Discussion 3:

Social Justice Research, Vol. 17, No. 3, September 2004 ( C© 2004)

Restorative Sentencing: Exploring the Views of the Public

Julian V. Roberts1,3 and Loretta J. Stalans2

Within the past decade, restorative justice has emerged as a truly global phe- nomenon. Although retributive justice has dominated the penal landscape, more recently, restorative principles at sentencing have attracted increased attention. Restorative sentencing emphasizes the importance of compensation and recon- ciliation between victims and offenders and pays less attention to establishing proportionality between the seriousness of the offense and the severity of the sen- tence imposed. Although voluminous (and proliferating), the scholarly literature on restorative justice has to date neglected one critical issue: public opinion with respect to this justice paradigm. Public opinion researchers too, have generally overlooked this topic. The goal of this paper is to determine which elements of the new paradigm generate public approval, and which features are likely to encounter or provoke public opposition, drawing upon related international research published in English over the past 20 years (1982–2002). The review reveals widespread support for “restorative” sentencing options, such as commu- nity service, compensation, and restitution, particularly when applied to young offenders. However, it also seems clear that public support for these alternatives to punitive sentencing options declines as the seriousness of the offence increases, suggesting strong public adherence to the retributive principle of proportionality in sentencing.

KEY WORDS: restorative justice; public opinion.

Within the past decade, restorative justice has emerged as a truly global phenomenon. Restorative programs and policies have been created in most indus- trialized and many developing nations. Restorative initiatives exist at all stages of

1Department of Criminology, University of Ottawa, Canada. 2Department of Criminal Justice, Loyola University, Chicago. 3All correspondence should be addressed to Julian V. Roberts, Department of Criminology, University of Ottawa, Canada; e-mail: [email protected].

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the criminal process, from policing to prisons and community-based corrections (e.g., Braithwaite, 1999; Walgrave, 2002). Defining terms such as “restorative justice” or “restorative sentencing” is not easy, as the initiatives encompassed by these terms vary widely across jurisdictions. Nevertheless, some defining char- acteristics are clear. In contrast to retributive justice, restorative justice stresses reconciliation between the offender, the victim, and the community to which both belong. At the stage of sentencing, restorative justice emphasizes the importance of responding to the needs of victims and encourages the offender to accept re- sponsibility and express remorse. Restorative sentencing privileges sanctions such as compensation and community service. Restorative justice is more concerned about the interests of victims and less concerned with imposing punishments pro- portional to the seriousness of the crime. In contrast, proportionality is a central defining characteristic of retributive sentencing (von Hirsch, 1993).

Although restorative justice is sometimes contrasted with retributive models of sentencing, this dichotomy oversimplifies the issues (see discussion in Daly, 2000). Restorative sanctions often carry onerous requirements for the offender, and retributive sentencing frequently incorporates compensatory dispositions that are more usually associated with a restorative philosophy. For example, if a restora- tive conference results in an agreement that the offender perform many hours of community service, and this turns out to be work of a quite degrading na- ture, the difference between a restorative and punitive sanction disappears. A better contrast can perhaps be made between restorative and punitive models of sentencing (McCold, 1996). Restorative sentencing privileges compensation and community-based sanctions that keep the offender in the community in order to facilitate restoration. Punitive sentencing stresses the use of sanctions that punish (and possibly deter) the offender.

The scholarly literature on restorative justice has to date overlooked one critical issue: the level of public support for this justice paradigm. Except for a brief discussion in the Cullen et al. (2000) review of public attitudes to crime and justice, almost nothing has been written about public reaction to restorative justice as it applies to sentencing.4 It is a curious omission, in light of the importance of community support and participation in the restorative justice paradigm.

It is important to know more about public views in the area of sentencing policy for several reasons. First, in restorative justice paradigms, the public and victim are expected to take an active role in the sentencing process. Second, legislators and policy-makers frequently advert to the need for policies that are consistent with public views, or which will promote public confidence in the administration of justice. Indeed, for better or worse (usually the latter), many penal policies emerging in the United States and elsewhere derive their impetus from the force of public opinion, or politicians’ interpretations of public opinion (see

4Belgrave (1995) summarizes findings from a focus group in New Zealand (see also Lee, 1996).

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Roberts el al. 2003; Tonry, 2001). Legislators are unlikely to promote restorative justice if they perceive that its policies engender public opposition, a point noted by several commentators.5

It is also necessary to have a scientific evaluation of public opinion because a number of studies have uncovered a gap between the views that the public actually holds, and the opinions ascribed to the public by politicians. In several areas, politicians appear to have misread public opinion. For example, the argument has been made that the public strongly support mandatory sentences of imprisonment, the “War on Drugs,” and the elimination of prison programs that promote the rehabilitation of prisoners. None of these assertions is consistent with the findings from systematic research (see Applegate, 1997; Cullen et al., 2000; Roberts, 2003).

Finally, restorative justice claims to offer a superior alternative to conven- tional responses to crime that stress punishment and deterrence. Public reaction therefore represents an additional dimension on which to make comparisons and explore commonalities between retributive and restorative models of justice (see Van Ness and Strong, 2002; von Hirsch et al., 2003, for further discussion). More- over, polls routinely reveal that the general public is dissatisfied with current responses to crime and has little confidence in the criminal justice system (e.g., Hough and Roberts, 2004b; Sherman, 2002). We need to know whether the growth of restorative initiatives will ameliorate or exacerbate the near universal problem of low levels of public confidence in the administration of justice.

Focus on Sentencing

Although restorative justice has application to all areas of justice, there are several justifications for focusing on public reaction to sentencing. First, sen- tencing represents the apex of the criminal process, and attracts considerable public and media attention. Second, any conflict between public conceptions and restorative practice is likely to be most apparent at this stage of the criminal justice system. Restorative such as conferences that result in the diversion of the offender from court processing apply to the less serious forms of offending. However, restorative sanctions that replace (rather than supplement) more puni- tive dispositions—particularly imprisonment—in cases of serious violent crime represent a far greater challenge for restorative justice advocates.

This paper explores public reaction to restorative sentencing, drawing upon research published in English over the past 20 years (1982–2002).6 The aim of the review is not to determine whether the public is for or against restorative

5For example, Belgrave (1995) notes that “If restorative justice is to be introduced, or maintained, in any country as a substantial part of the way crime is dealt with it will be important to know how acceptable restorative justice is to the general public.” (p. 1)

6An electronic literature search was conducted of all relevant scholarly databases and restorative justice websites. As well, a survey of key informants generated a number of unpublished surveys.

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sentencing options. A wealth of research has found that the public holds complex views about the appropriate response to offenders and the entitlements of crime victims; accordingly, it would be an oversimplification to expect the public to assume a position definitively for or against restorative justice. Instead, we seek to determine which elements of this paradigm attract public approval, and which features are likely to provoke public opposition.

PUBLIC AWARENESS OF RESTORATIVE SENTENCING OPTIONS

The state of public attitudes must be considered in the context of public knowledge of restorative justice. Although restorative justice has clear historical antecedents (see Braithwaite, 1999), it is unlikely that members of the public are familiar with more recent restorative innovations such as conferences or sentencing circles. In one of the few examinations of public knowledge of restorative justice programming, Doble and Greene (2000) found that only 11% of the sample were aware of restorative programs in their state, including reparative boards, a restorative sentencing option.7 The 1996 British Crime Survey found that only 16% of the public identified compensation as a sanction (Hough and Roberts, 1998). The one study of public awareness of a restorative sentencing option in a developing nation also revealed low levels of awareness: less than half a sample of Ugandans had heard of community service as a sentencing option (Sita and Edanyu, 1999). Thus although, as will be seen over the course of this essay, the public are very supportive of compensatory sentencing options, knowledge of restorative options tends to be rather poor.

This lack of familiarity may impede public acceptance of restorative sentenc- ing options. Experimental research has demonstrated that when people are made aware of alternative sentencing options, support for imprisonment declines. In one study, involving the British Crime Survey, all respondents were asked to sentence a recidivist offender convicted of residential burglary. Half the respondents were given a “menu” of all available sentencing options (restorative and punitive) while the other half were simply asked to sentence the offender without having been made aware of all the options. (Respondents were assigned to condition at ran- dom). Of those who sentenced the offender without the benefit of the sentencing options, 22% favored compensation; the percentage choosing this option among respondents who had been provided with the list of sentencing options was twice as high (44%; see Hough and Roberts, 1998).8

7These boards meet directly with the offender and devise an appropriate reparation plan designed to repair the harm inflicted on the victim (see Doble and Greene, 2000, p. 21).

8It is worth noting that support for the restorative sanction in the “informed” condition was accom- panied by a corresponding decline in support for the punitive option of imprisonment (Hough and Roberts, 1998). Since multiple responses were possible, respondents could have chosen to impose imprisonment and a restorative sanction. Thus the decline in support for imprisonment represents a genuine shift, and not an artifact of the wording of the question.

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PUBLIC ATTITUDES TO RESTORATIVE SENTENCING OPTIONS

It is clear that among the broad panoply of alternative sentencing options available to judges in most western nations, those with a restorative purpose are particularly popular with the public. Doble (1998) reports a typical finding: New Hampshire residents were asked to express their support for, or opposition to, alternative sanctions. Some of these sanctions could be described as restorative, others as punitive in nature. Restitution and community service (which have a restorative component), were supported by significantly higher percentages of respondents than the punitive alternatives to incarceration. For example, fully 79% of the sample was strongly in favor of restitution, compared to only 54% who favored a “military-style” discipline program, and 56% who supported house arrest. Similar findings emerge from earlier surveys of the public in other coun- tries. Wright (1989) found that fully 85% of Britons held the view that it was a good idea to make some offenders perform community service rather than go to prison.

One of the most convincing demonstrations of the strength of public support for restorative rather than punitive sentencing comes from a comprehensive survey conducted by Boers and Sessar (1989). German respondents were presented with a series of criminal cases to consider, and were asked which of a number of responses was most appropriate. These ranged from a purely restorative to a purely punitive nature. The most restorative response option was “a meeting between victim and offender to arrive at a restitution agreement” and the “purest” punitive response was “the offender should be punished. Even if he provides restitution to the victim, the punishment should not be dispensed with or reduced.” In four- fifths of the cases, respondents favored a resolution that consisted entirely or partially of a restitution-based agreement between offender and victim. The general finding that support for imprisonment declines precipitously when the offender has made restitution has now been replicated in other jurisdictions (see Sessar, 1999).

The Importance of Proportionality and Crime Seriousness

Restorative justice advocates are divided with respect to the role of propor- tionality in sentencing. Van Ness and Strong (2002) and Walgrave and Geudens (1997) distinguish between retributive and restorative proportionality. According to the retributive version, the severity of the sentence must reflect the serious- ness of the crime for which it is imposed (see von Hirsch, 1993). According to restorative proportionality, the critical relationship is between the seriousness of the crime and the “degree of restorative effort required by the offender” (Walgrave and Geudens, 1997, p. 376). Restorative proportionality requires offenders to apologize, to offer compensation, and to make other gestures (such as community

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service) that become more onerous in relation to the degree of harm inflicted, and are related to repairing the harm that the crime caused. Described in such terms, restorative justice offers an alternative to the central guiding principle of retributive justice.

No empirical research has directly explored the relative degree of public sup- port for these two competing versions of proportionality. However, the retributive version of proportionality is clearly important to public conceptions of sentencing. Support for proportional sentencing has emerged repeatedly from many studies of public opinion conducted in several countries, and using different research methodologies (e.g., Darley et al., 2000; Gebotys and Roberts, 1987). The general finding is that the severity of punishments favored by the public rises in direct proportion to the seriousness of the crime, although the relationship is far from perfect (Rossi et al., 1985).

Research with German respondents also has found that public support for the restorative response to an offense declined steadily as the seriousness of the crime increased (see Boers and Sessar, 1989). The central role of crime seriousness as a determinant of public support for restorative initiatives also emerges from Doble and Greene (2000). They found very strong public support for sentencing by “Community Reparations Boards,” which work with a judge to determine and oversee the sentencing of nonviolent offenders. Rather than send the offender to prison, these boards focus on developing alternative dispositions with a strong restorative component, including the imposition of community work and resti- tution. When asked their reaction to this concept, 92% of respondents were in favor of the concept. However, when asked to consider some specific offender scenarios, a quite different pattern emerged. For the most serious crimes (rape, armed robbery), there was almost no support for assignment to a reparative board (percentages under 5%). For less serious offenses, the level of public support was much stronger. For shoplifting, auto theft, and theft, over two-thirds of the sample favored the use of a reparative board over imprisonment. As with several findings in this area, this one has been replicated in other jurisdictions, suggesting that there may well be cross-cultural consistency in public attitudes (e.g., Russell and Morgan, 2001).

Psychological Explanations for Why the Public Supports Restorative Justice Sentencing

In the remainder of this paper we will document the public’s support and opposition to restorative justice under different circumstances. First, however, we identify psychological theories that provide some explanations for why the public supports restorative justice, but principally for less serious cases of offending. Two influential theories in psychology provide a basis from which we can obtain an understanding about the public’s attitudes toward restorative justice. These theories

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are the group value model (Lind, 1995; Lind and Tyler, 1988) and attribution theory (Finchman and Jaspars, 1980; Hart and Honore, 1959; Heider, 1958; McGillis, 1978).

The group value model assumes that people place great importance on their status and membership in social groups (Lind and Tyler, 1988). Feelings of in- security about their status in society often lead people to seek clues from the behavior of others to assess their status. Lind and Tyler’s (1988) group value model predicts that procedures that reaffirm group membership will be regarded positively. Two key elements of just procedures from a group value model per- spective are providing an opportunity to be heard and providing dignified treat- ment (for a review of empirical research see Lind, 1995; Lind and Tyler, 1988). The group value model suggests that the public may prefer restorative justice sentencing conferences compared to adversarial sentencing hearings because the conferences allow both the victim and offender an opportunity to be heard by the other side. In addition, the public believes that a “level playing field” is a critical component of a fair process and that adversarial procedures are unfairly tilted against the poor (Finkel, 2000). Thus restorative sentencing conferences provide a more equitable environment between victims and offenders. Finally, the group value model suggests a central reason why the public may prefer restorative sentencing: it emphasizes that the offender has lost his/her status as a respected member of the community and must perform certain reparative acts to regain status in the group. The assumption that people value belonging to groups and communities underlies Braithwaite’s Reintegrative Shaming concept (Braithwaite, 1989) and is central to the restorative justice process. This assump- tion receives support from social psychological research (see Lind and Tyler, 1988).

Attribution theory also explains why the public supports the use of restorative sentencing and restorative conferences. This theory proposes that people seek explanations for crimes and inappropriate behavior. People seek explanations in order to determine whether the wrongdoer will commit the act again, as well as to determine the appropriate response or punishment (Heider, 1958; McGillis, 1978). People want to know whether, and to what extent, the offender should be blamed for the crime. Attribution research shows that people make a distinction between responsibility and blameworthiness. An individual may be held responsible for a crime, (because they committed the crime), and at the same time not be blamed for the offense. Blameworthiness refers to the extent to which a person deserves to be punished for committing a wrongful act. A man who steals to feed a starving family is responsible for the theft but is less deserving of punishment than a man who steals to support a drug habit.

Research on intuitive perceptions of unfairness indicates that people believe that assessments of responsibility and blameworthiness should be individualized (Finkel, 2000). Research on attribution theory has revealed that people favor

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more severe punishment when they believe that the crime was caused by stable internal factors such as character or personality traits, and are more supportive of community-based sentences when the crime was caused by external factors such as unemployment, victim provocation, immaturity, or the influence of associates (for a review of this research see Lurigio et al., 1994). People are more likely to infer internal causes when the offender has a prior criminal record or has committed a serious violent crime (e.g., Landy and Aronson, 1969; Lussier et al., 1977), and based on these explanations are more likely to believe that the offender will commit additional crimes (Carroll, 1978; Carroll and Payne, 1977). Restorative sentencing is designed to repair the harm done to the victim and community, and makes a clear connection between the factors related to why the offender committed the crime and the reparative sentence.

A central feature of restorative sentencing conferences is that the offender is encouraged to accept responsibility for the crime and to apologize to the victim and community. Several restorative justice models require an oral or written apology from the offender to the victim as part of the restorative sentence. Expressions of remorse and apologies may affect the extent to which the public attributes the crime to internal causes (and therefore blames the offender). Apologies for culpable conduct are expected in most cultures and have a clear impact on public sentencing preferences. The public attributes less blame to people who commit minor transgressions of social norms when these individuals apologize (e.g., Darby and Schlenker, 1989; Ohbuchi et al., 1989).

Several experimental studies have found that apologies and the expression of remorse decrease the severity of the sentences recommended by members of the public (Harrel, 1981; Robinson et al., 1994; Scher and Darley, 1997). For example, offenders who appeared to be remorseful were sentenced to shorter prison sentences than offenders who did not express remorse (Robinson et al., 1994; see also Kleinke et al., 1992). Additionally, respondents were more willing to recommend victim–offender mediation (rather than a more punitive alternative) if the offenders expressed remorse (Bilz, 2002). Experimental research using children and adults in Germany has also found that apologies influenced the severity of assigned punishments for property and battery crimes (see Hommers, 1988; Hommers and Endres, 1991). Moreover, the more extensive the apology, the greater the effect it has on reducing the severity of recommended punishments (Scher and Darley, 1997).

Psychological research on sentencing preferences has found that the public prefers individualized justice (Finkel, 2000; for a review see Roberts & Stalans, 1997). Both attribution theory and the group value model may explain why public support for restorative sanctions declines as the crime increases in seriousness. The group value model predicts that people will want to provide procedures that provide an opportunity to be heard only to members of their own group and are more self-interested when dealing with members from other groups. As crimes

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become more violent and serious, people will attribute the crime to internal causes and conclude that the offender is dangerous and immoral. Therefore, offenders who commit serious crimes are seen as belonging to the criminal subculture and not to law-abiding society.

Another explanation for the declining public support for restorative sen- tencing in serious cases concerns the principle of retributive proportionality. If the public see restorative interventions as being less punitive than conventional criminal justice processing, then these sanctions become less plausible in direct, inverse relation to the seriousness of the offense under consideration. However, public adherence to proportionality only goes so far as an answer; as noted, a form of proportionality could be incorporated into a restorative model of sentencing. Future research needs to examine whether restorative proportionality addresses these concerns. 9

Additionally, public support for retributive proportionality may explain some opposition to some restorative programs. Thus although there was widespread support for diversion and the use of reparative boards for nonviolent offenders, more respondents in the Doble and Greene (2000) study had a more negative than positive view of the state’s furlough program. The explanation for this apparent inconsistency would appear to be that furloughs involve a more serious offender population, a finding confirmed by comments made in focus groups conducted by the same researchers (see Doble and Greene, 2000, pp. 63–64). Similarly, victim– offender mediation programs are seen by the public as being less appropriate for the more serious forms of offending. In a sentencing scenario study, participants were less willing to send the offender to victim–offender mediation as the seriousness of the offense increased. For example, they were most reluctant to send an offender who stalked his ex-girlfriend, and a terrorist who bombs a bookstore (Bliz, 2002).

A final explanation for the public support for restorative options for less serious offenses, and punitive responses for serious crime invokes the philosophy of sentencing. Public models of the purposes of sentencing are as complex and as context-specific as those held by the judiciary. It is likely that the philosophy underlying sentencing is transformed by the seriousness of the offense from a reparative to a punitive model. The public may see little necessity to punish many offenders as long as adequate reparation to the victim has been made. On the other hand, even complete restitution cannot prevent the public from desiring to punish serious offending. When this philosophical shift (from restoration to retribution) occurs, restorative sanctions lose their power to further the goal of sentencing, namely punishment, and the public revert to the most punitive of sanctions (imprisonment).

9It is possible that compensation—however large—is unable to create a proportional response. Doob and Marinos (1995) found that even when members of the public were able to impose unlimited fines, people still favored incarcerating the offender if the offence involved serious violence.

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Independent of the issue of proportionality, it is possible that the sentencing purpose guiding the public changes with the nature of the crime, and in partic- ular the seriousness of the offense. There is empirical support for this hypothe- sis. Several studies have found that the public pursue the goals of rehabilitation and restoration in the less serious forms of offending (e.g., Roberts, 1988). For these purposes, restitution, compensation, and community service are perceived as ideal dispositions. With respect to the most serious forms of offending that do not contain extenuating external factors, the sentencing purpose favored by the public shifts to punitive goals that are naturally associated with nonrestorative op- tions, principally imprisonment (see McFatter, 1978; Roberts and Stalans, 1997, pp. 199–202).

Although the public is less supportive of restorative sanctions for serious or violent crimes, the attraction of compensatory sanctions is not restricted to property crimes. If restitution is made, it can even undermine public support for the death penalty. McGarrell and Sandys (1996) found that 76% of a sample of Indiana residents supported the death penalty when no alternative was presented, 40% supported the death penalty over life imprisonment without parole, and 26% supported the death penalty when the alternative of restitution to the family cou- pled with life imprisonment without parole was presented. Respondents preferred the alternative of restitution to the family (coupled with life imprisonment without parole) over the alternative of life imprisonment without parole. These findings have been replicated in other states (see Bowers, 1993). Thus, part of the expla- nation for why support for restorative sanctions decreased for serious crimes may be due to the research designs of past studies. In several studies, the public was forced to choose between restorative or retributive sanctions. The death penalty studies show that the public wants both kinds of sanctions for serious violent crimes.

The sparse descriptions of crimes in prior research also raise questions about whether public support for restorative sanctions actually decreases for all types of serious or violent crimes. The scenarios did not include violent crimes in which the offender committed the violent act due in part to external circumstances. The public may not blame offenders who commit homicide due to external factors if such circumstances suggest that offenders are of good character. There are examples of murders or homicides where offenders may merit restorative sanctions rather than punitive sanctions, namely battered women killing their abusive partners, active euthanasia at the terminally ill victim’s pleading requests to die, or a father accused of negligent homicide because he forgot to put a seatbelt on his son who subsequently died in a car accident. In these types of homicide cases, juries have acquitted the defendants even though the prosecutor had enough evidence to prove beyond a reasonable doubt that the defendant committed the crime (see Roberts et al., 2003, Chap. 6). Juries assessed the character of the offender and victim and concluded that the defendants had good character and committed

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unlawful acts due to extenuating external factors. These jury nullification cases illustrate that the public’s conception of justice includes mercy and forgiveness. Thus, another reason why the public supports restorative sentencing is that it is consistent with their desire to exercise clemency for certain types of offenders and offenses.

EMPIRICAL RESEARCH ON RESTORATIVE SANCTIONS

Restitution and Compensation

A theme that emerges from almost every empirical study that has investigated public sentencing preferences over the past 30 years concerns the importance of restitution and compensation. A generation ago, Shaw (1982) found that two- thirds of a sample of Britons supported greater use of restitution as a strategy to reduce the size of the prison population. In a survey of the Dutch public, 89% of respondents believed that requiring the offender to make compensation to the victim was a suitable way of responding to the crime (Wright, 1989). In the United States, Doble (1994) asked the public to consider changes they would favor with respect to dealing with offenders. Mandatory restitution attracted near unanimity (96% were in favor).

In addition to the appeal of restitution at a general level, sanctions that incorporate restitution attract substantial support from members of the public when they are asked to sentence offenders (e.g., Gandy, 1978; Hudson, 1992). In an early demonstration of the importance of restitution to the public, Galaway (1984) found that across six different crime scenarios, support for incarcerating the offender declined dramatically when the offender was required to make restitution to the victim.

Galaway’s finding using New Zealanders has subsequently been replicated in several other jurisdictions. Bae (1992) found that American respondents who were presented with restitution as one of the sentencing options were significantly less likely to choose imprisonment for a range of property offenses than were respondents who were not given the option of restitution. Similarly, a survey of 5000 adults in Scotland found that 30% favored victim compensation and 19% favored community service for theft (Scottish Office, 1996). Most recently, Doble and Greene (2000) asked respondents to rate the importance of a number of components of reparative boards. The most important element (rated as being “very important” by more than 90% of the sample), was making restitution. This high level of support for restitution and compensation has been replicated in several other jurisdictions, including Great Britain and Holland (Wright, 1989).

Pranis and Umbreit (1992) report interesting findings from a survey in which respondents in Minnesota were asked to imagine that their homes had been

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burglarized and to choose a sentence for the offender (a recidivist with a previous conviction for burglary). People had the option of choosing between imposing one of two sentences: (i) 4 months probation and 4 months jail, or (ii) 4 months probation and repayment of the $1200. Three times as many respondents chose repayment over the incarceration of the offender. This finding is noteworthy be- cause it shows that the punitive response (imprisonment) carries little appeal for the public when placed in direct contrast to the compensatory alternative.

Community Service

Community service is another reparative sanction that can achieve a restora- tive aim (Karp, 2001). Public support for community service emerges from re- search that offers respondents a choice between imposing one of two sanctions, community service or imprisonment. Doob et al., (1998) report findings from such a study. When given a choice, the vast majority of a sample of Canadians was will- ing to substitute community work for a period of imprisonment. For example, when sentencing an adult offender convicted of a minor assault, 72% of the sample fa- vored community service over imprisonment. The appeal of community service as a sentencing option is not restricted to developed nations: Sita and Edanyu (1999) found that fully 86% of their respondents in Uganda supported the concept.

A frequent method used to explore public sentencing preferences involves providing respondents with a choice between two sanctions, one that is punitive, and one that is restorative in nature. Alternatively, respondents are sometimes asked to sentence an offender, and if they choose imprisonment, are then subse- quently asked if they would find a noncustodial restorative sanction to be equally acceptable. The impact of reparation was clear in a study conducted fully 20 years ago. A representative, national survey of the public in Canada was asked to sentence an offender convicted of burglary. Having selected a particular sentence, respondents were then asked whether they would prefer to impose reparation to the victim or the community. Given this choice, almost two-thirds of the sample responded affirmatively (Doob and Roberts, 1988).

In more recent research (in the same country) reported by Tufts and Roberts (2002), respondents were asked to sentence juvenile and adult offenders described in brief case histories. Respondents who elected to impose a term of custody were then asked to consider the acceptability of a substitute sanction. Specifi- cally they were asked: “If a judge sentenced the offender to probation and 200 hours of community work, would that be acceptable?” In scenarios involving the offenses of assault and burglary (and first offenders and recidivists), almost half the respondents stated that they would find the alternative (restorative) sanction acceptable.

Hough and Roberts (2004a) provide additional evidence of the acceptability of alternate sanctions. Respondents to a nationwide survey in Britain were asked to

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impose sentence in a number of scenarios involving young offenders. People who had “imposed” custody were then asked whether they would find it acceptable if the court ordered the offender to “one year of supervision, 200 hours of community work and to compensate the victims.” Four-fifths of these respondents indicated that they would find this alternative sentence to be an acceptable substitute for im- prisonment. These findings demonstrate the strong influence of reparative efforts upon popular conceptions of appropriate punishments.

Sentencing Juvenile Versus Adult Offenders

Although there is widespread public support for restorative sanctions, the public appears to see restorative (rather than retributive) sanctioning as more appropriate to juvenile offenders, and in particular juveniles without previous adjudications. Attribution theory would predict greater support for restorative sanctioning of juvenile compared to adult offenders based on attributions that juveniles may have acted as a result of immaturity and peer pressure; they also have a greater chance to be reintegrated in the law-abiding society. For example, Gandy and Galaway (1980) found that the majority of respondents believed that juvenile offenders (compared to adult offenders) were more appropriate candidates for a sentence of restitution instead of imprisonment. This finding also emerges clearly from responses to various “sweeps” of the British Crime Survey. For example, in the 1998 administration, there was more public support for compensation than imprisonment in the case of an adult offender convicted of burglary (Mattinson and Mirrlees-Black, 2000).

When asked to consider the sentencing of juvenile offenders, there was significantly greater support for restorative options. Thus, when asked to sentence a 15-year old first-time offender convicted of shoplifting, 43% endorsed the use of a restorative caution, 15% a reparation order, and 28% some other form of community sentence. Only 3% favored custody (Mattinson and Mirrlees-Black, 2000). These findings have been replicated in other jurisdictions. For example, in the Canadian study in which respondents favoring imprisonment were asked about the acceptability of alternate restorative sanctions, support for these alternatives was significantly higher when the offender was a juvenile rather than an adult (Tufts and Roberts, 2002; see also Doob, 2000).

The Role of Criminal Record

Research based on the British Crime Survey illustrates another important variable influencing public support for restorative sentencing alternatives: the criminal history of the offender. When the juvenile offender was described as having committed the crime for the third time, support for imprisonment rose to

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36% of the sample (from 3% in the first-offender case), (Mattinson and Mirrlees- Black, 2000). Similar differentiation between first offenders and recidivists in support for restorative sanctions has been apparent even in the early studies in the area. Gandy (1978) reported differences between public reactions to offenders with or without previous criminal adjudications. This finding emerges from the New Zealand focus group research: restorative options were seen as being less suitable for recidivists (Belgrave, 1995).

These results underscore another theme in the literature on public attitudes to restorative justice that has been replicated across many studies: consistent with the predictions of attribution theory, the public perceives alternative, restora- tive sanctions to be more appropriate for first offenders than for recidivists (see also Bilz, 2002; Tufts and Roberts, 2002). There is an important qualification to the generalization that the public sees recidivists as inappropriate candidates for restorative initiatives. If the current offense is nonviolent, the public still view restorative interventions as appropriate. A Vermont study of public attitudes is instructive: significant proportions of respondents endorsed the use of community board sentences for a recidivist shoplifter (76% favored use of community board); a five-time bad check writer (73%), and even a repeat, unarmed burglar (66%). However, even a first-time armed robber was regarded as an appropriate case for the community board by only 4% of respondents (Gorczyk and Perry, 1997). Thus when first-offender status and crime seriousness are compared, the latter appears to be far more important. Gandy (1978) also found that for non-violent offenses, the existence of previous convictions made little difference in terms of support for reparative sanctions rather than imprisonment. Previous convictions then, under- mine the case for a restorative response in the eyes of the public, but generally only for violent crimes.

Why restorative justice options seem less appropriate for recidivist offend- ers requires further research. It is possible that the public sees restorative justice options as aimed at offenders who have yet to become persistent offenders, and for whom rehabilitation is more likely. Alternatively, it is possible that restorative solutions are perceived as a more lenient sentencing option, and that repeat of- fenders have disentitled themselves to this leniency by virtue of their recidivism. Attributions of future offending may also play a role: the public probably regards persistent offenders as more likely to reoffend, and this may justify the higher lev- els of public support for a nonrestorative sentencing option such as imprisonment.

SUMMARY AND CONCLUSIONS

What conclusions can we draw from this examination of the empirical liter- ature on public opinion and restorative sentencing? First, there is clearly strong public support for restorative concepts such as compensation, restitution, and community work. This finding emerges from studies in which people are given a

Restorative Sentencing: Exploring the Views of the Public 329

choice between these options and punitive sentences such as imprisonment. Sec- ond, there is particularly strong support for restorative justice as it pertains to less serious offenses, juvenile offenders, first offenders, and recidivists who have not committed crimes of violence. In addition, there is considerable public support for restorative responses to a wide range of offending. However, when the offense in question involves violence, particularly sexual violence, the public’s enthusiasm for restorative justice options wanes.

What explains the popularity of restorative sentencing options? The idea that the offender has made amends to the individual victim or the larger community clearly carries considerable popular appeal. Although the issue awaits the results of systematic research, it is probable that sympathy for the victim drives much of the public interest in compensatory sentencing options. And this itself may reflect both a desire on the part of the public to assist victims of crime, as well as the belief that by making compensation, the offender is taking an important step toward his or her rehabilitation and restoration to the community. Focus group research has shown that the public clearly perceives community service to be serving a dual purpose. The public believes that community service is appropriate for young burglars because it gives them a warning, keeps them out of prison, and allows them to repay their debt to society (Russell & Morgan, 2001).

Recent public opinion data from the United Kingdom are relevant to this point. Members of the public were asked to rate the effectiveness of different sentences at reducing crime. Somewhat surprisingly, perhaps, “offenders compensating and making amends” was rated as very effective by 24% of the sample, approximately the same percentage that rated “prison and supervision in the community” as being very effective (25%). In fact, making amends and providing compensation were seen to be more effective than fines, electronic monitoring, and probation (Chapman et al., 2002).

This result is consistent with findings from the United States: Flanagan (1996) reports the results from a poll in which Americans were asked to rate the effective- ness of various alternatives to prison in protecting citizens against crime. Making offenders work “so that they can earn money to repay victims” was seen as being the most effective option, more effective than jail or fines. Thus almost 90% of the sample rated the reparative initiative as being effective, compared to less than half who rated prisons or fines in this way (Flanagan, 1996). Since prisons punish more than court-ordered reparation, and fines involve a comparable deprivation, it is clearly the reparative element of the amends to victims that attracted respondents.

Gandy’s early research with a sample of American respondents also casts light on the appeal of restorative sanctions. Unlike many later studies, in Gandy’s survey, respondents could choose from among a number of reparative options, including repaying the victim and working for the community. Gandy (1978) found that respondents consistently preferred either repaying the victim or working for the victim rather than working for the community. Repairing the harm inflicted

330 Roberts and Stalans

upon the individual carries more appeal than making some more diffuse gesture towards a less well-defined community. Clearly, part of the broad attraction of reparative, restorative justice springs from the benefit that accrues to the individual victim.

The literature on alternative sanctions (including noncompensatory alterna- tives to imprisonment such as house arrest) is also relevant to the question of why restorative sanctions are important. Restorative sanctions comprise a sub- set of alternatives to imprisonment. This raises the question of whether support for restorative sanctions is part of a broader support for alternatives, or whether the restorative sanctions within alternatives are in part responsible for the lat- ter’s popularity. In one representative survey of Canadians (Angus Reid, 1997), respondents were asked to state why they supported alternative sanctions. They were given a list of possible advantages to consider. The most popular justification was “allowing the offender to pay back the victim” (supported by 69% of the sample), suggesting that a desire to effect restitution is driving public support for alternative sentencing.

Members of the public also appear to believe that community service and restitution can keep the community safe: 75% of Americans indicated that re- quiring probationers to pay restitution and perform community service was an effective way to protect citizens (Maguire & Pastore, 1997). These trends are important because they contradict the punitive view of sentencing ascribed to the public, according to which punishment should take precedence over other con- siderations, including the use of restitution and community service. Empirical research should further explore the reasons why the public supports community service and compensation to the victim. Are these sentences attractive because they attempt to rehabilitate the offender, repair the financial harm done to the community and victim, or restore the dignity of the victim? Or, do they appeal because they promise public safety through deterring the offender?

Survey research conducted in Scotland illustrates that the public may support community service and restitution for different reasons. Scottish respondents were asked to sentence individuals described in detailed cases and were given eight sen- tencing options (community service order, pay compensation to the victim, fine, probation, prison, deferred sentence, electronic tagging, and drug treatment and testing order). In sentencing a first-time-convicted burglar, the most popular sen- tence was a community service order (selected by 35%), followed by paying compensation to the victim (selected by 29%). When asked to rate the importance of various sentencing aims, over 75% rated two sentencing purposes—making amends to the victim for the harm done and showing public disapproval—as ex- tremely or very important. Fifty-seven percent gave these ratings to incapacitation, and 43% to the aim of punishment (Justice 1 Committee, 2002). This research demonstrates that the popular support for community service was primarily for its restorative benifits.

Restorative Sentencing: Exploring the Views of the Public 331

Although the public may support restorative initiatives most strongly when the crime is not particularly serious, many exponents of restorative justice argue that it is with respect to the most serious personal injury offences that the potential for restoration is greatest (see Braithwaite, 1999). The expression of mercy and forgiveness has its most profound effects for the most serious crimes. However, research suggests that convincing the public that the “payoff” of restorative justice is likely to be greatest for the most serious crimes may well prove difficult, at least for the foreseeable future until (and unless) public models of sentencing evolve from a retributive to a restorative model.

If public support for restorative sentencing is considerable, why has this al- ternative form of sentencing not supplanted more traditional, retributive models of justice? We offer two explanations. First, the deep public support for restorative concepts such as victim compensation has escaped the attention of practitioners and policy-makers. Busy trial judges for example, are unlikely to have the oppor- tunity to immerse themselves in the research literature exploring the public and the justice system. Second, politicians have also overlooked the findings of this literature. This explains why governments in several countries have attempted to promote public confidence in criminal justice by passing punitive sentencing legis- lation, such as mandatory sentencing laws (see discussion in Roberts et al., 2003).

The general finding of this review—that the public in different jurisdictions supports sentencing initiatives that reflect restorative justice principles—carries an important message for policy-makers in the field of criminal justice with clear policy implications. People tend to have less confidence in the criminal justice system than other public institutions, and within the justice system, the courts attract the lowest confidence ratings (see Hough and Roberts, 2004b). Investing in restorative sentencing options is likely to promote, not diminish public confidence in the courts, provided these options are not applied to the most serious forms of criminal behavior.

ACKNOWLEDGMENTS

The authors thank the following individuals for assistance in obtaining sur- veys: Mara Schiff, Trevor Sanders, Peggy Christian, and Grant Lecky. We also acknowledge the helpful comments on an earlier draft of this paper provided by John Braithwaite, Kathleen Daly, the editor of this journal, and three anonymous reviewers.

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