Introduction Of Restorative Justice In The Superior Courts - Essay Example

Introduction Of Restorative Justice In The Superior Courts Courts The current paradigm of the justice system is under immense pressure to showcase its effectiveness as it has been plagued by dilemmas and controversies that could derail public trust, a critical prerequisite for justice systems. A new philosophy/approach to justice issues is being muted as a solution based on a perspective that views crime as a symptom hence seeks to address the underlying causes in a more participative and inclusive direction in regards to all relevant stakeholders. This philosophy termed restorative Justice (RJ) recognises that crime is injurious to individuals and communities and seeks to involve these two parties in repair of this injury. The increasing importance of RJ is the justification for this study to inform the Attorney General on the philosophy and practicability in the judicial system. The concept and processes involved will be discussed, followed by establishing admissibility of various cases to it and finally the legal basis as to why it should be introduced. The Concept of Restorative Justice Restorative Justice has been described as a concept that offers both a philosophy for conflict resolution and a model for criminal justice and can be termed to be a model for resolution of conflict and repairing of harm. The basic tenets of RJ are based on criminology and victimology where in respective fashion those responsible for harm are encouraged to acknowledge the impact of their actions and are given an opportunity to make amends for their actions while the victims are given the opportunity to have their harm or loss acknowledged besides amends being made. In essence, RJ has the ultimate goal of restoring the well-being of all the parties involved i.e. the victims, offenders and the community with an aim to reduce the impacts of crime and prevent similar occurrences in future (Strang, 2001). Barton (2003) is of the view that RJ is more of an empowerment model of justice where circumscribed/bounded empowerment is availed through restorative processes that are consistent with shared societal norms and standards and the law itself. For a restorative justice definition to be operational it should consist of three elements. To begin with, crime is a conflict between individuals that results to injuries to the victims, offenders and community at large hence it is a primary violation to these parties and only a secondary violation to the state. The second idea that informs criminal justice is that the essential aim of the justice system in any nation should be to repair the damage caused by crime and bring peace to the community through reconciling all parties involved. The previous two elements are philosophical in nature while the third one is based on how RJ should be undertaken. It should involve the participation of the victims, offenders and the community actively and not to victimise any individual but to find solutions to the initial conflict that brought the crime. This way, the underlying conflict will be resolved; something that traditional criminal justice systems around the world do not assure hence recurrence of crimes persists. Restorative Justice Processes There are three main processes that are most identified with RJ; restorative circles, restorative conferences and finally mediation of victim-offender conflict. To begin with, restorative circles are meetings facilitated in the community and in attendance is the offender, the victim, family and friends of the two, interested community members and representatives of the formal justice system. The meeting proceeds in the direction of finding a consensus to arrive at a constructive result which will balance the needs of the victim and the community with the needs and duties of the offender. Speeches are given one at a time and the entire crime is discussed including its context. In contrast with traditional criminal justice systems, the focus of the circles is not on sentencing and usually other than the crime itself the participants usually realise other emerging or underlying issues (Restorative Justice, 2011). Another process that usually features in RJ is restorative conferencing where a trained facilitator brings the offender and the victim to a face-to-face meeting. Daly and Hayes (2001) observe that Australia is one of the world leaders in use of conferencing. Attendance may also include support individuals such as family and friends and criminal justice representatives. The facilitator is only present for guidance to enhance dialogue about the crime and its consequences to both parties while ensuring that they both get sufficient audience to present their case. This process is composed of three stages; pre-conference, actual conference and lastly post-conference follow up. Each individual is given an opportunity to present their case with dialogue and inquiry in both directions being encouraged to establish a common understanding. Restorative conferencing also includes the concept of re-integrative shaming which involves conveying communal disapproval of an offender’s actions (Australian Institute of Criminology, 2011). This is then followed by reacceptance into the community. The last process identified in RJ is victim-offender mediation which involves a trained mediator to bring together the offender and the victim. Exchange of perspectives of the experience occurs while the mediator largely remains passive. Usually, this process can take place at any stage of the justice process so long as guilt in the part of the offender has already been established. The first stage of the process is determining whether a referred case is suitable (referrals may be from law enforcement officers, courts, community or correctional facilities). A series of meetings and follow up form the two latter stages of the process to ensure that a consensus is arrived at (Restorative Justice, 2011). Admissibility of cases to Restorative Justice As RJ is increasingly being pursued, there have been observations that certain cases benefit from the process while it does not seem to be ideal for others. Gabbay (2007) states that restorative justice has in the past appeared to be suited or limited to certain street crimes and juvenile delinquency cases meaning that it is essentially meant to deal with average to minor cases in terms of seriousness. Most individuals, practitioners and other stakeholders may find it hard to debate this since RJ has been utilized in the past to handle such cases with quite few high profile cases taking this route. There are two categories of cases that challenge the applicability of RJ; domestic violence cases and white collar cases. To begin with domestic violence, the reason behind the perceived inability of RJ to handle such cases is primarily due to the fact that in the gathering that will attend the circle or conference some of the members are guilty of domestic violence (Pennell, 2004). It is also quite clear that the use of RJ in domestic violence faces much opposition and most standard practitioners would not use it (Training and Accreditation Policy Development Group, 2004). However, Pennell (2004) is of the view that cases involving domestic violence can be handled through a conference that brings together both parties who care for the same children hence breaking the silence on domestic violence and charting a way forward. O`Connell (2011) also indicates that restorative justice has in fact been effectively used for cases in Australia involving family violence and sexual abuse. Gabbay (2007) explains that RJ has traditionally being shunned in high profile white collar cases such as those involving scandals that cause colossal harm. These include corporate scandals of which there have been numerous since the turn of the new millennium all across the world leading to massive economic losses with far reaching implications. The public outcry and the seriousness of such crimes ensure that they remain within the jurisdiction of the criminal justice system. However, Gabbay argues that these can also be tackled through RJ. The approach should however not be through the traditional circles, conferences and victim-offender approaches but rather through grand efforts such as the Truth and Reconciliation approach that helped heal the injuries caused by Apartheid in South Africa. Limitations of Restorative Justice The concept of RJ may seem quite appealing with the previous discussion indicating that it can be used even in previously unexplored criminal cases. It is however accompanied by some problems which may challenge its implementation. One of the major limitations to RJ is the fact that it relies to a large extent on voluntary cooperation hence in case one of the parties is reluctant to pursue it then it is rendered obsolete in a case. Retributive justice therefore has to take course in such situations which give it a major source of superiority over RJ in being ultimate. However, it has been shown that most individuals willingly and readily take up RJ when it is offered or when it is available since they themselves are critical of retributive justice and its consequences. The other major limitation to RJ is the fact that society appears to be headed towards autonomy and individualism rather than community orientation which is a prerequisite for optimal RJ. Besides this, there is also the problem of social stratification and injustice along many considerations which place inhibitions on voluntary participation and the capacity of the community to be caring, re-integrative and accommodating. Lack of resources and necessary skills also act as major drawbacks to RJ in the community (Marshall, 1999). Justification for Inclusion of RJ in Superior Courts Braithwaite (2004) explores the basis as to why RJ should be integrated into the justice system basing his arguments on the weaknesses of retributive justice and the dilemmas it has been unable to solve. To begin with, RJ tackles the issue of lack of clarity of sentencing by maintaining that the sole purpose is repair of the harm caused to the victim, offender and community at large. Retributive justice offers contradictory perspectives to the essence of justice whether punitive or rehabilitative whereas RJ places most of the focus on the level of accountability rather than pain imposed on the offender. The victim is given enough audience to air the harm done on them and is not left frustrated as may happen with retributive justice where his input is not highlighted. The increasing cost of the legal system and system overload also provide a case for venturing into RJ. Besides this, retributive justice has essentially failed to change criminal behaviour alongside ignoring social justice in settlements (Hayes, 2006). Zhang and Webster (2010) observe that retributive justice has not been able to solve crime in Australia. Conclusion Retributive justice focuses on repair of the harm done to the victim, offender and community and occurs mainly through three processes; circles, conferences and victim-offender mediation. It has traditionally been applied to juvenile and minor crimes but there are possibilities that it may be effective even in domestic violence cases and white collar cases. The weaknesses of traditional retributive justice inform the support and recommendations of this report that Restorative Justice be integrated in Superior Courts. References Australian Institute of Criminology (2011). Reintegrative shaming experiments (RISE). Retrieved 13 October 2011 from http://www.aic.gov.au/en/criminal_justice_system/rjustice/rise.aspx Barton, C. K. (2003). Restorative justice: The empowerment model. Australia: Hawkins Press. Braithwaite, J. (2004). The evolution of restorative justice visiting experts' papers. 123rd International Senior Seminar, resource material no. 63, pp. 37-47. Daly, K. & Hayes, H. (2001). Restorative justice and conferencing in Australia. Australian Institute of Criminology. Retrieved 13 October 2011 from http://www.aic.gov.au/documents/5/3/D/%7B53D95879-0B21-40BC-B716-3DACF695FA3B%7Dti186.pdf Gabbay, Z. D. (2007). Exploring the limits of the restorative justice paradigm: Restorative justice and white-collar crime. Cardozo Journal of Conflict Resolution, vol. 8 no. 21, 421-485. Hayes, H. (2006). Restorative justice developments in Australia. Retrieved 13 October 2011 from http://www.indigenousjustice.gov.au/resources/2007_NIJF/07_hayes.pdf Marshall, T. F. (1999). Restorative justice: An overview. Home Office Research Development and Statistics Directorate, Crown. O`Connell, T. (2011). Restorative justice online. Center for Justice and Reconciliation. Retrieved 13 October 2011 from http://www.restorativejustice.org/leading/oconnel Pennell, J. (2004). Should his and her sides of the family be invited to the FGC? American Humane FGDM Issue in Brief. American Humane Foundation. Restorative Justice (2011). Research and Resources. Center for Restorative Justice, Austrlia. Retrieved 13 October 2011 http://www.restorativejustice.com.au/index.php Strang, H. (2001). Restorative justice programs in Australia: A report to the criminology research council. Center for Restorative Justice. Retrieved 13 October 2011 from http://www.criminologyresearchcouncil.gov.au/reports/strang/report.pdf Training and Accreditation Policy Development Group (2004). Best practice guidance for restorative practitioners to form the basis of training and accreditation. UK. Zhang, J. and Webster, A. (2010). An Analysis of Repeat Imprisonment Trends in Australia using Prisoner Census Data from 1994 to 2007. Australian Bureau of Statistics. Retrieved 13 October 2011 from http://www.abs.gov.au/ausstats/abs@.nsf/cat/1351.0.55.031 Read More