NewsletterJune 2020

FORUMEUROPEANFOR RESTORATIVE JUSTICEConnecting People to Restore Just Relations Volume 21 Number 2

EditorialWe are not all in the same boat. We are all in the same storm.

Some are on super-yachts. Some have just the one oar.

Damian Barr

Dear friends, dear members of the European Forum of Restorative Justice,A warm welcome to the second issue of this newsletter for 2020. On behalf of the EFRJ and

the Editorial Committee, I am happy to introduce you to a thematic issue on restorative justicein these times of global crisis. Reflections are provided by RJ researchers and practitionersfrom across the globe about how social and criminal justice systems have been affected by thepandemic and about what ways forward can be offered by restorative justice.

A special acknowledgement goes to Robert Shaw,Bálint Juhász and Emanuela Biffi for their supportthroughout the whole process. Furthermore, my sin-cere gratitude heartily goes to the authors, who enthu-siastically agreed to contribute and to take us acrossEurope — to Italy, the Netherlands, Spain and theUK — and beyond European borders, all the way toNew York, Shanghai, Wellington and New Delhi. Asa proof (if we still needed one) of one of the mainlessons that we should learn from Covid-19, bordersare fictitious and the world where we live proves tobe more and more just one human community, inex-tricably interconnected, through good and bad.

This crisis has been permeating and changing ourlives, overturning our certainties.

The idea of focusing this issue on the current healthcrisis, and some of its many consequences, mainlycomes from the recognition that something dramatic-ally epochal happened and all of us — in particular,restorative justice professionals and advocates, work-ing with the deepest human emotions and dealingwith the worst and the best that we, as human be-ings, have to offer — need to look carefully at theconsequences of this crisis and all work together torepair the harm caused, in all the different shapes thatthis harm has been taking.

This crisis has been permeating and changing ourlives, overturning our certainties. This dramaticchange has to do with the massive loss and griefthat some countries in particular have, and will haveto deal with, as well as the all new forms of violationsand conflict that we now find we have to address. Italso includes many aspects of our daily life, from theway we work to the way we walk in the street, theway we relate to each other, as well as the way weperceive solidarity and collective responsibility.One of the unique aspects of this emergency has

in fact been that nobody has been spared. We haveall suffered, either directly from the virus or fromthe consequences — emotional and material — ofthe lockdown measures and restrictions. Celebritiesas well as heads of state became infected and someof them lost their lives; every one of us was some-how obliged to renounce something. But, if there issomething else that this pandemic has taught us (orreminded us), it is that, although potentially nobodyis spared, the most vulnerable among us keep beingthe most exposed and the most hard hit.

‘A generation has died.’

In some villages in Northern Italy, as The Guard-ian headlined it last March, ‘A generation has died.’Across the globe, the generation of our older peoplehas been dramatically impacted by loss, while chil-

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dren and the younger generation — although beingthe least affected by the virus itself — have provedto be among the most affected by the effects of thecrisis management. We are learning, the hard way,how we have (not) been taken care of our past and theway we are (not) willing to take care of our future.

We see how

• minorities are strongly hit by the economic con-sequences of the pandemic and in some caseseven pointed at as scapegoats of the spread ofthe disease;

• violence against women and children is risingin domestic contexts in times of lockdown;

• women largely suffer from unemployment andburnout;

• LGBTQI people have been made even moresilent and unseen;

• migrant people are more than ever perceivedas them as opposed to us;

• the justice systems have stopped working, pro-cedural safeguards have been suspended andhuman rights’ protection put on hold in thename of the containment of the spread ofCovid-19;

• people in detention have been made even moreinvisible, while remaining exposed both to thevirus and to harmful treatment.

While there is not one solution to all this pain andharm, many creative, flexible and communitariansolutions can come and are already been offered byrestorative justice: a form of justice that can makeus work on that sense of collective responsibility andsolidarity that we need now, more than ever.

This is precisely what the authors who contributedto this issue propose and put forward from all theirdifferent, but in many ways close, local experiences.

Claudia Mazzucato, professor at the Catholic Uni-versity in Milan, opens the newsletter with a testimo-nial from Lombardy, Italy, one of the regions of theworld most hit by Covid-19 incidence. She takes usthrough the sorrow and harm experienced by herselfand her people, towards the powerful proposition ofa Truth and Reconciliation Commission in responseto this tragedy.

This contribution is followed by one from LucilleRivin, RJ practitioner from New York, who presentsthe challenges experienced in her city, another one of

the epicentres of the pandemic — as well as a coun-try with one of the most unjust criminal justice andhealth care systems. She particularly draws our atten-tion to the RJ initiatives initiated over these monthsto address the needs of children and communities.

The journey then proceeds eastwards, with the re-flections of Arti Mohan, restorative practitioner fromNew Delhi, who takes us through the social injusticesexacerbated by the health crisis in India and the hopethat restorative spaces and collective responses andresponsibility can bring.

Xiaoyu Yuan, lecturer at Shanghai University, andXiaoye Zhang, lecturer at East China University,show us part of the effects of the pandemic in China,from a very much neglected perspective, the one ofprisons, and in particular prison staff.From China we move to New Zealand, where

Nessa Lynch, professor at Te Herenga Waka, Wel-lington, and Stephen Woodwark, Judge’s Clerk to theChief District Court Judge of New Zealand, illustratehow even the case of New Zealand, one of the mostsuccessful cases of management of the pandemic (orpossibly the most successful), does not come withouta great number of inequalities and human rights chal-lenges.We then travel back to Europe, where we find a

thorough picture of how the pandemic and the re-sponses to it have tremendously impacted childrenand young people, from Maartje Berger, a mediatorand a children’s rights expert, who calls for the activeinvolvement of children and the building of effectiveresponses together with them.After that, Juan José de Lanuza Torres, a medi-

ator in Madrid, in his contribution emphasises thecrucial role that RJ practices could and should playespecially in such a moment of crisis in Spain, wheretraditional justice finds itself too rigid and stuck bythe crisis.

To close this issue, we have two other testimonials,one from the UK and another one from Italy. BelindaHopkins, activist and RJ practitioner from the UK,shares with us her personal experience of lockdown,offering thoughtful insights from her confinement onlaunching interesting RJ initiatives in schools.Finally, Paola Nicolini, associate professor at the

University of Macerata, Italy, leaves us with someprofound reflections about the serious risks that comewith the spread of the expression ‘social distancing’— as opposed to what should instead be called ‘phys-ical distancing’ — and to the particular care andattention that now, possibly more than ever before,we should take one for the other.

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As suggested by our authors, in these unpreced-ented circumstances where the destiny of the globeproves to be so strictly interconnected, we need tofind collective and inclusive solutions and use that in-terconnectedness as a propulsive to spread solidarity,reparation and healing.

We need to find answers all together, to heal and

to prevent further harm, providing everybody with awell-equipped boat to weather the (next) storm.

With warmest wishes,

Silvia RandazzoIndependent Consultant and PhD researcherKU Leuven University, Belgiumsilvia.randazzo@gmail.com

To heal Covid-19 wounds we need a Truth and ReconciliationCommission: reflections from Lombardy, ItalyThe unprecedented death of thousands of people over just a few weeks, due to Covid-19, in oneof the most developed areas of Italy might be described as a collective trauma. Without theoffer of some ‘other’ responses, the quest for justice flows into criminal (punitive) justice fromwhich no redress and no healing is to be expected.

• Communities severely hit by Covid-19 in Lombardy are searching for truth, justice, andguarantees of non-recurrence.

• Resorting to criminal justice will not respond to the immense and complex needs ofCovid-19 survivors, family members and communities.

• Such a painful and unprecedented individual and collective experience calls for somethingvery similar to a Truth and Reconciliation Commission.

A voice from the (battle?) field

Bergamo, Brescia, Lodi, Cremona, Milan and sur-rounding areas: this is the geographical map of anunthinkable tragedy linked to the concentration of anabnormal spread of coronavirus epidemics in North-ern Italy.I was born and live in Milan; part of my family

originally comes from Casalpusterlengo, a town inthe middle of what soon became the first ‘red zone.’My father died on February 21st, the very first daythe epidemic started to show its sinister signs, thevery first day the ‘red zone’ was established in Cas-alpusterlengo, Lodi, Codogno and other towns. Myfather did not die of Covid-19, and we were luckyenough, time-wise, still to be able to be with him atthe emergency room in the hospital, then sit in theburial chamber and mourn at his funeral, althoughonly seven of our family were allowed to attend theceremony. He could not be buried, though, becauseof the red zone in Casalpusterlengo; for more than amonth my father’s coffin remained at the morgue ofthe Monumental Cemetery of Milan.

As a family, we were very sad for our loss; wewere also confused, and affected by the odd situation.But it was nothing compared to what was about tohappen to thousands of our fellow citisens, amongwhom were my beloved restorative justice mediat-ors and facilitators in Bergamo, a place Le Mondedescribed as the Covid-19 martyr city.

Silence associated with the lack of living activitiesand the absence of people in the streets, and the pen-etrating, continuous sound of sirens, audible fromfar distances because of the unnatural silence, arethe two most physical memories I associate with thisnightmare.On the one hand, Lombardy residents progress-

ively lost all their fundamental freedoms until a com-plete lockdown transformed the whole country intoa confinement area, and each home into a prison, forevery person in the Italian territory. The NationalGovernment passed anti-Covid-19 regulations thatwere in many ways constitutionally problematic, ex-tremely obscure, and sometimes even contradictory,but the provisions were very clear in turning any hu-man activity into a potential or actual criminal and/or

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Figure 1: Milan city centre on the day in March when Claudia went to the City Hall for procedures related to herfather’s death.

antisocial punishable behaviour.

Local authorities in Lombardy were given thepower to be stricter, and they used it.

Local authorities in Lombardy were given thepower to be stricter, and they used it. These reg-ulations came together with increased police surveil-lance and deterrence and punitive discourse in officialcommunication with citizens. The more the healthstatistics were getting worse, the more residents wereintimidated, made to feel guilty, and criminalised,or treated like naughty children. The expression‘state of exception’ as critically interpreted by Gior-gio Agamben (2005) (see also Quodlibet.it) has beenoften used to refer to these unprecedented circum-stances and, indeed, Agamben is among the mostlucid, and worried, critics of the whole managementof the situation.

What Yuval NoahHarari described in the FinancialTimes onMarch 20, 2020 well depicts our situation atthe time; he refers to the counterproductive effects ofthe ‘soap police,’ the ‘monitoring and harsh punish-ments’ in the hope of making ‘people comply withbeneficial guidelines.’ It is not by chance that thephotos chosen to complement Harari’s article showa series of deserted locations in Italy. To achievecompliance and co-operation — Harari argues —you need trust. People need to trust science, to trustpublic authorities and to trust the media. But it was

— and still is — largely difficult to trust conflictingscientists and contradictory authorities who continu-ously refute, disprove and debate among themselves,underestimating the coronavirus on one day (‘it isjust a common flu’) and locking down millions ofpeople on the other.

On the other hand, policed residents in Lombardystarted experiencing the effects of the pandemic intheir own lives and flesh, resulting in deaths andsevere medical conditions for thousands of people.While the pandemic was breaking out, our localhealth care system was breaking down.

In most cases, deaths were reported to familiesover the phone, after days or weeks with no newsat all.

Confined and locked in their homes, in hospitalsor retirement homes were the most vulnerable: thoseaffected by pneumonia and/or other chronic diseases(whose treatment has frequently been interrupted dur-ing the crisis) and older people. These persons justdied — dozens, then many hundreds every day; theydied alone, in a total, unimaginable, incomprehens-ible and unique separation from their loved ones (andtheir loved ones from them), despite the efforts ofthe medical staff to do their best and provide somehumanity and warmth to the dying. In most cases,deaths were reported to families over the phone, afterdays or weeks with no news at all.

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Those who died from March to mid-May did nothave funerals, nor— in several cases— proper burial,on some occasions the coffins being brought to anyavailable crematorium by the army or the police. Thewhole world has witnessed the images of coffins be-ing brought to crematoriums by the army comingfrom Bergamo. I have heard accounts of a town nearBergamo where the parson died on one day and themayor the next; I have heard about people who lostmore than one family member in the same day, orsmall children having both parents in hospitals, andbeing left at home alone in quarantine with only homevisiting by (caring) social workers.

Children’s and adolescents’ needs, whose ‘bestinterests . . . shall be a primary consideration’ ac-cording to Article 3 of the Convention on the Rightsof the Child (United Nations, 1989), have been prac-tically forgotten despite the Italian Independent Au-thority for Children and Adolescents advocating theconsideration for their special needs and adequateinterventions accordingly. Riots have taken place inprison; measures to protect inmates have given rise toan unimaginable — and not noble indeed — debatehaving consequences that worry those who care forconstitutional rights and principles.On March 27, 2020, the New York Times dedic-

ated an impressive interactive reportage (by JasonHorowitz, photos by Fabio Bucciarelli) to ‘the bleakheart of the world’s deadliest coronavirus outbreak’;please, take the time to bear witness to victims andsurvivors, their family members and communities byreading their stories and their many names, as youwould when visiting a war memorial site.

Due to its large-scale dimension, this tragedybrings about needs that are very similar to thoseexperienced in post-conflict settings . . .

A post-conflict-like situationWhat thousands of individuals, families and com-munities went through, especially in the areas of Ber-gamo, Lodi, Cremona, Brescia and Milan, is bothunbelievable — as oftentimes is unspeakable sorrow— and unacceptable — as always is what should nothave happened. Due to its large-scale dimension, thistragedy brings about needs that are very similar tothose experienced in post-conflict settings and theaftermath of collective victimisation. I am not as-suming an identity in situations, but it is striking howthe set of needs and corresponding rights described,

among others, in the many UN documents on trans-itional justice match those emerging from the ‘bleakheart of the world’s deadliest coronavirus outbreak’(New York Times).

These aspects, in my view, shape the most urgentfeatures of a comprehensive, non-simplistic, notionof justice also in response to the Covid-19 crisis.I am referring in particular to the ‘right to know’

— which embraces the ‘right to truth,’ (United Na-tions Economic and Social Council, 2006) and the‘duty to preserve the memory’ and ‘guarantees ofnon-recurrence’ (United Nations Economic and So-cial Council, 2005) together with other well-knowntypical scopes of transitional justice that seem sosound in the Covid-19 Lombardy case too, such as(among many) to:

promote healing and reconciliation, es-tablish independent oversight of the . . .system and restore confidence in the in-stitutions of the State . . . (United Na-tions, 2017, p. 3).

The quest for truth and (a suitable)justiceThe aforementioned tasks, though, are recommendedby the UN within a framework of combatting impun-ity (United Nations Economic and Social Council,2005), which also demands ensuring accountabil-ity. The term ‘impunity’ is immediately (and partlywrongly) associated with the idea of punitivenesswhich, in my view, is an ineffective short cut to re-sponding to the complex and articulated needs arisingfrom large-scale tragedies. Covid-19 survivors andaffected communities in search for responses are re-sorting to the only tool available (unless we provideothers, and better ones): criminal justice. Hundredsamong those thousands affected in Lombardy are nowfiling lawsuits and reporting what for them is a crime(the avoidable death of their loved ones); criminalinvestigations are being carried out. The people hav-ing been locked down, home-imprisoned, put undersurveillance, criminalised and punished for joggingor walking in the first place are now firing back andstanding up out of despair and rage at the enormousamount of deadly pain, sorrow and solitude that hashit them and their loved ones.The quest for truth and justice is giving birth to

Covid-19 victims’ associations, such as Bergamo’sCommittee Noi denunceremo (We will sue. Truthand Justice for Covid-19 victims), or the ‘ComitatoGiustizia e Verità per le Vittime del Trivulzio’ in

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Milan, claiming truth and justice for the too manyolder people who died alone in Milan’s most ancientand famous nursing home. Bergamo’s Committee or-ganised a collective ‘Crime Reporting Day’ on June10, gathering dozens of citizens at the Prosecutor’sOffice to demand ‘justice and truth’ in the name of‘peace for their dead loved ones who did not have aburial’ and to claim that ‘those who made mistakeswill have to answer our questions and take responsib-ility.’

As usual, there is little to expect from ‘classic’criminal justice (and its traditional punitiveness)in terms of disclosure and truth.

This immense need and expectation of justice —I am afraid — will very likely be frustrated. Asusual, there is little to expect from ‘classic’ criminaljustice (and its traditional punitiveness) in terms ofdisclosure and truth. Punitiveness entails defensive-ness, which in turn in not an ally of transparency andtruth. Furthermore, the whole pandemic is such anunprecedented situation that it will be hard — andprobably impossible — for criminal proceedings tomeet the necessary, fundamental, legal standards toassess evidence, proof, and criminal liability beyondany reasonable doubt (apart from occasional gross,self-evident violations of basic safety precautionsthat might have taken place). In addition, criminaljustice is not suited to addressing complex, collect-ive situations, and it is largely incapable of grantingtheir non-recurrence, because it is not (meant to be)forward-looking and problem-solving oriented (Forti,2020).

Organisational resilience andresponsiveness to warning signsand unknown risksTo prevent recurrence, reforms are necessary; thisis another relevant lesson from transitional/post-conflict justice. In case of a pandemic due to anunknown ‘new’ virus, reform concerns the systems’ability to deal with the unexpected, and the excep-tional (Petrosino, 2020). This requires overcoming‘organisational myopia’ (Catino, 2013) and promot-ing organisational resilience and responsiveness towarning signs, which in turn pivot around disclosureof mistakes or near-misses, openness to learning fromthem, ability to correct mistakes and ongoing trans-parent and participatory decision-making. During astudy on corporate crime and victimisation, we, as

partnership organisation, proposed a set of policy re-commendations arising from the project (Forti et al.,2018); among them are the following that indeedalso seem well suited to addressing the current, yetdifferent, scenario:

• adopt a preventive strategy, recognising risksin a timely fashion by paying due attention toevery warning sign;

• implement an integrated and cooperativemulti-level network involving all the relevant institu-tions and agencies, and encourage all the actorsconcerned to take responsibility;

• increase public investments in educational re-sources aimed at improving expert knowledgeand skills within public administrations andcommunities.

The need for a Truth andReconciliation CommissionThe few reflections sketched above culminate in meadvocating for an official Truth and ReconciliationCommission in response to Italy’s Covid-19 tragedyto serve ‘just’ justice, support fact-finding, foster col-lective healing, promote survivors’ redress, ensurevictims’ memory, avoid further pain and sorrow, andprevent recurrence. Borrowing from the unique, andstill inspiring, South African experience, what weneed is the establishment by law of a para-judicialcommission within a comprehensive, non-punitive,participatory, democratic approach to address thesevere and very sad situation that affected (and isstill affecting) the whole Country, and particularlythe aforementioned areas. Besides other measures(e.g. memorialisation), a Covid-19 Truth and Re-conciliation Commission should involve restorativeprocesses and truth-telling mechanisms, fostered byproper legal shields to criminal liability, convictionand punishments, together with the hearing of vic-tims/survivors and communities in order to learnfrom their experiences, acknowledge their painfulstories and provide them with what Agnese Morocalls ‘social tenderness.’Just as in South Africa, ‘institutional hearings’

would also be necessary, and actually of the utmostimportance to prevent recurrence, stimulate organ-isational foresight and endorse proper preventivestrategies. As mentioned in the South African TRCFinal Repart: Summary and Guide to Contents, insti-tutional hearings seek

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to explore the broader institutional andsocial environment . . . to provide op-portunities for self-examination by thevarious sectors, as well as discussion oftheir possible role in the future.

The many and scattered initiatives aiming at givingthe floor to individual and collective narratives of thecommon tragedy are noble and useful, but may beinsufficient fully to address an articulated need thatrequires a comprehensive concept of justice.

Claudia MazzucatoAssociate Professor of Criminal LawUniversità Cattolica del Sacro Cuore of MilanCoordinator‘Federico Stella’ Graduate School of Criminal Justiceclaudia.mazzucato@unicatt.it

ReferencesAgamben, G. (2005). State of exception: translatedby Kevin Attell. London: University of ChicagoPress.

Catino, M. (2013). Organizational myopia: prob-lems of rationality and foresight in organizations.Cambridge: Cambridge University Press.

Forti, G. (ed.) (2020). Le regole e la vita: del buon

uso di una crisi, tra letteratura e diritto. Milan:Vita e pensiero.

Forti, G., Mazzucato, C., Visconti, A. and Giavazzi,S. (eds.) (2018). Victims and corporations: legalchallenges and empirical findings. Milan: WoltersKluwer.

Petrosino, S. (2020). Lo scandalo dell’imprevedibile:pensare l’epidemia. Novara: Interlinea.

United Nations (1989). Convention on the rights ofthe child. New York: United Nations.

United Nations (2017). Resolution adopted by theHuman Rights Council on 28 September 201736/7. Special Rapporteur on the promotion oftruth, justice, reparation and guarantees of non-recurrence. New York: United Nations.

United Nations Economic and Social Council (2005).Promotion and protection of human rights: re-port of the independent expert to update the Set ofprinciples to combat impunity, Diane Orentlicher.New York: United Nations.

United Nations Economic and Social Council (2006).Promotion and protection of human rights: studyon the right to the truth. New York: United Na-tions.

RJ in the USA: Ongoing challenges during the pandemicFinding one American approach to Restorative Justice (RJ) practices is difficult; policies,programmes and approaches differ within the USA from state to state. The Covid-19 pandemichighlights the lack of coordinated effort and the need for a unified RJ vision.

• Systemic factors hinder the creation of a nationally coordinated Restorative Justice effort.

• RJ practitioners are using the online format and focusing on community well-being duringpandemic.

• Inequities in the impact of the pandemic among different communities need restorativeresponses.

In the USA there are three main areas of RJ focus.These are

• reforming the criminal justice system to estab-lish victim-centred justice and put a stop to

mass incarceration,

• reshaping school discipline to foster social-emotional development in youth and disruptthe school-to-prison pipeline1 and

1The full film can be purchased from Teachers Unite.

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• developing community networks to counter theeffects of institutional racism and inequity.

To meet these needs there are countless organisationspromoting and providing RJ practices all around thecountry. Some of them gather RJ practitioners tonational conferences or offer information on localprogrammes and training in communities from coastto coast. But none has managed so far to create asingle vision or action plan for broadening RJ prac-tices nationally.

Governing systemThe United States has a complicated governing sys-tem giving individual states and municipalities thepower to set their own policies in certain domains,so long as those policies don’t infringe on rights en-shrined in our nation’s constitution. This means thatfrom New York to Nevada, from Idaho to Illinois, ap-proaches to providing health care, establishing votingprocedures and creating educational, criminal justiceand other systems vary greatly, and that most organ-isations working to improve services and outcomes intheir field are working in isolation from, rather thanjointly with similar groups in neighbouring states.Efforts to promote RJ practices throughout the USAare no exception to this phenomenon.The Covid-19 pandemic has served to highlight

many systemic failures that restorative practices seekto set right, as well as a lack of national vision aroundsubstantiating the effectiveness of RJ practices andbroadening their implementation. While some na-tional attention is turning toward ideas for effectivesystemic reforms that include social work and otherrestorative-aligned services, strategies to implementany solutions remain piecemeal at best and neglectedat worst. This plays out in a number of ways.

Criminal justice

No money to spend at the prison shop may meanno soap to wash your hands.

In the American criminal justice system, federalzero tolerance and so-called three-strikes policies putinto effect in the 1980s and 1990s have led to massincarceration, disproportionately affecting people ofcolour and marginalised communities, and result-ing in overcrowded prisons. Prisoners live in closequarters, share lavatory facilities, and often are re-sponsible for providing their own personal hygiene

supplies. No money to spend at the prison shop maymean no soap to wash your hands. Prison guards andadministrators are in close contact with prisoners andwith each other daily.

As the country began coming to grips with the fast-spreading coronavirus, valid concerns were raisedthat prisons under these conditions would rapidly be-come hotbeds of contagion for both inmates and staff.According to New York City’s Center for Court In-novation (CCI), by early May 2020 the rate of Covid-19 infection at New York City’s Rikers Island jailswas five times higher than the rest of the city andalmost thirty times higher than that of the nation asa whole. There was a call for the release of non-violent prisoners to alleviate overcrowding, an actiontaken by many states. Reflecting on the situation, a14 May 2020 opinion piece in USA Today asks whatprisons will look like after the Covid-19 pandemic,challenging the efficacy of old ‘tough on crime’ ideas,reminding readers that ‘40% of the incarcerated pop-ulation doesn’t present a public safety concern,’ andoffering three valuable reforms, the first of which isa shift away from punitive responses to crime andtoward restorative justice. These reforms are indeedbadly needed and have been promoted within therestorative justice community for some years. Buton a national scale who is meant to lead this reformeffort? That question is not addressed at all in thearticle. While there is some countrywide attention tothe need for criminal justice reform, including a sec-tion of a covid-19 relief bill proposed by the federalHouse of Representatives in mid-May, to date thereis no coordinated push to ensure that RJ Practices arecodified into these reforms.

Local organisationsThis has left local organisations and networks thatprovide and promote restorative practices to carrythe load individually and independently. How arethey accomplishing this during the pandemic?Groups with track records such as CCI have had

some notable success in adjusting their programmeseffectively during the Covid-19 crisis. Working tosecure the release-under-supervision of more than300 prisoners awaiting trial at Rikers Island, theycollaborated with the NYC Mayor’s office and othersupport agencies to devise a system for supervisionduring social distancing, providing both necessitiesfor newly released prisoners lacking resources and’phones to ensure that they could maintain supervis-ory contact during the pandemic.

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Another New York City agency, exalt, works withadjudicated teens in court to avoid indictment andincarceration, and provides support programmes andinternships. With state courts in New York havingsuspended all non-essential functions, the organisa-tion is working with prosecutors to see if there areopenings to dismiss charges against youth who parti-cipate in exalt programmes, through which they learnlife skills, pursue academic achievement, set goalsand participate in training and paid professional in-ternships — adapted to include online peacebuildingcircles and virtual internships during social distan-cing.Working with at risk youth outside schools, Eric

Butler has adapted circles to the virtual format. Hehas facilitated remote training in circle keeping andonline talking circles with youth from California toAlabama and acknowledges the difficulties. They arelacking the energy that is palpable in a room whenpeople come together and they cannot be sustainedas long as in-person circles. Yet Eric has found ad-vantages to this online format as adolescents step intotheir leadership in technological know-how, recog-nise that they have something to teach as well as tolearn and begin to focus on problems at home, al-lowing richer conversations about root causes, com-munity needs, and values held in common. Theydiscover that the same social media that has beenused to cause or escalate conflict can be used to de-escalate or solve conflicts and they can start to shifttheir electronic communications.

These inspired diverse efforts are a drop in thebucket given the overall numbers . . .

These inspired diverse efforts are a drop in thebucket given the overall numbers; according to thePrison Policy Initative (figure 2), on any given dayas a result of adjudication upwards of 48,000 juven-iles are detained in a variety of settings, from adultprisons to halfway houses, across the USA.The Sentencing Project has found that in total

there are over two million people in prisons and jailsthroughout the country. Without a robust nationwideRJ effort in place, making headway to reduce thesenumbers during the Covid-19 crisis is in the handsof local governing agencies, which are focused onsalvaging their economies before elected officialscan bring attention to collaborating with restorativejustice providers on reforms that, in the final analysis,can be controversial among some of their constitu-ents.

EducationIn education the landscape has been completelyaltered. School closings mean online instruction,which is fraught with challenges, from teachers’ lackof technological expertise to inequities in Internetand electronic device access: the digital divide. Addi-tionally, one of the effects of business lock-down forcities most heavily impacted by the Covid-19 virus isa tremendous loss of tax revenue, some of which nor-mally funds local education systems. Decisions haveto be made about which programmes are essentialto fund and how to provide them virtually. Unfortu-nately, RJ practices have been among the first schoolprogrammes to be eliminated under remote learning.Emerging trends show some community-based

educational enrichment agencies offering no-cost RJtraining and much-needed resources for school ad-ministrators and districts during the pandemic. KayPranis, a leading international RJ trainer and peacecircle keeper, has provided a resource for Online Sup-port Circles in Response to Social Distancing throughLiving Justice Press. It is offered freely to any practi-tioner who wants guidance in leading online circles.But one has to know that it exists and where to lookfor it.Nancy Riestenberg, Minnesota Department of

Education Restorative Practices Specialist has seencircle keepers adopt these guidelines and others sug-gested by the online RJ community. They note thatelements framing the circle — the opening and clos-ing, values round, etc. — are especially essentialonline. Nancy recognises the challenges of virtualcircles; a lot of preparation is needed to make themeffective and it isn’t the same as sitting together incircle, but these adaptations allow us to ‘continue toconnect and have all voices heard.’

Among the RJ community there is clarity that stu-dents and staff at schools will need RJ more thanever once we return to on-site classes.

Among the RJ community there is clarity that stu-dents and staff at schools will need RJ more thanever once we return to on-site classes. Everyone isexperiencing the effects of the pandemic differently.One Columbia School of Social Work instructor usesthe apt metaphor that we are all in the same storm,but some of us are weathering it in sturdy, luxuriousyachts while others have leaky rowing boats they areperpetually struggling to bail out just to stay afloat.Community healing circles for all would be idealwhen we can re-open schools. Circles will allow

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Figure 2: Youth Confinement: The Whole Pie 2019

those most heavily afflicted by the pandemic to ob-tain the support they need and those less affected tounderstand how systemic inequities disproportion-ately impact different segments of the community.Rebuilding communities and schools to be more in-clusive and equitable is going to be essential to com-munity well-being and the ability of all to thrive. Todate there is no coordinated national movement tomake this happen.

Mutual aid

One encouraging occurrence during the pandemicis the expanded development of mutual aid net-works around the USA.

One encouraging occurrence during the pandemicis the expanded development of mutual aid networksaround the USA. Mutual aid groups have a historyof forming in response to crises, whether they arecaused by hurricanes, pandemics, violent conflicts,or other events. In areas where people need food sup-plies and other aid during the pandemic mutual aidgroups have sprung up quickly. Big Door Brigade

out of Seattle, Washington, provides resources andtool kits for active mutual aid as well as guidelinesfor safely delivering aid during the pandemic. Mu-tual Aid & Restorative Justice provides online circlesfor all communities as well as direct aid to those inneed and opportunities for volunteers. A nationalmapping project by the Mutual Aid Hub shows howwidespread these networks have become during theCovid-19 crisis.Such groups may be the key to helping those in

greatest need to access services and support. Covid-19 health care workers and first responders are over-whelmed and exhausted with caring for the sick andwith providing food and other necessities at daily riskto their own well-being. These very factors make itmore difficult to introduce new online practices thatmight help sustain them through the crisis. Whilemany RJ virtual support and healing circles are be-ing offered, due to inequities and lack of a cohesivesystem, without connections through mutual aid net-works they often cannot reach the populations whoneed them most. This is where the scope of mutualaid societies can make a difference and where a na-tionally unified RJ practices movement would benefitthe whole society.

Newsletter of the EFRJ 10 Volume 21(2) June 2020

Figure 3: Centrepiece from a healing circle

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Despite generous resource-sharing on the part ofthe RJ community during the pandemic, media cov-erage of the positive outcomes of restorative justicepractices, and nationwide calls to address the inequit-ies of the American criminal justice and school dis-cipline systems, to date there is no unified vision onhow to launch a national action to expand implement-ation of Restorative Justice. But there is a burgeoning

will to make this happen. And where there is a will,there is a way.

Lucille RivinFormer Director of Curriculum and Project Develop-mentThe Leadership Programlucilletlp@gmail.com

India and the pandemic: A time to unlearn?The first problem for all of us, men and women, is not to learn but to unlearn.

Gloria Steinem

Covid-19 has had a severe and widespread impact in the world. Apart from the direct ramific-ations of the virus, there have been far-ranging ripples at individual, collective and systemiclevels. This piece reflects on the layered impact in India and the scope of restorative spaces aswe respond to the pandemic.

India saw its first Covid-19 case on January 30,2020. The government declared the pandemic as a‘disaster’ and invoked the national statute on disastermanagement. India went into lockdown on March24, 2020 and this lockdown continues to date withgraded relaxations. As of 14 June 2020, 333,255people have tested positive, and 9,524 people havelost their lives to the virus.The pandemic has exacerbated existing inequal-

ities and impacted people disproportionally: thoseliving on the margins are more vulnerable to adverseconsequences. For those already economically andsocially disadvantaged, the lockdown has put sur-vival and livelihood at stake. The most severely im-pacted include those working in the informal sec-tor, migrant workers, the homeless, those pushed tothe margins because of economic/social or religiousidentity, people involved in the legal system, thoseaffected by physical and mental health impairmentsand difficulties and those adversely affected by genderinequity.

Migrant workersIndia’s migrant workers are severely impacted.Twenty million people travel within India in thesearch of work and income, with 7.5 million hav-ing daily or weekly payment arrangements. Theywork in the informal economy, a sector fraught with

asymmetrical power relations and the absence of jobsecurity and regulatory mechanisms. The lockdownshut off movement and resources and exacerbatedthe situation and forced them to stay in alien citieswithout income and food. More than ten million mi-grant workers are left unemployed, many forced towalk hundreds of miles to their home towns. The au-thorities have treated them in ruthless and dehuman-ising ways: sprayed with disinfectant, left starving fordays and subjected to brutal physical violence. Thehighest court of India, the Supreme Court, abstainedfrom taking action for two months. Though the HighCourts of some states stepped in, the anguish con-tinues. In addition to the uncertain job prospects forthese workers, some states diluted labour laws andprotective measures, jeopardising workers’ rights andsubjecting them to callous working conditions.

Gender inequality

Gender inequality has also heightened owing tothe increased disproportionate burden on womenof the care economy . . .

Gender inequality has also heightened owing to theincreased disproportionate burden on women of thecare economy, i.e. taking care of household chores,

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children and older people. Of the women workingin India, 94% are engaged in the informal sector andface an increased risk of job insecurity. The eco-nomic distress may push women to seek employmenton underpaid and unfair conditions, akin to earlieragrarian distress induced employment.There is also an increased risk of domestic harm

for women and children owing to home confinementand factors which may exacerbate the perpetuationof such harm (including economic instability). Thegendered disproportionate impact also manifests it-self on transgender people who were already subjectto discrimination, and many of whom who facedhealth difficulties and challenges in accessing health-care.

ChildrenChildren are also at severe risk because of the pan-demic and lockdown. Of the migrant people travel-ling home, many are children, forced to walk hun-dreds of kilometres or face other gruelling circum-stances. For children from economically disadvant-aged families, education through digital platforms isoften a distant reality. Owing to the loss of income formany families and disruption in the children’s educa-tion, many families may be compelled to push theirchildren into child labour. Many children have beenleft without caregivers, either temporarily or perman-ently. As a result, children are prone to a plethora ofvulnerabilities including abuse, child labour, childtrafficking and child marriage.

Hate crimesAnother harmful manifestation of the lockdown isthe communalised response, amplifying pre-existingfault lines in India’s social fabric. The majoritariannarrative falsely portrayed the spread of the pandemicas a conspiracy by, or attributable to, certainMuslimsin India based on a religious congregation that tookplace before the lockdown and resulted in the at-tendees being impacted by the virus. Biased mediareports, violence, stigma and discriminatory beha-viour ensued, targeting Muslims across the countryand depriving them of basic healthcare. The SupremeCourt responded inadequately to the discrimination.In addition, other minorities were also callously

targeted during the pandemic. This includes peoplefrom north-east India, with discriminatory ‘other-ing’ amplifying against them. Many people fromthe north-east were baselessly blamed for the virus,

many evicted from their rented homes and subject toa host of other discriminatory treatment.

Mental healthIn addition, the lockdown and the pandemic haveboth, exacerbated and created, mental health diffi-culties. Mental health is an extremely under-focusseddomain in India, despite the fact that mental healthproblems continue to impact a substantial proportionof people. The pandemic is triggering and generatingtrauma in varied intensities. While some therapistsare offering online therapy, it is accessible to a veryminute percentage of those who need it, and eventhose using this facility are facing challenges. Mis-information and stigma surrounding mental health,financial costs, as well as the lack of privacy in homespose hurdles to accessing meaningful mental healthsupport.While the impact is distressing, the country is re-

sponding in manifold ways to the pandemic. Stateand civil society responses have worked to providemultiple interventions. Some states have been per-ceived to act more efficiently and effectively thanothers. Civil society has stepped in to fill the gapsleft by government interventions including food dis-tribution, food supply and distribution of safety equip-ment, especially for those who are on the margins.Civil society continues to be a force multiplier, withsome surveys indicating that civil society has outper-formed the state in certain areas with providing foodand supplies.

Criminal justiceThe criminal legal system has also faced the impactof the lockdown. The partial closure of courts hasdisrupted and further delayed access to justice in analready overburdened judicial system. In addition,prisons are vulnerable to the spread of the infectionowing to the proximity of people, with most prisonshousing more people than intended capacity. Peoplein prison are no longer allowed to meet their familymembers to reduce the chance of infection; however,this has a psychological toll. A few prisons are al-lowing video conferencing, but since the use of thistechnology is in a birthing stage, it will take time forit to realise its potential.Despite the precautions, the pandemic did merci-

lessly spread in Indian prisons, attacking multipleprisoners and prison staff across jails in India. TheSupreme Court recognised the danger to prisoners’health and issued directions. People who were in

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prison and under trial were released in significantnumbers across the country; some people who hadbeen convicted were also released on either paroleor furlough. However, compounded by the stigma ofimprisonment, these people are likely to face barriersin transitioning to life outside custody.While Covid-19 highlights a set of flaws in the

prison system and other custodial institutional set-tings, prisons are inherently flawed in multiple ways.From my earlier work with people in prisons, in-cluding women in India’s largest prison, I saw howprisons fail to ensure accountability, have a severepsychological and social toll and fail to ensure rein-tegration; rather they render it unlikely.

‘ . . . light coming into the darkness, much like how Ilike to think of restorative work’

The pandemic is encouraging people to reinventthe way businesses work; this may also an oppor-tunity to re-examine justice systems, especially inthe light of the harm they perpetuate. While virtualcourtrooms and hearings are one aspect of the legalsystem’s response to the pandemic, we can also drawinspiration from Gloria Steinem’s words: ‘the firstproblem for all of us is not to learn but to unlearn.’The pandemic can be an opportunity to unlearn ourreliance on, and addiction to, institutions which incar-cerate individuals. This may be an apt reminder thatwe need to move towards a society where we respondto violence with healing, rather than responding with

more violence. We need to reduce the number ofpeople we throw into prison. This becomes evenmore important since, post the easing of the lock-down, crime rates may increase, compounded byunemployment.

Restorative justiceRestorative justice is, at its core, about healing theharm done through crime. An additional, invaluablebenefit could be that it helps reduce reliance on theprison system. While some organisations in India arealready implementing restorative justice pilot pro-grammes, restorative justice has massive potential inthe coming few years.In addition, restorative spaces may be a helpful

collective response supplementing the responses tothe pandemic beyond the basic needs of food, shel-ter, health, physical and emotional safety, self-careand sustenance. While restorative justice in India isspecific to crime and wrongdoing, other restorativespaces could have massive potential in the times ofthe pandemic, the lockdown and its easing.Like elsewhere in the world, restorative circles

have been reimagined in virtual ways using videoconferencing. Circles are different from other virtualmeetings as they

• intentionally create a safe space based on val-ues created by the participants,

• follow a sequenced order of speaking, and

• incorporate meaningful ritual.For example, taking a minute for a collective mind-fulness practice can help participants transition intothe circle space. These circles create space for con-nection in the midst of physical distancing.Some organisations, including my organisation,

Counsel to Secure Justice, are conducting circles forchildren in custodial and protective institutional set-tings. These spaces help children to have meaningfulengagement and also have a safe space to voice con-cerns and worries.

Restorative justice and practices have beautiful les-sons to offer as we navigate our way through thepandemic.

Restorative justice and practices have beautifullessons to offer as we navigate our way through thepandemic. Restorative practices are premised on ourinterconnectedness and how we are all responsiblefor each other. Creating spaces to share experiences

Newsletter of the EFRJ 14 Volume 21(2) June 2020

in a safe space is a starting point in collectively re-sponding to the pandemic. Outside the criminal legalsystem, restorative spaces are being used collectivelyto navigate the impact of the pandemic. Healthcareprofessionals are participating in listening circles tonavigate the impact of their work. My organisationis holding circles for professional caregivers, such ascounsellors working with children in distress. Par-ticipants who’ve come to circles I’ve hosted havespoken about feeling lighter after coming to thesespaces and cherishing a space to focus on themselves.Other circles are open to people from different

walks of life and focus on navigating the pandemic.In the circles I’ve hosted, we’ve explored the impactof the pandemic, uncertainty, anxiety, mental healthand ways to find hope and gratitude in these times.Potentially, these spaces could also function as sup-port spaces for people being subject to systemic andidentity-based harm.

The pandemic may be a powerful reminder thatwe need collective and inclusive solutions.

The pandemic may be a powerful reminder that weneed collective and inclusive solutions. The ruptur-

ing effects of the lockdown have enhanced existingsystemic cracks. Apart from addressing individual-ised harm, restorative spaces can pave the way fora new normal which can begin to work towards so-cial transformation and solidarity. Restorative spacescan provide people severely impacted by the pan-demic with a space to come together within theirown communities collectively to work through theirpain. Restorative spaces may also be one of the as-pects of working towards bridging social divides onthe lines of communal hatred, and othering and se-gregation. Restorative processes create spaces to talkabout and acknowledge the perpetuation of systemicharm and ways in which we may want to redefinethis, going forward.This pandemic may be an opportunity to foster a

bold vision and create a future that doesn’t go backto the old normal, but creates a new normal definedaround repairing fault lines and generations of harm,while prioritising voice, community, inclusion andrespect.

Arti MohanRestorative Justice Program OfficerCounsel to Secure Justice, New Delhiarti9mohan@gmail.com

Prisons in crisis? A risk management model during Covid-19Prison management during Covid-19 in China can be understood as a heightened version of itsexisting risk-management model. Whilst imposing considerable stress on prison officers, thesestrategies seem to be effective in keeping prisons safe. RJ scholars may need to re-examinethe possibilities of bridging the call for restoring relationships with the current demands forsecurity.

• A risk management model stands out during Covid-19, but is short of adequate attentionto the needs of prison officers.

• This model poses challenges to restorative justice (RJ) regarding its relational aim andrestorative approach at a special time.

Amidst the global pandemic of Covid-19, it is fre-quently reported that penal systems in different re-gions and locations are under considerable strain.The risk of infection in prisons has been a concernshared by various associations, human rights groups,legal scholars and political authorities who have ex-pressed calls for or taken certain actions. The ques-tion of legitimacy troubles prison regimes more ad-

versely under Covid-19 conditions.

. . . the challenges of meeting the needs of differentgroups and restoring social relationships remaindifficult to tackle.

In this short essay, the authors focus on managingprisons in China at a special time. Based on mater-

Newsletter of the EFRJ 15 Volume 21(2) June 2020

ials gathered online, the essay provides a sketch ofthe strains posed to the Chinese prison system duringCovid-19 and the overriding responses. The illus-trations as such bring the logic of local governanceto the fore, which is premised on a special form ofrisk management. There is a tentative discussionthat this risk-logic governance does not deviate froma future-oriented perspective of restorative justice(RJ). However, the challenges of meeting the needsof different groups and restoring social relationshipsremain difficult to tackle.

A sketch of responses to prisoninfection‘Being Alert’

At the peak of the pandemic in February in China,several hundred cases of infections broke out in fiveprisons scattered across Hubei, Shandong and Zheji-ang provinces. Authorities reacted quickly, coordinat-ing medical resources in an administrative manner toaddress the prisons’ needs. Other measures includedtreating infected persons in prison hospitals, sendingthe most severe ones to designated local hospitals,placing less serious patients in temporarily-built hos-pitals, isolating suspicious cases for inspection andquarantining those in close contact.

Via the technique of blaming the ‘prison’ and‘prison officers’ for the failures, the authorities as-sured the public that actions were taken to ensuresecurity.

Sanctions were pursued concerning those prisonofficers who were considered liable, including remov-ing the related officials and ordinary prison wardensfrom office and bringing criminal charges of derelic-tion against the provincial leaders who were in chargeof prison management. Via the technique of blamingthe ‘prison’ and ‘prison officers’ for the failures, theauthorities assured the public that actions were takento ensure security.At the time of the outbreak, the authorities be-

came alert to the weak link in prison management.Following an investigation administered by a spe-cial investigation team sent from the central govern-ment, the authorities announced that the leadership ofRencheng prison (one of the affected prisons in Shan-dong province) was trapped in bureaucratism (guan-liao zhuyi) and formalism (xingshi zhuyi), coupled

with a lack of awareness of peculiarity, complex-ity and sensitivity of their prevention and controlresponsibilities. In the announcement, it was con-cluded that there was a big gap between the currentprison management capability and what is requiredto modernise prison management in today’s China.

‘Emergency Becomes the Regular’

As a response to Covid-19, tightening prison man-agement became standard procedure. Apart fromclosed management of the prison, such as exclud-ing visitors and the no-touch supply of prison goods,stringent internal measures were forced on prisonofficers, making them directly accountable for theprevention and control of disease spread inside theirprisons. Officers on shift at the time of the outbreakwere required to remain on duty indefinitely untilfurther notice. In order to change shifts, officers inthe next shift were mandated to quarantine in a des-ignated location for 14 days and to pass Covid-19testing before entering the prison. These commandand control measures were aimed at urging prisonofficers to be more accountable, loyal and effectivein the cause of preventing and controlling Covid-19;however, they caused grudges, dissatisfaction and anethos of powerlessness.As can be seen on social media platforms, prison

officers and their family members have been activein voicing their discontent with prison management.Pointing to overwork for an extended period of time,some voices maintained that the long shifts (in somecases reaching 77 days) posed harm to their health,negatively impacted their work performance and af-fected their social ties with families and friends.

An explanation of a riskmanagement modelIt is clearly seen that prison management during thecurrent Covid-19 pandemic is undergirded by a risk-averse mentality. Error is allowed only at the zerolevel. The firm action towards risk control relates toa model of governance under authoritarian regimes,which prioritise order maintenance and institutionallegitimacy. Risk is thus not only understood as a cal-culation of the probability of a (medical) health out-break, but is also interpreted as any perceived threatto order. Risk technologies through which govern-ing is achieved embrace the tightened managementof prisons and prison officers. This is unsurprising,since prison is an important institution for exertingsocial control, and prison officers are charged with

Newsletter of the EFRJ 16 Volume 21(2) June 2020

the daily running of prisons, as well as safeguard-ing societal security. The deployment in the prisonsystem happens within a larger picture of orderingresources and populations at a national level in coun-tering Covid-19; the prison is a unit of this project.

Tightened management due to the outbreak of dis-ease has left a dent in the psychological status ofprison officers . . .

Such a risk management model unites the wholesociety in collective action, which has an impact onthe ordinary organisation of social life and adverselyaffects certain groups. Tightened management due tothe outbreak of disease has left a dent in the psycho-logical status of prison officers, for example. On onehand, they bore the ‘blame’, embodied in negativereactions from the authorities. On the other, despite‘moral stories’ released in various outlets showcasingtheir sacrifices, prison officers were not made to feelthey could ever be properly understood by the public.However, this model prioritises risk-logics, submit-ting all social groups, including prison officers, tocollectivist values and a disciplinary culture. Despiteunmet individual needs, individuals or social groupsmust align themselves with the avowed national goal.It appears that the tough internal measures on prisonofficers have been effective, at least judging from nofurther infection cases being reported.

ConclusionIt remains to be seen what the legacy of the Covid-19 pandemic will be for the prison system. At thepresent time, the current risk management style ap-pears to have halted the infection within Chinese pris-ons. Certainly, the authorities may be consideringnew mechanisms of disease prevention and control todeal with the evolving state of disease spread. How-ever, they will hardly depart from the logic of ordermaintenance and institutional control.Concerning the picture of prison management at

the present time, it poses several questions for apply-ing a RJ framework to prisons. RJ is concerned withrestoring social relationships among different socialmembers. At a time when risk-logic is predominant,stringent measures in controlling risks can inhibit a

person’s bonds with his community. Balancing theneeds of different groups remains another intriguingissue to tackle, one evident in suppressing the needsof prison officers for the security of the general pub-lic. However, a more fundamental question wouldbe what it means for repairing social relationshipsduring a period of social distancing.

Balancing the needs of different groups remainsanother intriguing issue to tackle . . .

Furthermore, advocates of RJ have converged theirattention on challenging the prison regime under aretributive paradigm. During normal times, pris-ons function to regulate social relations by isolat-ing wrongdoers from law-biding citizens. For RJ,if prison is not to be abolished, its use should becontained and minimised. Yet RJ advocates remainsilent on proposing an effective solution to control thespread of disease infection in prisons at this specialtime.Last but not least, there exists a viewpoint of

RJ proposing that it contains a future-minded logic(Shearing, 2001), i.e. by bringing the harm inflictorsand harm bearers together to solve their disputes,both sides will be able to live together again. Thissounds valid; however, the question will be how RJcan successfully bridge its relational approach andthe broader security context, especially during a pan-demic.

Xiaoyu YuanLecturer, School of Criminal JusticeShanghai University of Political Science and Lawyuanxiaoyu2015@outlook.com

Xiaoye ZhangLecturer, Department of Criminal Justice and Crim-inal LawEast China University of Political Science and Law

ReferencesShearing, C. (2001). Punishment and thechanging face of the governance. Pun-ishment & Society 3(2):203–220. Ht-tps://doi.org/10.1177/1462474501003002001.

Newsletter of the EFRJ 17 Volume 21(2) June 2020

‘Be strong and be kind’: New Zealand’s response to Covid-19New Zealand appears to have avoided the worst effects of the Covid-19 virus. Though 22 peoplehave lost their lives, the swift and strict lockdown imposed at an early stage meant that the healthand contact tracing systems could be built up to withstand and contain the spread of the virus.The country had a strict lockdown (‘Alert Level 4’) in place for a month from the 23rd March,

with the following two weeks at the less restricted ‘Alert Level 3.’ On 13th May, the countrymoved to ‘Alert Level 2,’ meaning that, apart from restrictions on large gatherings, the closureof the border and requirements for physical distancing and contact tracing, daily life returnedto relative normality, and on 8th June to ‘Alert Level 1,’ meaning that only border restrictionsremained.

New Zealand’s Government, and particularly thePrime Minister Jacinda Ardern, has been lauded do-mestically and internationally for a public health-driven and empathetic response to the pandemic.Commentators have described Ardern’s communica-tion style as ‘egoless’ and suggest that she ‘may bethe most effective leader on the planet’. Yet, amongstthe plaudits, there are concerns about human rightsand freedoms, the legality of what was one of theworld’s strictest lockdown regimes and the impact ofharsh decisions such as refusals to permit quarantinedtravellers to visit dying relatives.

In this short piece, we focus on the impact of boththe pandemic and the response on human rights, par-ticularly in the criminal justice system. Our mainareas to be discussed are:

• the legality of the ‘lockdown powers’ and howpolice and emergency powers are being usedagainst vulnerable people and over-policedcommunities,

• fair trial rights, remote participation and delaysin the justice system,

• the human rights of people in custody, deten-tion, quarantine and isolation.

Thank you for all that you’re about todo.Please be strong, be kind, and uniteagainst Covid-19.

Rt Hon Jacinda Ardern, 21 March 2020

The ‘lockdown’ powers,enforcement and the rule of lawLike many jurisdictions world-wide, the country’slegislative framework was not designed for this unpre-

cedented situation. The decision by the Governmentto order that almost all businesses be closed, and thatpeople be confined to their homes except for essentialpersonal movement, was underpinned by an ordermade by the Director-General of Health, Dr AshleyBloomfield. This order was empowered by the 1956Health Act, which was a product of a much differ-ent time. A state of national emergency was alsodeclared, giving further powers. However, as Knight(2020) has noted ‘much of the force of the lockdownhas come from the Prime Minister’s strong signals,guidance and nudges.’The Prime Minister and the Director-General of

Health were key in engendering public support forthe measures, appearing in a must-watch daily pressconference at 1 pm, which gave updates on case num-bers as well as explanations of policy and rules. Com-munication of messages of unity and collaborationunderpinned the approach, with exhortations to ‘bekind,’ ‘unite against Covid-19’ and to be ‘part of theteam of 5 million.’ With Parliament suspended, over-sight of powers and accountability for the responsewas overseen by a special Epidemic Response Com-mittee (chaired by the leader of theOpposition) whichtook place by videoconferencing and was availablefor public viewing.

The lockdown orders allowed police constables to‘assist’ the Director-General of Health in enforcingthe orders, as well as powers under a national stateof emergency. Approximately 600 charges have beenfiled for breaches of these powers under the lockdownperiod. There has been public concern about the useof powers against vulnerable persons and overpolicedcommunities, or in ways that entrench inequality. Anexample is the reports of a Maori law student whohad been moved on by the police from outside a lib-rary where she was trying to access the free wi-fi tocomplete her university work.Concerns about the legality of these orders led to

Newsletter of the EFRJ 18 Volume 21(2) June 2020

the enactment of a specific law which empowers theenforcement of Covid-19 related restrictions. A con-troversial aspect was the power of the police to enterhomes without a search warrant, with Maori com-munities protesting the power to enter marae (tradi-tional meeting houses) without warrant.

A key element of the lockdown was the decision toclose the borders to all but New Zealand citizens andpermanent residents. While this has been a contribut-ing factor to the low impact of the virus, it has led tomany heart-rending situations, where families havebeen kept apart and people on work visas unable toreturn to their homes. Migrant workers without res-idency permits are also not permitted to access statebenefits, and must rely on emergency assistance suchas food parcels. The most poignant effect of theseborder restrictions has been on those who returned toNew Zealand to visit dying relatives or attend funer-als, but were prevented or delayed from doing so dueto the mandatory 14 day quarantine. One of thesepeople (Christiansen) sued the government in orderto be allowed to visit his dying father.

Fair trial and participatory rightsCourts in New Zealand, as in many states, are publicspaces. With a constant flow of people, particularlyin the larger metropolitan areas, it is clearly an areaof heightened risk for spreading any kind of virus.The various court jurisdictions imposed restrictionson access to court buildings and encouraged the useof remote participation to the extent possible. Inthe large District Court jurisdiction, approximately16,000 court events were rescheduled and approxim-ately 7,000 were adjourned. The focus for all courtsduring the lockdown period was matters affectingthe liberty of the individual and time critical pro-ceedings. There was some initial confusion withsome defendants in custody having proceedings ad-ministratively adjourned. The move to alert level2 allowed the machinery of justice to operate morefreely, but continuing public health measures meanthat in-person participation remained constrained,and varied between courts according to the facilitiesavailable.Perhaps the most significant effect has been the

suspension of new criminal jury trials for four monthsfrom mid-March. Waiting times for jury trials arealready lengthy, and the suspension of jury trialswill continue to have repercussions in the mediumto long-term even as restrictions ease. This affectsnot only the rights of the defendant or the personwho is to be sentenced but also the rights of victims,

who must also endure the wait for a hearing. Judgesare provided very limited powers to override a de-fendant’s trial by jury. Legislative change could, ofcourse, alter this position. While such a responsemay be appear practical, it should be borne in mindthat the rights to trial by jury and without undue delayare, in many states, bastions of democracy. There isa danger that more defendants will plead guilty inorder to avoid further delay or may elect judge-alonetrial when they would otherwise have elected trial byjury. For the most serious offences such as murderand manslaughter, trial must be by jury. Despite thepresumption of innocence, a significant proportion ofdefendants will be remanded in custody for lengthyperiods (McLay, 2020).

Remote participation by phone or audio-visual link(which will be in place for many court events in themedium term due to public health measures) raisesconcerns for fair trial and participation rights. De-fendants have a right to be present at their own trial,although presence doesn’t necessarily require beingin person in the courtroom. Hinging from this is theright effectively and meaningfully to participate, in-cluding presenting a defence. Giving effect to thisright means simple measures such as being able tohear and see, or tailored measures such as translationservices. For child defendants, the Oranga TamarikiAct places extensive duties on the court and coun-sel to ensure understanding of the process and out-comes including the provision of supports such ascommunication assistance where the young personhas communication needs.

Other in-person justice processes such as restorat-ive justice and youth justice family group confer-ences have been disrupted.

Vulnerable defendants are particularly at risk. Nu-merous studies show high rates of neuro-disability,traumatic brain injury, low literacy and communica-tion in the population of people who offend — lead-ing both to injustice and to low rates of compliancewith orders and bail conditions. Where these de-fendants don’t appear in person, and have limitedtime to consult with legal representation, disabilityand problems with effective participation might notbe picked up, and the right to a fair trial ultimatelycould be undermined. Similar problems arise witheffective preparation of cultural and specialist pre-sentence reports. Other in-person justice processessuch as restorative justice and youth justice familygroup conferences have been disrupted.

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People in custody and detentionWhile all people in New Zealand experienced somerestrictions on our liberty and freedom of movementduring the lockdown period, people in detention —be that prison, youth justice custody or other formsof confinement such as detention under the mentalhealth legislation — have been particularly affected.

Several reports have been published outlining theimplementation of extended cell hours. Under NewZealand law each prisoner is entitled to at least anhour of exercise per day. This entitlement may berestricted for health reasons, which is fairly evid-ent with the potential for Covid-19 to spread rapidlythrough such a tightly-packed population.

The Department of Corrections, the body that ad-ministers prisons in New Zealand, has postponedseveral rehabilitation and reintegration programmesthat require in-person facilitation. Providing rehabil-itative programmes and ensuring the constructive useof prison time is a statutory requirement under theCorrections Act 2004. Opportunities for parole maybe affected where a prisoner’s release is contingenton their completing such a programme, alongsidelost time for engagement with the myriad of positivesoutcomes that these programmes provide.

Lack of effective consultation potentially infringeson the rights both to legal representation and topresent a defence.

With the coming into force of an epidemic man-agement notice on 30March, provisions of the ParoleAct 2002 were activated that significantly curtail theusual processes. Prisonersmay be denied not only theright to be present, but also to make submissions. De-cisions are able to be made on the basis of documentsonly. To what extent this has impacted decisions isyet to be seen.

Face-to-face visits at prisons were suspended dur-ing Alert Levels 3 and 4. At Alert Level 2 prisonsre-introduced in person visits as well as facilitatingthe re-introduction of rehabilitative programmes. Re-strictions at Alert Level 3 and 4 resulted in difficultyfor prisoners to discuss their case with legal counsel,stemming from limited access to remote facilities in-cluding ’phone and audio-visual technology. Emailhas also proved difficult. Lack of effective consulta-tion potentially infringes on the rights both to legalrepresentation and to present a defence. Those re-manded in custody are likely to be at risk of long

terms of imprisonment; with liberty at stake it is vitalthat these defendants are able to access unhinderedadvice.Despite, or perhaps because of, these extreme

measures, Covid-19 has not entered the prison systemin New Zealand. This is reflective of New Zealand’sresponse as a whole. Success notwithstanding, thereare significant concerns for the rights of those inprison and these concerns would increase the longerrestrictions were kept in force. There are also prac-tical problems with the already high prison popula-tion in New Zealand and the corresponding strain onfacilities. Rights and pragmatism dictate that thosein prison are not kept incarcerated any longer thannecessary despite restricted access to rehabilitationand parole.As noted above, people entering New Zealand

must now spend 14 days in managed isolation facilit-ies. As of 25 May, approximately 10,000 people hadbeen through, or were currently residing in, these fa-cilities. There have been a number of reports of emo-tional and mental distress amongst people in thesesituations, with concerns about access to fresh airand exercise.

ConclusionIt is without doubt that New Zealand has respondedeffectively to the Covid-19 crisis. However, as wereturn to the new ‘normal,’ it is inevitable that sig-nificant work lies ahead to resolve the impact of thepandemic on the most vulnerable. An effective re-sponse will need to be timely, but without erodingthe quality of justice delivered.

Dr Nessa LynchAssociate Professor at the Faculty of Law,Te Herenga Waka,Wellington, New Zealandnessa.lynch@vuw.ac.nz

Stephen WoodwarkJudge’s ClerkChief District Court Judge of New Zealand

ReferencesKnight, D. (2020). Lockdown bubbles through layersof law, discretion and nudges — New Zealand.

McLay, G. (2020). The legal low-down on the lock-down.

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A call upon young people in the justice system to participate inCovid-19 timesYoung, healthy, happy, lonely, vulnerable, limited, bored, safe or not safe? These are somekeywords addressing the state of young people confronted with measures taken due to the Covid-19 virus. During the so named ‘intelligent lock down’ in the Netherlands the streets and parkswere suddenly empty. Schools and restaurants and many companies were closed. The life ofchildren, as they knew it, changed completely. They were not allowed to visit their grandparentsand, due to the schools closing, many parents became their teachers at home. Children wereconfronted with new rules for social activities, sports and meeting up with friends.

The impact of Covid-19 on children and youngpeople in the justice system is even stronger, as themeasures put important rights and procedural safe-guards under pressure. All of a sudden children arereceiving fines of €95 for social interactions such asplaying together, standing too close to each other orgathering in a group when meeting up with friends inthe park or at the beach. For children in the justice sys-tem their rights to a lawyer, education, treatment, vis-its and leave have been on hold for at least twomonthsand procedures have changed fundamentally: courtshave been closed, cases have been delayed, hearingshave taken place via telephone and life within youngoffender institutions has become even more restric-ted.

All of a sudden children are receiving fines forplaying together, standing too close to each otheror gathering in a group.

Since mid May 2020 the Covid-19 measures areslowly becoming more flexible. Courts are open-ing their doors again prioritising youth cases (Let-ter Ministry of Justice and Security, 15 May 2020).However, procedural safeguards in the youth justicesystem will remain to be pushed and life within youthcorrectional centres will continue to be more restric-ted for an uncertain period of time. Human Rightsorganisations, such as UNICEF, Terre des Hommesand Defence for Children International, have alreadyexpressed their concerns and the Netherlands Com-mittee of Jurists for Human Rights (NJCM) sent aletter to the Minister for Legal Protection. This wasfollowed by questions of two members of Parliamentaddressing several violations in the justice systemincluding the right to a lawyer, a fair trial and privacy.But for children, it is most important to participatein the decisions that affect them in the near future.It is now time to call upon nation states further to

involve especially children in the justice system whenmaking decisions for ‘(post) Covid-19 times.’

The impact of the Covid-19measures on children in the youthjustice system

Rules and restrictions now determine how to be-have in public . . .

What we could not imagine at the start of 2020did occur. Global awareness that the spreading of thevirus could only be stopped if we changed our way ofliving worldwide made us agree to stay at home andfollow social distancing rules. Although children andyoung people suffer less from health problems due toCovid-19, the virus has a huge impact on their lives.Within the new reality common activities, such asdeveloping social skills, attending school, taking partin sport and applying for or going to internships orjobs, are more difficult. Rules and restrictions nowdetermine how to behave in public; for example, be-ing outside and meeting in a group can be sanctionedwith cautions by the police and/or a fine. Positive forDutch children is that they receive smaller fines thanadults for violating the rules. These will not lead toa criminal record. But for adolescents above the ageof 18, the fine for not complying with the rules is€390 euro. This offence will be registered and there-fore will create a criminal record. This could entaildifficulties when applying for jobs and internships.

Extra restrictions in the livingenvironment of children in youthcorrectional centresUnder these circumstances it is important to addressthe rights of children living in young offender in-

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stitutions. Young people, already separated fromtheir parents and their home environment, are evenmore affected by loneliness and isolation. Their liv-ing conditions became stricter within a short periodof time. For them, but also for professionals, it iseven more challenging to cope with the rules. Forexample, postponing treatment and education can’tbe compensated in the same way as for children stillliving at home. Conditions are poorer for organisinga digital environment in terms of good quality andguidance. The safety rules for access to the internetare stricter and there are fewer computers, tools anddevices available.

Now in many cases, young people stay within theinstitution talking on the phone only in the pres-ence of a staff member.

Furthermore the measures taken due to the virusaffect judges, youth lawyers, police, probation of-ficers and staff working in the institution. Normallya lawyer and parents can visit children in (police)custody and assist them during police interviews andcourt sessions. Now in many cases, young peoplestay within the institution talking on the phone onlyin the presence of a staff member. Another rule is thatyoung people are not allowed to go on leave, to putwhat they have learned inside into practice outside,that is, in the real world. This can have a negativeeffect on the duration of, for example, the length ofyouth detention or a treatment measure, because thepurpose as agreed upon in the sentence plan is notcarried out. When at the end of the sentence thegoals for reintegration are not met, it may take longerbefore they can go back into society.

The right to (mental) health,development and to be heardThe right to the enjoyment of the highest attainablestandard of physical and mental health is a funda-mental right laid down in the International Covenanton Economic, Social and Cultural Rights (UnitedNations General Assembly, 1966). For children fa-cing the consequences of the Covid-19 measures,additional children’s rights are even more relevant.These are laid down in the Convention on the Rightsof the Child (United Nations, 1989), the EU direct-ive on procedural safeguards for children who aresuspects or accused persons in criminal proceedings(European Parliament and Council, 2016) and theEU directive on minimum standards on the rights,

support and protection of victims of crime (EuropeanParliament and Council, 2012). These emphasise theright to life and development to the maximum extentpossible taking into account the evolving capacitiesof children. But they also guarantee the right to pri-vacy, necessary support, education and participation,giving governments the task of considering the viewsof children in a meaningful way.

‘We have to fight like lions’One of a number of posters created by young people

at Schakenbosch as part of a Covid-19 project.

In this new situation it is highly important to in-volve the younger generation in discussing issuesconcerning social distancing, long term effects andwhat they think are the important questions for nowand the future. For the Netherlands it is challengingto involve young people when taking decisions fol-lowing from Covid-19 policies that concern them.However, two months after the outbreak of the virusthe Dutch prime minister made a remarkable call,asking young people and children directly to thinkabout and to discuss how to move forward.

Calling upon the young generation‘to start a revolution’The voices of children telling us what is affectingthem and what needs to be done to improve theirsituation need to be heard in a meaningful way. Thecall of the Dutch prime minister during a press con-ference on TV to ‘come up with ideas, talk aboutit in class and let us know’ has led to a wide rangeof responses from young people, teachers, parentsand institutions. He then again asked the youngergeneration to be really practical, and to start talkingto the head of school or community. It is like ‘start-ing a revolution.’ This is a chance for children andyoung people to share their views on the way their

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lives have changed. Not just by answering question-naires. To be really involved they need means andempowerment to develop ideas, share views, startinitiatives and look at the near future.

Extra attention is needed to hear from children inthe justice system. Being prosecuted and/or lockedup makes it far more difficult to start sharing views.For children living in closed institutions it is difficultand sometimes impossible to raise their voice. Whatmeans do they have to share what the impact is of theCovid-19 measures on their lives and what could helpthem throughout these difficult times? Governmentsneed to reach out to young people living in youngoffender institutions to ask what their experiencesand ideas are and what they need to continue theirdaily lives, programmes and treatment.

. . . children themselves have a great roleto play, they just need to bemeaningfullyinformed and empowered. Some gov-ernments already started doing so withexcellent results Defence for ChildrenPress Release 24 April 2020.

ConclusionThe rules for social distancing slowly become lessstrict than before, but will be applied for an uncer-tain period of time. It is now time to promote diver-sion and invest in a fair trial for children and a childfriendly justice approach. In the Dutch system youthjustice can be applied to adolescents under the ageof 23. Keeping criminal records for a long time as aconsequence of Covid-19 measures should not occurin cases of young people up to 23. As the caseloadof criminal cases is huge, it is a good moment tofurther implement restorative justice methods, suchas conferencing and mediation in penal cases. Extraattention is needed for children deprived of liberty.The distancing rules, causing less visits, less edu-cation and less activities, may already have led tofurther loneliness and isolation of children in a strictregime.

The state has a fundamental role to play in ensuringthat children in young offender institutions are protec-ted against extra harm as a consequence of Covid-19measures. They need to be involved and enabled tobuild a future and a society where they can participatefully. The call upon children by the prime ministershould actively include young people in the youth

justice system. Besides asking children in the justicesystem to stick to the rules, they need to be listenedto, informed on what is going on around them andempowered to get involved. Explain to them whatthey have to do when they don’t understand the rulesor disagree.

The state has a fundamental role to play in ensur-ing that children in young offender institutions areprotected against extra harm as a consequence ofCovid-19 measures.

This is also a call toministers and politicians world-wide asking them actively to reach out and get in con-tact with children in young offender institutions togather their views and ideas. And, last but not least,really listen to what they have to say on how to builda child-friendly justice system within the boundariesof necessary regulations to prevent the spread of thevirus. Listen to their ideas on how to compensate fortheir loss of freedom by letting them at least makeuse of their freedom of speech.

Maartje BergerChildren’s rights expertDefence for Children the NetherlandsM.Berger@defenceforchildren.nl

ReferencesEuropean Parliament and Council (2012). Direct-ive 2012/29/EU of the European Parliament andof the Council of 25 October 2012 establishingminimum standards on the rights, support and pro-tection of victims of crime, and replacing CouncilFramework Decision 2001/220/JHA. EUR-Lex.

European Parliament and Council (2016). Directive2016/800/EU of the European Parliament and ofthe Council of 11 May 2016 on procedural safe-guards for children who are suspects or accusedpersons in criminal proceedings. EUR-Lex.

United Nations (1989). Convention on the rights ofthe child. New York: United Nations.

United Nations General Assembly (1966). Interna-tional Covenant on Economic, Social and CulturalRights. New York: United Nations. Resolution2200A (XXI).

Newsletter of the EFRJ 23 Volume 21(2) June 2020

Spanish penal mediation and the post Covid-19 contextThe judicial standstill caused by the health crisis of Covid-19 will put the Spanish JusticeAdministration on the verge of collapse. As an effective reaction is needed, this crisis couldwork as a boost for mediation within criminal justice.

The development of mediationwithin criminal justice in SpainAlmost twenty years after the creation of the first Res-torative Justice projects in Spain, mediation withincriminal justice has been definitively implementedin the Spanish criminal justice system. Nowadayswe can state that mediation within criminal justiceis a reality in this country. All these years — start-ing with the first pilot projects around 1997 and lateron with the landmark of recognition and establish-ment around 2015 — have been characterised by theconstant demonstration of the validity and of the prac-tical results based on a Restorative Justice model. Aproof of this success are the numbers that the Gen-eral Council of the Judiciary in Spain publishes, witharound 460 mediation programmes that have beenincorporated within the action protocols of differentjudicial organs of the criminal justice system. Thesenumbers in such a short period of time were reallyunexpected.With the crisis originated by the Covid-19 pan-

demic and the obligatory standstill of all judicialactivity in Spain, it seems that there is a new commit-ment to ‘alternative ways of conflict solving.’ Medi-ation in Spain is the new resource for relieving thejudicial congestion and we must say that this is the de-cisive boost we needed for its definitive consolidation.With this challenge, many sceptical voices could won-der about the viability of this new commitment, andsuch mistrust is reasonably logical. Nonetheless, andbeyond the theoretical arguments, the best answer tosuch sceptical voices is to present the actual situationof mediation within criminal justice in Spain and theeffectiveness of the programmes.

The effectiveness of the mediationwithin criminal justice programmesand the added value of psychologyRegarding the impact of mediation within criminaljustice programmes in Spain, we can mention theproject of the Madrid Professional Association ofPsychology with the central office of the 54 Examin-ing Magistrates’ Courts. The introduction of psycho-

logy into mediation within criminal justice shouldnot be a surprise. The concepts of crisis, conflict,reparation or victim are common within psychology.When managing the different legal and emotionalfactors occurring in any mediation process, psycho-logy gives an added value, especially in the field ofmediation within criminal justice.

The mere fact of suggesting the concepts of victimand perpetrator makes reference to — in an implicitway — the representative form of conflict. Establish-ing a dialogue, managing the emotions, engaging incommunication and anticipating how each party willbe positioned in front of ‘the other’ and the conflictitself are factors integral to every type of conflict.This is why we cannot be surprised when seeing theamazing symbiosis between mediation and psycho-logy.

If we focus on the quantitative results, the percent-age of agreements achieved among all cases isabout 90%.

Going back to the numbers, since the launch of themediation within criminal justice programme in theMadrid Examining Magistrate’s Court (1st of June2017), around 300 cases of petty offences (threats,injuries, misappropriation, fraud . . . ) have been re-solved. If we focus on the quantitative results, thepercentage of agreements achieved among all casesis about 90%. This outcome has even more valueif we keep in mind the special idiosyncrasy of theprocedure, the essence of the ‘conflict’ which is im-plicit when talking about any criminal case, and thecontext of the ‘victim’ and the ‘perpetrator.’ Fur-thermore, other outcomes are worth mentioning, likethe reduced time needed to resolve every case in themediation programme — which has nothing to dowith the slowness of the ordinary procedures — andthe satisfaction levels received when participants areevaluating the programme;2 but above all, it shouldbe pointed out the small recidivism rate that gives aglobal value to the whole process.

The outcomes we are showing here come from theexperience of the mediation within criminal justice

2Satisfaction surveys gave a 9 out of 10 points to the mediation programme.

Newsletter of the EFRJ 24 Volume 21(2) June 2020

programme that is at present being carried out bythe Madrid Professional Association of Psychology.Nonetheless, they coincide with the published re-ports about other mediation within criminal justiceprogrammes in Spain and Europe. It is not a coincid-ence that in the places where these programmes havebeen launched — and so where there is a fluent andusual referral — the percentage of the agreementsand the satisfaction levels are around 90%. The factthat 9 out of 10 cases end up in an agreement shouldbe interpreted not only as a confirmation of the valid-ity of the procedure but also of society’s needs forother alternatives to legal conflict resolution.

The role of mediation withincriminal justice in the judicial crisisThe proved validity and effectiveness of the medi-ation within criminal justice programmes— specific-ally for those we have experienced and have shownhere as an example — are not new to the Ministry ofJustice and the General Council of the Judiciary andthis is why we should not be surprised by their newcommitment to mediation within criminal justice.The incorporation of mediation into the legal systemhas been proved beneficial for everybody, startingwith the legal system itself with the reduction of thecosts, bureaucratic paperwork and time dedicated toeach procedure, as well as for the people involvedin the case. The victim is placed at the centre ofattention and sees his/her interests legitimated; theright of reparation and avoiding re-victimisation dur-ing the process are emphasised. The offender goesthrough a learning process towards a full sense ofresponsibility and the attention given to the reason

behind his/her behaviour reduces the recidivism rate.

The victim is placed at the centre of attention andsees his/her interests legitimated . . .

Now that the health crisis due to Covid-19 hasforced the Spanish Judicial system to confront sucha major challenge, we do not have to be surprisedif mediation within criminal justice gains increasedrecognition. The time when this was put thorough ex-amination has passed. Nowadays we have no doubtsabout the effectiveness and the need for such a pro-cedure, although, as with all methods, a period oftrial was required. We hope this period will end soonwith the consolidation and integration of the Restor-ative Justice model in the procedural Spanish culture.Probably the huge crisis that the Spanish Judicial sys-tem is facing will add even more value to the differ-ent and recently developed Spanish mediation withincriminal justice programmes. The efforts made bythe different professional groupings and the JusticeAdministration for more than two decades might nowbe rewarded.

Juan José de Lanuza TorresChartered psychologist and Mediator, Mediation inCriminal Justice ProgrammeMadrid Professional Association of PsychologyAccredited Expert in Mediation in Criminal Justiceand in Restorative Justicecopmadrid@cop.es

Translated by Júlia Barjau Dachs, AdministrativeOfficer at the EFRJ.

A restorative practitioner’s experience of lockdownI want to begin this piece by acknowledging the privilege I have to be able to stay at homewithout needing to worry about food and money. We live frugally and grow much of our ownfood anyway and, although my own earnings have dried up, there are two of us and two canlive as cheaply as one. In addition, we have a light, airy house with lots of space, and a large,beautiful garden. We live in the countryside in England — a country which is permitting dailyexercise — and so we can walk, cycle, run and enjoy sports like kayaking and paddleboardingin the nearby river.

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Furthermore, in this house live just my husbandand I. We are not trying to balance work with childcare and home education like so many people. Ourdaughters are both adults and have their own inde-pendent lives. One is a hospital doctor, but fortu-nately, as she is a paediatrician, she is not facing thefrontline of Covid-19 care. The other works in anoutdoor centre doing amazing work in nature withtroubled young people who do not respond well tothe strictures of conventional schooling. She wasoff work for a while, furloughed like so many oth-ers (furloughed staff in the UK have 80% of theirincome paid for by the government), but is now backat work, as these very vulnerable children need whatthe centre can offer for their own mental health andwell-being.

I think this personal context and acknowledgementof privilege is very important as millions of peopleall over the world are living in much, much morechallenging circumstance. I appreciate that so manypeople are facing financial hardship, lack of food,loss of jobs, fear of what the virus could mean forthem, and heightened stress often leading to conflictand violence. And this awareness has been the mo-tivation for some of the projects I have been involvedin since our lockdown began.

. . . so many people are facing financial hardship,lack of food, loss of jobs, fear of what the viruscould mean for them, and heightened stress oftenleading to conflict and violence.

Forging linksI initiated a scheme in our village to forge linksbetween willing healthy villagers and those who hadto stay indoors because of their age or health concerns.These people are unable to do their own shopping,collect medication, drive to hospital for routine ap-pointments etc. Inspired by projects I had heard ofin other places I had hundreds of postcards printedthat gave volunteers the chance to identify themselveswith their contact details. Using our village Facebookpages and Messenger I created a network of supportwhereby every single street in the village had at leastone volunteer taking responsibility for the needs ofany vulnerable people on that street.In fact this scheme has now been taken over by a

group of people with more technical skills than me.We have a central telephone number and e-mail andall requests for help are routed through this, logged

and dealt with by those staffing the system. Similarschemes are running all over the country. I am proudto have got it started.However finding myself now virtually redundant

as far as this project was concerned, I then thoughtabout what skills I have that could be of use. Andso now I am developing on-line Listening Circles forisolated villagers, using Zoom, so that people canmeet up once a week and simply feel heard and listento others, and know they are not alone in what theyare going through. The scheme is in its early stages.There is a small group of us — all professional listen-ers in one field or another — and we are feeling ourway with the level of demand. We may offer circlesfor specific groups such as parents of children aboutthe return to school, or health care workers and soon.

ZoomAnd that brings me to Zoom! This on-line platformwas something I knew very little about on March23rd when the lockdown began. I now spend severalhours a day on this platform — either taking part inmeetings hosted by someone else or hosting themmyself. I love it!I have learned how to use break-out rooms, share

my screen, record footage to make into a film to sharelater and I am gradually developing the confidenceto be able to run training courses on-line. So far Ihave only run two webinars but I can see that evenskills-based training can be possible using breakoutrooms.One way I have been learning is by signing up to

other people’s courses. I can see that there are variousways to offer on-line training — either ‘live’ usingsomething like Zoom or in a more pre-packaged wayusing film and downloads like PDF materials. Thisis my next learning challenge — to make and edit myown films and design a training package to share.Another way I have used Zoom is to facilitate an

on-line restorative meeting. I was asked to do this bya colleague working in the field. I made it clear I hadnever done anything like this before and that I wouldbe feeling my way. However both parties were verykeen to ‘meet’ and move on from the issues that hadoccurred and so I agreed. In fact the first preparat-ory meeting with one party was done using Skype,but my confidence and experience with Zoom wasdeveloping by the day and so the second preparatorymeeting and the face-to-face meeting were both doneusing Zoom. The feedback I received was very pos-itive from both parties and I certainly learned a lot

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from the experience. I know there have been someconcerns over security and confidentiality with Zoombut we had no problems. And I believe Zoom hasnow added other features which make this a muchsafer platform.I have also participated in one of the on-line for-

ums hosted by Ian Marder on behalf of Estonian col-leagues which have been proving very useful. Thereports of these are available to read on the EFRJwebsite. On the first meeting I was the only personthere who had had any experience of this (at that stageonly two preparatory meetings — with the face-to-face meeting happening a few hours after the on-lineforum!). Since then I believe there have been manymore experiences — we are all learning together andbeing very experimental. It is inspiring and exciting.More recently the UK charity Why Me?, on whoseBoard I sit as a trustee, has been running some on-line forums for restorative practitioners and there isa similar growth in creativity using on-line ways tosupport victims, offenders and their respective famil-ies.

circl.esI have also discovered a new platform called circl.esto which a colleague from Mallorca, Vicenç Rulan,introduced me. I recommend it to restorative practi-tioners and trainers. Once you log in you find yourselfsitting in a circle with everyone else. Sign up for afree demonstration and then you can get started. Itdoes not have the Breakout Room feature that makesZoom so useful but I believe the company, a youngenthusiastic start-up, is working on this feature.One very exciting venture I have been involved

in for the last few weeks has involved a group ofus meeting on-line using the circl.es platform. Wehave come together and created an amazing resourcefor schools that are re-opening after lockdown. Ofcourse we follow Circle Process — we begin witha check-in and we end with a check-out. We do notuse a Talking Piece but we use a series of buttons toindicate who wants to talk and there is a facility onthe platform that allows the host to assign a speakingorder. Our group has comprised senior leaders, alocal government Restorative Practice co-ordinatorand several trainers and consultants, all passionateabout restorative practice.We shared a concern that there was pressure on

schools to return to ‘business as usual’ far too quicklyand not take time to give everyone, staff, parents andstudents, the time to process what they had all beenthrough and indeed are still going through. We be-

lieved that in this time of crisis restorative practiceis more important than ever before. We believe thatwe can offer a way of thinking, and a set of skills,that are vital to help people talk and feel listened toand supported, using Circles and Restorative Enquiry.We also know that at this time there will be some verychallenging behaviours at times — as Viktor Frankl(1962) says, ‘An abnormal reaction to an abnormalsituation is normal behavior.’ The restorative way ofthinking about behaviour, and the awareness fromnonviolent communication that all behaviour is mo-tivated by our unmet needs, can really help adultsrespond positively to conflict and challenge. It isstill possible to hold people to account, but with em-pathy, patience and compassion and with an eye toputting things right, rather than with harsh words andsanctions.

RESTOREOne of our group came up with the acronym RE-STORE that stands for Recognition, Empathy, Safety,Trauma, Relationships and Engagement. We believethese are key elements to attend to on returning toschool after such a long break. We divided up thetask between us of writing a short piece about whyeach of these key topics was important right nowand how a restorative approach could contribute toaddressing the topic.We were all so fired up with enthusiasm that we

were often meeting on-line twice a week and e-mailshave been, and still are, flying between us daily, ifnot hourly! Within a week or so of beginning onecolleague had designed a website to host what we hadcreated and within another week we had launched!We are adding new content every day it seems —methodology, blogs etc. — and we have had overtwelve thousand hits from all over the world — andmany thousands of downloads. The feedback hasbeen extremely positive. We have created somethingthat schools realise they need.

We have the perfect opportunity to show how res-torative practice, with its emphasis on relation-ships, connection, deep communication and heal-ing, is exactly what schools need . . .

We have the perfect opportunity to show how res-torative practice, with its emphasis on relationships,connection, deep communication and healing, is ex-actly what schools need — now especially, but alsofor the future.

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Here is our website. Please share this with anyoneyou know who either works in a school, has contactswith a school or who has school-aged children orgrandchildren. If it is helpful, translate it and use it— all we ask is that you acknowledge the source.

ReflectionsMy stories have mostly been about ways I have usedthe Internet to reach out to others, professionally andpersonally. However I want to end by sharing how Ilivemy life off-line at this time because toomuch timeon-line is not good for my own health and well-being.Too many Zoom conversations can ‘do my head in’and there is evidence to suggest that the experienceof on-line meetings creates cognitive dissonance inthe brain and can indeed be very tiring.I cannot claim to have created the perfect rhythm

for each day — indeed no one day is the same. How-ever there are certain constants through each week.On-line yoga with our teacher at 7 am three times aweek — the first time that my husband and I do ourpractice together as we usually go to classes at differ-ent times. Maybe we will keep this shared practiceup in the future — I hope so.Another shared joy has been picking fresh veget-

ables from the garden and cooking good simple vegan

food. We have been eating very well — often outsideon our terrace as the weather has been so amazing.I have mentioned all the outdoor activities we arepermitted to do and these punctuate each week, asdo marvellous on-line opportunities to watch film,theatre, music and dance.

I began this piece by saying that I knew I was veryprivileged and I want to come back to this. I hopeI am making the most of this time to reach out andhelp others using my restorative skills. However onething I am also doing is learning to be restorativehere at home, with my husband. It is a huge privilegeto be able to spend so much time together and learnfrom each other what it means to share one’s life withanother person. After forty years together there is somuch more to learn.

Belinda HopkinsDirector Transforming ConflictNational Centre for Restorative Approaches in YouthSettingsBerkshire (UK)info@transformingconflict.org

ReferencesFrankl, V.E. (1962). Man’s search for meaning. Bo-ston MA: Beacon Press.

Emotional deprivation disorders, the pandemic and the‘protection’ measures.Between 1945 and 1946 Renè Spitz, an Austrian naturalised American psychoanalyst, comparedtwo groups of institutionalised children. The first consisted of 220 minors, children of womendetained in a women’s prison, who had the opportunity personally to dedicate themselves totheir children in a nursery school attached to the structure. The second one, instead, included91 infants abandoned by their family and admitted to an orphanage.

A crucial theoretical premise

Spitz observed that, in both cases, the children wereadequately treated from amedical, hygienic and nutri-tional point of view, but in the second group, despitethe presence of professional nurses specially trainedfor the care of infants, the children presented a wor-rying clinical picture. Many of them did not growregularly; they suffered from evident delays in cog-nitive and motor development — with symptomssuch as lack of response to external stimuli, expres-

sionlessness of the face, muscle spasms and cryingspells. In the first month, the children expressedthemselves with complaints and signals, but alreadyfrom the second month, crying started to be accom-panied by weight loss. In the third month, behaviourssuch as refusal of physical contact, insomnia, absenceof gesturing and further continuous weight loss ap-peared. Gradually also these symptoms disappearedand, after the third month, when the crying stopped,a real lethargic state took over which sometimes ledto extreme consequences.

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37.3% of the children under observation died —but it would be better to say that they let themselvesdie — within the second year of life, and this re-mained inexplicable using only medical tests andparameters.These symptoms disappeared, Spitz pointed out,

when the child found his/her mother or in any casewhere a person who wanted to take care of him/herdedicated time to communicative and playful interac-tions and to expressions of affection both in physicalcontact and in words, as well as in responsiveness totheir signals.Such a major trauma could not be completely re-

solved in a short time and Spitz demonstrated howdevelopmental delays and an increase in the mortalityrate were detectable in all of the subjects observed,alongside a marked lowering of the immune defences.

The smiles, the caresses, the tone of the voice of ahuman being who cares and the affectionate phys-ical contact stimulate positive reactions essentialfor healthy development.

Therefore, Spitz (1945) took into consideration anexplanation, drawing on his knowledge as a psycholo-gist and psychoanalyst: the child does not need onlymaterial care, which considers his/her being only forthe physical and bodily part, but also and above allto establish a strong emotional bond with the mother(or a person who regularly cares for him/her withaffection and warmth). The smiles, the caresses, thetone of the voice of a human being who cares and theaffectionate physical contact stimulate positive reac-tions essential for healthy development. The alreadydeveloped self of the adult hosts and allows the cre-ation and development of the child’s self through acontinuous interaction involving sensations and emo-tions transmitted with words, tones of voice, postureand gesturing, which contribute to the creation of areal ‘symbolic world.’ If this type of interaction isabsent or is missing for a prolonged period, the childfeels abandoned, s/he loses his/her communicationpotential and becomes unable to find vital referencepoints.In essence, sterile and impersonal treatment, al-

though hygienically flawless and medically oriented,which addresses the child as an ‘object’ to be treatedwith medications and nutritional dosages, is not suf-ficient to guarantee attachment to life as much as theaffective and relational interactions.The emotional stress caused by the lack of a real

caring figure in a ‘maternal’ sense has serious re-

percussions on the child’s development, giving riseto a series of significant disorders, both physicallyand psychologically. Deprived of the affections andof the necessary emotional dynamism present in ahuman relationship, the child becomes apathetic andindifferent, starts to lose weight and gets sick moreeasily because the body does not produce the hor-mones and defences necessary for growth and health.Even from the motor point of view, s/he is unable tomake the movements considered normal for his/herage and s/he can die in a few months or years.

The Covid-19 emergency and the‘protection’ measuresAs we heard the numbers, due to the pandemic, ofdeaths, ICU patients, incubating people and infectedpeople, we gradually got used to the requirementsimposed for our physical protection. The emergencyis just that and in emergencies you cannot split hairs.We locked ourselves up in the house, suspended ourmain activities (mostly), closed the schools, disreg-arded all forms of assistance for vulnerable people,forbade visits to care homes and cancelled eventsand meetings, weddings and baptisms, hangouts andreunions.We had been told that, alongside frequent hand

washing, we had to sneeze into the crease of the el-bow and get used to wearing masks every time we leftour homes. The expression ‘social distancing’ wasintroduced which immediately, in a developmentalpsychologist’s mind, worryingly recalled Spitz’s re-search. But we were in an emergency and perhapsthose who thought it up hadn’t gone too far, in fact.

However, it would have been enough to refer to thedefinition of health adopted by the World Health Or-ganisation, which describes it as ‘a state of completephysical, mental and social well-being and not merelythe absence of disease or infirmity,’ to be more awarefrom the beginning.

The unfortunate expression ‘social distancing’ re-mained and remains. In spite of what even in thehealth field should be an epistemological foundationof care, it continues to appear in every new docu-ment, no matter if it is dedicated to children in the0–6 range or to older people, to medical personnel orto those serving in supermarkets, relatives or groupsof friends.

As psychologists, we see all the dangers associatedwith the expression ‘social distancing,’ thinking ofSpitz’s research from the 1940s and all subsequentliterature on the social dimensions of human devel-

Newsletter of the EFRJ 29 Volume 21(2) June 2020

opment and on the social foundations of our ownnature, which characterises us among all other livingbeings. In fact, what makes human beings humanare precisely those social interactions — now forbid-den by norms — demonstrated by various authorsbelonging to very different theoretical psychologicalcurrents such as Lev Vygotskij (Rieber and Carton,1987), Urie Bronfenbrenner (1979), Rudolph Schaf-fer (1996) and Luigia Camaioni (1997), just to namea few in random order.

Affective and social protectionsWe must not give up trying to replace that oxymoron,because the adjective ‘social’ is better suited to wordssuch as proximity or closeness. We must strive toavoid that expression that is so much a harbinger ofunease or limping health, and to use instead the moreneutral expression of ‘physical distancing’ because,although one meter away, emotional dynamism andrelationships can still occur for children above twoyears, adults or older people.

We must urgently ask and demand a ‘repair’ to thisenormous communicative mistake — hoping that itwill only remain a communicative mistake — beforeit is too late and that, as with the children observedby Spitz, we all get sick with the same degenerativedepression he described.

We can imagine the many ways to be physicallydistant while staying close socially . . .

We can imagine themanyways to be physically dis-tant while staying close socially; we just need to reallywant it. In this sense, however, the guidelines thatrequire the use of masks to staff on duty in servicesdedicated to childhood are worrisome, since childrencan decode a big part of communication only if theysee facial expressions and non-verbal indicators com-ing from the significant triangle made by eyes, noseand mouth. If it is really not possible to do withoutmasks, then the obligation should be for masks withtransparent inserts, which give visual access to thearea of the mouth, so as to give the possibility ofinterpreting the mood of the other: a fundamentalprocess to establish mutual relationships.In the same way, this type of concern extends

to elderly people being looked after in nursing andcare homes, who in many respects need the sametype of caring relationships, well beyond the merecare of their body. Allowing ‘protected’ meetings,

in sanitised rooms or outdoors, with family mem-bers equipped with masks with transparent insertsbut with hands that they can caress, once cleaned asnecessary to avoid contagion, is necessary to givemeaning to life, to feel attached to life through thewarmth of the emotional and caring relationship.

Structured opportunities must be given to adoles-cents, who need social relations between peers somuch to consolidate their identity as adults, withoutwhich they risk remaining entangled in the depend-ence on family interactions, both by condescensionand rebellion. Community spaces must be open forthem to stay in small groups, coordinated by pro-fessional workers able to step aside for as long asnecessary for boys and girls to organise themselvesin modalities protected from contagion, simply giv-ing them useful instructions to avoid contagion andthe time they need to learn new mental patterns of so-cial interaction not mediated by technological tools.All you need is a circle of chairs set in a safe way,a lawn with mats stretched out at the right physicaldistance, an urban wood in which each one can restagainst a tree trunk. As long as it is not possibleto be sure that the infection is completely excluded,we can educate ourselves to new forms of respectfulsocial relationships, without having to suppress themdue to simplistic reductionism or lack of creativecommitment.

Now that the grip of the emergency has loosened,it is necessary to start a new phase of different con-siderations; we will be able to survive the pandemic,but living fully and with psychological well-beingrequires that the social and emotional dimensions,which so powerfully characterise the human life, areseriously and urgently taken into consideration.

Paola NicoliniAssociate Professor of developmental and educa-tional psychologyDepartment of HumanitiesUniversity of Maceratapaola.nicolini@unimc.it

Translated by Silvia Randazzo, EFRJ Editorial Com-mittee Member

ReferencesBronfenbrenner, U. (1979). The ecology of humandevelopment: experiments by nature and design.Cambridge, MA: Harvard University Press.

Camaioni, L. (1997). The emergence of in-tentional communication in ontogeny, phylo-

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geny, and pathology. European Psycholo-gist 2(3):216–225. https://doi.org/10.1027/1016-9040.2.3.216.

Rieber, R.W. and Carton, A.S. (eds.) (1987). The col-lected works of L.S. Vygotsky: Vol.1, Problems ofgeneral psychology: including the volume Think-ing and speech. London: Plenum.

Schaffer, H.R. (1996). Social development. Oxford:Blackwell.

Spitz, R.A. (1945). Hospitalism: an inquiry intothe genesis of psychiatric conditions in early child-hood. Psychoanalytic study of the child 1:53–74.

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Editorial Committee:Publisher: EFRJ [Coordinator: Emanuela Biffi(Belgium), E-mail:emanuela.biffi@euforumrj.org]

Guest Editor: Silvia Randazzo, E-mail:newsletter@euforumrj.org

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Members: Claudia Christen-Schneider, HeidiJokinen, Olga Kisleva, Kim Magiera, BrankaPeurača, Nicola Preston, Silvia Randazzo,Diana Ziedina, Robert Shaw

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Newsletter of the EFRJ 31 Volume 21(2) June 2020