Tim Newell reflects on the Ecocide Trial restorative justice sentencing

I've posted several articles already about the Ecocide Trial. First, an introduction to the whole idea and plan; then an account of what happened from Simon Hamilton (one of the key people behind the whole venture); and most recently a 'trailer' about the next steps.

The key 'next step' after the course guilty verdict was the sentencing, and this was to include a Restorative Justice element. As mentioned last week, Tim Newell took a close interest in this, and below he reflects on the process as it unfolded.

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Tim Newell

 Tim Writes:

The ecocide sentencing took place to follow up the mock trial (in September 2011) that had found two fictional oil company executives guilty of ecocide from the impact of the Tar Sands extraction in Canada.



The whole process showed the difference between current systems and expectations of justice and the possibilities when using a restorative approach.

Both defendants were offered the possibility of the restorative sentencing process – one of them declined, one accepted. Informed consent is a key principle behind any restorative process, but none of us could have envisaged the power of the sentencing circle as it progressed over the course of several hours on 31st March 2012 at Essex University. The complexity of the impact of the crime of ecocide could only be explored in this setting of openness, respect and truth telling.

A sentencing circle (sometimes called a peacemaking circle) uses traditional circle ritual and structure to involve all interested parties. A sentencing circles typically employs a procedure that includes:

- application by the offender

- a healing circle for the victim(s)

- a healing circle for the offender

- a sentencing circle

- follow-up circles to monitor progress.

The facilitator, Lawrence Kershen, chair of the Restorative Justice Council, introduced the process and the participants described their status. The restorative justice conference took place in a private room, where the executive was joined by the firm’s Chief Sustainability Officer and the Chairman of the firm’s pension fund. They were face to face with representatives of those who had been adversely affected by the tar sands Ecocide: someone who represented wider humanity, someone who represented the Earth, someone representing future generations, someone representing birds and someone who provided a voice for indigenous peoples.

I was unable to be present physically, so was glued to the screen which showed the live streamed process for most of the day. I was gripped by the intense dialogue which deepened and developed through the careful prompting of particular questions by the skilled facilitator who was clearly trusted by all.

I was very moved by the contributions made by circle members. They were asked what had happened, and all described their interpretation of the process of oil extraction; then they were asked about who had been affected by what had happened. To have the impact of the extraction process interpreted for wider humankind, for the unborn, for the earth, for the birds and for the local first nations people was powerful and immediate. All were heard in respectful silence and many others in the circle were moved by what they heard.

The next question was what should happen to put things right, and clear possibilities were presented. Again, all went round the circle and picked up on each others suggestions. The document put together by the facilitator was agreed by all.

Restorative justice is a long-established approach in some cultures for healing harm. It allows a dialogue to take place between offenders and victims, including voices speaking on behalf of the non-human world, in order to reach a positive outcome. It was shown to be far more effective at restoring the damage caused, and in changing behaviour, than more traditional sanctions, such as a jail sentence. The evidence for effectiveness in criminal justice matters is well-researched now.

When the court reconvened for the formal legal sentencing, the Judge deferred the executive’s sentencing for six months allowing him time to make true the promises he had agreed to in the restorative justice conference.

As a result of the four hour restorative justice process, he had agreed to an action plan which set up working groups to look into, amongst other things, funding alternative energy sources.

In addition to receiving a four year sentence, the other executive was given a formal Restoration Order which requires him to undertake a number of measures including suspending operations in the tar sands until the area affected is restored to an acceptable level, meeting the financial costs of restoration and publicising his actions.

The process itself wasn’t perfect, but it did demonstrate how restorative justice might work in practice for the corporate crime of Ecocide. It already works in settings other than criminal justice. It also demonstrated that it really is possible for guardians to speak on behalf of the non human world and future generations. Additionally, the nature of justice itself was highlighted in the process. The four year sentence was received by many present as a triumph, but I felt quite anxious that the same old system was being used on such a  complex issue, and that we should look at fundamental questions of what punishment means, and what it can achieve when faced with massive misbehaviour. After all, we are all complicit in receiving the benefits of the crime of ecocide, so where does our responsibility lie?

Clearly ecocide can be controlled through this process, but much wider issues, of our sense of community as guardians of the earth and of the future, were realised through this imaginative transformative event. The respect with which the circle was conducted made sure we could live with each other with greater understanding after it was over.

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Many thanks to Tim for this post. As I was reading it, in preparation for publishing here, I was struck by the similarity (because of the particular issue at stake in this instance) to Joanna Macy's Council of All Beings ritual process. That takes place outwith any legal or judicial framework, but it presupposes that the whole of humanity is, in some sense, 'on trial'. In particular, the experience of 'speaking for other life forms' is very powerful, both for the people speaking as representatives, and for the people who take on the position of 'being the human', hearing and receiving the words and experiences of the other creatures.

Ideas to revisit (2) - restorative justice

When I was writing my Swarthmore Lecture (see right) I was concerned to draw in Friends who might not yet have engaged with sustainability issues; so in Chapter 3, I drew a number of comparisons and implications from other issues where Friends have a had a public voice and presence. In one paragraph I wrote:

There are other areas where Friends have a track-record of concern and action on an issue, from which we could extrapolate to bring time-honoured concepts to bear upon the current environmental situation. For instance, arising out of our long-standing concern and work in the field of criminal justice, can we bring models of restorative justice into the climate change debate? In this case, the ‘victims’ are both the environment itself and poor people in the parts of the world most devastated by the effects of climate change. What would restorative climate justice look like, on a global scale?

My final question in this paragraph was part rhetorical, part hoping to get Friends thinking about this issue.

A couple of months after delivering the lecture, I received, out of the blue, a letter from Tim Newell. Tim, now retired, was, for the last ten years of his working career, Governor of Grendon and Spring Hill prisons. Grendon is a unique prison offering a therapeutic community experience for some of the most difficult prisoners, and has remarkable results with them. Tim has also been much involved with enabling and encouraging Restorative Justice practices and gave the Swarthmore Lecture in 2000 on this theme: Forgiving Justice – a Quaker vision for criminal justice.

The book is still in print and may be purchased from the Quaker Bookshop. The text is also available online.

In his letter, Tim wrote:

The key principles of restorative justice are:

1. the principle of repair – justice requires that we work to heal victims, offenders and communities that have been injured by crime

2. the principle of stakeholder participation – victims, offenders, and communities should have the opportunity for active involvement in the justice process and as fully as possible.

3. the principle of transformation in community and government roles and relationships – the relative roles and responsibilities can be rethought, and this might be the most challenging aspect of restorative justice. In promoting justice, government is responsible for preserving a just order, and community for establishing a just peace.

All these apply very closely to sustainability:

1. The principle of repair is crucial in considering the damage we continue to do to the earth and our environment and is central to your discussion.

2. The principle of stakeholder participation is critical as well in that unless we are all involved matters will not change and reverse the harm. No one else can decide on my use and abuse of resources – they will eventually limit my choice when things run out and they are doing through price rises of things like fuel.

3. The most difficult one for justice agencies and I expect for governments is that they cannot do it themselves – they have to involve and trust people to act in accordance with the risk.

In the restorative process for almost any sort of type of meeting, conversation, mediation or ultimately conference there are key questions that guide the dialogue to bring about the possibility of transformation. They are:

1. What happened? Letting people tell their truth is vital. Your book tells us some more of the truth about ourselves and our earth. Taking it in is important and listening carefully to each other in the process is part of the respectful attention we give in restorative work.

2. Who has been affected by what happened? The impact of what we are and have been doing are clearly shown in the book

3. In what way have they been affected?

4. What do you think needs to happen to make things right?

After this process a written document describes the agreement to action from those involved in the process – all sign it and get a copy. Follow up is agreed also at the time – like reporting to someone about outcomes etc so that the process helps accountability.

I was, of course, delighted to receive this, and two ramifications have ensued. One is that I put the people behind the Ecocide Trial in touch with Tim - next week I'll post here some reflections from Tim about the Restorative Justice sentencing process that followed from the Trial; the second is that Tim and I are planning to run a weekend next summer (that's 2013!) in the Woodbrooke programme to look at this issue - putting Restorative Justice principles to work in relation to sustainability.

Why ideas matter - they can change and devastate lives

Quakers haven't always welcomed discussion of ideas, of ideologies. They can be dismissed as mere 'notions' - in Quaker parlance a derogatory term implying something worldy and human-made, not emanating from God. But ideas have traction - they create actions, alliances, policies and real effects. On the left, think of Karl Marx, on the right, think of Ayn Rand.

You'll certainly have heard of Marx; you might not have heard of Rand, but now is the time to find out - we need to know what we're up against. Her (in)famous novel Atlas Shrugged has gained notice and popularity among the American Right (and notoriety among liberals), and continues to sell in high numbers.

There was BBC documentary about her broadcast last year, covering her life and her ideas. Much of it was familiar to me, but I was shocked to discover that Alan Greenspan had been one of her close disciples - the man who ran the US Federal Reserve for so many years, close to the centre of not only US, but world power.

Rand propounded a doctrine she called Objectivism - a philosophy claiming that the only way to live was to be guided by pure selfishness. Compassion, empathy, care, fellow-feeling, fairness, justice . . . all these were to be cast aside. The poor and the sick deserved their fate. Family, children, friends . . . all were to be thrown over for naked self-interest. [See also the Ayn Rand Institute]

What was so extraordinary was that she gathered a group of disciples around her - Greenspan among them - who hung on her every word. In the filmed extracts that the documentary screened, she came across as such a thoroughly unpleasant person, so utterly unlikeable, that it seemed most strange that she gained so much influence. Her attitudes fit very closely with a psychiatric profile expected of a psychopath. And she was not even consistent - she was to act entirely selfishly, but if any of the young men who danced attendance on her chose his own self-interest over hers, then she became furious, punitive, vindictive. And in her old age, she signed up for both Medicare and social security, even though she had railed against them all her life - ideology has no answers to old age and ill-health.

In a recent Guardian column, George Monbiot discussed Rand, in the wake of a new book just out. In his article 'How Ayn Rand became the new right's version of Marx' he addresses how 'her psychopathic ideas made billionaires feel like victims and turned millions of followers into their doormats'. The new book that has occasioned this is by Gary Weiss, a US investigative journalist. In Ayn Rand Nation: the hidden struggle for America's soul he explores the people and institutions that remain under Rand's spell. He charts Rand’s infiltration of the Tea Party and Libertarian movements, and provides an inside look at the radical belief system that exerts a powerful influence on the Republican Party and its presidential candidates. He describes in detail how Alan Greenspan implemented Rand's ideas - deregulating with ideological zeal, and then seeking to conceal her influence on his life and thinking. We are all living with the catastrophic results of Greenspan's belief that, 

'the 'greed' of the businessman or, more appropriately, his profit-seeking … is the unexcelled protector of the consumer'

and, for bankers, their need to win the trust of their clients guarantees that they will act with honour and integrity - unregulated capitalism, he maintains, is a 'superlatively moral system'.

This reminds me of James Murdoch, giving the McTaggart Lecture in 2009, proclaining that the profit motive is the only guarantee of a free press: 'The only reliable, durable, and perpetual guarantor of independence is profit.'

And it's not only the rich and powerful embracing these ideas. You may have seen on TV, last September, the shocking spectacle of Ron Paul (US Congressman seeking the Republican presidential nomination) adressing a live studio audience on CNN. CNN moderator Wolf Blitzer asked whether an uninsured 30-year-old working man in a coma should be treated. 'What he should do is whatever he wants to do and assume responsibility for himself,' Paul responded, adding, 'That’s what freedom is all about, taking your own risk. This whole idea that you have to compare and take care of everybody…'  The audience erupted into cheers, cutting off the Congressman’s sentence. After a pause, Blitzer followed up by asking, 'Congressman, are you saying that society should just let him die?' to which a number of audience members shouted 'Yeah!' [watch a video clip here].

In case we in Britain fall into thinking that this is just a USA matter, it's instructive to turn to Polly Toynbee, just a few pages after Monbiot in the same day's paper. She's writing primarily about the government's proposals for cuts in legal aid, currently heading for the House of Lords: Yes, legal aid will be cut, but not where it hurts the silks: 'Lawyers have much to lose in Clarke's bill, and it's only when Tories' interests are involved that their sense of injustice twitches'. She writes:

[Kenneth Clarke] blurs the difference between fat cat barristers earning fortunes from legal aid in high-profile criminal cases, whose fees he leaves untouched – and the work of social conscience lawyers, whose fees he is abolishing completely. Public interest lawyers earn very little in law centres and Citizens Advice bureaus, helping people lost in the legal wilderness of welfare, tenancies or working rights. As a result, law centres and CABs will close.

Fewer victims of domestic violence will bring their abusers to court when a far tougher measure of 'objective evidence' means half the cases will never be heard. Half the victims at present on legal aid will no longer qualify, when medical evidence from A&E, GPs or a women's refuge will not be enough [. . .] Sometimes I find I have to pinch myself to believe these things are really happening.

A Labour debate highlighted the under-publicised savagery of tax credit cuts that next month take between £3,000 and £4,000 away from low-earning families who can't get their working time up to 24 hours a week. Hundreds of thousands of people and 470,000 children still have no idea of the devastating income cut about to hit them on 6 April. [. . . ] The Lords debated the legal aid bill which removes all legal support that ensures people at least get the benefits they are entitled to. Legal aid is abolished for 'social' cases, even if people risk losing their homes and livelihoods.

But what stirs a sense of injustice among restless Tory backbenchers is none of these – which they heartily support. They are exercised over cutting child benefit for higher earning families. Here is an unfairness they understand because it's happening to their people.

In Chapter 3 of Costing Not Less Than Everything (see top right) I discussed some of what we are now learning from research in the fields neuroscience and behavioural economics. I then wrote:

How do we become the change we want to see? How do we motivate ourselves and others to do what we know is needed? How do we, as a community of Friends, as a religious body, become beacons, ‘patterns and examples’? Alongside members of other religious groups, we have deeply held views about the nature of human beings. We also believe that the best can be elicited from people, given love and the right circumstances [. . .] We need to be more bold in our beliefs in the face of what can often seem to be an indifferent and cynical world.

Empathic, cooperative, fair-dealing traits are not superficial aspects of human behaviour, not merely a thin skin of civilisation – they are embedded in our evolutionary past and in our biology. This means that the spiritual perception and the religious world-view are not ‘soft’ models that can easily be swept away by antagonistic political or economic ideologies. That is not to say, of course, that these traits cannot be over-ridden or distorted beyond recognition by adverse circumstances [. . . ] To go forward, using the best of what humanity can be, expecting the best of ourselves and everyone else, leading by example and doing so in a confident and cheerful manner, has the backing of science as well as spirituality.

Ideas to revisit (1) - anarchism

If you're left / green / Quaker / liberal, then Milton Friedman probably isn't one of your favourite thinkers! However, people we disagree with or dislike sometimes say things that are worth paying attention to. Milton Friedman said:

Only a crisis - actual or perceived - produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around.

Part of the purpose of both the Good Lives Project and my Swarthmore Lecture is to support what we might call a 'preparedness' agenda - that's preparedness in terms of our own practical knowledge and skills, as well as another kind of preparedness: exploring, supporting and spreading ideas and ways of approaching new and difficult issues.

In this post I'm offering the first of an occasional series of 'ideas to revisit' - first, anarchism. Your initial reaction might be to assume that anarchism means chaos and disorder - think again!

What follows below is drawn from a recent article by David Goodway written for History and Policy. David, now retired from Leeds University, is an academic historian with an interest in radical movements, and particular knowledge of anarchism. His books include London Chartism, 1838-1848 (1982), Talking Anarchy (with Colin Ward) (2003) and Anarchist Seeds beneath the Snow: Left-Libertarian Thought and British Writers from William Morris to Colin Ward (2006).

History and Policy works for better public policy through an understanding of history by connecting historians, policy makers and the media. It is the only project in the UK providing access to an international network of more than 300 historians with a broad range of expertise, offering a range of resources for historians, policy makers and journalists. These include policy papers and opinion pieces. You can follow them on Twitter, Facebook and their mailing list.

David's article is titled 'Not protest but direct action: anarchism past and present'. Below are some excerpts, reproduced with  kind permission from both David and History and Policy. You can access the full article here and read him in The Guardian here.

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Introduction
Fifty to sixty years ago anarchism appeared to be a spent force, as both a movement and a political theory, yet since the 1960s there has been a resurgence in Europe and North America of anarchist ideas and practice. Britain nowadays must have a greater number of conscious anarchists than at any previous point in its history. In addition there are many more who, while not identifying themselves as anarchists, think and behave in significantly anarchist ways.

Anarchists themselves disdain the customary use of 'anarchy' to mean 'chaos' or 'complete disorder'. For them it signifies the absence of a ruler or rulers in a self-managed society, usually resembling the 'co-operative commonwealth' that most socialists have traditionally sought, and more highly organized than the actual disorganization and chaos of the present. An anarchist society would be more ordered since the political theory of anarchism advocates organization from the bottom up with the federation of the self-governed entities - as opposed to order being imposed from the top down upon resisting individuals or groups.

Some history
The historic anarchist movement is identified with a workers' movement which flourished from the 1860s down to the close of the 1930s. However, there is a consensus that anarchist precursors can also be traced back to Chinese Taoism as well as to Classical Greece. It has been argued convincingly that the Mu'tazilite and Najdite Muslims of ninth-century Basra were anarchists. Examples begin to multiply in Europe from the Reformation of the sixteenth century and its forebears (for example, the German Anabaptists), and then the Renaissance and the English Revolution (not only the Diggers and Gerrard Winstanley but also the Ranters) in the sixteenth and mid-seventeenth centuries respectively.

In the industrializing societies of the late-nineteenth and early-twentieth centuries trade unionists and revolutionaries at times countered with unrestrained retaliation the brutal intimidation and suppression their strikes and insurrections provoked. From the late 1870s the anarchists added to the traditional 'propaganda by the word' - agitation utilizing the spoken and written word - 'propaganda by the deed', acts of revolt such as violent strikes, riots, assassinations and bombings intended to ignite popular uprisings. A further strategy dates from the 1890s when many anarchists began to focus on the trade unions as the primary organization for struggle. These decades of the heyday of international anarchism - subsequently weakened by the First World War - came substantially to an end as a consequence of the Russian Revolution.

One of the major strengths of anarchist thought has been its insistence that means determine ends and that the institutions built to engage in current social conflict will prefigure the institutions that will exist in a post-revolutionary order.

The profound cultural changes associated with the 1960s were responsible for a modest anarchist revival throughout Western Europe and North America. In Britain, for instance, the rise of the New Left and the nuclear disarmament movement in the late fifties, culminated in the student radicalism and general libertarianism and permissiveness, especially sexual, of the sixties, ensuring that a new audience receptive to anarchist attitudes came into existence. This anarchist resurgence climaxed with the remarkable events in France, where in May 1968 student revolutionaries fought the riot police, took over the Sorbonne, controlled the Latin Quarter, and precipitated the occupations of factories by their workers as well as a general strike.

Discussion
The 'idea of anarchism' long predated the third quarter of the nineteenth century and this has survived the demise of the historic movement. Kropotkin believed that

'throughout the history of our civilization, two traditions, two opposing tendencies have confronted each other: the Roman and the Popular traditions; the imperial and the federalist; the authoritarian and the libertarian'.

Thus there is no reason for thinking that conflict between authoritarian and libertarian tendencies will ever cease; rather it seems to be inherent to the human condition and its socio-political arrangements. Indeed, from the 1960s the revival of anarchist ideas and practice has spread throughout Latin America and, after the collapse of Communism, to Eastern Europe. Moreover, the ideas and practice have become deeply embedded in the new social movements of the last half century, although the activists of the peace, women's and environmental movements are commonly unaware of this. Yet in contrast to the historic workers' movement, this anarchist revival has been without any kind of purchase on the labour movements of Europe and the Americas: contemporary anarchists today are rarely trade unionists.

British anarchists currently participating in demonstrations do so not as reformers but as anarchists. That is to say, anarchists differ from the adherents of almost every other ideology, as well as all advocates of specific political or social reforms, in having little or no interest in altering the policies of states, in shaping the opinions of politicians and decision-makers. They reject authority - seen as imposed from above - and seek to replace it with self-government: organization through co-operative associations, built and federated from the bottom upwards. 'Anarchist protest' therefore appears oxymoronic. If anarchists are participating in - or initiating - demonstrations, it is not authority holders they are attempting to influence but their fellow citizens, intending to galvanize them into action and to create alternative, non-hierarchical social structures.

Conclusions
The historic anarchist movement of the late-nineteenth and early-twentieth centuries had been grounded in the working class and peasantry and their institutions, but its philosophy had been prefigured over several centuries, even millennia, and on several continents. Its ideas and practices have been shared by the anarchists of the revival that has taken place since the 1960s, although these are socially a very different group. In particular, parliamentarianism and constitutional protest have been eschewed for direct action which may take two entirely different forms. Firstly, there are the symbolic actions, whether violent or non-violent, but usually illegal, intended as propaganda by the deed. Secondly, by occupying factories and then running them, for example, or following exemplary Green lifestyles in eco-communities, the existing social order may be bypassed by 'putting anarchism into action at the grassroots'.

Both of these forms of direct action can be seen as merely disruptive by those who believe that society has to be run from above if it is to be orderly and efficient. And either of them can easily be mixed up with any other form of violent protest by lazy commentators. However, as this brief history of the international movement has attempted to show, anarchism needs to be understood as a distinctive and coherent tradition of political theory and practice. This may help its own proponents to reflect on the some of the adverse consequences of violent action, and it may persuade the wider public to take its ideas and examples more seriously as a significant alternative approach to social change.

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Thanks to David for this piece. When I approached him for permission to use his material he emailed back saying,

I always say Quakers are in effect anarchists, yet usually they don't realise that they are...

Discuss!