Why restorative justice_will_not_reduce

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WHY RESTORATIVE JUSTICE WILL NOT REDUCE
INCARCERATION
William R. Wood*
Restorative justice goals are frequently articulated on micro, meso and macro levels. One macro-
level goal frequently made by advocates is that restorative justice may serve as a viable means
of reducing incarceration. Focusing on Australia, New Zealand, the United Kingdom and the
United States, this article argues that while these countries have seen some of the largest increases
in incarceration within western industrialized countries, as well as the most widespread use of
restorative justice, there is little evidence that restorative justice has reduced prison populations. It
also argues that as currently practiced there is little reason to assume that restorative justice will
have a significant impact on incarceration in the near future. Attention is given to the problem of
the ‘transformation assumption’ inherent in restorative justice that micro-level changes in offender
behaviours or restorative outcomes can significantly affect the larger social structures of punish-
ment and incarceration.
Keywords: restorative justice, prison, incarceration, punishment
Introduction
Restorative justice (RJ) goals are frequently articulated on micro, meso and macro levels.
Micro-level goals focus on repairing harms to victims and on holding offenders account-
able in ways that provide an opportunity for making amends (Zehr and Mika 2003;
Johnstone 2013). This is generally accomplished through meetings between victims,
offenders and other parties. Meso-level goals are typically oriented around community
involvement in restorative practices or outcomes and in the development of such prac-
tices as they may contribute to the collective efficacy of communities to reduce crime and
improve quality of life (Bazemore 2000). Macro-level goals not only focus on transforma-
tion of criminal justice practices and policies as they may facilitate micro- and meso-level
goals but also towards the goals of de-professionalizing some justice practices (Christie
1977; Braithwaite 2004); on the development of practices and sentencing policies that
may serve to reduce incarceration (Bazemore 1999; Guidoni 2003; Gabbay 2005; Van
Ness and Strong 2006; Johnstone 2007) and on the systematic reduction of other prac-
tices designed to degrade or shame offenders (Braithwaite and Mugford 1994).
There is no standard definition of RJ, nor is there any agreed upon criteria for deter-
mining the ‘restorativeness’ of practices (Sharpe 2004). To speak of ‘goals’ in this sense,
risks reifying what in reality is a widely divergent set of practices and coalescing distinct
definitions of RJ. Yet neither is it feasible to say that differing practices or definitions
make it impossible to speak more broadly about RJ. Although micro-level claims of
the benefits of RJ can be examined with studies of specific programs and approaches,
meso- and macro-level claims require efforts to discern effects of policies and practices
on broader and more diffuse levels, as well as attempts to identify gaps between claims
made by advocates and the effects and outcomes of RJ practices (Daly 2003).
*School of Criminology and Criminal Justice, Griffith University, Southport, QLD 4111, Australia; w.wood@griffith.edu.au
doi:10.1093/bjc/azu108 BRIT. J. CRIMINOL
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Most empirical research on RJ has centred on micro-level practices and goals, with
less on meso and macro goals. Despite this, many scholars have made and continue
to make claims of legitimation and efficacy at the meso and macro levels. Such claims
include the potential for RJ to reduce levels of incarceration (macro-level claim) and
the potential for RJ to increase collective efficacy (meso-level claim).
In this article, I advance a critical analysis of the claims-making of some RJ advo-
cates—specifically the argument that restorative practices can serve as a viable redress
or alternative to the incarceration problem. Some three decades ago, Umbreit and
Zehr (1982: 68) argued that RJ ‘offers real potential for contributing to a larger effort
to reduce inappropriate incarceration of certain offenders’. Marshall (1999: 24) noted
some two decades later that one main focus of most RJ programs ‘is usually to have a
greater impact on offenders, to justify diverting the offender (either away from pros-
ecution or to a community sentence rather than imprisonment)’. More recently, Van
Ness and Strong (2013: 210) have argued that ‘in a restorative system’, one function of
restitution may be to ‘divert nondangerous offenders from prison’.
Throughout this article I cite many other examples of such claims. However, draw-
ing from developments in Australia, New Zealand, the United Kingdom (England
and Wales) and the United States, I show that such claims have little evidentiary
basis. These four countries have seen significant increases in incarceration in the
last 30 years, in particular the United States. They also represent countries where RJ
is commonly practiced and more widely implemented.1
It is these countries in par-
ticular which RJ advocates frequently point to as evidence of the failures of ‘retribu-
tive’ or ‘punitive’ forms of justice (Consedine 1995; Gabbay 2005) and alternatively
as evidence of the ability of RJ to act as a redress to growing incarceration rates.
A significant flaw in such claims is what I term the ‘transformation assumption’,
i.e., that RJ practices at the micro level can transform justice practices at the macro
level, including the use of incarceration as punishment. I give four reasons why RJ
has had little impact on rates of incarceration and why it is unlikely to do so in the
near future.
RJ and Its Legitimations
RJ can be viewed as distinct from other justice responses in that it affords people who
have admitted to committing offenses and those harmed by offenses an opportunity
to meet face-to-face and, when appropriate, to decide how to best address the harms
caused by victims to offenders. In this article, I thus consider only research that exam-
ines meetings between admitted offenders, victims and relevant others stakeholders or
research including what has been referred to as ‘intention to treat’ (Strang et al. 2013),
where offenders are willing to meet with victims or victim representatives, even if such
meetings do not always occur. Such practices include various forms of conferencing,
victim–offender mediation and sentencing circles.
1
Australia’s rate of incarceration increased 100 per cent between 1984 and 2012 (Australian Bureau of Statistics 2012), New
Zealand’s increased 183 per cent between 1983 and 2010 (New Zealand Department of Corrections 2013), the United Kingdom rate
increased 83 per cent between 1983 and 2011 (Berman and Dar 2013) and US rate increased over 500 per cent between 1980 and
2012 (Carson and Golinelli 2013). As of 2012, the United States ranked first in the Organization for Economic Co-Operation and
Development countries in rate of incarceration, New Zealand ranked seventh, the United Kingdom ranked 12th and Australia ranked
15th. However, out of countries with higher rates than Australia, only five have developed RJ beyond pilot or experimental programs.
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In its early years, RJ was characterized as an approach distinct from ‘retributive’ and
‘rehabilitative’ models of justice and as a new ‘paradigm’ of justice or a ‘new way’ of
dong justice (e.g. Zehr 1990; Bazemore 1998; Braithwaite 1999; Wright 2002; Walgrave
2004). These earlier views have been subject to critique (e.g. Daly 2002; Pavlich 2005;
London 2006), but my focus here is on other legitimation claims that are less grandiose
and more central to the continued use of RJ today. These include procedural, owner-
ship and instrumental legitimations, with the last most related to arguments for reduc-
tions in incarceration.
Procedural justice focuses on the importance attached to a sense of fairness and
respect in people’s experiences with state authorities. Procedural justice seeks to ‘acti-
vate morality through the fair exercise of authority’ (Tyler 2006: 314) and places empha-
sis on the role that such fair exercise may have in encouraging law-abiding behaviour.
Braithwaite (2003: 57) takes this a step further, arguing that dialogue between victims,
offenders and other relevant parties can provide ‘deliberative justice’, in that the actual
parties in a case have a better sense than professionals of what constitutes a just out-
come in relation to harms caused.
Ownership claims focus on the degree to which victims and the wider community
have a ‘stake’ in responding to harms caused to them, as well as in the outcome of such
harms. Christie (1977) argued that conflict has been transformed by modern criminal
justice systems from something that people ‘owned’ as victims or harmed parties to
something to be solved or addressed by the state itself. Modern states, argued Christie,
in effect ‘usurp’ the harms caused to victims and justify doing so by citing other goals
as central to the state’s welfare and ability to administer justice.
Instrumental claims reside at the micro, meso and macro levels. At the micro level,
advocates argue that voluntary victim participation in RJ processes promotes greater
victim satisfaction compared to more traditional justice practices (Umbreit 1994;
Latimer et al. 2005; Sherman et al. 2005; Sherman and Strang 2007). For admitted
offenders, restorative practices are said to increase compliance, reduce recidivism and
enhance reintegration (Braithwaite 1989; Braithwaite and Mugford 1994; Bazemore
1998). Research varies on the degree of importance placed on reducing recidivism,
but a common position is that at the least such practices should not increase recidivism
(Robinson and Shapland 2008).
At the meso level, it is argued that citizen involvement in informal justice practices
can contribute to greater collective efficacy within communities (Wheeldon 2009). On
the macro level, it is argued that RJ can assist in reducing incarceration (discussed
below), can function to mitigate populist support for punitive sanctions (O’Brien and
Bazemore 2004) and can contribute to social justice outcomes (Pranis 2001).
The transformation assumption of RJ
Common to the three legitimations is a focus on participation and interaction of vic-
tims, offenders and others with an interest in the outcome of a case. However, a not
uncommon assumption within RJ literature is that micro-level practices may in turn
lead to meso or macro changes. Most germane to the argument in this article is the
assumption that such practices can function as a viable redress or alternative to the use
of incarceration. Johnstone (2007: 15) observes, ‘restorative justice is often presented
as an alternative to imprisonment, and the movement as a whole has significant roots
RESTORATIVE JUSTICE WILL NOT REDUCE INCARCERATION
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in the prison abolition movement’. Three decades ago, in the early years of RJ, Umbreit
and Zehr (1982: 68) argued that, ‘the brief history of Victim Offender Reconciliation
Process (VORP) in several United States and Canadian communities has shown it
can be an appropriate total or partial substitute to incarceration for felony offend-
ers’. Bazemore (2000: 238) has argued as well that ‘In youth justice, the diversion and
alternatives to incarceration movements also formed a critical basis of general support
for informal alternatives, including restorative justice’. At least according to some nar-
ratives in RJ literature, one of its primary legitimations has thus been that it can poten-
tially act as an alternative or redress to the incarceration problem.
This theme has continued more or less to present day. Gabbay (2005: 337) notes
that ‘reducing the incarceration rates and avoiding imprisonment to the greatest
extent possible is well within the stated goals of restorative justice’. Mullane et al. (2014:
106) offer ‘the idea of restorative justice and, more specifically, the positive effects of
victim–offender mediation’ as ‘one possible solution to prison overcrowding within the
criminal justice system’. Greene (2013: 360) argues that ‘current events demand that
restorative justice is the likely direction of corrections management’. Guidoni (2003:
66) says that ‘restorative justice seems to be better able to realize its purposes not as a
policy of prison reform but as an alternative to prison’. But after almost four decades,
there is little evidence to suggest that RJ has decreased incarceration and several rea-
sons to think it cannot.
Why RJ Has Not Reduced Incarceration
The ability of restorative practices to reduce incarceration rests on two assumptions:
(1) that such practices can reduce recidivism, which, in turn, will lead to lower rates of
incarceration and (2) that such practices are used as an ‘alternative’ to incarceration,
or to divert offenders from formal criminal justice processing, where they may face
incarceration.
Problem 1: Decreased recidivism in RJ programs is not likely to significantly reduce
incarceration
Research on the ability of RJ to reduce reoffending began in the 1980s. Several earlier
studies found decreases in recidivism, but most were limited by problems of selection
bias and lack of strict control groups or randomized experiments. The inability to make
more definitive claims regarding recidivism led in turn to more methodologically rig-
orous research beginning in the mid-1990s, including matched comparisons or experi-
mental studies. These studies have been widely cited elsewhere and have also been
analysed in subsequent reviews of literature (Umbreit et al. 2002a; 2002b; Sherman and
Strang 2007), systematic reviews (Strang et al. 2013) and meta-analyses (Latimer et al.
2005; Mullane et al. 2014). On the whole, reviews and meta-studies have found more
support for the reduction of recidivism than for no effects or increases.
However, decreases in recidivism do not readily translate into decreases in incarcera-
tion. The principal reason is that most restorative interventions are used with youth
offenders or for offenses where incarceration is not likely (Fercello and Umbreit 1998;
Kurki 2000; McGarrell et al. 2000; Daly and Hayes 2001; Johnstone 2002; Morris and
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Maxwell 2003; Shapland et al. 2006; Greene 2013; Strang et al. 2013; Larsen 2014).
A National Survey of Victim Offender Mediation in the United States found that the
four most common offenses referred to mediation were vandalism, minor assaults,
theft and burglary (Umbreit et al. 2000: 7), offences for which only a small number of
offenders are likely to be incarcerated. Greene’s (2013: 381) analysis of RJ programs in
the United States found that almost all sites focused on ‘low-level crimes (almost exclu-
sively misdemeanors and sometimes non-violent felonies) and many of these handle
far more juvenile cases than adults’. Dzur (2011: 377) notes that ‘even the most par-
ticipatory restorative justice programs in the US today are limited in how they might
impact incarceration … . To put the restorative justice goal of diminishing punishment
at the forefront of such effort, programs would ideally handle more serious offenders,
namely, those traditionally warranting incarceration’.
RJ in Australia is also used predominately in youth justice cases or for less serious
offenses (Daly and Hayes 2001; Larsen 2014). Cunneen and White (2006: 107) argue
that restorative youth conferencing in Australia ‘may be used solely for first time offend-
ers and/or trivial offenses’. The same is true for the United Kingdom where RJ pro-
grams are also largely aimed and delivered to youth offenders or offenders who are less
likely to be incarcerated (Dignan and Marsh 2001; Shapland et al. 2006).
A small number of studies have looked at the effects of RJ programs for offenders
who may face incarceration. In the United States, Lane et al. (2005) looked at the South
Oxnard Challenge Project (SOCP), a program for youth offenders that included signifi-
cant services for youth, as well as a RJ component in the form of apologies and/or meet-
ings with victims. Youth were randomly assigned to SOCP or routine probation. After
two years, the authors found no significant differences between the groups in terms of
recidivism or in terms of the number of youth who were incarcerated as a result of later
reoffending.
There have been several restorative programs in the United Kingdom directed at
offenders that may receive custodial sentences or for already incarcerated offenders.
These programs and subsequent studies are the most definitive research to date on
the use of RJ for offender populations likely to be incarcerated or for those in prison.
Three programs—CONNECT, Justice Research Consortium and REMEDI—have been
evaluated by Shapland et al. (2008), with mixed results. The study by Shapland and col-
leagues included a total of ten sites, but only seven involved offenders who were likely to
receive incarceration, or in the case of JRC Thames Valley prison, offenders who were
incarcerated. Research from all of the sites except JRC Street Crime and JRC Burglary
found small or moderate decreases in reconvictions for the RJ groups after two years.
All sites except the REMEDI adult study found a reduction in frequency of reconvic-
tions for the RJ groups. However, only two sites, JRC Northumbria and REMEDI youth
found a reduction in the severity of offenses for the RJ group. While some of these
findings are promising in terms of potentially reducing incarceration, the authors also
note several limitations. Primarily, only one of the studies (JRC Northumbria) was sta-
tistically significant.
The New Zealand government (Ministry of Justice 2011; 2014) has conducted studies
on the effects of conferencing for adult offenders. These studies matched participants
in conferencing with offenders who went through diversion or to court. Weighted aver-
ages in differences in reoffending found a statistically significant reduction of 12 per
cent within one year for offenders who participated in a conference. However, while
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offenders in the study were charged with an imprisonable offense, neither the experi-
mental nor the control group actually received custodial sentences. The Ministry of
Justice (2014) study suggests that there was an ‘indication’ that RJ leads to lower rates
of imprisonment, but none of the findings was significant. Finally, the study found no
effects of reducing ‘serious reoffending’ for the conferenced group.
New Zealand is well known for its use of Family Group Conferencing (FGC) for youth
offenders. Since 1989, with the passage of the Children, Young Persons, and Their Family
Act (CYPFA), FGCs have been used for all categories of youth offenses except homicide.
The New Zealand youth justice system has been heralded as an example of the effective-
ness of RJ to reduce youth reoffending and youth incarceration. For reducing youth
offending, most research comes from studies by Maxwell and Morris. In one study of
over 200 youth offenders that participated in FGCs between 1990 and 1991 (Maxwell
and Morris 1996), the authors found a 58 per cent rate of reoffending for criminal traffic
offenses after four years. In a later study, Morris and Maxwell (1998: np) analysed data
from FGCs between 1990 and 1994 and found a 26 per cent reconviction rate within the
first year, noting that when compared to ‘other local and overseas reconviction studies’,
the rate of 26 per cent ‘is certainly no worse and is possibly better than samples dealt
with in the criminal justice system’. However, in these and subsequent studies, there
were no matching control groups and to date there has been no controlled matched
or randomized controlled trials on the ability of FGCs to reduce reoffending for youth
offenders in New Zealand, making it impossible to make comparative claims of efficacy.
The United Kingdom and New Zealand adult studies are the only recent studies
that have used matched or randomized controlled trials to assess the impacts of RJ on
offenders who may receive prison time. The lack of statistical significance in most of
these studies is problematic, but the larger point is that RJ is rarely used for more seri-
ous offenses that result in incarceration. At best, they represent probably less than 5 per
cent of the overall use of RJ in terms of offender cases within these four countries. Even
assuming a small or moderate reduction in offending, the overall effect in reducing
incarceration in these countries is negligible at best.
Problem 2: RJ is not used as an alternative to incarceration
RJ has frequently been characterized as an ‘alternative’ to incarceration. Yet there are
few examples of restorative programs being used as an alternative to divert offenders
from prison (Immarigeon 2004). In a dated but still useful review of research on the
use of restitution and/or mediation as alternatives to incarceration, Weitekamp (1992:
99) noted that ‘despite the theoretical soundness of the concept of restitution and
mediation the practical implementations have been failures’. A study on the use of
VORPs in the 1980s in Canada found that this program ‘is probably not answering the
need for alternatives to incarceration’ (Dittenhoffer and Ericson 1983: 346).
One exception to these assessments of earlier RJ programs was a study of Victim
Offender Reconciliation Programs in Ohio and Indiana (Coats and Gehm 1989),
which matched 73 cases against a matched sample of offenders, some for imprisonable
offenses. About 20 per cent of both groups received some form of incarceration, but
VORP offenders served less than a fifth of the time than the control group. Coats and
Gehm (1989: 260) argued, ‘At this point VORP may be thought of to be more of an
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alternative to incarceration than it is in practice’, suggesting that its then growing vis-
ibility may lead judges to be more willing to use VOPR as an alternative.
Since then, there are few instances of RJ being used as an alternative to incarcer-
ation. Probably the best known is a Canadian study (Bonta et al. 2002) that used a
matched group of offenders who were likely to be sentenced to six months or more in
prison. They found that the group participating in RJ demonstrated a sizable reduction
in recidivism after 3 years (35 per cent vs. 66 per cent). However, only 12 per cent of
the offenders in the RJ group actually met with victims. Also, nearly all offenders who
participated in the RJ program also received recommendations for counselling and/
or drug and alcohol treatment, leaving the researchers to conclude ‘an unanswered
question from this study was whether the reduction in recidivism was the result of a
combination of treatment and the unique RJ elements of restitution and community
service’ (Bonta et al. 2002: 333).
In the four countries reviewed here, there are no other known recent examples of
RJ programs that are used specifically as alternatives to incarceration. In the United
States, two studies of RJ statutes or codes (O’Brien 2000; Umbreit et al. 2001) found
scant mention of incarceration among RJ legislation for nearly 30 US states, and no
states where it was even recommended to be used as an alternative to incarceration. In
a review of research on European states that have successfully reduced incarceration
rates over the last decade, Allen (2012: 16) notes that some countries such as Germany
do have legislative provisions for the use of RJ as an alternative to incarceration but that
the United Kingdom currently has ‘no plans for the kind of legislative provisions that
apply in Europe’.
New Zealand has the most comprehensive legislation involving the use of conferenc-
ing. The 1989 CYPFA Act introduced the use of FGCs for more serious offenses except
homicide. Morris (2002: 605) notes that, ‘The implementation of restorative justice [in
New Zealand] has resulted in real and significant changes: fewer young offenders now
appear in courts, fewer young offenders are now placed in residences, and fewer young
offenders are now sentenced to custody’. In effect, the argument is that RJ has been
used as an alternative to incarcerating youth offenders.
However, there are problems with this argument. Primarily, FGCs are not used for
a majority of youth offenses, nor are they the main reason why youth have been decar-
cerated to such a great extent. Becroft (2009: 4) notes that data for the almost 30,000
offenses committed by youth in 2006 show that a large majority received cautions or
diversion. Only about 6 per cent were subject to intention-to-charge FGCs, and about
20 per cent were referred to Youth Court, where most were in turn referred to FGCs.
These figures are in line with those from Bradley et al. (2006) who argue that approxi-
mately 8 per cent of all youth offenses result in ‘pre-charge FGCs’, and about 16 per cent
of total youth offenders are referred to FCGs after being charged by the court.
Thus, it is not FGCs that divert youth from custodial placement. Rather the intent of
the 1989 Act was to design and implement a diversionary approach to youth justice that
severely delimited the use of custodial placements. This is clear not only in the high
use of cautions and diversion and relatively smaller number of overall youth offenders
who attend FGCs, but in the fact that outcomes for FGCs rarely lead to incarceration as
an outcome for non-compliance. Maxwell (2007: 112) has noted that the effectiveness
of the youth justice system in this respect ‘stems as much from the use of warnings and
diversionary plans as it does from the use of family group conferences and the courts’.
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Lynch (2012: 508) has argued as well that, ‘Non-punitiveness is demonstrated in the
high rate of diversion, low rate of custody and the short duration of orders’ (Maxwell
et al. 2004; Ministry of Justice 2010).
Why RJ Is Not Likely to Affect Future Incarceration
The dearth of restorative programs aimed at serious offenders as well as the relative
lack of programs that may serve as an alternative to imprisonment go a significant way
towards explaining why RJ has not had much of an impact on incarceration. In their
systematic review of conferencing, Strang et al. (2013: 48) argue that, ‘banishing RJC to
low-seriousness crimes is a wasted opportunity. If governments wish to fund RJ at all,
this evidence suggests that the best return on investment will be with violent crimes,
and also with offenders convicted after long prior histories of convictions’. Their argu-
ment is one regarding effectiveness, but the policy implications are also clear. Unless RJ
can move into such cases and be used for serious offenders on a more systematic level,
it has little likelihood of reducing incarceration.
There are other reasons to question the extent to which RJ may reduce incarceration.
In the last three decades, incarceration growth has come not as a result of real increases
in crime, but from changes in sentencing practices that have criminalized less serious
offenses and/or extended sentence lengths, as well as from other factors such as the
increasing use of remand or parole revocations. While the growth in incarceration in
the United States far exceeds that of any other country, these trends have also played
a role in increasing prison rates in Australia, New Zealand and the United Kingdom.
Incarceration growth in the latter part of the 20th century has come in large part as
a result of social–structural drivers, not from changes in offending behaviours. If the
growth of incarceration suggests less of a reflection of changes in individual behaviours
than of larger political, economic and social forces, micro-practices of RJ are likely to
have little effect in reducing incarceration.
Problem 3: RJ has not given significant attention to drivers of prison growth
RJ advocates frequently argue that there should be a focus on the ‘harms of wrongdo-
ing more than the rules that have been broken’ (Zehr and Mika 2003: 43). However,
incarceration does not result from harms, but from crimes. To the degree that early
restorative programs were developed and envisioned as justice alternatives in the 1970s,
such a distinction between harm and crime was more viable. Since this time however,
RJ has developed not as an alternative to state practices, but as an extension of them, so
that today few restorative programs exist as alternatives to the criminal justice system.
Pavlich (2005) has argued the inclusion of RJ into state criminal justice practices cre-
ates a paradox, where on the one hand it seeks alternative conceptualizations of wrong-
doing, but on the other hand it accepts that crime is defined by law and the criminal
justice system. As used in Australia, New Zealand, the United Kingdom and the United
States today, it is largely as a ‘post-adjudicative’ set of practices (Daly and Marchetti
2012). To the degree that RJ has been able to focus on less serious offenses with identifi-
able victims, Pavlich’s paradox is less problematic. Where harms and crimes do not so
readily overlap, however, is where Pavlich’s criticism is more poignant.
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Nowhere is this more apparent than in the war on drugs in the United States, which
has been a primary factor in incarceration growth over the last three decades. Raphael
and Stoll (2007) note that in 1984, drug offenders accounted for about 10 per cent of
prison admissions in the United States. By 2002, this number had risen to over 30 per
cent. During this time, an increasing number of those incarcerated were for possession
or low-level distribution crimes (Drucker 1999). Yet RJ research and programs have all
but ignored the war on drugs as a driver of incarceration in the United States. O’Hear
(2009: 490) notes that, ‘Despite the rapid proliferation of restorative justice programs
nationally and internationally, drug cases have generally been omitted from their cov-
erage’. With the exception of a handful of dated scholarly works (cf. Leven 1992), only
two recent works (Black 2007; O’Hear 2009) take issue with how RJ might respond to
the massive criminalization and incarceration of non-violent drug offenders.
Given its criticism of the overuse of incarceration, it is not clear why RJ has paid little
attention to this driver of incarceration. O’Hear (2009) notes that drug use offenses
are often seen as victimless and, thus, perhaps outside of the purview of most RJ prac-
titioners. Arguably, the question of ‘harm’ for the possession or distribution of smaller
amounts of drugs is more germane for the United States, as Australia, New Zealand and
the United Kingdom incarcerate fewer such offenders. But in relation to the United
States, why then has there been little interest in diverting drug offenders away from
incarceration through even so-called ‘partially restorative’ programs? O’Hear (2009)
gives an example of a community conferencing program in Milwaukee that has success-
fully diverted low-level drug dealers from prison. Given that a majority of incarcerated
drug offenders have been convicted of possession or lower-level distribution offenses
(Miller and Freed 1994; Mauer and King 2007), and a majority have no record of violent
offenses (Fellner and Walsh 2000), why are there so few examples of such programs?
Or why has the question of criminalization in general, particularly for marijuana, gone
virtually unremarked on within RJ literature?
The war on drugs may be seen as the most visible example of American exception-
alism in the use of incarceration. Nevertheless, these four countries have all seen a
movement towards the use of incarceration for less serious offenses and/or increases
in the length of sentences for less serious offenders.2
Raphael and Stoll (2007: 32) note
in the United States between 26 and 29 per cent of the increase in incarceration since
1984 can be attributed to increases in sentence lengths, noting as well that ‘the average
admit in 2002 was less criminally predisposed and had committed a less serious offense
relative to the typical admit in 1984’.
Incarceration growth in Australia, New Zealand and the United States has also come
in the form of remand or bail revocation. Between 2000 and 2013, rates of incarceration
for remand or bail revocation increased in Australia by 60 per cent, in New Zealand by
85 per cent and in the United States by 25 per cent (Walmsley 2014). Only the United
Kingdom has not seen a rise in remand rates. As a total percentage of the prison popu-
lation in 2013, the United Kingdom was the lowest with 14 per cent, New Zealand and
the United States were about 19 per cent and Australia was the highest at 24 per cent.
The rate of remand in Australia has almost tripled in the last three decades (Australian
2
For research on trends in the use of prison and/or increased length of sentences for less serious and non-violent offenders
in Australia, see Carcach and Grant (1999), Carcach and Chisholm (2000) and Halsey (2010); for New Zealand, see Brown and
Young (2000) and Newbold (2007); for the United Kingdom, see Millie et al. (2003) and Ministry of Justice (2013); for the United
States, see Blumstein and Beck (1999), Mauer (2001) and Raphael and Stoll (2007).
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Institute of Criminology 2014). Research suggests wide divergences as to the reasons for
these increases, but Australia (Bamford et al. 2006; Brown 2013), New Zealand (New
Zealand Department of Corrections 2013) and the United States (Demuth 2003; McCoy
2007) have all seen increases in remand for drug and other non-violent offenders.
Since remanded prisoners have not been convicted of a crime, it is unclear how RJ
might address this growing segment of incarcerated populations. There is anecdotal
evidence that restorative practices may increase case-processing times (Hedeen 2004),
which may in turn reduce remand populations. However, there is no empirical research
on this topic, and given the relative lack of use of RJ for drug offenses and serious per-
son offenses, it seemly unlikely that there has been or will be much of an impact in the
near future.
Another factor in the increase in prison populations has come from parole revoca-
tions. In 1980, parole violators accounted for 17 per cent of admissions to state prisons
in the United States, but increased to 35 per cent by 1999, with two thirds of these being
technical violations (Travis and Lawrence 2002).3
In the United Kingdom, the num-
ber of determinate sentence prisoners recalled to prison increased over 450 per cent
between 2001 and 2010 (Padfield 2012). New Zealand has seen sizable rates of increase,
with recalls to prison going from 3 in 1997 to 322 in 2013 (New Zealand Parole Board
2002; 2013).4
Data are not available for the contribution of recalls to the overall per cent
of prison populations or growth in New Zealand or Australia. However, recent trends in
some Australian states suggest sizable recent increases in parole revocations and return
to custody.5
Minor drug offenses, remand and parole revocations represent significant if dis-
cursive drivers of incarceration growth. These trends are not uniform across the four
countries, but they nevertheless represent a shared trend of using incarceration for less
serious offenses or in the case of remand for offenders charged with less serious crimes.
Yet these trends have been mostly unremarked upon within RJ. Some of these trends—
most immediately the incarceration of non-violent drug offenders—represent possible
lost opportunities for RJ. Others remain arguably beyond its scope.
Problem 4: RJ is a micro practice while incarceration growth is largely related to macro
determinants
RJ advocates regularly juxtapose its practices against ‘punitive’ or ‘retributive’ justice
policies. Yet incarceration growth has not merely a result of more punitive sentencing or
the employment of stricter parole or bail conditions. Rather, these trends are part of a
larger set of discursive practices of social control and social marginalization that extend
through policy areas such as social welfare, mental health, labour and education. The
causes of these changes have been a topic of a large amount of recent scholarship, with
3
Since 2010, however, the rate of return for technical violations has begun to marginally decrease (Bonczar and Maruschak
2013).
4
The Parole Board Act of 2002 severely restricted the number of prisoners eligible and granted parole. According to Newbold
(2007: 128), ‘In the 12 months before the Parole Act, 2,390 inmates were granted parole, a figure that had been stable for the
previous five years’. This was a factor in the increase in prison populations in the 2000s.
5
Data from New South Wales Annual Parole Board Reports suggest a 96 per cent increase in the number of revocations
between 2000 and 2012 (New South Wales Parole Board 2001; New South Wales State Parole Authority 2013). Queensland saw
a 1,000 per cent increase during this same period (Department of Corrective Services 2002; Queensland Parole Board 2013).
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Page 10 of 18

differing weight given to the importance of economic drivers (Wacquant 2009), politi-
cal drivers (Simon 2007) and cultural drivers (Garland 2001), but with larger agree-
ment regarding the relatively punitive and regressive shift in state polices, particularly
towards poor and minority populations.
Recent comparative research on the rise of incarceration has identified several
shared characteristics. All four countries have seen significant adoptions of neolib-
eral economic policies (Esping-Andersen 1996; Garland 2001; Cavadino and Dignan
2006; 2012; Lacey 2008) typified by increasing flexibility of capital and labour, reduc-
tions in state tariffs, decreases in worker protections and regressive taxation. Also, all
four countries have seen moderate (Australia) to extreme (New Zealand, the United
Kingdom and the United States) reductions in social welfare provisions including
social insurance programs (Korpi and Palme 2003), as well as cash assistance programs
aimed mostly at minorities and the poor (Esping-Andersen 1996; Korpi 2000; Garland
2001; Kingfisher 2002). Finally, all four countries have seen increases in wage inequality
(Clayton and Pontusson 1998; Ortiz and Cummins 2011) and wealth inequality (Korpi
2000) since the 1980s. Even Australia, widely touted for its relatively strong social wel-
fare policies, has seen a reduction in social welfare benefits to its poorest populations
(Whiteford et al. 2011) as well as an increase in wealth inequality over the last three
decades (Ortiz and Cummins 2011).
The literature on the relationship between incarceration growth and these elements
of the restructuring of state economic and social systems is large. Much of this research
suggests that growing incarceration rates are not linked to real increases in crime, but
rather to increases in neoliberal economic reforms and/or labour deregulation,6
as well
as rising income inequalities, including reductions of cash assistance and other social
welfare or insurance benefits.7
There is, as noted above, disagreement as to why these
changes have happened (cf. Sutton 2013), but there is less disagreement as to relation-
ship between these changes and rising incarceration rates in these countries.
Concluding Remarks
RJ cannot readily fix these structural problems. It is naive to think that it is well suited
to do so any more than any other type of criminal justice policy. Moreover, Braithwaite
(1998: 329) has noted that RJ is a more ‘modest’ approach to justice, one that ‘cannot
resolve the deep structural injustice that cause problems’, but one that also should ‘not
make structural injustice worse’. Yet the problem of prison growth is likewise one that
cannot be addressed by an approach that seeks macro-level transformations though
micro-level changes in offender behaviour and has demonstrated few alternatives to
incarceration. While such a transformation assumption remains a potent narrative in
some RJ literature, to date, there is little evidence to support the argument that RJ rep-
resents a viable means of achieving such a goal.
6
Sutton (2013: 740) notes in his study of incarceration trends in 15 countries (including Australia, New Zealand, the United
Kingdom and the United States), ‘the increase in average incarceration rates was concentrated among countries with the least
regulated labor markets’. See also Cavadino and Dignan (2006; 2012), Lappi-Seppälä (2008), Sutton (2012) and Wacquant
(2009).
7
For the United States specifically, see Beckett and Western (2001), Hofer and Semisch (1999) and Raphael and Stoll (2007).
For comparative research that includes these four states, see Cavadino and Dignan (2006), Downes and Hansen (2006), Lacey
(2008; 2010) and Lappi-Seppälä (2008).
Page 11 of 18

Moreover, while RJ seeks to limit state control over criminal justice outcomes though
empowering stakeholders, it is in other ways very much dependent upon a strong social
welfare state. Braithwaite (2000: 233) recognizes this when he argues that, ‘Restorative
justice founders when the welfare state is not there to support it’. Indeed, several of its
core assumptions—in particular the notion of reintegrative shaming—depend heavily
on elements of a strong welfare state. Poverty, social inequity and social marginalization
function to lessen the ability of stakeholders to participate in such practices, diminish
the prospects of offenders to reintegrate into viable prosocial lives and restrict the abil-
ity of communities to utilize collective efficacy.
Thus, while some RJ advocates may seek the ‘modest’ goal of not exacerbating social
injustices, over the last three decades, such injustices have become worse, and in some
respects much worse, if one conceptualizes incarceration and its correlate drivers as
caused in part by social inequalities. If RJ advocates are to be modest in its ability to
reduce inequalities, they must also take seriously the inability of RJ to significantly
affect rates of incarceration. They must also recognize the likelihood of having simi-
larly negligible impacts in the future unless RJ practices can be more systematically
implemented into cases of serious offending and developed more broadly as a sentenc-
ing alternative for offenders who otherwise may face incarceration.
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Zehr, H. and Mika, H. (2003), ‘Fundamental Concepts of Restorative Justice’, in E.
McLaughlin, R. Fergusson, G. Hughes and L. Westmarland, eds, Restorative Justice: Critical
Issues, 40–3. Sage Publications.
WOOD
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