Thursday, 18 December 2014

Mythology Parading as Opinion – Mike Yardley and Restorative Justice

by Kim Workman
 The great enemy of truth is very often not the lie -- deliberate, contrived and dishonest -- but the myth -- persistent, persuasive and unrealistic. Too often we hold fast to the clichés of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.
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Commencement Address at Yale University, June 11 1962 [1]
 This is the time of the year when social commentators compile their personal list of Media Awards; the Best, the Worst, the best piece of investigative journalism, and so on. 
I have always lacked  the analytical incentive to classify, file, and rank media stories so that  I could come up with a personal list of awards in the area of crime and justice.  On quick reflection,   Nigel Latta’s documentary ‘Nigel Latta:  Behind Bars’, was the most thorough treatment on prisons in New Zealand society that I have seen.      The range of contributors to the documentary  and the broad spectrum of views was outstanding. 

The piece that I found the most annoying (until yesterday) was Seven Sharp’s  cavalier and arrogant treatment of Justspeak’s Lydia Nobbs, who was interviewed about its outstanding publication, “Unlocking Prisons – ReducingNew Zealand’s Prison Population”.  I lambasted it in an earlier blog , ‘Seven Sharp and Penal Policy – Let’s Do theTime Warp Again.' 

I was irritated because Mike Hosking, who usually does his  homework and bases his opinions on good information, failed to do so on this occasion.  Rethinking has always taken the view that journalists and paid commentators have a social, professional and ethical responsibility to base comment and opinion on fact.   I made the point that news and media comment is more readily available and influential , than ever before and that;

 “while viewers have become more aware of crime and punishment issues, their framework of understanding is shaped by the media.  When Seven Sharp makes ‘authoritative’ statements about prisons, punishment and public opinion – the public takes them at face value.”

Media should present a wide range of views about matters of public interest, and media commentators are as entitled as anyone else to voiice a personal opinion .  However, one would expect journalists and professional media to meet a different and higher standard, than those whose responses are nothing much more than a gut reaction to an issue.  I was annoyed with Mike Hosking for failing to reach that standard.

However, his place at the top of my personal media award list for lazy and irresponsible journalism, is now occupied by Press columnist, Mike Yardley.  He is an Award-winning broadcaster on Travel and Current Affairs and  syndicated columnist and  correspondent on radio, in print and online. His recent Opinion Piece,  ‘Restorative Justice of Little Benefit to Victims”  was probably a response to Restorative Justice Aotearoa’s media release of 8 December,  ‘Victims to have a greater say on restorative justice’

Mike Yardley was beaten to the draw by Manawatu Standard’s Jono Galuszka, who did a great job of  raising concerns about the new legislation, in an article New laws may lead to court delays’ .  Jono took the trouble to speak to people.  He talked with Mike Hinton of Restorative Justice Aotearoa, and a Horowhenua couple,  John and Lynda Timmer-Arends whose son had been murdered.  The Timmer-Arends  had two concerns which are raised regularly about restorative justice.  First, the recurring belief that people will be forced into a restorative justice conference against their wishes.  It is always a voluntary process, and one in which either the victim and offender can choose not to participate, at the outset, or during the process.  The second prevailing view, is that it should not be used in serious cases.  That was a widely held belief twenty years ago – the evidence since then has proved us wrong.  Restorative justice is more effective in crimes of violence than in property crimes.  The more serious the violence, the more likelihood that restorative justice will provide satisfaction to the victim, and reduce reoffending on the part of the offender. 

Mike Yardley’s opinion piece, which followed a week later,  ‘Restorative Justice of Little Benefit to Victims’ (16th December), (16th December 2014) is one of the most appalling and inaccurate pieces of criminal justice journalism that I have read in recent times. 

Restorative Justice of Little Value to Victims

OPINION: Pop your head into any Canterbury court and you'll find the wheels of justice are grinding ever slower.

Last week heralded a quiet revolution to the sentencing procedures in district courts, whereby virtually every case involving victims that results in a guilty plea will be adjourned.
No longer will offenders be swiftly sentenced after a guilty finding. The presiding judge is now compelled to park up the case, under Section 24a of the Sentencing Act, while considerations are given to convening a restorative-justice conference.

This new touchy-feely provision, which applies to offending right across the board, will surely compound what can already be the glacial pace of court, as restorative justice providers set about determining the willingness of offenders and victims to have a come-together.

The Ministry of Justice is spending mega-bucks contracting teams of restorative-justice facilitators to implement this bureaucratic malarkey.

Restorative Justice Aotearoa, the national body of facilitators, is heaping praise on the change, which pre-supposes every victim wants to face his or her offender over tea and biscuits.

The system's new opt-in position is a bit like KiwiSaver, whereby victims will have to actively opt out of a restorative-justice process.  Plus, the court must adjourn proceedings to allow facilitators time to readily identify a victim.
 Let's suppose I have pleaded guilty to possessing methamphetamine for supply. Is every prospective buyer and their families, who will be the real victims, going to be somehow corralled into a conference?
What about the recidivist burglar of 30 properties? And just how much time and money is going to be zapped trying to cajole people to take part?

The Sensible Sentencing Trust is pillorying the new regime, arguing that restorative justice should only apply in situations where it's possible for the victim to have restored to them whatever they may have lost as a result of an offence. For example, the theft of a bike or damage to their letterbox.

But serious violence, really?

Sensible Sentencing's biggest beef is that these restorative justice conferences are actually offender-driven. They will be taken into consideration as part of sentencing, potentially resulting in brownie-points and lighter penalties.
Doesn't that make a mockery of the much-vaunted philosophy of placing the victim at the centre our justice system?   
The New South Wales model strikes me as a far fairer approach, whereby victim-offender conferences can occur only post-sentence, and often in conjunction with rehabilitation programmes at the end of a sentence.

Justice delayed is indeed justice denied.

We've just added another overcooked, money-sucking monkey wrench to its timely delivery.
 - The Press

 There was a prompt on-line response from Professor Chris Marshall, the Diana Unwin Chair in Restorative Justice, Victoria University of Wellington

I wonder whether Mike Yardley has ever talked to victims who have been through what he derides as a "touchy feely" process of meeting with those who injured them "over tea and biscuits"? I sincerely doubt it. Nor has he probably acquainted himself with the masses of international research that shows over 80% of victims who attend restorative justice meetings express satisfaction with the process and would recommend it to others. Restorative justice, unlike the conventional justice system, approaches offending from the perspective of victims and seeks primarily to address their needs. And no one is ever "corralled into a conference"; the process is entirely voluntary. As for the assumption that restorative justice may be ok for theft of a bike or damage of a letter box but not for serious violence, the research shows just the opposite. The greater the harm suffered by victims, the greater the potential of restorative justice to help. Its all too easy for arm chair critics to decry the process as offender driven and of little help to victims. Sit with actual victims and participate in actual conferences and things look different. Recent changes to legislation will certainly bring many challenges to court processes. But they are, in my view, undoubtedly moves in the right direction - and primarily for victims.
Professor Chris Marshall,
The Diana Unwin Chair in Restorative Justice,
Victoria University of Wellington

Mike Yardley’s views come straight out of the Sensible Sentencing Trust’s Songbook;  these specious and unsubstantiated claims have been part of its lexicon for years.  He was  quick to take up Sensible Sentencing's beef that restorative justice conferences are  offender-driven.  However, his claim that the recent changes in legislation make “a mockery of the much-vaunted philosophy of placing the victim at the centre our justice system” don't stand up to even the most superficial scrutiny.
He refers to Section 24a of the Sentencing Act, but fails to mention the other measures that were passed under the legislation.  The former Minister of Justice, the Hon Judith Collins, when she announced that the legislation had been passed on 27th May, rightly claimed that the  legislation "put victims at the heart of New Zealand’s criminal justice system".  Her  media release “Bill to Strengthen Victims Rights Passes Into Law’ made it clear that the legislation:

  • Made agencies more accountable for delivering quality services for victims; 
  • Required the Ministry of Justice to develop a Victims Code that outlines victims’ rights and the service available to victims;
  • W idened the eligibility of victims able to register on the Victims Notification System so that they can stay informed about the offender;
  • Extended the rights of victims to also apply to victims of youth crime.
Ms Collins also pointed out that the Bill widened the scope of the Victim’s Impact Statement to give victims of serious offences the right to read their statement to the court.

Follow the New South Wales System?  Where Did That Come From?

At the end of the article, Mike Yardley promotes the NSW restorative justice system as the preferred model, ‘whereby victim-offender conferences can occur only post-sentence, and often in conjunction with rehabilitation programmes at the end of a sentence.'
It is clear that he has never bothered to study the NSW restorative justice system  - this is a comment that comes straight from Sensible Sentencing’s website, which has recommended for some time that New Zealand should adopt the NSW system,  which (it claims) “has not been plagued with some of the problems experienced here in New  Zealand”.  In order to do that, New Zealand would need to comply with a number of caveats, which are outlined on the SST website.
Earlier this year I checked my understanding of the NSW system with Kate Milner , Director Restorative Justice, Department of Corrective Services, New South Wales.  I sent her the list of ‘caveats', and asked her to comment on whether they were an accurate representation of the NSW system. 

Here is her response and correction of SST’s 'caveats'; 
  • SST Caveat No 1:  In New South Wales, restorative justice is victim driven, rather than offender driven, and focuses  on the offender having an obligation to their victim to try and repair the harm done by their crime.
  • CSNSW’s Response:  CSNSW accepts referral from either victims of crime or offenders.  A small number of victims of crime specifically say that they would only participate if the process is offender initiated as this would reflect remorse and responsibility taking. About one in eight offender referrals results in either a victim-offender conference or an alternate RJ process (VOM / indirect mediation).
  • SST Caveat  No 2: In New South Wales, restorative justice takes place post-sentence rather than pre-sentence, and therefore will not be taken into consideration as part of sentencing, and cannot be rushed through prior to sentencing just to earn a sentence reduction.
  • CSNSW Response:  Whilst our practice is post-sentence, in NSW there are pre-sentence programs: Youth Justice Conferencing (Juvenile Justice) and Forum Sentencing (Attorney Generals).  We are of the belief that best practice RJ should be available to victims of crime at any stage of the CJ process.
  • SST Caveat No 3:  In New South Wales, Restorative Justice meetings are combined with and only occur in conjunction with rehabilitation programmes at the end of a sentence.
  • CSNSW Response:  CSNSW accepts post-sentence referrals at any time.
  • SST Caveat No 4:  In New South Wales, restorative justice outcomes have no influence on parole hearings – no reports are `submitted to the parole board regarding restorative justice meeting outcomes when considering release.
  • CSNSW Response:  Objective closure summaries, with no subjective comment regarding the writer’s perceived success of victim offender conference are available to the State Parole Authority.
  • Sensible Sentencing Trust also considers that no person with a serious criminal record should work in Restorative Justice as a facilitator or in any other voluntary or paid capacity. Everybody must be screened and full Police checks carried out, along with mandatory training. That is already the situation in New Zealand, with full Police checks and enquiries made, so that consideration may be given to the suitability of persons to train as a restorative justice facilitator.  The same approach applies in NSW. 
  •  CCNSW Response:  All CSNSW staff undergo rigorous criminal record checks and RJ facilitators receive formal training in the TJA conferencing model and on the job training in the practice of RJ in response to serious crimes committed by adults.
In conclusion, Kate Milner had this to say:
“Research recently undertaken by UNSW indeed supports the fact that our model is highly successful in addressing the unmet justice needs of victims of crime and offenders. We however strongly support a vision for RJ, that is inclusive of the person responsible and those directly harmed, being available at every juncture of the justice process.”
Those who are interested , can read more about their approach on the new CSNSWwebsite.  

In other words, Sensible Sentencing’s caveats are a fabrication.  Why then,  did Mike Yardley express a view that is totally inaccurate and untrue? 

The answer is simple.  The Sensible Sentencing Trust is a haven for lazy media professionals.  Go to Sensible Sentencing, and you will get what lax journalists want – provocative headlines that sell newspapers.   On this occasion, as has happened before, Sensible Sentencing became a source of ‘expert’ opinion, while criminal justice professionals and those  highly knowledgeable in this area were overlooked.  Populist attitudes trump research any day. 

Mike Yardley has been caught with his pants down, making claims about the New South Wales restorative justice system which are untrue; but it was  Garth McVicar  who loosened his belt.  Anyone who chooses to accept  Sensible Sentencing’s claims without checking at the source, deserve what they get. 

Rethinking Crime and Punishment position is clear.  It  is in the business of  informing citizens, the mass media, practitioners, policy-makers and politicians about what works in reducing crime. In the process it highlights the flaws in quick and dirty research, identifies populist measures that have no evidential basis, and identify approaches that will get better results. 
What do we want in our Christmas stocking?  Informed public opinion that encourages truth telling and honesty. No more ‘knowledgeable claims  unsupported by evidence.  Let’s make 2015 a year in which professional journalists do their homework, and put out informed views that have basis in fact. 


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