Advantages and Disadvantages of Involving Victims in the Sentencing of Offenders - Coursework Example

The Involvement of Victims in Sentencing Restorative Justice Introduction Restorative justice has been described as a process that addresses the different initiatives pertaining to the repair of harm, via a process that enables the stakeholders to participate actively, comprehensively and as frequently as possible[CITATION Saw13 \p 46 \l 1033 ]. In accordance with the rule of law, victims should not be permitted to dictate justice or sentencing. However, it is necessary to better comprehend and taken into consideration, their experience of the criminal justice system[ CITATION Ros10 \l 1033 ]. The UK Government regards restorative justice as an integral component of the criminal justice system. This is due to its capacity to permit the victims to describe the anxiety, stress, and hurt caused by the crime to them to the offender. In order to promote the use of restorative justice in the criminal justice system, the Government has; first, prepared an action plan to develop the use of restorative justice. Second, it has introduced pre-sentence restorative justice, via the Crime and Courts Act 2013. Finally, the Government has included restorative justice in the Victims Code that has come into force from 10 December 2013[ CITATION Cro151 \l 1033 ]. With regard to victims’ rights, the first United Nations (UN) policy document on victims, included several important elements. Some of these being, the right of victims to be kept informed, fair treatment, proper consideration of their opinion, restitution, compensation, and provision of suitable services. A broad definition of victims was furnished in the UN Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power. One of the objectives of this declaration was to highlight the plight of victims of women and children trafficking[CITATION Wil05 \p 23 \l 1033 ]. Differences between Punitive justice and Restorative justice Punitive or retributive justice has been the principal form of justice. It has been rendered by the state or inter-governmental agencies and mechanisms, with a view to control and reduce anti-social behaviour as defined by the state or inter-governmental authority. However, this definition of justice tends to ignore the requirement of victims for restitution, healing or reconciliation. Thus, such forms of justice render conflicts and their regulation the exclusive domain of the state or inter-governmental system. On the other hand, restorative justice functions on the principle of attempting to restore a relationship between the victim and the perpetrator, with a view to ensuring their co-existence in the same community[CITATION Mur09 \p 143 \l 1033 ]. Moreover, proportionality in sentencing becomes feasible with victim participation, as the victims provides accurate information regarding the gravity of the crime committed [CITATION Ere07 \p 842 \l 1033 ]. Retributive justice regards punishment that is proportionate as a morally justified response to crime. Such punishment endeavours to provide satisfaction and psychological benefits to the victim, society and the offender. This form of justice is based on the tenet that justice has been rendered when the wrong-doer has been subjected to adequate punishment. On the other hand, restorative justice emphasises the requirements of victims and offenders, and does not focus upon the necessity to satisfy the rules of the law or the infliction of punishment by the community. In this system, victims are provided with an active role in the dispute and the offenders are encouraged to undertake responsibility for their crime, and to repair the harm caused to the victim[CITATION YWC15 \l 1033 ]. The concentration of restorative justice is on crime and wrong doing from the perspective of the individual or community instead of from that of the authorities. In general, the sentence imposed upon the offender is determined solely by the judge. The court takes into consideration the following, whilst undertaking this exercise. First, the maximum sentence inflicted upon the offender will, in general, be what has been legislated for that offence. Second, whether the defendant had made a plea of guilty. In case, the defendant had pleaded in this manner, the court has the discretion to reduce the sentence. Third, the quantum of punishment inflicted in similar cases in the past. Fourth, the powers enjoyed by the court, for instance, a Crown Court is authorised to inflict greater punishment than a magistrate’s court. Fifth, the presence of mitigating circumstances that could reduce the amount of punishment. Sixth, the presence of Victim Impact Reports, these being submitted by an expert. Seventh, the presence of Victim Impact Statements submitted by the victim of that crime[ CITATION nid14 \l 1033 ]. Moreover, proportionality in sentencing becomes feasible with victim participation, as the victims provides accurate information regarding the gravity of the crime committed[CITATION Ere07 \p 842 \l 1033 ]. Advantages Offenders and their victims are brought into contact with each other, under the process of restorative justice. It endeavours to help victims recover from the impact of the crime, to make offenders realise the implications of their crime, and to provide criminals an opportunity to make restitution[ CITATION Cri14 \l 1033 ]. In addition, restorative justice has been regarded as helpful by as much as 85% of the victims who had participated in restorative justice conferences. With regard to offenders, it was found that there had been a 14% reduction in the recidivism rate, among the offenders who had participated in the restorative justice process[ CITATION Min12 \l 1033 ]. Moreover, a positive response has been discerned in the studies pertaining to victim attitudes towards restorative justice. All the same, this has been accompanied by a certain amount of criticism in the UK and other nations, namely that an exaggerated view has been projected, vis-à-vis victim engagement and empowerment. Several factors have been identified that contribute to this dismal situation. These include, first, the focus of the criminal justice system upon the offender. Second, the proclivity of many restorative justice practitioners to support offenders and promote their interests. Third, disregard for the concerns and interests of victims, by these practitioners[CITATION Saw13 \p 49 \l 1033 ]. Disadvantages In general, restorative justice functions satisfactorily. However, its narrative-based approach can create problems, if the participants have deficient oral communication that has not been identified. This could result in the participant being labelled disinterested or unmotivated to engage, and could produce unintended harm to victims and offenders[ CITATION Sno11 \l 1033 ]. Due to the absence of consensus regarding restorative justice, the latter has several identities and referents, which could lead to empirical, policy, and theoretical confusion. On several occasions it had been observed that advocates and critics of restorative justice were discussing different things. However, this absence of common understanding denotes the various interests and ideologies involved with restorative justice[ CITATION Dal05 \l 1033 ]. A potential reform that has generated considerable debate in England and Wales is that of the role of victims in the sentencing of adult offenders. With regard to young offenders, the preference is for restorative justice. With respect to adult offenders, the majority of the lawyers have strongly opposed any move to allow responses from victims between the conviction and sentencing stages. These lawyers have contended that sentencing could be influenced by vengeful victims or judges moved disproportionately by the portrayal of the consequences of the offence upon the victims. It is their firm conviction that sentencing should be limited to the offender and the state, with no role for the victim[CITATION Sha10 \p 361 \l 1033 ]. In the year 1972, courts commenced to provide compensation orders, which required the offender to make payments to the victim, as a component of the punishment inflicted by the court. In 1988, the Criminal Justice Act made it mandatory for judges to explain the reason for not providing a compensation order in cases involving an identifiable victim and damage, injury or loss, in the event of not making a compensation order[CITATION Sha10 \p 361 \l 1033 ]. In addition, those who are opposed to victim impact statements claim that these statements include irrelevant information that is detrimental to the interests of the offender. Consequently, this could end in a harsher sentence being pronounced upon the offender[ CITATION Rob111 \l 1033 ]. Conclusion Victim participation in sentencing has become an important aspect of criminal justice. According to the UN policy document victims of crime are entitled to be kept informed, fair treatment, restitution, compensation, and the provision of suitable services. As such, restorative justice has been described as a process that addresses the different initiatives that pertain to the repairing of harm, via a process wherein the stakeholders are enabled to participate actively, comprehensively and as frequently as possible. In general, victim-offender encounter processes have been regarded as a fundamental means for engagement and opportunities. Nevertheless, restorative justice presumes that these principles should underlie the search for justice. Despite the presence of several unresolved conceptual and practical issues, the notions of empowerment and engagement have remained central to the theory and practice of restorative justice. Despite the disadvantages pointed out by the opponents of victim participation in sentencing, it has gained prominence in the criminal justice system of England and Wales. References Crime and Courts Act (c. 22), 2013. London, UK: Her Majesty's Stationery Office. Criminal Justice Act (c. 33), 1988. London, UK: Her Majesty's Stationery Office. Criminal Justice Joint Inspection, 2014. Restorative justice offers benefits to victims, offenders and communities, and take-up is increasing – but more consistency is needed. [online] Available at: [Accessed 20 July 2015]. Crown Prosecution Service, 2015. Restorative Justice. [online] Available at: [Accessed 21 July 2015]. Daly, K., 2005. The Limits of Restorative Justice. [online] Available at: [Accessed 20 July 2015]. Erez, E. & Roberts, J., 2007. Victim Participation in the Criminal Justice System. In: B. L. Cutler, ed. Encyclopedia of Psychology and Law. Thousand Oaks, CA, USA: SAGE Publications, pp. 840-844. Ministry of Justice, 2012. Restorative Justice Action Plan for the Criminal Justice System. [online] Available at: [Accessed 20 July 2015]. Murithi, T., 2009. The Ethics of Peacebuilding. Edinburgh, Scotland, UK: Edinburgh University Press. nidirect, 2014. Verdicts and sentencing. [online] Available at: [Accessed 21 July 2015]. Roberts, J. V. & Manikis, M., 2011. Victim Personal Statements, London, UK: Commissioner for Victims and Witnesses in England and Wales. Rossetti, P., Cumbo, E., Forbes, A. & Bell, L., 2010. Victims' justice?. [online] Available at: [Accessed 20 July 2015]. Sawin, J. L. & Zehr, H., 2013. The ideas of engagement and empowerment. In: G. Johnstone & D. Van Ness, eds. Handbook of Restorative Justice. Devon, UK: Routledge, pp. 41-58. Shapland, J., 2010. Victims and Criminal Justice in Europe. In: S. G. Shoham, P. Knepper & M. Kett, eds. Internatioal Handbook of Victimology. Boca Raton, FL, USA: CRC Press, pp. 347-372. Snow, P., 2011. Is restorative justice really just?. [online] Available at: [Accessed 20 July 2015]. United Nations General Assembly, 1985. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. [online] Available at: [Accessed 4 July 2015]. Williams, B., 2005. Victims of Crime and Community Justice. London, UK: Jessica Kingsley Publishers. YWCA, 2014. Restorative versus Retributive Justice. [online] Available at: [Accessed 21 July 2015]. Read More