The Crime and Disorder Act 1998

In England and Wales the logic of restorative justice has become increasingly prominent, particularly in respect to young offenders. The White Paper, No More Excuses (Home Office, 1997b, cited in Hughes, 2002, p. 289), proposed reformation of the criminal justice system, particularly in the area of youth crime, placing great emphasis on responsibility, restoration and reintegration, principles which formed a large part of the Crime and Disorder Act 1998.

The Youth Justice Board, together with local authority Youth Offending Teams were given a greater hand in dealing with crime and delinquency, thus bringing youth justice measures into the 'community'. Initiatives introduced included reparation orders, conferencing, and the opportunity for the victim to be more involved in the decisions regarding the content of certain orders (Goldson, 2000, cited in Hughes, 2002, p. 289).

Parents of offenders were to recognise their responsibility for the criminal actions of their children, and to understand their role in helping to prevent the recurrence the offending behaviour (Home Office, 1997b, cited in Hughes, 2002, p. 289). These measures reflected the growing recognition within the criminal justice system that community interventions could go some way to reducing recidivism (Hughes, 2002). There are a number of positive aspects to techniques of reintegrative shaming, particularly when compared with the dominant forms of Western crime control.

The latter tends to be exclusionary and stigmatising, with the labelling of the offender as 'criminal' impeding his or her attempts to 'go straight'. Reintegrative shaming, on the other hand, seeks to reduce the stigma and thus enable the offender to rejoin society. As already discussed, by encouraging the offender to recognize the harmful consequences of his or her actions, through appeals to the conscience, there is a greater chance of success in achieving this aim.

Furthermore, state-based adversarial justice tends to marginalize the voices of both the victim and the offender, who become detached from the process, in the words of Hughes (2001, in McLaughlin and Muncie, 2001, p. 248) 'passive spectators'. By including all parties affected by the offence in decisions of disposal, a more satisfactory outcome can be reached. Indeed, Maxwell and Morris (1996, cited in Hughes, 2002, p. 287) argue that in the majority of cases referred to Family Group Conferencing in New Zealand, with the centrality given to all participants' views, all parties record a high level of satisfaction with the outcomes.

Indeed, in relation to the UK, Ashworth (2003, p. 175) cites the claim by the Youth Justice Board that victims benefit greatly from mediation with the offender, since the process gives them a 'sense of control and peace' and helps to alleviate their fears of revictimization. Finally, within the context of the managerialist discourse, increasingly prevalent in the area of all public service institutions, which stresses economy and efficiency, community-based restorative justice programmes avoid the high costs associated with formal court processing (Audit Commission, 1996, cited in Hughes, 2002, p.287).

Despite his fervent belief in reintegrative shaming, Braithwaite concedes that such programmes cannot work for some; thus for these cases custodial sentences may be necessary in order to protect the community. Katz (1988) highlights such offenders, who he claims are 'seduced' by the lived experience of criminality. They are beyond shame because they 'take pride in a defiant reputation as "bad"', using such a reputation to gain higher status among their peers.

According to Katz, even the most cold-blooded murderers may be shameless, since far from feeling remorse, such killers may actually revel in the power he or she feels, both during and after the act. In a similar vein, he refers to Bernie Goetz, a New York citizen, acquitted of the murder of four black men, who was not alone in feeling justification for his actions, which he saw as a kind of pre-emptive attack – indeed, many fellow citizens lauded Goetz as a hero, despite the fact that the level of violence he used towards his victims was seemingly gratuitous, since none of them were armed.

Taking a different slant, Becker (1963), in his research into deviance, argues that since deviancy is a relative concept, a product of power differentials between the dominant group and the 'outsider', that is the person labelled as 'deviant', it is possible that the 'outsider' will not accept the rules by which he or she is being judged, and/or will view those who judge them as either incompetent or not entitled to do so. Reintegrative shaming is rooted in a belief of a moral consensus, whereas Becker alerts us to the fact that morality operates on many different levels.

His assertion that dominant groups in society have the power to make the rules and apply them to others also alerts us to the possibility of discrimination within any system of justice, and there have indeed been doubts expressed regarding discrimination within reintegrative shaming programmes. Blagg (1998, cited in Hughes, 2002, p. 288) claimed that such programmes in Australia tended to be targeted at the Aboriginal people, an 'already victimized population'. However, such discrimination occurs in conventional practices of criminal justice, and as Brownlee (1998, cited in Hughes, 2002, p.293) states, societies already fragmented on the lines of age, gender and 'race' are 'likely to reproduce inequalities of power and disadvantage in even the best-intended institutions unless positive steps are taken to combat this trend.

' Cohen (1979, 1985, cited in Hughes, 2002, p. 291) claims that decarceration in general, and community-based restorative justice practices in particular, have served to extend the reach and intensity of social control, by bringing about additions, rather than alternatives to, existing sentencing measures.

The tendency has been to siphon off the less serious cases, to be dealt with in the community (Daly and Immarigeon, 1998, cited in Hughes, 2002, p. 288). Concerns have also been expressed with regards to the lack of accountability within reintegrative shaming programmes. Furthermore, Hughes (2002) argues that appropriate protection for the offender is not being met, with recourse to due process greatly reduced in such cases. However, these latter criticisms are simply procedural problems, and as such should be relatively easy to overcome in the long term. So, is reintegrative shaming the key to controlling crime?

Since the majority of people are socialized to varying degrees in accordance with the dominant values of their culture, and since these values tend to be internalised at an early age, then shaming would seem to be a logical method of social control, both as a preventive and deterrent measure. In terms of the parties involved, the inclusionary principle allows offenders a second chance, through recognition of the consequences of their wrongdoing; victims, meanwhile have an opportunity to voice their opinions, feelings and fears. All parties thus are active in deliberating about the action and the eventual outcome.

Reparation is an important element of the process, and can range from a simple apology to some kind of monetary payment. In any instance, it both salves offenders' consciences, whilst addressing the needs of both the victim and the community. Reintegrative shaming, as an expression of disapproval, can help to maintain and strengthen social solidarity – an idea that harks back to the Durkheimian view discussed earlier (1893, cited in McLaughlin et al. , 2003, pp. 3-4). Evidence of the success of shaming can be seen in the success of drink-driving campaigns (Braithwaite, 1989) and also in the zero tolerance campaign against domestic violence.

Braithwaite's acceptance that shaming may not work in all instances, is perhaps the most telling aspect with regards to whether shaming is the key to crime control. He advocates the use of custodial and punitive sentencing in the few cases where reintegrative shaming would be futile. Thus it would seem that whilst reintegrative shaming is indeed worthy of a significant place within criminal justice processes, it would need to run in concurrence with other forms of crime control – sentencing need to fit the nature of the offence and the offender.