Can the Restorative Justice Industry be Relevant to Indigenous Peoples?

The following commentary is made in response to the recent restorative justice symposium held in Wellington, New Zealand on 24-25 October 2018:

As an Indigenous scholar, I hold little hope that the Restorative Justice (RJ) industry will one day prove itself to be of significant value to Indigenous peoples. My pessimism is based on my observations and experiences of the way members of the industry go about their work. Especially problematic is the fact that the consistent use of elements of the Indigenous life-world by RJ advocates cannot be considered an unintended consequence of the marketing activities of the industry. The marketing of RJ products is underpinned far too often by the reiteration of unsupported myths designed to demonstrate the ‘indigenousness’ of what is ostensibly a white, middle class dominated and controlled crime control business, for this to be considered as anything other than the purposeful employment of Indigenous knowledge and practice for the advantage of the industry (Cunneen, 2008; Tauri, 2014). And so, RJ advocates continuing to bastardise Indigenous philosophies and socio-cultural practices, and to mislead the ‘market’ about the ‘Indigeneity’ of their products. This activity continues despite a decade or more of sustained Indigenous, and non-Indigenous critique of this behaviour (for example, see Blagg, 1997; 2008; Cunneen, 1998; 2008; Love, 2002; Tauri, 1998 2004, to name but a few).  To date, there has been little response to this critique. Indeed, I would suggest that the situation is worse than that: it appears the more we point out the unethical conduct of members of the RJ movement with regards Indigenous peoples, the more our views are ignored.  So, why the lack of response to the Indigenous critique? Why do members of the RJ industry continue to co-opt elements of Indigenous life-worlds, and continue to exaggerate the indigenous foundations of both their movement and some of its key products? These questions provide the basis for an interesting and informative research project. Until that is done we can only speculate, as I will attempt to do to do here.

It is now well established that members of the RJ ‘community’ aggressively marketed their RJ wares, most especially derivatives of New Zealand’s FGC forum, on the increasingly globalised crime control market (Tauri, 2016). It has further been established that the marketing was most aggressive in those settler colonial contexts suffering from the dual wicked problems of Indigenous over-representation and the radicalisation of Indigenous political activity (Tauri, 2014). This should come as no surprise to anyone who has engaged with the RJ lexicon that exploded from 1990 to the late 2000s. Much of this material contained oft-repeated claims of the indigenous foundations of RJ policies and philosophies and forums imbued with the ancient teachings and practises of Indigenous peoples (Richards, 2007). That the RJ movement is now accepted as a legitimate player on the globalised crime control market, and treated by the settler colonial states as a viable partner in its continued domination of crime control, owes much to the development and marketing of the industry’s supposedly ‘Indigenous products’. In part this may explain why so many RJ advocates, in particularly those responsible for bastardising Indigenous peoples’ philosophies and justice processes, remain silent in the face of increasing critique of their practice. And why would they not choose to remain so? For right now they have the support of the state to design, implement and ‘evaluate’ their products.  In return, and to ensure their products are ‘marketable’ to the biggest funder of crime control, they modify them, continually designing out or softening the restorative ‘bits’ in order to make them more palatable to the tough on crime stance that dominates governmental response to social harm in most Western jurisdictions (Roach, 2012; Rudin, 2005; Suzuki and Wood, 2017; Tauri, 2009). In a policy environment like this, what is a little bit of noise from a small group of stroppy coloured folk, when the Industry has been accepted into the governmental fold, and is eligible to receive taxpayers’ monies?  After all, they know better than us what our communities need, right? 

Wrong. From a critical Indigenous perspective the response to the deceit, the myth-making and condescension of the RJ industry towards us is obvious: if you continue to use our philosophies and practises without our input and consent; if you continue to use ‘our stuff’ to line your own pockets and to further your careers without respectful engagement with us; if you continue to exaggerate the ‘Indigenousness’ of your products, and ignore our critique of your conduct, then you are a hypocrite who is not living up to so-called principles of the restorative justice movement to which you belong. You will also do serious damage to the movement itself in being able to work to achieve the transformative potential its members claim it is capable of. But perhaps just as important to a movement founded on social justice principles and aims, you will soon cease to be of any consequence to one of the most disaffected, disenfranchised communities residing in the settler colonial context.

This commentary was formulated to inject an Indigenous perspective into one of the key ‘contested areas’ of RJ-related analysis, namely its value to marginalised communities residing in western jurisdictions. It has also been designed to yet again offer an empirically-informed perspective on what I consider to be one of the significant ‘grey areas’ of RJ theorising, policy formulation and practice, namely the Indigenous experience of all this activity.  I say ‘yet again’ because while it has been written with these key aims in mind, it was also written with another purpose in mind - to cajole, to embarrass, to prompt RJ advocates and practitioners to respond to the Indigenous critique of RJ. In truth, the ‘debate’ about the value of RJ to Indigenous peoples is not a contested area at all, because as stated earlier the majority of theoreticians, advocates and practitioners have thus far ignored the Indigenous critique. For there to be a ‘contest’ there would actually have to be a debate, and so far the only debate that appears to taking place is between like-minded, RJ advocates who are conveniently ignoring the Indigenous experience.

By comparison, it is more accurate to say that the impact that RJ is having on Indigenous communities is indeed a ‘grey area’ of practice.Despite this, advocates continue to make claims about RJ programmes, like the FGC and other conferencing formats, being ‘capable of meeting the needs of Indigenous peoples’ because of a magical alignment between these formulations and our ‘ways of doing justice’. Indigenous-led research by the likes of Moyle (2013; 2014), Victor (2007) and others, inserts an empirically-informed edge to our critique, and also acts as a thinly veiled challenge to the RJ to up its game when making claims about the ‘added value’ of its activities for our communities.

I have from time-to-time been asked if RJ offers anything of value to Indigenous peoples, if we ‘want’ it, if it can play a meaningful part in how Indigenous communities respond to social harm that occurs in our communities. I usually answer these questions with a two part response, the first being direct and to-the-point, which is that it is hard to formulate a response because there has been very little RJ ‘delivered’ in Indigenous communities across all settler colonial contexts. Most of what passes for RJ programmes experienced by Indigenous peoples are state-controlled standardised criminal justice interventions where the RJ elements have been exaggerated to create the illusion of communitarianism. And secondly, I answer by saying that rather than having to identify a position on the validity of the use of RJ by or in Indigenous communities, it is for RJ advocates and practitioners’ to demonstrate why their policies and programmes should be implemented in lieu of our own responses to social harm.  

For the  RJ movement to become relevant to us it needs to 1) stop mythologising its own history, 2) enhancing the mythologising by exaggerating its linkages to Indigenous life worlds, 3) stop using elements of our life-worlds to market their products, without our permission, 4) engage with our scholarship, with our perspectives,  instead of relying on the perspectives of non-Indigenous academics and advocates, and finally, 5) show us some respect by actually respond meaningfully to our critique of the industry, its products and the activities of its practitioners.  These things I believe are necessary for the movement to demonstrate that it can be a critical ally, one that supports our drive for self-determination in the realm of justice. 

References

Blagg, H., 1997. A just measure of shame?  Aboriginal youth and conferencing in Australia, British Journal of Criminology, 37(4), pp. 481-501.

Blagg, H., 2008. Crime, aboriginality and the decolonisation of justice. Sydney: Hawkins Press. 

Cunneen, C., 1997. Community conferencing and the fiction of Indigenous control, Australian New Zealand Journal of Criminology, 30, pp. 292-311.

Cunneen, C., 2008. Indigenous anger and the criminogenic effects of the criminal justice system.  In A. Day; M. Nakata and K. Howells eds. Anger and Indigenous men. Leichhardt: Federation Press, pp. 37-46.  

Love, C., 2002. Maori perspectives on colloboration and colonisation in contemporary Aotearoa/New Zealand child and family welfare policies and practices. Paper presented at the Policy and Partnerships Conference, Wilfrid Laurier University, Waterloo, June. 

Moyle, P., 2013. From family group conferencing tp whanau ora: Maori social workers talk about their experiences, unpublished Master's thesis, Massey University. 

Moyle, P., 2014. Maori social workers’ experiences of care and protection: A selection of findings, Te Komako, Social Work Review, 26(1), pp. 5-64.

Richards, K., 2007. 'Rewriting history': Towards a genealogy of 'restorative justice', unpublished PhD thesis, University of Western Sydney. 

Roach, K., 2012. The institutionalisation of restorative Justice in Canada: Effective reform or limited and limiting add-on? In I. Aertsen., T. Deams., and L. Robert, ed. Institutionalising Restorative Justice. New York: Routledge, pp. 167-193. 

Rudin, J., 2005. Aboriginal justice and restorative justice.  In E. Elliot and R. Gordon eds. New directions in restorative justice: Issues, practice,evaluation. Devon: Willan Publishing, pp. 89-114. 

Suzuki, M., and Wood, W., 2017. Co-option, coercion and compromise: Restorative justice in Victoria, Australia, Contemporary Justice Review, 20(2), pp. 274-292. 

Tauri, J., 1998. Family group conferences: A case study of the indigenisation of New Zealand’s justice system, Current Issues in Criminal Justice, 10(2), pp. 168-182.

Tauri, J., 2004. Conferencing, indigenisation and orientalism: A critical commentary on recent state responses to Indigenous offending. Paper presented at The Qwi: Qwelstom Gathering: ‘Bringing Justice Back to the People’, Mission, British Columbia, 22-24 March. 

Tauri J., 2009. An Indigenous commentary on the standardisation of restorative justice, Indigenous Policy Journal, 20(3), online. 

Tauri, J., 2014. Settler-colonialism, criminal justice and Indigenous peoples, African Journal of Criminology and Justice Studies, 8(1), pp. 20-37.

Tauri, J., 2016. The state, the academy and Indigenous justice: A counter-colonial critique,  unpublished PhD thesis, University of Wollongong. 

Victor, W., 2007. Indigenous justice: Clearing space and place for Indigenous epistemologies. Ottawa: National Centre for First Nations Governance.  

A Commentary on Criminological Elitism

As revealed by the Norwegian sociologist, Victor Shammas (year unknown), one of the key concerns of sociologists of punishment, and criminologists, has been the impact on the policy making process and the wider body politic, of penal populism.  Shammas defines penal populism as the ways in which political parties have competed with one another to present themselves to the voting public as exponents of a politics of law and order.  Exponents routinely promise the electorate ‘tough on crime’ responses, matched by longer prison sentences, harsher punishment regimes, all supported by an ever-expanding prison complex and police force.  Penal populism is best viewed as a collaborative project that encompasses a triumvirate made up of the political/policy class, the media and the ‘community’ who work off (and with) each other in a mutually beneficial project based on the generation of fear, victimisation, demonisation and moral panic.

 Shammas rightly points out that besides the lack of evidence of the effectiveness of the policies and interventions that generally result from penal populism, the process also involves the marginalisation of the right sort of commentator, namely sociologists and criminologists, who offer an empirically informed, ‘neutral’, objective, sophisticated view of the world of deviance.  In a policy process dominated by penal populism, the technical and empirical knowledge of the criminological elite is sidelined, or as Shamma beautifully states it, “supplanting the (putatively) reflective, restrained, and rehabilitationist dispositions of a rational, reasonable elite who were tasked with shaping the field of crime control in past times”.

 In Shammas’ thesis, the sociological and criminological experts represent the physical manifestation of the mirror concept of ‘penal elitism’, which he describes as “the normative (over)valuation of elites and consequent devaluation of the public’s right to determine the field of crime control”.  My translation: the massive egos of the academic elite leads them to believe that only their views and perspectives should impact crime control policy, while the perspectives and experiences of Joe Blog should not (unless of course it has first been filtered through the world view of an academic).  Shamma then claims that unlike penal populism, which has received extensive attention from the penal elite, penal elitism has itself received little critical attention; thus “leading a largely subterranean existence, rarely, if ever, subjected to reflexive scrutiny”.

 Well, not quite: as part of a wider critique of racism in the western academy, the ‘other’ academy is fighting back and increasingly exposing the bigotry and condescension that lies at the heart of the mainstream academy.  This is true also of mainstream criminology, a discipline some commentators hold partially responsible for the ongoing subjugation of the poor, Indigenous peoples, and the descendants of slaves residing in North America and the Caribbean (see for example Agozino, 2003; Kitossa, 2012; Tauri, 2016, and for discussion of racism and bias in the academy per se, see Fredericks, 2009; Gunstone, 2009; Harrison, 2012).

 I will now take Shamma’s thesis and apply it specifically to the discipline of criminology, and most especially to the ‘types’ of criminology – the administrative and authoritarian strains prevalent in Australasia - and criminologists - namely white, middle class and non-Indigenous - who market themselves as criminological experts on Indigenous peoples and Indigenous issues.  I believe Shamma’s analysis of the mirrored concepts of penal populism/penal elitism provides fertile ground for understanding the ongoing bigotry that sits at the heart of the criminological enterprise, most especially to the work many of its adherents do on ‘coloured folk’ the world over.

 The Deceit and Condescension of the Criminological Elite

I  wish to begin by reframing Shamma’s concepts of penal populism and penal elitism so they refer more directly to my commentary on mainstreams criminology’s ‘attitude’ towards Indigenous peoples, including Indigenous academics and criminologists:

 Criminological Elitism

The normative (over)valuation of non-Indigenous criminologists’ perspectives on Indigenous peoples and Indigenous issues to influence crime control policy in relation to ‘the Indigenous problem’, supported by the purposeful devaluation of Indigenous perspectives and experiences (see below).

 Indigenous Populism           

The representation of Indigenous perspectives and experiences of crime control and the work of Indigenous criminologists, as lacking in ‘objectivity’, resulting in knowledge derived from ‘unscientific’ methods of observing, measuring, analysing and ‘knowing’.  In other words, the purposeful denigration of Indigenous epistemologies and methodologies, and the refutation of Indigenous peoples rights to self-determination.

 And so, exactly how do these two, intertwined concepts manifest through the behaviours and attitudes of mainstream criminologists in the Australasian context?  There are the obvious examples, or strategies through which this occurs, some of which I have discussed previously, both here in my blog and in published academic work (see Tauri, 2017), but the most common include:

 The denigration of Indigenous knowledge

A common strategy in Australasian criminology, usually in the form of derogatory comments about ‘others’ knowledges being ‘non-scientific’, ‘non-rationale’, gathered and disseminated using inadequate methods, gathered by practitioners ‘too close to the sources’, and so on.  The strategy is used to create the impression that Indigenous knowledge and experiences of crime control AND criminology are subjective, irrational and ‘emotional’, and therefore should not impact the development of crime control policy (for recent, classic examples of this strategy see Marie, 2010 and Weatherburn, 2010; 2015).

 Exaggerated notions of criminological scientism

Closely linked to the silencing of Indigenous voices and experiences is the exaggeration by mainstream criminologists as to the scientific bases for their research.  Or as Shamma eloquently describes it “[the[ strong belief in the supremacy of rationalism and science” that forms the basis for the ideological construction of a “stereotypical opposition between reason and emotion, rationality and intuition, science and lay knowledge… in short between (elevated) scientific expertise and the (debased) ‘people’”.

 Many mainstream, Australasian criminologists seem to be under the mistaken belief that they and their work is ‘neutral’ and ‘objective’.  This especially appears to be a case for those who choose to ‘research from afar’, who prefer desk-based research in lieu of actually talking to Indigenous peoples about their experiences (see Deckert, 2016).  One can easily surmise that the two strategies are closely linked because if you are a) going to denigrate the knowledge systems of others, then you must also b) create the illusion that your ‘way of knowing’ is the only one of value.

 And it is in this realm that things get really interesting for the Indigenous scholar, because the way in which this strategy is constructed and deployed in the service of whitestream criminology is devastatingly effective.  For not only is it deployed to silence Indigenous communities, to invalidate their anti-criminal justice statements, but also to discredit the epistemologies and methodologies employed by Indigenous scholars.  This is done in the hope that their community-informed texts will be superseded by the more ‘scientifically derived, detached commentary of the white privileged criminologist (for an exploration of this strategy in the wider academy see Moreton-Robinson, 2000).

The silencing of Indigenous voices and experience

Another common strategy that involves non-Indigenous scholars conveniently ignoring the Indigenous lexicon; the research, publications and public pronouncements of Indigenous scholars, activists and community members despite the easy availability of said material.  This strategy appears to be common amongst restorative justice scholars and advocates, especially when they are commenting on the ‘Indigenousness’ of RJ and their favourite RJ products.  Absent from their ramblings is any meaningful engagement with criticisms by Indigenous scholars.  This strategy, of ‘forgetting’ (perhaps more accurately, ‘ignoring’), is especially common amongst New Zealand RJ advocates such as Maxwell (2008), Morris (2002) and McElrea (2003) (for a recent example see Henwood and Stafford, 2014, and my critique of this publication, Tauri, 2015).

 Indigenous contributions as criminological ‘piece-work’

One of the increasingly popular strategies, is for criminology departments to confine the teaching of Indigenous issues within ‘mainstream’ papers, to a lecture here (on Maori and prisons), and there (Maori and policing), more often than not given by a non-Indigenous criminologist with no experience of researching the actual topic with Indigenous people.  This is a rather peculiar situation, given both the extent of Indigenous over-representation in criminal justice, and the demonstrable lack of success by settler-colonial governments in effectively responding to the problem.

 Dove-tail this strategy with the lack of commitment (or ability) of criminology departments in general, to hiring Indigenous scholars (yes, we are rare, but if you get off your asses and strategise, put some effort into growing Indigenous post-grads, etc, it is possible), you have the basis for explaining why the drop-out rates of Indigenous students is higher than the norm; no, it is not because they are not as smart as their non-Indigenous colleagues, but because what is being taught does not resonate with them or their life experiences.  For example, when a well-known, senior New Zealand criminologist stands in front of an introductory criminology class, as one did a few years ago, and in response to a question from a Maori student about the devastation of white law on Maori, states that ‘if white people did not come here Maori would still be axing each other’, then you will lose those students to other disciplines.

 The main point I am trying to make here is this: in general, in the Australasian context, the criminology academy’s commitment to teaching and researching Indigenous issues, is piecemeal: our knowledge, our experiences are more often than not add-ons that enable departments to tick the Indigenous box in their yearly reports.  And far too many of Indigenous scholars hired by criminology departments are treated as ‘piece-workers’, teaching the small amount of 'Indigenous stuff' the whitestream academy finds will allow it to fulfil its 'Treaty' and 'Reconciliation' obligations under the University's Aboriginal Strategy.

Racism and bigotry

And last but not least, there is the strategy of outright racism and bigotry, whether it is the micro-level aggressions we experience every day, such as colleagues placing our names on grant applications as ‘cultural advisors’ without actually seeking our advice, to using our Aboriginality as an argument for shedding their committee work to us (as in ‘we so need an Aboriginal voice on this committee’, regardless of the fact that said committee doesn’t actually need one).  Then there are the macro-aggressions, such as the construction of the Indigenous critic of institutional practice as aggressive, emotional, dangerous (and therefore in need of  increased surveillance and scrutiny), in order to draw attention away from the unethical and disempowering conduct of non-Indigenous members of the academy; or demonstrating commitment to the aims of institutional Indigenous strategies by cutting the number of Indigenous courses, or only hiring Indigenous members of staff on contracts and not in tenure track positions (until they ‘prove themselves), and so forth.

 References

Agozino B. (2003) Counter-Colonial Criminology: A Critique of Imperialist Reason. London: Pluto Press.

Deckert A (2016) Criminologists, Duct Tape, and Indigenous People: Quantifying the Use of Silencing Research Methods. International Journal of Comparative and Applied Criminal Justice 40(1): 43-62.

Fredericks, B (2009) The Epistemology that Maintains White Race Privilege, Power and Control of Indigenous Studies and Indigenous Peoples’ Participation in Universities, Australian Critical Race and Whiteness Studies Association eJournal, 5(1): 1-12.

Gunstone, A (2009) Whiteness, Indigenous Peoples and Australian Universities, Australian Critical Race and Whiteness Studies Association e-Journal.

Harrison, F (2012) Racism in the Academy: Toward a Multi-Methodological Agenda for Anthropological Engagement. American Anthropological Association.

Henwood, C and Stratford, S (2014) A Gift to the World: The Youth Justice Family Group Conference. Wellington: The Henwood Trust.

Kitossa, T (2012) Criminology and colonialism: Counter colonial criminology and the Canadian context, Journal of Pan African Studies, 4(1), pp. 204-226. 

Maxwell, G (2008) Crossing Cultural Boundaries: Implementing Restorative Justice, International and Indigenous Contexts, Sociology of Crime, Law and Deviance, 11: 81-95.

McElrea, F (2003) Restorative justice— a New Zealand perspective, ADR Bulletin, 6(1): Article 3.

Morris, A (2002) Critiquing the Critics: A Brief Response to the Critics of Restorative Justice, British Journal of Criminology, 42(3): 596-615.

Moreton-Robinson, E (2000) Talking up to the White Woman: Indigenous Women and Feminism. Brisbane: University of Queensland Press.

Shammas, V (unknown) Penal Elitism: Anatomy of a Professional Ideology; available via Academia.

Tauri, J (2015) Beware Justice Advocates Bearing Gifts: A Commentary on the Glorification of Family Group Conferencing, New Zealand Sociology, 30(1): 183-190. 

Tauri, J (2016) The State, Crime Control and Indigenous Justice: A Counter-colonial Critique, PhD thesis, University of Wollongong.

Tauri, J (2017) Imagining the Future of Indigenous Criminology, in A. Deckert and R. Sarre (eds), Australian and New Zealand Handbook of Criminology, Crime and Justice, Palgrave Macmillan.

 

Harry Tam - Engaging with Hard to Reach Communities

This post offers an opportunity for people to listen to Harry Tam, life-long member of the Mongrel Mob, staunch advocate for social development support for the poor, and those whanau and communities long neglected by the political class and policy makers of New Zealand.

Juan Tauri - Presentation to the 2016 FIRE Symposium on Indigenous Justice

The following blog contains a video - a presentation by Juan Tauri (University of Wollongong) at the Forum for Indigenous Research Excellence symposium Decolonising Criminal Justice: Indigenous Perspectives on Social Harm, held at the University of Wollongong 24-25 November 2016.


The title of the presentation is: The Master's Tools Will Never Dismantle the Master's House: An Indigenous Critique of Criminology.  

Associate Professor Thalia Anthony and Professor Juanita Sherwood: presentation to the 2016 FIRE Symposium

The following blog contains a video - a presentation by Associate Professor Thalia Anthony (UTS) and Professor Juanita Sherwood (University of Sydney) at the Forum for Indigenous Research Excellence symposium Decolonising Criminal Justice: Indigenous Perspectives on Social Harm, held at the University of Wollongong 24-25 November 2016.


The title of the presentation  is: A Decolonising Critique of the Disciplining and Disciplinary Inwardness of Criminology.

Dr Moana Jackson's Keynote Address to the 2016 FIRE Symposium - Decolonising Criminal Justice

Professor Biko Agozino - keynote address to the Forum for Indigenous Research Excellence Symposium 2016

The following blog contains a video - a keynote speech by Professor Biko Agozino (Virginia Tech) at the Forum for Indigenous Research Excellence symposium Decolonising Criminal Justice: Indigenous Perspectives on Social Harm, held at the University of Wollongong 24-25 November 2016.

The title of the presentation is: The Withering Away of the Law: An Indigenous Perspective on the Decolonisation of the Criminal Justice System and Criminology.