continued from previous section

95. See Ten’s critique of NOT JUST DESERTS, supra note 17.

96. J. SEYMOUR, DEALING wITH YOUNG OFFENDERS ch. 6 (1988); Moore, Facing the Consequences:  Conferences and Juvenile Justice, in S. Gerrull & L. Atkinson eds., supra note 5.

97. G.M. Maxwell & A. Morris, supra note 4, passim.

98. In Australia’s state police services, Sergeants and Senior Sergeants are at the third and fourth ranks of a four-rank non-commissioned officer class.

The very act of agreeing to attend the Conference begins the ritual of apology and the process of reparation.

99. S. Mulhall & A. Swift, supra note 54.

100. Id., ch. 1.

101. See esp. Taylor, Cross-Purposes: The Liberal - Communitarian Debate, in N.E. Rosenbaum ed., supra note 29.

The concern that the theory is too optimistic can be countered by empirical evidence from the early stages of research into the Wagga model.

102. Moore, supra note 96.

103. D. BROWN, HUMAN UNIVERSALS (1990); Nathanson, supra note 11.

104. Robert J. Sampson borrows Coleman’s concept of social capital to find new insights in social disorganization theory.  These insights square with empirical evidence from Family Group Conferences. See Sampson, Family Management and Child Development:  Insights from Social Disorganization Theory, in FACTS, FRAMEWORKS, AND FORECASTS (J. McCord ed. 1992).

105. M. WALZER, INTERPRETATION AND SOCIAL CRITICISM (1987).

106. S. Mulhall & A. Swift provide an excellent summary, supra note 54, ch. 5 & 6.

107. M. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 132 (1982).

108. Of the now voluminous literature on community policing, J. SKOLNICK AND D. BAYLEY, THE NEW BLUE LINE (1986) is probably the most influential study of programs operating in such areas. The model may also have a place within the public health approach to violence advocated by D. PROTHROW-STITH, DEADLY CONSEQUENCES (1991).

Political Theory

It is at this point that Braithwaite’s explanatory theory of crime causation and social regulation meets his normative political philosophy as outlined in Not Just Deserts.  Braithwaite and his co-author, Philip Pettit, call their normative theory a republican theory of justice. In doing so, they bow to Montesquieu, who recognized the need for a political theory that acknowledges not only the threat of coercive state power but also the threat of crime. Both state coercion and crime pose a threat to dominion, which, for Braithwaite and Pettit, is the republican counterpart to the liberal ideal of freedom. Their criticism of the liberal ideal, a criticism echoing that of Charles Taylor, is that the liberal ideal of freedom is based on the notion of an isolated, asocial individual.  Dominion, in contrast, is a freedom derived socially: a person’s prospects of liberty should be equal to those of other members of his or her society. The authors’ target of dominion leads them to advocate a minimalist criminal justice policy but a redistributive economic policy. It is difficult to see how this program differs in essence from that of a proudly liberal theorist such as Joseph Raz in The Morality of Freedom. Like several other contributors to the debate prompted by Rawls, Braithwaite and Pettit may be too easily critical of liberalism.(95)

Certainly there has been a tendency in some of the literature to exaggerate the differences between Rawls’s liberalism and the proposed correctives. Nevertheless, there are differences. They are significant in this context  because the Family Group Conference model has been seen as meeting the requirements of the republican program outlined by Braithwaite and Pettit. In being seen as a communitarian response to the problem of crime, the model has also been criticized as a threat to certain liberal legal safeguards of rights. However, such criticisms are pitched at two levels. The first criticism is that the procedures involved in bringing young offenders to Family Group Conferences may infringe their rights or the rights of others. The second criticism, or group of criticisms, is more theoretical. Theoretical criticism concerns the extent to which the Family Group Conference model can be seen as an example of communitarianism. If the model is clearly communi-tarian, we need to ask whether it can be subject to the same criticisms or counter-criticisms as have been leveled at communitarian theory in general.

Criticism concerning procedural safeguards of legal rights in the Family Group Conference can be answered relatively easily. The critics’ major concerns apply to most informal justice schemes. Their concerns include the need to protect against stigmatization from the “informal equivalent” of a criminal record, the need to ensure that the organization administering the diversionary scheme is publicly accountable, and the need to ensure that officials do not coerce admissions of guilt from suspected offenders.(96) These issues will be discussed here only as they relate to the diversionary cautioning scheme operating in New South Wales and known as the Wagga model. The New Zealand model and its complex legislation have been discussed at length elsewhere.(97) The New Zealand model is also less obviously communitarian than its New South Welsh counterpart, given the role accorded by the New Zealand legislation to state officials in the cautioning process.

The Wagga model deals with the first two criticisms of informalism in a simple manner. Young offenders who have been cautioned in a Family Group Conference have a notation made to that effect. The notation is kept with the documents relating to the original offense. That information does not go beyond the police station at which the cautioning took place. The subsequent legal status of the offender is thus no different from that of young offenders who had been subject to a “traditional” police juvenile caution. The second criticism, concerning accountability, has not been the subject of controversy to date. The only officials present at those several hundred conferences run during the scheme’s first two years of operation have been the coordinating police officer and, occasionally, the officer who investigated the circumstances of the offense. There have been no complaints to date. Nevertheless, as the scheme is implemented in other towns and cities, there may be a need for state legislature(s) to frame legislation allowing for the presence of independent observers at Family Group Conferences. Legislators would have to consider very carefully, however, whether the presence of other (semi-)officials in a Family Group Conference would not function as a symbol of mistrust while also duplicating legal safeguards that are already provided vicariously by a police ombudsman. Those pressing for such legislation to be passed will have failed to see that the significant discretion in these matters does  not reside with the police officer coordinating the Family Group Conference. The more significant discretion rests with that group of police sergeants who meet weekly in order to decide whether particular young offenders should be given the option of attending a Family Group Conference as an alternative to children’s court.(98) The potential criticism of such an arrangement is that the availability of an alternative will encourage young offenders to seek a “soft option” by confessing guilt.

Such criticisms are untenable for a combination of reasons. Firstly, the guilt or innocence of the offender is not at issue in most juvenile cases;  guilt is readily confessed.  Secondly, the option of resolution through a Family Group Conference cannot be made to the young suspect by an investigating officer; a decision to deal with the matter in a Family Group Conference can be made only by the council of sergeants after the matter has been investigated. Thirdly, most young offenders do not seem to regard the Family Group Conference as a soft option. They are aware of the difficulty of facing a group of people who have been affected by their offending behavior. The very act of agreeing to attend the Conference begins the ritual of apology and the process of reparation. Most young offenders realize this and, faced with a personal challenge, rise to meet that challenge. The presence of their supporters helps them to do so. If they do not wish to take the option of the Family Group Conference, and in those few cases where the guilt of the offender is disputed, the Court Process remains available. The offense can be dealt with in court as a legal issue. In these circumstances, however, victim, offender, and the immediate community of “indirect victims” will miss the opportunity to address the offense as an ethical or moral issue. For all of these reasons, it seems inappropriate to talk of young offenders being unjustly coerced to attend conferences. 

Nevertheless, a form of social coercion will be applied during and after the conference. If there is an agreement to provide material reparation for damage caused by the offense, there will be pressure to meet the reparation agreement reached during the conference.  A young offender who has been through a Family Group Conference will have reacquired the status of a moral citizen. If he or she fails to meet the reparation agreement through replacement of goods, direct payment, or payment in kind, that young person’s status as a moral citizen will be threatened. But it would be appropriate to call this threat “coercion” only if the young person had been subject to disproportionate demands for reparation. It is more appropriate to describe the pressure to meet the reparation agreement as the pressure of community control or positive social control. A young person who has agreed to arrangements for reparation  is faced with two sources of pressure to meet that agreement: the first is social disapproval; the second is the pressure of pangs of conscience or discretion shame. In other words, young offenders are subject to exactly the same pressures as the rest of the moral community.  These pressures may be more immediately apparent as the young persons have been ritually reminded of the value of community membership. In reality, they are no more subject to coercion than anybody else. 

The concern that the theory is too optimistic can be countered by empirical evidence from the early stages of research into the Wagga model. The level of material reparation has been around 95 percent. The percentage of young people who have reoffended after a first Family Group Conference is around 5 percent.

In sum, the procedural criticisms of the model of diversion using Family Group Conferences are important to consider, but they do not stick. Of broader interest are the potential theoretical objections to communitarian theory;  these objections may also apply to the Family Group Conference model on the grounds that the model represents an example of communitarian practice. To address these potential objections, and at the risk of oversimplification, one needs to summarize the key issues in the debate between communitarian and liberal theorists.

A recent review of liberal-communitarian debate identifies five areas of general dispute between those writers who have been collectively labeled “communitarian” and those who seek to defend a philosophy they call liberalism.(99) The target of communitarian criticism has generally been the work of John Rawls. His liberal theory of justice has been taken to task for employing an inadequate theory of the person, for seeing individuals as asocial, for wrongly claiming to have universal application, for showing signs of moral subjectivism, and for resisting any attempt by the state to define and foster that which is good in society.(100) (In virtually every case, Rawls’s position has been somewhat distorted or exaggerated. The resulting discussions have nevertheless proved highly valuable.)

The first two issues here have, in effect, been dealt with already. The psychosocial theory informing the use of the Family Group Conference as an educational mechanism is very close to that described in the work of communitarian writers such as Michael Sandel and Charles Taylor. They place a stronger emphasis than does much liberal theory on the social nature of individuals. They emphasize the link between a person’s emotional life and the social system of language and values that make it possible to interpret that life. Taylor’s work, in particular, sounds very much like republican theory as understood by Braithwaite and Pettit. Taylor is keen to emphasize the point that a commitment to safeguarding individual rights and values requires an equally strong commitment to the safeguarding of communal structures that make it possible to enjoy those individual rights.(101) In short, the general communitarian concern with the liberal view of individuals is not that the liberal view is wrong but that it is incomplete. The subject of political theory should not simply be the rights of individuals but, rather, the rights and duties of social individuals. This concern is clearly central to the Family Group Conference model for dealing with offenses committed by young people. Thus the model, in its view of the person and of social relations,  can clearly be seen as communitarian. But few could find this modified view of liberal political philosophy exceptionable. The other three areas of concern in the liberal- communitarian debate, however, deserve further consideration. These are a concern about the extent to which liberal ideals and programs can have universal validity, a concern about the liberal acceptance of a certain moral subjectivism, and, finally, a concern about the extent to which governments should seek to define and encourage that which is good. The relevance of this general debate here is that these general issues have been raised in the form of specific objections to the Family Group Conference model. Serious answers to the specific objections need to take account of the general debate. In their specific form, the objections are as follows: First, the Family Group Conference model can have only limited applicability. Second, the model undermines the notion of just deserts and legal uniformity by leaving to a group of amateurs a decision about the exact nature of the response to an offense. Third, the model oversteps the mark not only by seeking to show young people what behaviors they must avoid in order to meet the requirements of justice but also by indicating what sort of social relationships people might foster in order better to live a good life.(102)

Now the first of these three objections to the Family Group Conference takes the form of a liberal position subjected to a fairly strong communitarian criticism.  Those who have suggested that the model cannot have universal applicability have argued, for instance, that the role of shame varies from one ethnic group to another. Alternatively, critics have suggested that some communities simply do not have the resources to deal with the problems of juvenile offending. This line of argument is often premised on the claim that, where families are disintegrating or appear to be the major cause of a young person’s incivility, the family is no answer to the problem.

The concern that shame will have no power among certain ethnic groups or in certain geographical areas has yet to be fully tested. However, the theory of reintegrative shaming would suggest that the emotion of shame ought to have universal applicability as a means of widening the net of positive social control. A more obviously positive way in which to answer concerns about the model’s limited applicability is to point to strong evidence that the capacity for empathy is a human universal.(103) And it is empathy, above all, that is the shared currency of the Family Group Conference.  The related concern that communities lack the resources to deal with juvenile offending and to offer positive social control can also be rebutted—up to a point. If dysfunctional families and disintegrating communities are indeed a part of the problem of juvenile offending—and this assertion would be disputed by few people—then the Family Group Conference offers ways to deal with the source of this problem.(104) Those who are present at a conference have demonstrated a willingness to deal with crime and incivility at the local level. In the course of the conference, minimum standards of justice and civility are effectively agreed upon by all present. These standards of civility represent “a kind of minimal and universal moral code” that applies to all citizens of a just community and in all spheres of life.(105) These values concerning minimum standards of behavior must apply within the private sphere of the family just as they do in the public sphere. Those who subject other family members to violence and related forms of abuse, who undermine the dominion of others, may feel shame before the audience of the Family Group Conference.  They may feel this shame even though their offenses are not the direct subject of the Conference. Faced with their next temptation to violence, they may feel stronger pangs of conscience, stronger discretion shame, as a result of the Conference experience. This increased internal control is likely to be matched, or exceeded, by the increased external control provided by friends or relatives present at the Conference. Through their participation, friends and relatives have indicated their concern that minimum standards of justice apply within the nuclear family.

The concern that certain communities may lack the resources to deal with the causes of juvenile offending is thus understandable but misplaced. Conferences may actually represent one way of addressing the problems of dysfunctional families and disintegrating communities. Minimum standards of social behavior are agreed upon.  Social bonds are strengthened. Responsibility for one’s own behavior and the behavior of others is emphasized.

A second major objection to the Family Group Conference model can, in contrast to the first objection, be read as a liberal critique of a communitarian position.  The concern here is that the rule of law is undermined by “informal” solutions to crime. The rule of law in a liberal system allows for moral subjectivity but legal uniformity. On one reading, the Family Group Conference reverses this formula. It provides a mechanism for responding to crime outside the legal system, but it encourages participants to agree to minimal moral or ethical standards for social life. However, this reversal of the standard formula should present a problem only if one subscribes to a strong retributivist position. Otherwise, dealing with the problem of juvenile crime in this way seems perfectly logical. The safety net of legal rules remains in place. Participants in a Family Group Conference retain the alternative option of dealing with the issues before a court.  The role of police as coordinators of the process not only lends a certain gravity to the ritual of apology and forgiveness; it also helps to ensure that only legally permissible interaction occurs between conference participants. However, with the safety net of the liberal legal system having been placed around the proceedings, conference participants can seek to resolve their differences—and deal with their charged emotions—not at the level of state law but at the level of civil morality and ethics. There has thus been a shift in focus at two levels. The shift from law to ethics is paralleled by a shift in the way offending by young people is viewed. As has been argued above, the diversionary model using Family Group Conferences sees the problem of juvenile crime and incivility less as a problem of criminal justice and more as an issue of social justice, public education, and public health. Young offenders generally lack empathy for their victims. Conversely, many young offenders respond well to a public display of empathy for them.  The process that enables this sharing of perspectives can be considered as a powerful exercise in public education.

These shifts in focus may prompt a third objection to the Family Group Conference model. The concern here is that the state should not seek to determine how people should run their lives. This “anti-perfectionist” position is that the state should seek that which is just without trying to define and foster that which is good. The general argument concerning this distinction between the just and the good has been complex and convoluted.(106) It is beyond the scope of this discussion. Nevertheless, it is clear that any criticism of the Family Group Conference model for imposing values on participants would be misplaced.  Within the conference, State officials are offering a set of procedures by which those citizens most affected by particular acts of incivility can offer a collective response. Collectively, they can defend their self-respect while agreeing to minimum standards of behavior. Indeed, as has been argued, the procedure of the Family Group Conference offers a dramatized version of the social contract. Consequently, the key to the conference’s “justificatory force . . . lies not in what [participants] do there but rather in what they apprehend there.”(107) State officials are not imposing their interpretation of what is good on unwilling participants. Rather, they are umpiring a process that encourages people to participate actively in the ordering of their own lives.

Conclusion

The claims made here for a simple process known as the Family Group Conference may seem preposterous.  After all, the process involves nothing more than a group of people sitting in a room for an hour or so with a police officer. They reach various agreements, apologize, forgive, and generally shed tears. But does it work? At this stage a number of claims can be made, bearing in mind that the model has been trialed in the form described for only two years or less and in only a small number of towns or small cities in southern New South Wales, Australia. Some of these claims will, of course, relate to the original New Zealand model. The following seems clear: 

The model takes very seriously the resentment of the victims of crime; it offers a forum for victims to overcome this resentment by achieving symbolic (and material) reparation. The model acknowledges that any crime affects a number of “indirect victims” who will feel a general indignation at a breach of social norms; it offers a forum for the reaffirmation of social norms. The model is premised on the knowledge that most young offenders lack sufficient empathy for their victims. The conference is designed as a lesson in empathy. It is designed to strengthen the internal control of conscience and the external control of social bonds. The model acknowledges, however, that many young offenders are themselves victims of their social circumstances; frequently, they are victims of their own family members. A single Family Group Conference obviously cannot resolve problems of economic deprivation. It can, however, help to identify problems of dysfunctional families. Resources to deal with these problems may be available within the family’s immediate community.  Alternatively, state assistance may be necessary.  Whatever arrangements are reached, the initial response to the problem will have been more comprehensive than is possible under either the punitive or the therapeutic model of juvenile justice.

In addition to the more satisfactory outcome for victims, offenders, and their relatives and close friends, the Family Group Conference Model offers a better outcome for police.  They are currently dissatisfied with systems that fail to deal with the emotional state of victims, that fail to moralize effectively against offenses committed by young people, and that hold police partly responsible for symptoms of social disintegration. The model offers an alternative way to determine the seriousness of an offense, by emphasizing the impact of an offense on victims and by focussing on predatory crime.  The model also encourages the police to be neutral umpires of constructive conflict, rather than playing an active role in destructive conflicts. It shifts the focus back towards the earlier role of uniformed police—that of coordinators of social justice. This is community policing in a deeper sense. It is not simply the better policing of a community. Rather, the model offers a way to encourage communities to police or to order themselves.

Having accepted these arguments and having accepted that the diversionary model using the Family Group Conference does offer empirical evidence to support the theory of reintegrative shaming, one might still question the broader significance of the Family Group Conference Model. Here a prediction may be apposite. If the diversionary model of juvenile justice using Family Group Conferences is adopted to any considerable degree outside Australasia, and if it is seen to be successful, it may indeed have some significant broader ramifications. The model, having been adopted and adapted from its New Zealand counterpart, was trialed in a large non-metropolitan Australian town. It currently applies only to offenses committed by people between the ages of ten and eighteen. Serious indictable offenses are not dealt with in this manner, nor should they be in the foreseeable future. Nevertheless, the range of offenses considered appropriate to be dealt with in Family Group Conferences has already been expanded —with general community acceptance. The decentralized, community-based, and gradualist nature of the model suggests that this tendency to expand the scheme may continue. Thus, it will not only be adopted  in other similar-sized towns, where the term community is something more than rhetoric; it may also be gradually introduced to those areas suffering greater incivility—areas such as the suburbs and ghettos of the big cities.(108) The age range of people eligible to appear as offenders in Family Group Conferences might be extended.  The nature of offenses to be dealt with might also be broadened. The limits to such reforms will be subject to rigorous public debate—and this is as it should be. But the debate will encourage local participation.  Many of those participating will already have experienced a system that offers something other than the relentless policy pendulum swing between rehabilitation and punishment.

This article was published in Criminal Justice Ethics, Volume 12, Number 1 (Winter/Spring 1993). Copyright© 1993.  (Requests for permission to reprint multiple copies may be directed to cjejj@cunyvm.cuny.edu).