Making Amends: Mediation and Reparation in Criminal Justice

237 Pages·1992·0.66 MB·English

by  Gwynn Davis

Making amends

In the 1980s in Europe and North America we witnessed a remarkable
revival of interest in reparation (‘making amends’) by offenders to
their victims as an alternative to the more usual forms of punishment.
In England and Wales the Home Office was (briefly) infected by this
enthusiasm. Experiments were run, research was commissioned,
expectations were raised.
This book critically examines those experiments. The author was
granted a unique insight into the practice of reparation schemes; he
found that the schemes were committed to traditional probation service
objectives (diversion, mitigation, and offender education), rather than
to the principle that victims had a right to reparation and offenders a
corresponding obligation. In part, therefore, this book examines the
practice of reparation schemes; but it is also a study of the intractability
of our criminal justice institutions. These experiments reflected an
abiding dissatisfaction with criminal courts and with the manner in
which justice is conceived and expressed within the criminal framework.
In that sense the reparation initiative was important and the vision
which it largely failed to realise is bound to endure.
In addition to the author’s account of reparation in the UK, Making
Amends includes comparative studies written by researchers based
in Germany and the United States.
‘I am of the firm opinion that this book is by far the most thoughtful,
well-written and knowledgeable book to be written on this subject.
Davis has used reparation and mediation to explore in a very
stimulating way questions central to the principles of criminal justice
and ideas such as just deserts, utilitarianism, and the boundary
between criminal and civil law.’
Mike Maguire, University of Wales, Cardiff

Making amends

Mediation and reparation in
criminal justice

Gwynn Davis
with Heinz Messmer, Mark S.Umbreit and
Robert B.Coates

London and New York
First published in 1992
by Routledge
11 New Fetter Lane, London EC4P 4EE

This edition published in the Taylor & Francis e-Library, 2002.

Simultaneously published in the USA and Canada
by Routledge
a division of Routledge, Chapman and Hall, Inc.
29 West 35th Street, New York, NY 10001

© 1992 The volume as a whole: Gwynn Davis; Chapter 9: Heinz Messmer;
Chapter 10: Mark S.Umbreit and Robert B.Coates
All rights reserved. No part of this book may be reprinted or reproduced
or utilized in any form or by any electronic, mechanical or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.

British Library Cataloguing in Publication Data
Davis, Gwynn
Making amends: mediation and reparation in criminal justice.
I. Title II. Messmer, Heinz III. Umbreit, Mark
364.68

Library of Congress Cataloging in Publication Data
Davis, Gwynn
Making amends: mediation and reparation in criminal justice/by
Gwynn Davis with Heinz Messmer, Mark Umbreit, and Robert Coates.
p. cm.
Includes bibliographical references and index.
1. Reparation—Great Britain. 2. Victims of crimes—Legal status, laws,
etc.—Great Britain. 3. Mediation—Great Britain. 4. Criminal justice,
Administration of—Great Britain.
KD2007.D38 1992
344.41´03288–dc20
[344.1043288] 91–37595
CIP

ISBN 0-203-16101-7 Master e-book ISBN

ISBN 0-203-16104-1 (Adobe eReader Format)
ISBN 0-415-06708-1 (Print Edition)
Contents
Notes on the author and the contributors vi
Preface vii
1 Introduction 1
2 Developments in England and Wales 22
3 The Exeter Youth Support Team 41
4 The Coventry Reparation Scheme 69
5 The Totton Reparation Scheme 104
6 Dominant themes: diversion and mitigation 136
7 Neglected themes I: negotiation and expiation 149
8 Neglected themes II: the victim interest 158
9 Victim-offender mediation in Germany
Heinz Messmer 177
10 Victim-offender mediation: a review of research in
the United States
Mark S.Umbreit and Robert B.Coates 190
11 Conclusion 200
Bibliography 220
Index 227
The author and the contributors
Gwynn Davis is Senior Research Fellow in the Faculty of Law,
University of Bristol, UK. He has written several books concerning
the legal process of divorce, but turned his attention to criminal justice
issues in 1985 when, with colleagues at Bristol University, he
undertook a preliminary overview of mediation and reparation
schemes in England and Wales. The following year the same group
of researchers conducted a follow-up study in which they observed
the practice of selected schemes at first hand. Mr Davis is currently
engaged in a study of the criminalisation of assault.
Heinz Messmer is Research Associate in the Special Research Unit
227—‘Prevention and Intervention in Childhood and Adolescence’,
University of Bielefeld, Germany. His main research interest concerns
interaction and communication issues in respect of interventions
aimed at juvenile offenders. He has published widely on diversion
and victim—offender mediation and is the co-author of Restorative
Justice on Trial (Dordrecht/Boston 1992).
Mark S.Umbreit is Director of Research at the Center for Victim-
Offender Mediation—a programme of the Minnesota Citizens’ Council
on Crime and Justice, Assistant Professor in the School of Social Work
at the University of Minnesota, Research Associate at the Center for
Youth Development and Research (UM) and Principal Investigator
for a cross-site analysis of victim-offender mediation in the US. He
also serves as a consultant to the US Department of Justice and as
Chairperson of the US Association for Victim-Offender Mediation.
Robert B.Coates was formerly Associate Director of the Harvard
Criminal Justice Center, Associate Professor at the School of Social
Service Administration of the University of Chicago, and Professor
at the School of Social Work at the University of Utah. He is currently
a consultant in the criminal and juvenile justice field, Senior Research
Associate for a cross-site analysis of victim-offender mediation in
the US, and Pastor of a Congregational Church.
Preface
It is rare for a set of ideas to catch on as quickly as did the enthusiasm
for victim/offender mediation and reparation in the UK in the mid
1980s; it is rarer still for government to be infected by this enthusiasm,
to give pump-priming money, and to contemplate legislation. It
seemed, for a while, as if these ideas were to be given a secure
institutional form. The position is much less clear today, but this
episode (as one may now see it) provides a fascinating subject for
academic study since it is not often that one sees ideas emerge, a
practice develop, and then support be withdrawn—all within a
remarkably short time span. It is now fair to say that, within
government circles, mediation and reparation schemes constitute
something of a ‘dead’ subject. But this book is not, I hope, simply a
research monograph, although I am proud to have been part of a
team which employed such an effective and revealing research
method. My intention has also been to use these experiments in order
to explore questions central to the principles of criminal justice,
thereby stimulating more general jurisprudential and penological
debate. Also, for those interested in the politics of criminal justice,
the book provides a case study of the ease with which vested interests
in the penal system marginalise ideas which threaten basic
assumptions.
Two people not named on the title page have made a substantial
contribution to the book and I wish they could have had greater
acknowledgment than is afforded them here. They are David Watson
and Jacky Boucherat, my colleagues on the original research projects.
David’s theoretical contribution was immensely valuable throughout
and some passages are in fact based on earlier drafts of his; his
influence pervades the book. Jacky Boucherat was a highly talented
researcher, many of her field-notes being an absolute delight; the
viii Making amends
Exeter and Coventry chapters, in particular, rest on the foundations
of her work.
At each of the three centres where we carried out our fieldwork
we were given generous access and treated with the utmost courtesy
by all staff. It is never easy to be researched, and certainly I would
not expect all those engaged on these projects to agree entirely with
my analysis, but I am grateful to them for the opportunity which
they gave us and for their willingness to share ideas.
I also owe a considerable debt to the Home Office, who funded
our two research studies, and especially to Tony Marshall, Principal
Research Officer, who was our point of contact throughout. The
book will reveal that Tony and I disagree about many things, but it
gives me pleasure to acknowledge his unfailing helpfulness and
courtesy. I should also like to express my thanks to Pat Thomas and
the Trustees of the Nuffield Foundation for their decision to pay for
my time spent writing the book.
I have also benefited from the theoretical contribution of Adrian
Thatcher, who acted as consultant to the research projects; from the
assistance of Nicola Bustin, whose time was paid for by the Bristol
University Law Faculty; and from the advice of a perceptive but,
sadly, anonymous reviewer. I am also delighted that Heinz Messmer,
whose work I have long admired, agreed to broaden the appeal of
the book by writing a chapter about mediation and reparation in his
country; and that Mark Umbreit and Robert Coates kindly undertook
to do the same in respect of the USA.
Finally, I have been extremely fortunate in having the assistance
of two highly skilled secretaries: Liz Young, who worked on the
original research project; and Pat Hammond, who typed the book in
each of its various incarnations. I am heavily indebted to them.
Gwynn Davis
Chapter 1
Introduction
In the 1980s there could be observed, in Europe and North America,
a modest revival of some ancient themes in criminal justice. The
different strands will take some time to identify, but the overarching
and unifying theme was a renewed interest in reparative justice as an
alternative both to retributivism and to the various utilitarian projects
associated with it. In England and Wales even the Home Office was
(briefly) infected by this enthusiasm. Experiments were run, research
was commissioned, expectations were raised. In the end, it is possible
to argue that nothing much was achieved. Our criminal justice
institutions (police; magistrates; the legal profession; the judiciary) were,
predictably, unmoved by the prospect of a ‘new paradigm’ of criminal
justice (Barnett 1977; Zehr 1990), whilst government interest vanished
in 1986, even as the experimental schemes which it had financed were
getting under way. But despite what might appear a disappointing
outcome, it will be the contention of this book that these experiments
were important, that the vision which they largely failed to realise will
endure, and that the shortcomings of our criminal justice system are
so profound that further attempts will certainly be made. In part,
therefore, this book examines the practice of reparation schemes; but
it is also a study of the intractability of our criminal justice institutions.
AN HISTORICAL SKETCH
The recent interest in reparation was largely unheralded, but there is
agreement amongst scholars that restitution to crime victims is an
ancient institution and that, for most of our history, it has been integral
to the practice of punishment (Schafer 1960, p. 5; Maine 1861).
Under the Roman Empire, the victim in many cases could choose