Justice for Young Offenders - Essay Example

Restorative Justice and Young Offenders Restorative justice is a relatively contemporary model in penology that has had quite a considerable level of acceptance in modern penology, especially in North America, Europe, (Umbreit and Greenwood, 1998) Australia, and New Zealand. More than a 1000 different programmes that employ restorative justice principles are known to be operative in the afore mentioned jurisdictions. (Umbreit and Greenwood, 1998) According to Marshall (1999) restorative justice is "a problem-solving approach to crime which involves the parties themselves, and the community generally, in an active relationship with statutory agencies" (p.5). The main ethos in restorative justice focuses on a process which allows participation by the victim of crime, community representatives, the offender and families of the victim and or the offender. (Luna 2003) This inclusive process of penology is preferred as a medium for dealing with the causes and effects of crime in the community. (Luna 2003) Restorative justice views crime as an offence against an individual (or individuals) and the community and is thus a departure from the traditional norm in penology where the state assumes the role as the one whose prohibitions has been breached. The locus of dealing with crime and its effects under restorative justice is thus communal in nature. Consequently, Marshall (1995) has observed that restorative justice gives "recognition of community, rather than criminal justice agencies as the prime site of crime control" (p.1) Marshall (1999) also asserts that restorative justice is founded on principles which include "making room for the personal involvement of those mainly concerned (particularly the offender and the victim, but also their families and communities); seeing crime problems in their social context; a forward-looking (or preventative) problem-solving orientation;" and "flexibility of practice (creativity)" (p.5). One of the areas of the criminal justice system that restorative justice is showing a lot of promise as a form of early intervention in preventing re-offending in many countries the world over (especially the 'Family Group Conferences in Australia and New Zealand) is in the area of juvenile delinquency or youth offending. (Thames Valley Police, 1999) McGarrell (2001) observes that in the US, emphasis on issues of youth violence and school safety due to school shootings, have diverted attention from an important area of concern like delinquency among the very young. Writing in 2000, Puzzanchera et al, had indicated through available statistics that 16 percent of youth below the age of 13 arrested by police were referred to juvenile courts. What is more worrying is the fact that 60 per cent of youth between the ages of 10-12 referred to juvenile courts re-offended and thus appeared before the courts more than once. (McGarrell, 2001) Snyder and Sickmund (1995) have also observed that 80 percent of youth who are referred to juvenile courts for a second time are likely to offend again and thus appear before the courts again. Though the incidence of child delinquency that precipitates this early involvement with the criminal justice system are generally not serious crimes, the risk of child offenders progressing to more serious crimes in the future is very high - two out of three time higher than for offenders who start offending at a later stage in life. (Loeber and Farrington, 2000) Consequently, "early involvement in status offenses and delinquency is a stepping stone in a pathway to serious, violent, and chronic offending". (McGarrell, 2001 p.1) With such a high incidence of offending and re-offending, the criminal justice system dealing with youth crime definitely needs a system that can stem the tide of this chronic re-offending rate among the youth and the promise that restorative justice is showing in this direction is encouraging. As is evident in the introductory segment of this literature review, restorative justice can be used widely in the criminal justice system to deal with different forms of offending. McGarrell (2001) however observes that, "restorative justice conferences may be particularly appropriate for very young offenders". (p.2) The typical restorative justice conference for youth offenders is constituted of the following - the youth offender, the victim, supporters of the offender, supporters of the victim, and a trained facilitator. At the restorative justice conference, a discussion of the offense and the harm it has caused is held. The victim is given the platform to air their view of how they have been affected or harmed by the offender's behaviour, and to question the offending youth about the incident. Supporters of both the victim and the offender are also given the opportunity to express the impact the offense has had on them. The conference concludes with the participants agreeing on what the offending youth has to do as a way of making amends to the victim. This results in a reparation agreement which participants of the restorative justice conference sign. (McGarrell, 2001) Some typical features of the reparation agreement include an apology, a provision for restitution to be made to the victim, and performance of community service by the offending youth. Some potential advantages of restorative justice conferencing have been identified by McGarrell (2001). Restorative justice conferencing are designed to deal with practical and important issues like the emotional needs of the victim, the loss that she or he may have incurred as a result of the offense, and the holding of the offending youth accountable for their actions or misbehaviour. These benefits of restorative justice have been held to be more effective in dealing with youth offending than the conventional juvenile court system does. One of the notable benefits of using restorative justice conferences for dealing with youth offending is that it offers "a meaningful response to youthful offending without consuming significant court resources". (McGarrell, 2001 p.2) Also, by bringing offenders and their victims 'face to face' in an environment that is not adversarial in nature, the offending youth are afforded the opportunity to know and learn about the negative effects of their behaviour on their victims and the community at large. The inclusion of support groups for both the victim and the offender further creates a support for the offender and his or her victim. The above discussed benefits of restorative justice in dealing with youth offending is also premised on notable criminological models like control, deterrence, and reintegrative shaming. Under the control model, deviant behaviour is brought into conformity with the law as the law is considered to be morally legitimate. In relating the use of control to achieve conformity to social norms (or laws) in Japan, Luna (2003) states that: "Breaches in conformity are met with swift condemnation by an interdependent web of families, coworkers, and community members, followed by a process of reassimilating offenders into the fold" (p.230) The affirmation of the moral superiority of the law above deviant behaviour is established through socializing institutions in society, like the family, the school and the church. When the control model is applied to the principles of the restorative justice conference discussed above, it can be argued that the conference provides a medium of socialization for young offenders. Through agreed reparative activities like the rendering of an apology to the victim, the payment of restitution, and the undertaking of community work, the offender's deviant behaviour is brought into conformity with the acceptable social norm (or law). The offender is also re-integrated into the community through the performance of the reparative acts. Consequently, "restorative justice conferences provide a learning opportunity in which the harm caused by offending is directly communicated to youth and youth's bonds to family members and community institutions are strengthened, conferences become part of the socialization process through which youth learn to conform to society's norms". (McGarrell, 2001 p.2) The deterrence model is the central pillar in the utilitarian paradigm of penology. (Luna, 2003) Punishment is justified in utilitarianism if it serves a social good like deterring the offender from re-offending and deterring others in the community from following the offender's negative example or from committing crime. (Hart, 1968) Deterrence can apply to restorative justice through the reparative acts that the offender is made undertake. The reparative acts put a prohibitive price on offence and as such, offender and the community in general are deterred from committing an offense. One of the foremost proponents of restorative justice is John Braithwaite and his model of reintegrative shaming builds upon the models of control and deterrence. Under reintegrative shaming, condemnation is not directed at the offender's character but rather at his or her conduct. (Braithwaite, 1995) Through this process, the offender is reintegrated into society without the stigma branding him or her as a criminal. Reintegrative shaming under restorative justice is thus contrasted with 'disintegrative shaming' under the conventional criminal justice system where an offender may be segregated from society through incarceration or other forms of stigmatization that makes re-integration into society difficult. Proponents of the two main conventional paradigms of penology - utilitarianism and retributivism have both been polarized in the criticism of each other on issues of crime prevention, deterrence, and re-offending. Luna (2003) for instance argue that disillusionment utilitarian propositions of crime prevention (or reduction) through deterrence, rehabilitation/treatment and incapacitation have precipitated a preference in some penal systems and among some criminologists of retributive forms of punishment in the criminal justice system. This is due to the fact that retributive paradigms of penology justify punishment on arguments like just deserts and equivalence. In both these paradigms of punishment, the stigmatization of the offender is not dealt with and thus punishment may been seen as a payment of one's tariff of offending without necessarily engendering in the offender the need to empathize with the victim, render an apology, and undertake some restorative acts to the victim and the community as pertains under restorative justice. The socializing and reintegrative effects of these conventional paradigms of penology on offenders in general and young offenders in particular are thus minimal and the consequent high levels of re-offending is thus to be expected. The use of restorative justice conferences for young offenders thus provides a medium of integrating the youth into society instead of segregating them, which results in high incidences of re-offending. New Zealand has for instance recorded remarkable declines in appearances of young persons in juvenile courts and commitment to correctional institutions since the passing of the Children, Young Persons and Their Families Act 1989. The Act established the national use of family group conferencing (a type of restorative justice conferencing) and since the coming into force of the Act, there has been a significant decline recorded in the number of young offenders appearing in court and receiving convictions. (Center for Restorative Justice and Peace Making, 1997) A year after the coming into force of the Children, Young Persons and Their Families Act, New Zealand witnessed a 50 per cent reduction in the number of young offenders who were committed to correctional institutions, representing the largest recorded impact of the use of a single restorative justice system in any part of the world. (Center for Restorative Justice and Peace Making, 1997) Other remarkable successes of the use of restorative justice conferencing for young offenders have been recorded in Australia and Canada. In Australia, a study found that there was an 86 per cent compliance rate with the decisions of family group conferences and in Canada, studies have found that there was an 80 per cent decline in re-offending by offenders who took part in one of Canada's restorative justice system - the circle sentencing process. (Center for Restorative Justice and Peace Making, 1997) In Canada, many providers of restorative justice programmes targeted at specific crimes and population demographics abound. Apart from the above stated circle sentencing, the community conferencing programme is another restorative justice provider that focuses on diverting youth offenders away from the court or criminal justice system. The success in the restorative justice programmes, (especially with young offenders) has thus resulted in its adoption in many jurisdictions. It must be noted though that restorative justice has been criticized for having some major flaws. Perhaps the most notable flaw in restorative justice and its application to young offenders is the fact that it is limited in its application. (Luna, 2003) Whereas the conventional criminal justice system has been applied to cover a very wide area of offending, the same cannot be said of restorative justice. Crimes that do not necessarily present an identifiable victim (e.g. drug abuse or possession of drugs) can not be effectively brought under the principles of restorative justice. The lack of a formalized procedure as pertains in the normal court system may also result in inconsistencies in the administration of justice under restorative justice. It could be argued that such inconsistencies could send wrong signals to young offenders and thus affect the efficacy of the socialization and reintegrative objectives of restorative justice. The rehabilitation/treatment principles of utilitarianism are not emphasized in restorative justice (Luna, 2003) and as such young offenders who may be suffering from a disorder that makes them prone to certain forms of offending behaviour may be glossed over and an opportunity for early intervention may be missed. It can however be said that no one paradigm of penology holds the key to unraveling the solutions to crime and its prevention in society. The noted benefits of restorative justice especially amongst young offenders should be maintained and supported to work in tandem with other conventional forms of penology in the criminal justice system. References Braithwaite, J. (1995) 'Reintegrative Shaming, Republicanism, and Policy' in Crime and Public Policy: Putting Theory To Work 191, 193 ed. Hugh P. Barlow Center for Restorative Justice and Peace Making, (1997). 'Impact of Restorative Justice: "What we are Learning from Research"', University of Minnesota, www.restorativejustice.org.uk/Resources/pdf/learning_from_research.pdf (accessed on 27/04/08) Hart, H. L. A., (1968) Punishment and Responsibility: Essays in the Philosophy of Law, Clarendon Press: Oxford Loeber, R., and Farrington, D. P. (2000). Child Delinquents: Development, Intervention, and Service Needs. Thousand Oaks, CA: Sage Publications, Inc. Luna, E., (2003) 'Punishment Theory, Holism, and the Procedural Conception of Restorative Justice' Utah Law Review, pp. 205-302 Marshall, T. F. (1999), Restorative Justice: An Overview, London: Home Office, Information & Publications Group McGarrell, E. F. (2001). 'Restorative Justice Conferences as an Early Response to Young Offenders', Juvenile Justice Bulletin, Office of Juvenile Justice and Delinquency Prevention, NCJ 187769, pp.1-12 Puzzanchera, C., Stahl, A.L., Finnegan,T.A., Snyder, H.N., Poole, R.S., and Tierney, N. (2000). Juvenile Court Statistics 1997. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Snyder, H.N., and Sickmund, M. 1995. Juvenile Offenders and Victims: A National Report. Pittsburgh, PA: National Center for Juvenile Justice. Umbreit, M. and Greenwood, J. (1998). National Survey of Victim Offender Mediation Programs in the US. University of Minnesota: Center for Restorative Justice and Peacemaking. Read More