moral Disengagement theory. Bandura stated that there were four aspects an individual partakes in when morally disengaging. Firstly, the individual will rationalise their decision. Next, they will obscure the event in such a way that lessens their personal responsibility. Additionally, the individual will deny the effects their actions have had on the other party. And finally, the individual will dehumanise the other party (Barton, 2000). To further illustrate this, consider the following example:
A young woman is sexually assaulted near her home. When questioned, her attacker rationalises his decision by stating all the ways he has been kind to her and how he feels owed sex. While recanting the event, he also places emphasis on the girl's actions including being out at night and wearing what she had, thus reducing the role he played in the events. They are also likely to downplay just what they did. If asked about how he believed the events impacted her, someone who is morally disengaged from their crime is likely to make comments such as "it is just sex" or "she will move past it". Finally, while dehumanising the victim in this circumstance would share similarities to the comments made to lessen personal responsibility, it is also a more generalised argument of why it does not matter that this event happened to that person. It could include bringing up past wrongs of the victim to make them seem like a bad person or aspects that are socially looked down upon, including poverty or drug use.
As previously mentioned, one of the major complaints about the current judicial system is the lack of interaction between the victim and the proceeding (Strang & Sherman, 2003). This allows the perpetrator to morally disengage easier as the lasting impact on the victim is rarely fully explored (Barton, 2000; Strang & Sherman, 2003). By placing the perpetrator face to face with the victim in a restorative justice setting, it forces the perpetrator to be confronted with the impact of their actions, making it harder to disengage (Barton, 2000). This makes it more likely that they will feel empathy, guilt and shame; all of which are important proactive emotions in the restorative justice setting (Rodogno, 2008).
Proactive and counteractive emotions
The role of emotion in restorative justice is a complex one. While both community shaming and having positive support present for both the victim and perpetrator have seen to be effective in achieving a positive outcome in restorative justice situations, the emotions which should be presented for beneficial outcomes is unclear. Just as people are individual, so too are our reactions to others' emotions (Rodogno, 2008).
For example, while shame is seen by some as a vital step in the perpetrator making amends, a number of issues have been found. Firstly, shame is often portrayed in a very individual manner, meaning that the perpetrator focuses on what their feelings are, as opposed to what the victim needs. This can lead to the victim feeling angry and as if their side of the story does not matter, both of which are aspects that are usually deemed counteractive to the restorative justice process. Furthermore, shame can lead to the perpetrator not changing. This happens in one of two ways (Rodogno, 2008). Firstly, shame can make someone run from the situation, leaving the issue undealt with. Alternatively, perpetrators may also feel like they are unable to change if shame manifests alone. This has extra risks of the perpetrator reoffending. Research has indicated that while shame is important in the process, it is most beneficial to the process when connected with guilt (DuFour, 2016).
Along with shame and guilt, it is widely accepted that empathy, remorse and hope are proactive emotions in the restorative justice process. On the flip side, along with anger; fear, humiliation and disgust are considered counteractive(Rodogno, 2008). As alluded to, having a self-focused approach is also often considered a counteractive trait for the restorative justice process as it is seen as manipulative (Rodogno, 2008, Rossner, 2011). However, studies are now indicating that if mixed with empathy, a self-focused control can be beneficial. Rossner’s 2011 case study clearly demonstrated this (Rossner, 2011).
As part of this study, a mugger and his partner met with his victim and her husband (Rossner, 2011). All interactions were filmed to preserve verbal and visual information (Rossner, 2011). Throughout the interactions, both the victim and her husband were described as tense, along with him being described as angry (Rossner, 2011). Rossner describes the changing point as the moment the perpetrator’s partner begins talking to the victim (Rossner, 2011). Though she expresses empathy for the victim, a large majority of her section consisted of the pain she felt surrounding the event and her own ‘real’ victimisation of another crime (Rossner, 2011). She also, in an action that many would call manipulative, tearfully placed focus on her and the perpetrator’s child and her motherhood (Rossner, 2011). Specifically, she focused on a statement the victim had made about safety, and especially that of the victim’s children by stating that if the perpetrator did not clean himself up, she would leave him and take the child (Rossner, 2011). As parents themselves, the victim and her husband responded well to this (Rossner, 2011). For the first time in the process, the victim’s husband focuses on the speaker and engages himself in the conversation (Rossner, 2011). Likewise, both him and the victim seem less tense and softer (Rossner, 2011). This case once again reiterates the complexity of the emotional role in restorative justice (Rodogno, 2008).
Given the growing knowledge of this emotional intelligence relates to restorative justice (King, 2008).complexity, researchers are continuing to search for a generalisable aspect which would improve success rates. One such area being investigated is how
Emotional intelligence came to the forefront of psychology in the 1980s when Gardner theorised multiple intelligence. In his model, Gardner claimed that intra and interpersonal awareness were forms of intelligence. He described intrapersonal intelligence as knowing their own emotional state and being able to let it guide them. Meanwhile, he described interpersonal intelligence as knowing others’ emotions and how to influence them by using their motivations and intentions. Since then, other researchers have refined the field, finding certain traits including accurate self-regard, empathy and stress tolerance as measures to determine individual emotional intelligence (King, 2008).
While emotional intelligence has not come without criticism, the studies conducted in relation to restorative justice are bringing promising results (King, 2008). This is particularly the case for explaining why the restorative justice process tends to have less success rate with younger participants. In his 2017 study, Hayes explains that requirements and expectations are often linked with emotional and language-based development, including many factors that are found in emotional intelligence. He continues by stating that younger participants tend to have less emotional and language capacity, making it more likely that they will have unrealistic expectations of the restorative justice process. He concludes by stating that teaching and supporting emotional intelligence at a young age is essential for increased productivity in the restorative justice system for minors (Hayes, 2017). This claim has not only been supported through research, but also advocated for by government agencies (Johnstone and Van Ness, 2007; Morrison, 2002).
Using emotional intelligence to promote restorative justice
Along with benefits to theprogram, emotional intelligence seems to play a major role in promoting restorative justice. An example of this can be seen through Lord Chief Justice Woolf of England and Wales . Woolf strongly believed that the British justice system was not effective. As such, he stated that with the failure of tougher jail sentences, the way should be paved for a new paradigm of justice. As part of this new paradigm Woolf envisioned, he clearly states that restorative justice would play a vital role. A study done shortly after Woolf voiced his thoughts showed that 75% of participants mirrored his views. Specifically, 77% of participants indicated that the process of restorative justice is one that should be available to victims. More so, 79% of participants also stated that alternatives to prison could be just as effective to prevent crime. Of these findings, none of the participants knew how the change of plan would be implemented. This strengthens the theory that Woolf’s emotionally intelligent words influenced their views (Sherman, 2003).
These findings have been so strong that lawyers and psychologists are starting to implement them in other legal professions. Historically, the court system has been black and white, focusing only on whether a crime was committed, not why it happened or repairing damage. However, as previously mentioned, both judges and the legal documents they rely on for their rulings have incorporated emotionally intelligent aspects often used in restorative justice (King, 2008).
Orders of restorative justice type programs have become commonplace in the courtroom. Research indicatethat when emotional intelligence is used by judges, participants are more likely to willingly attend and participate restorative justice programs . Likewise, emotional intelligence is now being considered in cases involving minors with alternatives such as restorative justice being ordered over court appearances (King, 2008).
Along with the judicial system, lawyers are also using emotional intelligence to push clients, especially those in civil cases, to seek out restorative justice before attending court in hopes of reducing cases that reach the courtroom (King, 2008). This method mirrors that of Woolf and has had positive results (Sherman, 2003; King, 2008).
Finally, restorative justice and the societal and emotional benefits it holds has been incorporated into the education system with many universities making it a compulsory part of their law degrees (King, 2008).
Though the history and evidence of restorative justice is strongly supported, its re-emergence and more specifically ties to emotion, has not come without its critics.
In general, one of the major criticisms of restorative justice is that its lack of focus on punishment means that perpetrators will see their actions as having no consequence, and hence be more likely to reoffend (Dufour, 2016). However, studies indicate that when the perpetrator emotionally engages in the restorative justice system, rates of reoffending are reduced (King, 2008). These results have been especially prevalent in less violent cases such as thievery (Dufour, 2016). Additionally, these claims do not consider that the purpose of restorative justice is to work alongside the current judicial system, not replace it (Sherman & Strang, 2003).
The second criticism that surrounds restorative justice and its emotional ties is the idea that restorative justice is what’s best for the victim, not for everyone. Ironically given the previous criticism, it is generally believed that victims in the restorative justice system are too harsh on the perpetrators if they are given the chance (Stokkom, 2002). While it is true that the restorative justice process cannot happen if the victim is unwilling to participate, the goal of restorative justice both historically and currently has always been to not only make things right between the victim and perpetrator, but the perpetrator and their community (Sherman & Strang, 2003). Furthermore, research indicates that not only are the victim and perpetrator feel happier after the restorative justice process, but that in most situations, victims are more interested in a genuine apology and recognition of the wrongdoing as opposed to any emotional or monetary gains to be had (Sherman & Strang, 2003; Stokkom, 2002). However, as restorative justice is seen as something to do for the community as well as the individual, researchers have indicated that victims can feel pressure to participate against their will (Stokkom, 2002).
Though many of the criticisms of restorative justice and specifically its connection with emotion have been proven false, no system is perfect and there are still many areas that need to be further explored to improve the restorative justice system.
There is currently no clear generalisable way to determine factors that ensure a smoother process. Particular emotions are not a good indicator as research has shown very individualistic results (Rodogno, 2008; Dufour, 2016; Rossner, 2000). Likewise, while emotional intelligence seems to show promising results, it is a relatively new area of study so is underdeveloped (King, 2008). Furthermore, studies indicate that younger participants do not respond well to it (Hayes, 2017). Further research should be directed to finding a more generalisable link between emotion and success rate of restorative justice programs. Alternatively, a specific link for younger participants could be looked into, though results may vary in situations that include older and younger participants.
Finally, alternative methods of restorative justice which do not require the victim to attend should be further explored. This would benefit both the victim and the perpetrator. As previously mentioned, victims often feel an obligation to partake in restorative justice programs as the system is painted as one that is not only benefits them but society as a whole (Stokkom, 2002). Continuing from this, restorative justice programs have been shown to be beneficial to helping prisoners grow empathy (Reiser, 2013). By having systems that are not dependant on the victim, victims will not feel pressured to participate in the current system while perpetrators still maintain the emotional benefit of the programs. This will ultimately benefit society as these programs have shown to reduce reoffending rates (King, 2008).
Restorative justice is a system that has been spanning millennia. Though major changes made to the justice system eliminated most signs of restorative justice for around 900 years, the last few decades have brought back its popularity. This re-emergence of popularity can be attributed to growing disapproval of the current judicial system. In particular, the financial cost of court proceedings, lack of victim contribution and lack of satisfaction of results on both sides have been noted as reasons restorative justice appears the more appealing choice. While researching ways to make restorative justice more effective, psychologists and legal professionals have focused on how emotions interact with it. From this research, three major theories; Maslow’s hierarchy of needs, the cognitive perspective and Bandura’s moral disengagement theory, have been attributed to the success of the system. When exploring specific emotions, studies have had conflicting opinions on what ones are pro and counteractive; though a general outline has been accepted.
Current studies are focusing on how emotional intelligence can shape restorative justice. As well as supporting that emotional intelligence can be used to promote restorative justice, studies show promising results surrounding successful outcomes and the emotional intelligence of those partaking in the system. However, these results have not been mirrored for younger participants due to unrealistic expectation and linguist and emotional ability. These results have helped shape the current legal scene with judges and lawyers promoting restorative justice in place of or beside court hearings and prison systems. It has also added to the educational scene.
Though most of the major criticisms of restorative justice and its ties to emotion have been proven untrue, there are still challenges the system needs to overcome. Predominately, finding some connection between success in restorative justice and younger participants the way emotional intelligence works for older participants will make the current setting more effective. Additionally, alternative methods of restorative justice should be further explored to reduce pressure on victims to participate while still giving benefit to perpetrators. Solving these issues is a must if the system is to work at full efficiency. Given the amount of change that has already been witnessed through restorative justice, the system working at maximum sufficiency has the ability to change the world. And at the forefront of this change is the role emotions play in restorative justice.
- Cognitive psychology (Wikipedia)
- Criminality (Wikiversity)
- Emotional Intelligence (Wikipedia)
- Guilt and Empathy (Wikiversity)
- Maslow's Hierarchy of Needs (Wikipedia)
- Moral disengagement (Wikipedia)
- Restorative justice (Wikipedia)
- Theory of multiple intelligences (Wikipedia)
DuFour, S. N. (2016). Shame, anger, and guilt: The hierarchy of emotions in restorative justice. Inquiries Journal/Student Pulse, 8. Retrieved from http://www.inquiriesjournal.com/a?id=1401
Hayes, H. (2018). Emotion and language in restorative youth justice. The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice, 407 - 419.
Johnstone, G., & Van Ness, D. (2011). Handbook of restorative justice. Routledge.
King, M. (2008). Restorative justice, therapeutic jurisprudence and the rise of emotionally intelligent justice. Melbourne University Law Review, 32, 1096 - 1126.
Maslow, A. (1943). A theory of human motivation. Psychological Review, 50, 370-396. https://doi.org/10.1037/h0054346
Morrison, B. (2002). Bullying and victimisation in schools: A restorative justice approach. Trends and Issues in Crime and Criminal Justice, 219, 1 - 6.
Rodogno, R. (2008). Shame and guilt in restorative justice. Psychology, Public Policy, and Law, 14(2), 142-176.
Rossner, M. (2011). Emotions and interaction ritual: A micro analysis of restorative justice. British Journal of Criminology, 51, 95-119. https://doi.org/10.1093/bjc/azq075
Sherman, L. (2003). Reason for emotion: Reinventing justice with theories, innovations, and research - The American Society of Criminology 2002 Presidential Address. Criminology, 41, 1-38. https://doi.org/0.1111/j.1745-9125.2003.tb00980.x
Sherman, L., & Strang, H. (2003). Repairing the harm: Victims and restorative justice. Utah Law Review, 15(1), 15 - 42.
Van Stokkom, B. (2002). Moral emotions in restorative justice conferences. Theoretical Criminology, 6, 339-360. https://doi.org/10.1177/136248060200600306