Restorative Justice - Article Example

Restorative Justice Introduction: The situation that this community is faced with today is the growing incidence of criminal activity that is being perpetrated by the youth aged between 16-25. However, our justice system does not appear to be adequately addressing this problem, since the incidence of crime is growing and the victims are dissatisfied with the extent of relief they are receiving, since it does not provide adequate remedy for the harm that they have suffered. Therefore, the purpose of this presentation is to explore an alternative justice system by undertaking an exploration of restorative justice which aims to enhance communication between the offenders, the victims and the community in order to arrive at a more satisfactory resolution for crime from the perspective of the entire community. Deteriorating law and order among Youth: With increasing incidence of crime in general and in particular among young people1, the past two decades have brought forth harsher legislation2 to deal with the problems of terrorism and deteriorating law and order, which seriously question former Prime Minister John Major’s contention that “we have no need of a Bill of Rights because we have freedom.”3 Anti Social Behavior orders have been introduced by the crime and Disorder Act of 1998, specifically to deal with law and order problems among the youth and have a minimum period of two years, although they may also be imposed indefinitely to ensure that a repetition of anti social behavior does not occur4. Anti Social Behavior Order was created in 1998 and in the short space of six months in 2004, produced a thousand arrests.5 This Order has allowed extended powers for the police department to tackle a wide range of anti social behavior by unruly teenagers, including the kind of problems this community is faced with – vandalism and shop lifting. But the fact that must be faced is that the criminal justice system does not work, too many people are able to slip out of the net of the system because of the rigid requirements for evidence, delays in processing trials in courts, the difficulty of procuring witnesses to substantiate charges because of the element of fear, so that the end result favors the criminals rather than the law enforcement authorities, so perhaps such draconian measures are justified.6 However, Lord Macintosh of Haringy had spoken out on the provisions concerning public order in the Criminal Justice Act of 1994 and has stated unequivocally that “these are repulsive extensions of police power in our society and at some stage, they will have to be removed.”7 There is all round dissatisfaction in our community about the effectiveness of the criminal system, despite the enhanced provisions available under new legislation, therefore there is an urgent need to consider alternative means that will be able to achieve a better result in terms of putting an end to the criminal activity of youth. What is restorative Justice? When an individual has been the victim of a crime, then the concept of restorative justice works on the principle that the perpetrator of the crime tries to make reparation for the crime through practical means, in order to attempt to repair the damage that has been done. Restorative Justice has been defined as “a problem solving approach to crime which involves the parties themselves and the community generally, in an active relationship with statutory agencies.”8 Gilman (2006) has set out the following that define the concept of what restorative justice is9: (a) The focus of all crime is the harm that is done to the victim, hence if the issue of crime is to be addressed in a meaningful manner, this can only be done by focusing upon that harm. (b) The underlying principle behind restorative justice is that victims should play an active role in the process of justice – since they are the ones who have been harmed, they must have a say in how the crime must be resolved. (c) The needs of the victims must have top priority when the community takes action and frames policies on crime (d) Merely punishing an offender for his/her crime is inadequate to sufficiently address the crime. It is of greater value to ensure that the offender is held accountable for his/her crime and made to participate actively to make retribution for the crime to fulfil his/her obligation to the community and the victims. (e) The community is an integral part of the justice system to ensure that crime is properly addressed and it must participate actively is the cause of safety and security is to be advanced. (f) The justice system in isolation cannot function effectively in addressing crime, it is only the community that has the ability and the resources to effectively and comprehensively address crime and its ramifications. Gilman also states that the justice system as it presently exists is not a balanced system because it focuses on the offenders. However, restorative justice seeks to address this imbalance by the community mandating a justice system that includes the needs of the victims, the offenders and the community. Therefore, such a system will be based upon accountability of the offenders in order to ensure their redemption and to simultaneously ensure that the needs of the victims are adequately addressed by the community. Advantages of restorative Justice: The term “restorative justice” was first coined by Barnett10 and is derived from early experiments in mediation in America, wherein a relationship and interaction was sought to be established between the victims and the offenders11. According to Bazemore et al (1997), the restorative justice process focuses upon repairing relations that have been harmed by crime (pg 2), therefore the parties get the opportunity to sit together and enter into conference with each other. The victims are able to understand the situation from the point of the offender, breaking down stereotypes to understand the true motivations for crime. Similarly, the offenders have the opportunity to come face to face with the harmful effects of their acts and to repent for them and seek to make reparation. Restorative justice is particularly useful among young people and has also been introduced in schools in the form of counseling services for young offenders rather than sending them on to jail, which also reduces the work load on the criminal justice system. Moreover, as Bazemore et al (1997) have pointed out, the adversarial litigant system tends to cast a stigma on the offender, isolate him/her and reduce the chances of successful reintegration into society, while a community based interactive, conferencing approach is more beneficial to the offenders in facing up to their crimes and making retribution for them. Over the years, the practice of conferencing has been honed and refined through discovery of workable techniques that have a greater impact on offenders, ensure higher levels of satisfaction to the victims of crime and are also more acceptable to the public. Some of the techniques that have been utilized in this connection include victim support, community based rehabilitation programs or rehabilitation programs offered at institutions designed for the purpose of reforming criminals into productive members in society, mediation, problem oriented policing including community policing. Restorative justice therefore allows for greater community participation and control and this has been found to be quite successful in some instances. For example, in Scotland, the 1968 Social Work (Scotland) Act introduced the practice of Children’s hearings. In this system, juvenile offenders are brought before tribunals which are largely comprised of community representatives and the offender and parents are also expected to be present. The goal of these lay tribunals is not punishment for the crime per se, rather they seek to find solutions that will be in the best interests of the child while also allowing for adequate compensatory measures for the victims.12 In a similar manner, the state of Vermont in the United States has introduced the reparative probation programme, wherein non-violent juvenile offenders must come before a Reparation Board, which is comprised of local citizens, who seek effective solutions to ensure that the offender is rehabilitated as a productive member of society, such as for example by sentencing them to community service and counseling.13 Mediation as a form of restorative justice has been implemented in some cases where it may be therapeutic for victims who have suffered through the atrocities of criminal offenders14. Victims are better able to put their fear behind them and are more apt to feel that justice has been done when they experience mediation and feel that they have been treated fairly. It may be noted that Wemmers and Cyr have also pointed out that such mediation may not be suitable in all instances, especially since the ultimate objective of the exercise is restorative justice. However it has been found effective in helping the victims of some crimes overcome their fears and participation in such programs has been an aid in their recovery Advantages accrue to all three segments – victims, offenders and the community, through restorative justice practices. For example, Victim-offender mediation is one of the applicable practices, whereby the victim and offender communicate directly with each the in the presence of an independent, impartial third person who helps them to reach an agreement between themselves on how the offender will make reparation for the damages caused to the victim.15 Such mediation procedures could also involve larger groups, such as the family and friends of the offender and victims and other interested members of the community, in practices such as restorative or family group conferencing. Youth offender panels comprised of knowledgeable, trained members of the community including teachers, social service workers and police officers, lawyers, etc could also contribute to the development of an effective solution for an offence, when the problems are brought before such panels. Such informal mediation procedures help to eliminate the adversarial litigation process. As opposed to the adversarial Court based system and expensive lawyers, mediators are viewed as a “consumer friendly” approach and according to Mosten, “Disputants consider mediation less damaging to relationships, and…mediation helps parties identify real issues, feel as if they were treated fairly, and feel as if they were treated with dignity and respect”16 . Therefore effective reparation measures can be devised, which could be either direct – for example, apology letters, financial compensation for the victims – or indirect reparation which would be accomplished through community service for the duration specified by citizen panels or groups that meet to adjudicate upon the offence and possible solutions17. In a system of restorative justice, citizens are encouraged to negotiate among themselves rather than to depend upon professional such as judicial authorities or lawyers to adjudicate their dispute for them. Roche18 has explored the various dimensions that exist in the field of restorative justice and points out that teachers, social workers, diplomats and peacekeepers, all practice a form of restorative justice, and examining these oft neglected principles and applying them in the sphere of dispute resolution could help to provide an effective means for refining current practice of restorative justice and aiding facilitators in their task, since these individuals are often non legal personnel who function more in the nature of social service workers and restorers of justice through encouraging individuals to negotiate among themselves and with the ultimate goal of repairing and preventing harm. On the basis of the above therefore, it may be noted that our community may stand to benefit if various means of restorative justice are considered. For example, the creation of panels including police officers, social workers, retired judges and ordinary citizens, may help to identify the underlying causes for the criminal activity in our neighborhood and to help these young offenders to offer retribution for their offences through services that will be acceptable to the victims and also help to rehabilitate such offenders into productive citizens. If the young offenders who are indulging in criminal activity are made to pay for their offences through community service, they are less likely to turn into hardened criminals after being pushed into jail. A supportive community framework can help many of these young offenders to feel ashamed of their crimes and seek to provide retribution, especially when they are offered the opportunity to directly interact with their victims and experience the damages they have caused. Moreover, the goal of restorative justice panels is not centered on punishment, therefore the elimination of the adversarial climate provides a friendly interactive environment where effective solutions can be discovered. Restorative Justice also makes use of neighborhood policing, which can function as an effective deterrent to crime. As a part of this process, the police practice Restorative Policing, which is different from traditional cautioning in that it is less punitive. A case study conducted with the Thames Valley Police found that restorative cautions tended to produce apologies from the offenders which seemed to be more genuine than the sullen rebellious attitude resulting from formal cautioning. Furthermore, most of the participants appeared to find that offenders were more likely to understand the nature of their offence and feel genuine shame for them (www.crimereduction.gov.uk). Community policing is another part of restorative justice that can be beneficial in having a preventive effect as far as crime is concerned. A case study conducted in the Devon and Cornwall area examined the processes in place for training local citizens in tackling crime and providing community policing to preempt crime. This could be a particularly useful measure to be implemented in our neighborhood, since it would ensure that the young offenders who are engaging in theft and vandalism will be careful not to repeat those actions since they know the neighborhood is being patrolled and they will be held accountable for their actions. Involving the young people before the crime is committed will also involve extracting their promise to adhere to a particular code and standard of behavior and the sense of responsibility that is imposed upon young people in this way could be successful in imparting greater community and civil responsibility in the minds of these young offenders. Therefore, the entire role of the police would be transformed, since they would assume the role of facilitators of orderly behavior by pre-empting criminal acts through community policing and conferencing with offenders. The limitations of restorative Justice: One of the most significant limitations the program could face is lack of cooperation from either party. This process involves active participation from offenders, victims and the community, therefore if one or the other refuses to participate in the mediatory processes involved in restorative justice, then it will be difficult to find solutions. However, the community can consider imposing fines for refusal to participate in the process or for offenders who refuse to accept the judgments of the citizen panels. Another limitation that must be considered is the various social and class divides that exist within our society. The inequality in social status, etc may result in some members being unwilling to be supportive of other members from a different race or socio economic class. Conclusions: Therefore, it may be noted that there are some advantages and limitations associated with this restorative justice process. However, there are some immediate measures that can be taken to tackle the present crisis: (a) Introduce a community policing program (b) Formulate citizen panels consisting of police officers, lawyers, teachers and social workers to focus upon the needs of the young offenders and victims, in order to devise effective means of reintegrating young people into the community as positive contributors. This can be achieved by focusing on renewal and regeneration rather than punishment (c) Introduce community conferencing and counseling at schools and homes for young offenders (d) Introduce different kinds of sentences as compared to the traditional criminal justice system – i.e, community service or other means of making retribution for crimes and being held accountable for them. In view of the fact that the criminal justice system is not working satisfactorily, it appears necessary to consider a less adversarial system. Most of the offenders involved are young juveniles and there is yet time for them to reform themselves and give up their anti social acts. Therefore, the goal of the justice system which seeks to assist such offenders to reform rather than to subject them to strict and harsh punishment, is more likely to succeed. Moreover, the outcomes are also likely to be beneficial to the community, because it will result in a lower incidence of crime when the young offenders know that they are under community surveillance and will be held accountable for their crimes. It may also be helpful to victims in that they will be in a position to put forth their views during conferencing so that consensual solutions that are arrived at are more satisfying to the victims in addressing the problems that have been created rather than punishing the victims. 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Parliamentary Affairs , 57(4) at pp 745 * Leaders: Taking Britain’s liberties – taking liberties, anti social behavior in Britain the Economist, Feb 5, 2005: 374(8412), pp 9 * Marshall, Tony F, 1999. “Restorative Justice: An overview.” [online] available at: http://www.homeoffice.gov.uk/rds/pdfs/occ-resjus.pdf * M’cAra, L and Young, P, 1997. “Juvenile Justice in Scotland” Criminal Justice, 15: 8-10 * Mosten, Forrest S, 1999. “Mediation and the Process of Family Law Reform.” Family and Conciliation Courts Review. 37 (4): 429-447 * Restorative Justice: helping to meet local needs.” [online] available at: http://www.crimereduction.gov.uk/criminaljusticesystem12.htm * Roche, Declan, 2006. “Dimensions of Restorative Justice.” Journal of Social issues, 62 (2): 217 * Suitable, sustainable, supported.” A strategy to ensure provision of accommodation for children and young people who offend.” [online] available at: http://www.yjb.gov.uk/publications/Scripts/prodView.asp?idproduct=307&eP= * Wemmers, Jo Anne and Cyr, Katie, 2005. “Can mediation be therapeutic for crime victims? An evaluation of victims’ experiences in mediation with young offenders.” Canadian Journal of Criminology and Criminal Justice, 47(3): 527-545 * “Victims of crime: restorative justice” [online] available at: http://www.yjb.gov.uk/en-gb/yjs/VictimsofCrime/RestorativeJustice/ * Wasik, Martin and Taylor, Richard, 1994. Blackstone’s Guide to the Criminal Justice and Public Order Act 1994 London: Blackstone Press at pp 94 * Wright, M, 1991. “Justice for Victims and offenders.” Milton Keyes: Open University Press. * http://www.yjb.gov.uk/publications/Scripts/prodView.asp?idproduct=285&eP= References: * Gilman, Eric, No Date. “What is Restorative Justice?” Clark County Juvenile Court. [online] available at: http://www.sfu.ca/cfrj/fulltext/gilman.pdf Read More