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Reintegration ceremonies revisited (2)


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Updating a previous wideyl cited publication on reintegration ceremonies

Updating a previous wideyl cited publication on reintegration ceremonies

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  • 1. 3rd National Conference on Restorative Justice June 2011 Raleigh NCReintegration Ceremonies Revisited: Experienceand 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 firstof all take the pains to find him where he is and begin there. This is the secret of the heart ofhelping others. Anyone who has not mastered this is himself deluded when he proposes tohelp others. In order to help another effectively, I must understand what he understands. If Ido not know that, my greater understanding will be of no help to him. If, however, I amdisposed to plume myself on my greater understanding, it is because I am vain or proud, sothat at bottom, instead of benefiting him, I want to be admired. But all true effort to helpdoes not mean to be a sovereign but to be a servant, that to help does not mean to beambitious but to be patient, that to help means to endure for the time being the imputationthat one is in the wrong and does not understand what the other understands. . . . For to bea 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, theteacher, learn from the learner, put yourself in his place so that you may understand what heunderstands 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 ofones explanations creates a continuing cycle of thinking, that is the crux of intelligence. Itisnt that one person knows more than another, then. In a sense, it is important to know lessthan the next person, or at least to be certain of less, thus enabling more curiosity and lessexplaining away because one has again encountered a well-known phenomenon. The lessyou know the more you can find out about, and finding out for oneself is what intelligence isall about.Roger Schank *Dr. Stephen Mugford is a Visiting Fellow in Military Sociology at the Centre for DefenceLeadership & Ethics, Australian Defence College in Canberra, Australia. A former academicsociologist he is also a consultant specialising in executive coaching, team building andchange management. Email to : or ** Dr. Nova Inkpen is currently with the Department of Justice and Community Servicesof the ACT Government in Canberra, Australia. Nova has extensive experience in restorativejustice in both Australia and London, England. Email:
  • 2. Note to the reader This paper has a work-in-progress character in that it draws some conclusions about thedirection in which change might move but does not seek to fully establish what all thesechanges might be. There are several reasons for this. Of these, this the most important isthat its aim is to stimulate discussion at the conference which will help to develop some ofthe contours for change. A later version will aim to make more contribution to describingdirections, 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 beenwidely cited, generally with approval. The present paper revisits B&M fondly but critically,suggesting that despite positive and constructive intent its application has revealedlimitations. Based on the experience of the junior author in researching and facilitating restorativejustice 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 beglossed, producing positive results as the outcome for victims, in the junior author’sexperience there has been enough instances of relative failure for the offender to acceptthat the application of the original model is not describing the majority of restorative justiceprocesses. Two factors inform this conclusion. First, B&M underplays the difference between itsinspiration—Garfinkel’s ‘degradation ceremonies’—and the re-integrative task. Fordegradation 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&Moverplays the role of the ceremony and underplays the impact that an offender’s individualcapacity to morally comprehend their actions and consequences can have on the processand its outcomes. The response to these identified shortcomings rests on linking reintegration topsychology and neuroscience arguments, some of which were around in 1994 but many ofwhich are more recent. By linking to cognitive development, sense of self and dual systemsof cognition, the paper argues for respecifying the reintegrative task, creating a betterunderstanding of how the ceremony can work, for whom and under what circumstances.Introduction 2Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 3. In the early 1990s, John Braithwaite and the senior author of this paper (SKM) were bothworking in Canberra on linked aspects of action research restorative justice projects. In aninformal setting at an American Society of Criminology conference which they bothattended, SKM mentioned that he had been thinking of “rejigging that old Garfinkel ideaabout ‘successful degradation ceremonies’ (Garfinkel, 1956) to create successful re-integration ceremonies”. John reacted with interest and amusement—he too had beenthinking the exact same thing. And so was born what was to become the 1994 BJC paper wenow 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 aguide to practice. In the meantime, while both authors continued to reside in Canberra and stay inoccasional touch, their careers moved in different directions. John remained in academeand unfolded his interests into regulation more broadly and importantly into research onpeace building at the nation state level. SKM, meanwhile, left academe to become a fulltime consultant undertaking team building and change management work with a variety oforganisations, especially the Australian military. By various twists and turns, this work led toa wide range of literatures that were new to him and a major part of this ‘revisit’ is driven byinterrogating the B & M model with ideas derived from those other literatures. Meanwhile, the junior author has been involved throughout with a variety of projects inthe restorative justice area. Her doctoral thesis was associated with the Canberra based RISEproject and has she subsequently worked as an RJ researcher with the Justice ResearchConsortium in London and as a practitioner in Canberra. Her focus has been on the use of RJwith juvenile offenders. At the outset, it is important to say that the value we attach to the B & M is verypositive. We see it as a morally desirable and optimistic enterprise which set itself againstnegative, cynical or pessimistic views of deviance and those labelled deviant, views whichmight 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 anormal range of emotions including empathy and regret, the model seeks to finds ways tosupport a restorative justice approach; that is, to combine redress for the victims of crimewith rehabilitation of the offender, acknowledgement by and apology from the offender forthe harm and hurt and where possible reparation in some form for damage caused, as wellas forgiveness from the victim. This is a complex undertaking, but one that has been met with success in numerouscases. In B & M we sought to point to successful cases and, using the broad templatesuggested by Garfinkel’s conception of successful ceremonies, devise by induction andreflection 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 reintegrationceremonies had linked to the juvenile justice area. There are two obvious reasons why thisis the case. First, a strong argument can be made for linking reintegrative efforts tosupporting the prevention of recidivism and, for those who experience repeated contactswith the justice system avoiding the cycle of ‘deviance amplification’. In simple terms, if 3Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 4. young offenders can be restored to the straight and narrow before they become habitualcriminals, so much the better. Second, the reintegrative approach is strongly, although by no means only, linked to theidea 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 willhelp him or her to make the necessary restorative and reintegrative moves. And in caseswhere the existing family processes are not as organised and constructive as they mightbe—commonsensically, parenting is sub-optimal—the role of the FGC can be to strengthenthe family effectiveness both by increasing skills and motivations and also, where a widernetwork is involved, by supporting the parents and parental efforts. A strong test case for the model then, rests on its successful application in juvenile casesand 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 commonthemes in the practical experience of the junior author (NI) and because they highlightthemes that are relevant to our inquiry here—namely to ask to what extent the B&M modelcan be sustained in practice. The stories, written in the first person singular by NI are based on case notes and includeboth observation and interpretation. Pseudonyms are used throughout the case studies. Ineach study to maintain anonymity. The period covered is the restorative justice process thatoccurred after the offender was identified and admitted guilt and up to the point where anoutcome was agreed with the participants in the case. Some comments on outcomehonouring are included where relevant. Case Study 1: Ride/Drive Motor Vehicle & Theft Summary: three offenders were involved: an empathetic, fully engaged offendertogether with a disengaged offender and an immature offender both of whom wereincapable of understanding the impact of their behaviour on their victims. The conferencewas 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 Andrewmet one of their victims whose garage they had broken into and car they had stolen. Theboys also participated in an indirect conference with another victim. The experience of thethree offenders represents the kinds of complicated positive and negative outcomes thatcan exist in restorative justice cases. The young offender Jack, an indigenous youth, was hard to take through a restorativejustice process. NI was not able to meet with his parents and had to be creative about howto meet with him face to face. In a lot of cases referred by the court the ACT’s Office of 4Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 5. Children Youth and Family Support are involved in managing the young people while theyare on remand waiting to be sentenced. It is common for the restorative justice facilitatorsto work collaboratively with the youth justice case workers to make appointments for theyoung person and their family. In this case involving Jack, it was not possible to meet withanyone other than Jack and, consequently, it was very difficult to take him through ameaningful restorative justice process. Although committing to an agreement it was verydifficult to get Jack to understand what had occurred and he subsequently did not complywith this agreement – namely to write a letter to the victim1. The second young offender, Andrew, although having a mother, older and younger sisterin his life needed a great deal of assistance. His mother was having a great deal of difficultycoping with Andrew’s behaviour and, on the one hand was trying to get help from variousagencies to assist with her son and on the other hand would become suddenly disengagedand lie on his behalf to avoid attending appointments or facilitating his attendance atmedical appointments or educational programs. Andrew was a polite young person butlived a very chaotic life in which his mother would overshare his medical difficulties (he was14 and wet the bed) and be on his side one day and frustrated and ‘over’ his difficultbehaviour the next. He participated well in the conference but had extreme difficultiesfollowing 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. Theopportunity to participate in a restorative justice conference was timely as it resulted in himmaking a commitment to a program that he claimed years later (when he was still involvedwith 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 takeownership of his behaviour. He understood the consequences of his actions and engagedopenly and honestly with his victims in the conference. He answered their questions andaccepted their requests to put things right. Here is a description of their face-to-face and indirect conferences. Both young peoplehad their mothers at the conference to support them and the victims, a retired couple, alsoparticipated. What happened?: The young people described being in a laneway way near a house anddecided to break into it “because it was two storey and looked rich”. They knocked on thedoor and no-one answered. They then went around the house and saw a car parked in thegarage. They agreed that if they found the keys to the car they would take it and not takeanything from the house. After Jack broke the front door, Andrew went upstairs and foundthe 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 howthey took it in turns to drive the car. They revealed that none of them were wearing seatbelts. At this point, the victims and the young people’s mothers expressed their shock. Thediscussion turned to the potential injury or death they could have caused to someone elseon the road or to themselves. Both young people talked about how their actions were stupid and that they wished ithad never happened. 5Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 6. Who was affected and how? The young people then discussed how the victims wouldhave felt scared and angry about the burglary. They also talked about the impact of theoffence on their mothers. Andrew talked about how his mother had quit her job to makesure 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 hiscriminal 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 asshe described coming down the drive way and seeing that the garage door was open andthe car not in the garage. She talked about her lingering anxiety about whether anythingwas taken from the house. Drawers had been opened when the young people were lookingfor the car keys. Both young people stated that they didn’t take anything from the houseother than the car. Mary went on to explain that she felt scared being in the house and sleptfully clothed for the three nights after the burglary. She also recounted how she would lockdoors within the house so she could feel safe and didn’t want to leave the house in case itwas broken into again. Both the young people’s mothers talked about the difficulties they were experiencingwith their sons prior to them being caught. They talked about how they tried all sorts ofthings 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 makingyou scared. I wish I had never done it.” The victims then thanked the young people for coming to the meeting and said theyhoped the boys would stick with their schooling, as they both seemed to have promisingfutures. How to make things right?; The following restorative justice outcome agreement wasreached 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. Hisrecognition of his culpability was positive both for him and for the victims. He contributed to 6Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 7. recompensing them and to easing their fears and, importantly, he turned his life around. Itwould be hard to imagine a more satisfactory outcome. At the same time, the process was not successful for either Andrew or Jack. In Jack’scase, the complexities of his indigenous status created barriers that, while of great interestin themselves, are not really germane to our task here. For Andrew’s case—where minimalparticipation 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 termsnor does it seem that repeated iterations would, of themselves, have reached a point wheresuddenly Andrew would ‘get it’. Instead, a suspicion lingers that unlike Lachlan, Andrewcouldnt get it, and maybe his mother couldnt either. We will return to this later. Case Study 2: Burglary and theft Summary: a socially and morally immature offender but a victim who benefittedfinancially 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 withouttaking any emotional responsibility or being held accountable for the consequences of hisactions on his victim. Dylan was a difficult young person to work with as his “couldn’t careless” attitude was confronting. When pitched next to a mother who was overcome withshame for what her son had done it was hard to decide if this young person should beconsidered suitable to participate in a restorative justice process. Despite his attitude thefacilitator’s experience led her towards going ahead with the process and trusting that whatDylan would find out from the conference may strike a chord with him and get him thinkingabout 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 wasimportant to tell him her story and, further to this, the victim understood that she was in aposition to receive financial compensation which may not otherwise be forthcomingthrough the normal court process. Through an indirect process the young person heard how the victim felt like she hadbeen violated and had experienced a great deal of anxiety while waiting for the brokenglass from the smashed window to be repaired. The victim described how she found itdifficult to leave her home and go to work and even cancelled a holiday for fear of leavingher home vacant and experiencing another break-in. Finally, the main consequence thevictim wanted the young person to know about was the effect of the offence on her stresslevels while under cancer treatment. The young person listened to the consequences of hisaction. However, his reaction over time to the commitments he made through theconference were indicative of someone who did not understand his wrong doing and foundthe experience of participating in a conference an irritant in his life. He paid his money afterthe agreement date and also provided his letter after the agreed date after much prompting 7Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 8. from the facilitator. However, what this case did do was help a victim come to terms withthe impact of the crime on her life. She received a letter of apology that she felt adequatelyaddressed her questions and needs. She received $300 which covered the excess she hadpaid on her insurance to have the window replaced. She also took comfort in the knowledgethat Dylan had taken the time to investigate a getting a job that he could build into a longterm career. This was a case that was worth undertaking for the victim. It did not have the desiredimpact on the offender.NI is confident that with hindsight, even if the process had havebeen face-to-face, that Dylan was not willing, nor did he have the capacity, to take on boardhow 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 nosense was this successful at ‘reintegrating’ the offender. Again, Dylan just didn’t andperhaps couldn’t get it, and like Andrew in the previous case, his enmeshment with amother 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 theoffender and received a positive outcomes from the conference Overview: This court referred case involved Daniel, a seventeen year old youth, who hadtaken a red Toyota MR2 sports car from an apartment block. Daniel was being raised by hisfather who was involved with the conference and embraced the opportunity to focus hisson’s attention on his education and staying out of trouble. Daniel was disengaged fromschool and needed to have the process explained in very simpl terms. However, in hisconference, facing his victim, who was not much older than he was, he was very remorsefulfor what he had done and wanted to do the right thing. One of the positive unintendedconsequences out of this conference case was that by engaging in education through amore alternative school program Daniel met a law abiding girlfriend who had a goodinfluence on keeping Daniel out of trouble. What happened?Daniel explained that he was cutting through apartments when hecame across a red Toyota MR2. Daniel used scissors to make the car start. He stated hehadn’t been driving the car for more than five minutes when the police saw him and turnedthe sirens on and indicated that he should pull over. He said at this point he panicked andwas scared about getting into trouble so he tried to get away from police. He said thepursuit lasted around 10 minutes and he failed to turn a corner, hit the gutter and crashedthe 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 havekilled or injured someone or himself. The victim asked what Daniel would have done with the car if he had not been seen bypolice. Daniel said he probably would have left it near where he found it after driving itaround 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 8Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 9. car. His father agreed that it would be out of character for Daniel to do those kinds of thingsto a car. Who was affected and how?The victim talked about how he really loved the car andenjoyed owning it. At this point Daniel said “I am heaps sorry”. Then the victim explainedthat he was getting to the point where he was going to sell the car but if this incident hadhappened a couple of years ago “it would have crushed me…[as the car]…used to be mylife”. The victim explained that the thing that was a real issue for him now was the monetaryside of things. The car was worth around $8000 and was written-off by the mechanic as thecost to repair it would have exceeded the value of the car. The facilitator recounted thecosts of the damage in the conference and this contributed to discussions regarding whatshould 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” orthat “I hate you”. Daniel replied by saying “I don’t blame you if you do”. The victim wantedto make it clear to Daniel that what has been hard is the financial loss. The victim does notcurrently 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. Itwas agreed he would attend the Youth Education Program based at the Youth Centre. Thevictim was prepared to help Daniel get a part-time job at a fast food outlet. The group alsofelt that Daniel abiding by a curfew would assist him to settle into a routine of going toschool and getting used to a part-time. A restorative justice outcome agreement was reached at the conference and wassubstantially 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 justiceceremony 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 youngfemale offender who was possibly intellectually impaired and without parental support. Thecase also involved a young female victim who was not satisfied unless she received financialcompensation for the theft. Overview: Natalie and Kylie, accessing their friend, Jessica’s, spare house key, broke intoher home and stole her key card. They then withdrew $600 out of Jessica’s bank accountand spent it on, among other things, clothes. Both girls participated in an indirect process. 9Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 10. Natalie co-operated fully and had already written a letter of apology and paid back half ofthe money withdrawn from Jessica’s account prior to the referral to restorative justice. Theprocess provided a formal mechanism through which the letter of apology was more openlyreceived by the Jessica and her family. Kylie was difficult to meet with and appeared to have limited understanding of theconsequences of her actions on Jessica or Jessica’s family – a conclusion the facilitatorreached over a six month period. Kylie had a long history of being in and out of the care andprotection 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 facilitatorwould talk with Kylie and she appeared engaged and able to describe the impact of heractions on Jessica. However, either later in the same meeting or at a follow-up meeting Kyliewould appear to forget what she had said or disagree with a view about the theft that eithershe had previously raised herself or agreed to with the facilitator. Although writing anadequate 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 fromthe outset of the process that Kylie may be unlikely to pay the money. It was a frustratingprocess for all concerned and it concluded with the facilitator writing to the court andstating that Kylie was ultimately unsuitable for restorative justice on the grounds that shelacked the capacity to comprehend what she had done and what was required of her toparticipate in a restorative justice process. Reflection: this process worked, in some senses, for Natalie, although her process ofapology and path to reintegration had already commenced and the ceremonial aspects perse were confirmatory as much as causal. For Kylie, she clearly didn’t get it and again it seemsshe couldn’t although her lack of capacity may be based on a less common feature (someform of chronic impairment) than may usually be the cause. The process has not workedwell for the victim—her focus is mainly on an extrinsic recompense and does not seem toinclude reconciliation so the emotional and moral core of the reintegration process ismissing. 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 logiccontained in the B &M model. Nonetheless, as indicated at the outset, these were selectedas 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 dailywork 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 webelieve that this optimistic and constructive model has much to offer, so it is worth getting it 10Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 11. right. After examining a variety of issues as well as carefully re-reading the paper with neweyes, there seems to be two ways the paper might be ‘fixed’. In brief, the argument can bere-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 originalmodel. This section examines two, the first quite briefly. ‘Recipes for a cool climate’: A theoretically minor but practically important matter canbe dealt with at the outset under this heading. This concerns the process of routinisationthat has occurred around RJ processes. As Garland (1990) observed in his coverage of bothWeber and Foucault as theoretical resources for understanding punishment, a commonfeature of justice processes is that they become routinised and bureaucratic. As Garlandargues, 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 justiceand punishment become areas of professional expertise and employment, they rapidly‘cool’ and become routine work. This can be a very important consideration for restorativejustice. In many cases, successful conferencing, especially FGCs, rest upon somecombination of charismatic organisers and/or an extra-governmental organisation (achurch, a community, etc.) For the model to survive when used by government agencies and agents (albeit, as withNI, people with moral concern for all involved) it needs to be sufficiently robust and reliablea ‘recipe’ for use by a wide range of people2. Labelling versus ‘calling out identities’: A much more crucial issue is the adaptation inthe original paper of Garfinkel’s model of degradation ceremonies. Garfinkel argues that thedegradation 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 successfullyconferred. 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 asdaughter, sister, school girl, friend neighbour and so on seek a different mode. They ask howis it possible to describe and label the offence in a suitably negative way while at the sametime sustaining the offender in her other identities, thus opening a path to re-integration? Insimple terms, how can we find ways to ‘hate the sin’ while at the same time ‘loving thesinner’? Stepping back to this original move, with the benefit of hindsight we may see twoproblems that remain unaddressed. The first of these problems can best be understood by 11Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 12. thinking of the degradation ceremony as relation between three social elements: thedegrading agent A carries out the identity transformation (labelling) of the offender B in thesight of the audience member C. In so doing, not only is B socially transformed but at thesame time C receives messages designed to ‘call out’ specific responses. C is invited andpersuaded to think of himself—in contrast to the deviant B—as a decent, law abiding citizenwho is horrified by B’s action. At the same time C is reminded not to offend himself lest hebe next in line for degradation and punishment. This is a familiar argument in the literature on punishment. From Foucault’s argumentabout regicide in the opening pages of Discipline and Punish (1975) through the ghastlyspectacles recounted by classical scholars such as Coleman (1990) writing about ‘fatalcharades’ in the Roman amphitheatre, we are well versed in the idea of powerful agentssending messages to third parties through the punishment of offenders. It is important tonote that the process described in these analyses is largely social. That is, labelling andpunishment take place at the level of socially created and shared meanings. Thepsychological level is less central: whether any given member of the audience does in facthave 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 mechanismslike peer pressure and emotional contagion to produce these effects in the majority of theaudience. Furthermore, what B thinks of all this does not really matter very much. B is asurface 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 adialogue in which they separate B’s action from B’s identity and, when the process issuccessful, 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 particularCs who are present in the ceremony—the victim, her friends and relatives, etc. Even morecrucially it assumes the success of calling out feelings, thoughts and motives in B as well. Thisis 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 thesetwo aspects—the different thrust with regard to identities and the calling out of feelings, 12Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 13. thoughts and motives—the reintegration ceremony cannot be expected to work. Or moreprecisely, 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 asa central question: is it in fact possible to refocus on identities this way and successfully callout the feelings, thoughts and motives in B and in the varied Cs that are present such thatthe 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 socialtriad 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 amajor impact. Indeed, if we think only of B, whether she is clever and gifted or dull andclueless is not important. Her capacity for insight is similarly irrelevant as is her level ofmoral 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 directlyabove) dull and clueless, lacking insight and of a low level of moral development may notparticipate in a ceremony as fully and effectively as one who is clever and gifted, has insightand is morally more developed. But dull, clueless, and lacking insight are general, common sense labels. To focus thequestion more specifically, then: what if the ceremony can succeed in the form imaginedonly 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] 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 notalways the same factors which protect against becoming strongly involved with crime inadolescence … Though the social context and practical aspects of desisting are importantand have always been recognized … agentic elements such as taking a decision to try todesist, self-perceptions of the possibility of leading a non-offending life, and considering apossible new self and social identity are currently becoming seen as also critical. … We donot yet have clear evidence as to the causal order between cognitive decisions to desist, 13Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 14. identity changes and behavioural desistance … largely because most studies have usedretrospective reports from desisters, with concomitant problems of people tryingpotentially to minimize their cognitive dissonance …. ‘ hooks for change ’ deriving frompersonal attachments may create identity transformation, which itself promotes offendingbeing seen in a more negative light … (Robinson and Shapland, 2008: 347-348. Emphasesadded. Note this selective quotation is not meant to fully represent their argument but onlyto 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, albeitwith many factors pressing in on their choice making mechanism. Indeed, both Pareto andWeber gave up economics and developed (independently) the foundations of sociologybecause they argued that since marginal utility had solved the problem of rational choiceand yet did not exhaust the explanation of human life, the task remained to find a theory ofthe non-rational elements. Here, however, the question that is not being asked is whether in fact people do see thechoices ‘in front of them’. Consider a comparative metaphor: if a person who is colour blindis asked to make red/green choices they cannot do so. It is not a matter of will or intellectbut rather of capacity. How would it be if the same logic applied to choices that arise insome 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 needseveral 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 ratherthan an exhaustive list.Assertion 1: The capacity of any individual to act meaningfully in a social context depends ina significant part on the level of cognitive development s/he has attained. With respect toissues 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 morethan ‘knowledge’ in a simple sense. Furthermore, while cognitive development is stronglyassociated with chronological age and to degree intellect, the relation is not perfect. Oneperson’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 ofdevelopment and Kohlberg (1984) with his seven stages of moral reasoning. Four of Kegan’sfive stages are shown in outline form in the table that follows. 14Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 15. As argued by Bartone (2010) in his analysis of abuses at Abu Ghraib, we ignore thisfeature at our peril. If we expect people (e.g. young soldiers) to make complex choices thatthey are not equipped to make, we risk direct, problematic consequences for them andothers. Kegan is especially strong on the view that it is commonly the case that failure toengage in morally expected ways may often be a result of incapacity more than poorcharacter. In short, people cannot rather than will not re/act ‘properly’. Table 1: Kegan’s second through fifth stages of development3 Stage and Characteristics Age typicallyname attained 2: Self- I ‘am’ what I want and need. I know about rules ChildhoodCentred and punishments and respond to these to avoid towards early ‘pain’. adolescence 3: Self- I ‘am’ what others think of me and treat me. I AdolescenceReading ‘read’ the self via those reflections and reactions ‘.Can to early reflect on childish ass-umptions that the self is adulthood. identical with one’s needs and desires. 4: Self- I ‘am’ who I make myself to be by honouring my Adulthood (ifAuthoring values and judging how to balance these and at all) obligations. Standards are self generated. Can reflect on the role that other people, ideas and values can have one making one who one is. 5: Self- While “I ‘am’ who I make myself to be by Latter yearsRevising honouring my values and judging how to balance (for a few) 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. Examination of this table against the case studies mentioned above is intriguing, for itmakes sense of some of the reactions. In many cases it seems that offenders are not fullyinto 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 tensionsbetween different parts of the self. It is a truism that people wrestle with their impulses, anidea familiar centuries before Freud began to introduce the struggle between desire, egoand superego. In recent times this concept has been well expressed by Tim Wilson whodiscusses the adaptive unconscious and its role in everyday life, concluding that we areStrangers to Ourselves (Wilson, 2002). 15Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 16. Perhaps the most elegant metaphor that expresses inner conflict was (re)introduced byHaidt (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, unarticulatedthoughts and emotions “the elephant”. This metaphor grasps many of the core elements ofan 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 imaginethemselves in control—and in some key ways are in control—yet often the elephantpursues its goals and desires and leaves the rider explaining (more accurately‘confabulating’), the reasons why an action or inaction occurred. A link betweenconfabulation (psychological term and process) and sociology can easily be made if we recallseveral 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, isto retrospectively account for the elephant’s impulsive actions and the extent to which thataccount is simplistic or sophisticated and can or cannot be reconciled with wider obligationswill be set in some part by the interaction of cultural repertoires and cognitivedevelopment. Of course, which action the elephant gets into, the degree of control the riderexerts over it and the exculpatory stories the rider later tells is heavily influenced by thelevel of cognitive development achieved. In simple terms, the less ‘mature’ the actor themore 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 unconsciousprocessing carried out by leading researchers such as Bargh indicates the vast array of waysthat the unconscious can be influenced in its perceptions, actions and reactions, ways thatfrequently 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 butalso go beyond it. Assertion 3:The inner tension between conscious and unconscious motivation andmorality can be understood in terms of brain structure and development. The human brainhas three discernible components—the brain stem, the limbic system and the cortex—whichhave different cell structures and properties. For example, different drugs affect differentparts, different radio opaque dyes are absorbed differentially the three elements and henceshow differently on scans, et cetera. Most importantly, the three elements broadlycorrespond to different phases in evolutionary history and have quite different roles in dailylife. 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 emotionalresponses and the cortex underpins a wide range of higher order processes such as complexperceptions, 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. Drawingattention to the evolutionary history of humans, Maclean argues there have been: 16Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 17. … 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, andother behaviors and affects that arose during the age of the mammals. The three brains aresaid to act in coordination or competition in this variation The three areas are referred to by a number of more or less illuminating labels. Of thesethe most graphic is to refer to the brain stem as the reptilian brain, the limbic system as themammalian 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 representationeither of evolution or of the current brain structure, the best view of the model is that itappears to be an excellent heuristic for discussing the varied brain elements and theirimpact on behaviour (Panksepp, 1998). Central to the argument that is relevant for ourpurposes is that the three elements pull the individual in different directions at differentmoments and under pin what cognitive scientists call System 1 and System 2 thinking (akinto the rider/elephant model mentioned above): In System 1 thinking, one relies heavily on a number of heuristics (cognitivemanoeuvres), key situational characteristics, readily associated ideas, and vivid memories toarrive quickly and confidently at a judgment. System 1 thinking is particularly helpful infamiliar situations when time is short and immediate action is required. While System 1 is functioning, another powerful system is also at work, that is, unlesswe shut it down by abusing alcohol or drugs, or with fear or indifference. …"System 2," thisis our more reflective thinking system. It is useful for making judgments when you findyourself in unfamiliar situations and have more time to figure things out. It allows us toprocess abstract concepts, to deliberate, to plan ahead, to consider options carefully, toreview and revise our work in the light of relevant guidelines or standards or rules ofprocedure. While System 2 decisions are also influenced by the correct or incorrectapplication of heuristic manoeuvres, this is the system which relies on well-articulatedreasons and more fully developed evidence. It is reasoning based on what we have learnedthrough careful analysis, evaluation, explanation, and self-correction. This is the systemwhich values intellectual honesty, analytically anticipating what happens next, maturity ofjudgment, fair-mindedness, elimination of biases, and truthseeking. This is the system which 17Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 18. we rely on to think carefully through complex, novel, high- stakes, and highly integrativeproblems System 1 is, biologically speaking, ‘fast, feral and frugal’ and there is an inherentpreference to make many quick and routine judgements by utilising it as opposed to system2 which is slow, considered and bio-chemically expensive. In a well-developed and sensibleadult, system 1 contain numerous useful heuristics that are partly derived from training andexperience and system 2 operates as thoughtful oversight. Crucial to the application of these ideas to our task at hand, however, is the fact that theprimate brain or neo cortex does not complete its development in people until some time intheir 20s and develops differentially from one person to another, with some people neverdeveloping as fully as others. For this reason, the capacity of System 2 to override andmonitor system 1 is not fully in place until past adolescence, if ever. In addition, thecomponents that make up system 1, which is at least partly based on experience, are alsomore limited in younger people with less experience of life. Understanding these biologically based aspects of development gives both support andsharper focus to the model of development derived from Kegan, Kohlberg and others. Weare able to see that the stages of development that the cognitive psychologists identify viaobservation are themselves grounded in biological development. Assertion 4:The structure of the brain gives rise to a parallel structure of moralities. Themost 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 reptilianbrain, which is largely instinctual, gives rise to an ethic of security, the mammalian brain toan 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 18Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 19. 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 givenby 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 levelthat the staged progression from (in Kegan’s terms) self-centred to self-reading and thenceto self-authoring involves a progression in which the ethic of security is supplanted moreand 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 modelsand especially the B & M view of reintegration ceremonies. Using the terms introducedabove, we can consider the extent to which an offender might be successfully drawn into areintegrative shaming process. In the RJ process, let us recall, we ‘love the sinner and hatethe sin’ and the offender (and others) ‘get’ that. The offender is able to separate themselffrom their action, accept its ‘badness’ and feel some shame for what they did and who theyhurt. 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 supportersto feel that apology is real, redemption is possible and re-offending is unlikely. When thishappens, 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 notalways. Two issues emerge, focused respectively around the victim and the offender. Where thevictim is concerned we need to see that by no means all instances of RJ have to have a fullyengaged 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. 19Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 20. If the offender does not absolutely need to be fully engaged, it may be the case thenthat this does not vitiate the process, especially if the victim understands this and will workwith it. For example, a simple but powerful option is to clue the victim into this fact andallow them to make choices about how the process moves forward, if it does. This course isadopted by experienced mediators such as Jon Powell (pers. comm.) and is efficacious as apractical step in creating value form a process otherwise threatened by lack of capacity onthe part of the offender. At times, however, with an offender who has barely gotten out of being self-centred andwhose ethic is security and base level engagement we may be confronted with someonewho is very unlikely to ‘get it’ or be a good subject for reintegrative shaming. Indeed, wecould explore whether they are capable of shame in the full sense or capable of reallygrasping reintegration. The strong suggestion we make is that many adolescent may fit this description. (As amatter of fact, it may also be true that quite a few ‘adults’ don’t either5.) So far as they donot get it, the process may be ‘wasted on them’ and, if it has no direct value for an informedvictim, 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 inthe sort of RJ process imagined by B & M may not, of itself, vitiate the process. As we showabove, it is well understood that the process can be of value even when the offender doesnot really ‘get it’. Indeed, the junior author’s doctoral thesis which examined FGC styleapproaches to drink driving argued strongly for the educative impact that they often had onthose who attended other than the offender themselves (and, of course, DUI style offenceslack 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 makesomething useful out of cases which are not ‘successful’ attempts at reintegrative shamingin the sense we would normally understand. Frequently, what happens is that the youngperson who is self centred’ and more focused on the ethic of security or of engagement inthe narrow sense. can be moved in something like the right direction by discussing “what’sin it for me” after the facilitator has covered off “what’s in it for the victim”. A common wayof helping a young person who is not able to empathise with the victim is to ask them tothink about what the Magistrate will think if they have helped the victim by answering thevictim’s questions and working towards meeting the victim’s needs. This self-centred appealcan take a young person towards a state of action that will produce positive results for thevictim. But the question is, if this is the only outcome from the restorative justice process, isthat enough? If a young offender’s capacity for self-authoring is not hailed out or their ethic ofengagement tapped into what is the longer term of the restorative justice process on 20Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 21. something as crucial as reoffending? For example, drawing on the earlier case studies, inthe 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 bymethods ancillary to the main model are the way forward. The reason for this comment isthat there is a serious risk of counter-productive outcomes for both victims and for RJprocesses more general. To make this point let us consider a hypothetical case, constructed from elements of realexperiences 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 becomecampaigners against this foolish and failed process? What of the media? Will they runcampaigns against the softness of the justice system? Both ‘insult on injury’ and backlashpublicity are serious costs of a failed intervention with someone who may have beenintrinsically incapable of fully participating in the FGC for the sorts of reasons outlined inprevious sections. 21Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 22. Conclusion The argument of this paper is not that the original B & M model is wrong. There is stillmuch to be said for concerning ourselves with how best to execute appropriate RJprocedures and understanding them as ceremonies with preconditions remains useful.Nothing we have found in the literature suggests that the original formulation of theseconditions is in error. At the same time, much remains to be done. On the one hand, understanding thedynamics of how to unfold the process is important because without attention to this is isuncertain how effectively one can ‘call out’ identities, emotions, etc. that make the processwork. In this context, the work by Rossner (2011) using the Randall Collins model ofinteraction is a major contribution. She notes at least these elements as important in theprocess: 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 beexercised in asking who can successfully be engaged by particular forms of RJ. In particularwe think it important to consider the extent to which any given individual displays sufficientcognitive development for the process to be engaging of them. For those, especiallyjuveniles, whose cognitive development is limited it may be that the process is simply onethey cannot get. 22Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 23. The point is not that these young people should not benefit from RJ but rather that amodel of reintegrative shaming is not driving the outcomes in cases where the offender maynot be morally developed to a sufficient point to “get it”. In these situations, at best we canproduce positive outcome for victims (a worthwhile endeavour given victims are more likelyto be better financially, morally and emotionally compensated through RJ for “less seriouscrimes” compared to court). At worst a situation could be created that risks the benefits forthe victim through exposure to an insincere, morally underdeveloped offender who isincapable 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 andscreen out this type of offender. However, it is an issue of serious consideration that canadd insult to injury and harm the very core of restorative justice processes. How can weexplain what is happening here? Are these cases worth doing? What could we dodifferently? Can we do better? 23Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 24. References Bargh, J. A., &Chartrand, T. L. (1999). The unbearable automaticity of being. AmericanPsychologist, 54, 462-479. Bartone, P. T. (2010) Preventing Prisoner Abuse: Leadership Lessons of Abu GhraibEthics &Behavior, 20: 2, 161 — 173 Coleman. K.M., (1990) Fatal Charades: Roman Executions Staged as MythologicalEnactments, The Journal of Roman Studies Vol. 80, pp. 44-73 Foucault, M. (1975). Discipline and Punish: the Birth of the Prison, New York: RandomHouse. 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 moraldevelopment. 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 SociologicalReview, 5:904-913. Mugford, S. (2003) The butterfly’s wing, bread pudding and justice: the relevance ofcomplexity 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 restorativejustice, 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 OffenderTherapy and Comparative Criminology published online 21 February 2011, DOI:10.1177/0306624X10396441 24Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 25. Wilson, T. D. (2002) Strangers to Ourselves: Discovering the Adaptive Unconscious,Belknap Press, Cambridge, MA, 25Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 26. Appendix 1: Narvaez’ detailed model of the three ethics 26Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC
  • 27. Endnotes 1 The Restorative Justice Unit has recently received funding to involve an Indigenous Guidance Partner toassist indigenous young people and their families through a restorative justice process. 2 On the link between complexity, chaos and ‘recipes’ in this area, see Mugford (2003) 3 This table is a composite of various versions of representing the complex stage model. This one focuseson 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 innovativejustice, 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. Hebases this on response to the subject-object interview method, claiming that only a minority can articulatepositions 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 clearlyarticulate that in complex speech. 27Stephen Mugford and Nova Inkpen Reintegration Ceremonies Revisited: Experience and Theory For Advancingthe Argument. Presented to the 3rd National Conference on Restorative Justice, June 2011 Raleigh NC