Restorative Justice - Assignment Example

1 Restorative Justice. In recent years, there has been a move towards Restorative Justice as a better option for crime control than inflicting tougher punishment on the offender. The traditional approaches to justice center on retribution or rehabilitation. While retributive justice focuses on the offense and on blame for the past and aims to punish the offender, rehabilitation focuses on the offender and on changing his future behaviour and aims to treat the offender (1) In terms of the offender, retribution aims to hurt and rehabilitation to help. This helping or hurting approach does not take into consideration the manifold needs of the community for justice (2) At this juncture, restorative justice has emerged as a credible “third way”(1) (Daly, 2000, 6). In traditional approaches, the victim is marginalized and the community, which is represented by the State, focuses on incapacitation, deterrence and retribution. In restorative justice, the victim is central to the judicial process and the community members themselves participate in the process of repentance, reparation, reconciliation and reintegration of the offender(3) (The adversarial relationship of the former makes way for negotiation and dialogue in the latter (1). Tony F. Marshall (1996) defines restorative justice as “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implication for the future” (4) Crime is considered to be not just a violation of the law, but a violation of people and social relationships. In restorative justice, the justice system facilitates the coming together of the victim, the offender and the community to analyze how the crimedisrupted relationships between people in the community and ways to repair the relationship. The focus is on empowering the victim, holding the offender accountable for his crime and at the same time strengthening community bonds to provide opportunities for the reintegration of the offender into society. The chief methods used in restorative justice are healing circles, family conferences and victim-offender mediation. Justice is 2achieved when the suffering of the victim, the offender and the community has ended and the crime has been reduced (5). Transcending the lack of empirical evidence that retributive justice deters crime, its’ astronomical economic burden to society and the perceived softness of rehabilitative justice towards offenders, restorative justice is a viable alternative to the traditional forms of justice. Restorative justice, despite its’ appearance as a ‘new’ method, actually has its’ roots in ancient history, dating from Hammurabi’s Code of 1700 B.C. to the Sumerian Code of UrNammu (2060 B.C.), Roman Law (449 B.C.) and the Anglo-Saxon Law of King Ethelbert (600 A.D.), all of which specified restitution for civil and criminal offenses (Daly, 2000). It is increasingly moving towards mainstream criminological practice and is beginning to make its’ presence unequivocally felt in Canada, England, Australia, New Zealand, Scotland, Norway, the United States and some European countries (4). Japan, the sole Western nation which can boast of a falling crime index, has attributed this to the permanent institution of restorative justice (6). At the very outset, it must be clearly acknowledged that the concept of punishment is not alien to restorative justice. In Duffs’ (1992) terms, restorative justice processes are “alternative punishments” and not “alternatives to punishment” (1). Retributive justice resorts to incarceration as punishment. This is shown to “prisonize” offenders by indoctrinating them into a closed society, whose rules are at variance with the outside world. “Once prisoners are assimilated in this way, … they are completely immune to all 3reform efforts” (7). The retributive philosophy of punishing the offender by inflicting pain to deter, incapacitate and segregate from society makes way for the restorative philosophy of “balancing the need to hold the offenders accountable for their wrongdoing with the need for their acceptance and reintegration into the community” (5). Restorative justice emphasizes the importance of ‘earned redemption’ and includes material and symbolic restitution and community services like home repair, gardening and shopping services for the elderly, voter registration drives, painting homes and public buildings, planting and cultivating community gardens, projects to serve abused, abandoned and HIV positive children, damage work crews, environmental restoration and trail building. The focus is on sanctions that do not isolate, demean, humiliate or stigmatize the offender. Only if human dignity is retained will reintegration into society be possible. Inflicting tougher punishments will degrade and exclude the offender, work against reintegration and ultimately lead to greater probabilities of crimes against society (2). Punishment must be ‘forward looking’ so that the offenders’ moral standing in society can be restored in the future (1). The approach is not offender-oriented but community-oriented. As opposed to the deprivation sought by retributive justice, punishment in restorative justice is intended to be constructive (8). In order to weigh the comparative merits of restorative justice over punitive justice as an effective measure of crime control, we shall consider some individual aspects of crime and the application of the restorative justice paradigm to the offence. 4Regardless of the variation in crime rates, incarceration rates continue to soar. This is mainly due to the proliferation of drug abuse offenders. According to the punitive approach, punishment includes incarceration, chain gangs, isolation chambers, sensory deprivation and capital punishment. Prisons are overcrowded and are the scene of torture and sexual abuse, lack adequate medical facilities and condone the use of disciplinary measures like vicious dogs and stun guns. Retributive justice considers the crime alone and not the age or motivation of the offender. The legal system is skewed in favour of those who can afford smart lawyers. Plea bargaining reduces the chances of a mitigated sentence. Inflicting tougher punishment on drug abusers has been proved to have a “ripple effect” on society, instead of preventing crime. This is a consequence of children being incarcerated with their mothers: these children were found to constitute approximately half the inmates in juvenile homes in the future. Incarcerating drug offenders for long periods and then releasing them into the community with no economic or social support is just perpetuating a line of social outcasts, comprised of the mentally ill, the addicted and the poor (9). In contrast, restorative justice emphasizes treatment and intensive supervision, as the debilitating effect of drugs on the brain is acknowledged. This frees prison beds, saving millions of tax dollars. The new drug courts divert the offenders from prison to treatment centers. It has been proved that addicts can successfully rejoin society. The threat of jail time for repeat offenders serves as a deterrent. The U. S. Justice Department has seen a 75% success rate in this approach (10). These diversionary, non-punitive programs have the additional advantage of offering job opportunities to trained counselors. 5When we come to domestic violence, legislation making it a criminal offence, though commendable, has brought little relief to the battered woman or child under the aegis of the retributive justice system. In the case of child victims, the child cannot answer questions or give evidence in court. A vast number of victims are reluctant to approach the State for aid. Women often want to maintain their privacy and would rather opt for marriage counselors and doctors who promise confidentiality. Many victims are engaged in illicit activities themselves and fear to approach the law. Appealing to the police may bring greater violence upon them. Women, who are not financially independent, fear penury and homelessness if their abuser is incarcerated. Many women see the courtroom process as a humiliation, compounded by their ruthless examination by defense lawyers. The victims’ credibility is questioned. The onus is on her to prove rape charges. There is no room for maneuver in cases in which the victim wishes to remain in the relationship for religious, social or economic reasons. Legal intervention rarely gives justice as demonstrated by the high rate of repeat offenders, low prosecution and conviction rates and light sentences. In the restorative approach, emphasis is on community involvement with public education programs on domestic violence, raising funds to provide victims with economic security, media campaigns highlighting the evils of domestic abuse and training of professionals to provide support to victims. Dialogue, in the form of family conferences, offers more meaningful choices by encouraging confession of wrongdoing, assuring the victim that she is not to blame and giving options other than incarceration as punishment (11, 12). Child Welfare is an area which is particularly receptive to the advantages of the restorative justice system. The traditional approach does not allow for flexibility. The 6abused child is cut off from the family and enters the state legal process. Restorative justice uses the Family Group Conferencing method in which the child, the family, friends and social workers are involved in the decision making process. This approach has proved to result in respect for cultural diversity, increase chances of children remaining with their parents or relatives, keep siblings together, stabilize placements, reduce child abuse and enhance family pride. In this context, John Braithwaite’s theory of Responsive Justice is applicable: in his pyramid model, the base is restorative justice, with recourse to the law courts being the apex or last resort when Family Group Conferencing does not work (13). The efficacy of restorative justice as a deterrent to crime is clearly demonstrated in the case of young offenders and drink driving. The Australian National University conducted a study in Canberra which indicates that ‘Reintegrative Shaming Experiments’, which are part of the restorative justice process, are more effective than traditional court proceedings and punishments in controlling crime and in increasing respect for the law and the police. Juveniles charged with shoplifting, burglary and assault are subjected to critical examination by family, friends, victims and community representatives. Conferences involve discussion of the crime, the offenders’ regret and what he can do to repair the harm done. Conferences are less severe than court proceedings in terms of punishment such as fines and loss of drivers’ license but give more hours of community service. Restorative justice creates a ‘sword of Damocles’ effect with the threat of criminal prosecution hanging over the head of the offender for future offenses, whereas prosecution itself takes away much of the fear of future prosecution. Family, friends and community bring out stronger feelings of shame and remorse than court proceedings. 7These offenders are more inclined to obey the law in future than those who are sent to court (14). Braithwaite and Mugford (1994) give a case of the success of Family Group Conferencing in Northern Canada. An ex-felon, who later became a member of the local juvenile justice committee, tells Judge Barry Stuart: “I’m still a crook … I still want to sell and use drugs and fence stereo equipment. But if I do that, I lose this connection. It’s this connection (the justice committee) that makes me not do it” (2). Contrary to the popular perception that restorative justice may not be applicable to economic crimes (15), studies show that restorative justice is suitable for corporate regulation. In Nursing Home regulation, a circle comprising of the representatives of the Board of Management, the staff, the government inspectors and the Relatives Committee, along with members of the Residents Committee, meets to discuss the shortcomings identified by the government inspection. The residents are empowered to give voice to their needs. This restorative justice approach proved to be much more effective in improving service than the punitive approach of government inspectors subjecting the management to criminal prosecution for neglect or ill treatment of patients. Likewise, Joseph Rees’ (1994) study on nuclear safety regulations found that there was an improvement in safety performance when the regulatory process moved from punitive measures towards a people-oriented approach based on peer review and dialogue. Such ‘restorative inspections’ dramatically lowered the accident rates in coal mines also. The restorative approach succeeds as all parties involved are made to confront their responsibilities. Open public dialogue among all concerned, care of the victims and a credible plan to prevent recurrence made criminal punishment redundant (16). 8Victim-Offender Mediation, which is a central process in the restorative justice approach, has even proved to be applicable in cases of homicide. The crime victims meet face-to-face with the offender in the presence of trained mediators. Victims personally inform the offender of how his crime affected them, ask questions, hold the offender accountable and contribute to a plan which materially or symbolically makes good the loss they have suffered. In two case studies involving family members of two homicide victims and the offenders on Death Row, both victims and offenders found the mediation beneficial. The healing impact of restorative justice is found to be especially poignant in violent crime. The victim finds in restorative justice the opportunity for a greater sense of closure so that they can put the crime behind them and move on with their lives (17). The South African Truth and Reconciliation Committee is another instance of the successful application of the restorative justice approach. Archbishop Desmond Tutu asserts that the impersonal State is not the victim and true justice “is another kind of justice … restorative justice …. Here the central concern is not retribution or punishment … (it) is the healing of breaches, the redressing of imbalances, the restoration of broken relationships and the search to rehabilitate both the victim and the perpetrator who should be given the opportunity to be reintegrated into the community which he has injured by his offense” (6). Restorative justice offers irrefutable benefits to the victim, the offender and the community. Victims and offenders perceive that the traditional retributive justice process caters only to lawyers and judges. The victim is revictimized by losing his say in the decision as to how the crime against him is to be redressed. His needs are not considered or met. On the other hand, restorative justice involves the victim in the judicial process 9and incorporates his voice and opinion in every stage. The victim is given monetary compensation, his fears about future victimization are dealt with, he gains an understanding of how and why the crime was inflicted on him and he is offered an opportunity to reach out to forgiveness as a step towards healing. On the flip side, the victim may be too angry and fuelled by desires for vengeance to participate in the process. Face-to-face encounters with the offender may prove overly traumatic and, in cases where material reparation is not possible, the victim may feel cheated. In the case of the offender, restorative justice provides the chance to confront his accountability for the crime and admit his guilt, remorse and repentance in a supportive environment and also an opportunity to seek forgiveness from the victim. Corrective techniques are used to teach the offender ethics and he leaves the system retaining his dignity, equipped with new skills which facilitate his reentry into society. On the negative side, the offender may be insincere and unrepentant, or unable to articulate his feelings. Signs of repentance may be misread and the process degenerate into a blame game, making the offender feel victimized. The offender may decide that his admission of guilt is sufficient and evade further responsibility. Restorative justice provides the community with the means to strengthen social bonds and garner support for a collective action by its’ citizens against crime, instead of abrogating responsibility to the State. Restorative justice thus controls crime by strengthening the response of those in the first line of encounter ie. the community (18). Strong community bonds proportionately strengthen the communities’ power to unequivocally lay down its’ values and tolerance limits and use its’ collective disapproval as a restraining force to control crime. As a result, the justice process becomes more accessible and the neighbourhood safer. Community service by the 10offender contributes to community welfare. Communal obstacles to restorative justice are the indifference of community members, their reluctance to get involved, lack of skilled social workers and the difficulties involved in supervision and rehabilitation (5. 2.). Some general criticism can validly be leveled against restorative justice: As it is outside the ambit of the due legal process, more lenient rules of evidence against the offender are admitted and he may be coerced into Victim-Offender Mediation by threats of harsher punishment. The system is open to corruption and has not yet generated a plausible blueprint for crime control. The net of social control is widened with increased supervision. Shaming may supersede reintegration, leading to negative psychological consequences. Prejudices of class and colour have more room to play a part. Restorative justice has limited application to violent crime (5. 2). In conclusion, Restorative Justice can be the ‘third way’ which flexibly incorporates the best of retributive and rehabilitative justice along with its’ own unique elements (1). It reduces recidivism, saves countless tax dollars and restores the offender as a useful member of society (7). In my opinion, what we perceive to be its’ strength, that is, the community approach, is also its’ inherent weakness. Society had to be shaken out of its’ apathy and educated to become the frontline in the war against crime. This will be no easy task, as laws and regulations are easier to legislate and enforce than the mandate for social change, without which restorative justice will never succeed. However, Restorative Justice is in its’ infancy (2). Its’ humanistic and balanced approach to justice deserves to be nurtured and given a chance to realize its’ full potential. References. 1. Daly, K. 2000.Revisiting the Relationship between Retributive and Restorative Justice. Restorative Justice: From Philosophy to Practice.2000 edited by Heather Strang and John Braithwaite. Aldershot: Dartmouth. http://www.griffith.edu.au/school/ccj/kdaly_docs/kdpaper6.pdf. (accessed on 28 October, 2006) 2. Bazemore, G Restorative Justice and Earned Redemption: Communities, Victims and Offender Reintegration. American Behavioral Scientist, 41(6):768-813. Rowan and Littlefield Publishers, Inc: Lanham, Maryland. http://www.fau.edu/barj/pubs/barj02.pdf (accessed on 29 October, 2006) 3. Lemley, E. C. and G. D. Russell. 2002. Implementing Restorative Justice by “groping along”: A case study in program evolutionary implementation. Justice System Journal, 2002. http://www.findarticles.com/p/articles/mi_qa4043/is_200201/ai_n9656044 (accessed on 30 October, 2006) 4. Latimer, J., C. Dowder and D. Muise. 2005 The Effectiveness of Restorative Justice Practices: A Meta-Analysis. The Prison Journal, Vol.85 No.2, June 2005, 127-144, Sage Publications, Thousand Oaks, Ca. http://tpj.sagepub.com/cgi/content/abstract/85/2/127?etoc (accessed on 27 October, 2006) 5. Levrant, S., F. T. Culler, B. Fulton and J.F. Wozniak, 1999 Reconsidering Restorative Justice: The Corruption of Benevolence Revisited? Crime and Delinquency, Vol.45 No.1, January 1999 3-27. Sage Publications, Inc. Thousand Oaks, Ca. http://cad.sagepub.com/cgi/content/abstract/45/1/3 (accessed on 28 October, 2006) 6. Northey, W., 2002. Desmond Tutu’s No Future without Forgiveness: Reflection On Restorative Justice, part two - Faith and Spirituality – Book Review Catholic New Times, October 6, 2002. http://www.findarticles.com/p/articles/mi_mOMKY/is_15_26/ai_94043391 (accessed on 31 October, 2006) 7. LeGardeur, L. 2003. Restorative Justice: mending the fabric of society: advocates point to a better way to give victims a voice and prevent offenders return to crime. National Catholic Reporter, May 30, 2003. http://www.findarticles.com/p/articles/mi_ml141/is_30_39/ai_102696897 (accessed on 30 October, 2006) 8. Daly, K.2002.Restorative Justice. The Real Story. Punishment and Society. Vol. 4(1):55- 79. Sage Publications. Thousand Oaks, Ca. http://pun.sagepub.com/cgi/content/abstract/4/1/55 (accessed on 28 October, 2006) 9. Smidstra, H. 2006. The revolving door of the justice system: outcasts: we are detaining the mentally ill, the addicted and the poor. Catholic New Times, September 24, 2006. http://www.findarticles.com/p/articles/mi_mOMKY/is_14_30/ai_n16766737 (accessed on 31 October, 2006) 10. Van Wormer, K., 2001. Restorative Justice – Law and Justice. U.S.A. Today (Society for the Advancement of Education), November 2001 http://www.findarticles.com/p/articles/mi_ml1272/is_2678_130/ai_80533083 (accessed on 31 October, 2006) 11. Kelly, K. 2004. 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RISE Working Papers, No.4 http://dspace.anu.edu.au/bitstream/1885/41919/1/risepap4.html (accessed on 1 November, 2006) 15. Kerber, G. 2003.Overcoming violence and pursuing justice: an introduction to Restorative Justice procedures. Ecumenical Review, April 2003. http://www.findarticles.com/p/articles/mi_m2065/is_2_55/ai_106560168 (accessed on 30 October, 2006) 16. Braithwaite, J. 2002. Restorative Justice and Corporate Regulation. http://www.law.du.edu/russell/RJ/RJ_AND_CORPORATE1.doc (accessed on 29 October, 2006) 17. Umbrett, M. S. and B. Vos. 2000. Homicide survivors meet the offender prior to execution. Restorative justice through dialogue. Homicide Studies, Vol.4 No.1 February 2000 63-87. Sage Publications, Thousand Oaks, Ca. http://hsx.sagepub.com/cgi/content/abstract/4/1/63 (accessed on 1 November, 2006) 18. Burford, G. and P. Adams. 2004. Restorative justice, responsive regulation and democratic governance. Journal of Sociology and Social Welfare, March 2004 http://www.findarticles.com/p/articles/mi_mOCYZ/is_1_31/ai_n6065937 (accessed on 30 October, 2006) 19. Adams, P. 2004. Restorative Justice, responsive regulation and democratic governance. Journal of Sociology and Social Welfare, March 2004. http://www.findarticles.com/p/articles/mi_mOCYZ/is_1_31/ai_n6065936 (accessed on 30 October, 2006) Read More