Restorative Justice the Origin and Use in Todays Courts - Literature review Example

Running Head: TRUTH AND RECONCILIATION COMMISSIONS Truth and Reconciliation Commissions [The Writer’s Name] [The Name of the Institution] Truth and Reconciliation Commissions Restorative justice, as a practice, has a history older than state justice, yet the paradigm of restorative justice has only recently begun to be articulated. Since Howard Zehr's book Changing Lenses (1990) first sketched the outlines of the restorative justice paradigm, little agreement on definitions or principles have evolved (McCold, 1996, 85-102). Recently, two competing definitions of restorative justice have been proposed. The Declaration of Leuven (1999) and a Working Party of the U.N. Alliance of NGOs (McCold, 1996, 85-102) have both incorporated a working definition of restorative justice proposed by Tony Marshall. "Restorative justice is 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 implications for the future" (Marshall, 1996). Walgrave and Bazemore have publicly criticized Marshall's definition as inadequate, and have proposed a definition of restorative justice that is much more expansive--the "Maximalist" model of restorative juvenile justice (Walgrave, 1998b; 1999; Bazemore and Walgrave, 1999). The comparison of the two distinct definitions should help to clarify differences and help to define the parameters within which to carve out a mid-range theory of restorative justice. We propose a "Purist Model" of restorative justice that is consistent with both Marshall's definition and evolving restorative justice practices. It is not intended in describing the proposed model as purist to mean that it is the only pure model possible consistent with theory, nor to suggest that programs fitting within the definition will operate in an ideal manner. Rather, a purist model of restorative justice is one that includes only those elements of the restorative paradigm without elements of the obedience (retributive/deterrent) and treatment paradigms. The more conservative or pure a model of restorative justice, the less well received it will be by those invested in practices deemed to be outside the definition. However, the development of a theoretically conservative model is important precisely because of the vagueness with which terms are being used. Theory needs to be based on correct thinking, not expediency. By "mid-range," we mean a theory that does not attempt to explain most of social or political behaviour, but explains sufficient to encompass the phenomenon of crime/harmful wrongdoing and social responses to it. Next, we propose a stake-holder analysis to structure the discussion of injuries and obligations within the restorative justice paradigm. The Purist model of restorative justice that has the characteristics criticized by the Maximalists is then described. After responding to the criticisms, we raise similar concerns about the Maximalist model. Finally, a typology of restorative justice practice is proposed to distinguish the restorative from the not restorative, and between fully, mostly, and partly restorative programs. If the challenge to construct a maximalist model of restorative juvenile justice and this reply are to be more than merely differences in opinion, there needs to be a constructive framework within which to carry on the discussion. It is necessary to place the issues within the context of the social sciences. To do so, we need to be clear on a number of scientific concepts. The terms paradigm and theory are sometimes used interchangeably, but they are not the same. “Paradigms are general frameworks or viewpoints: literally points of view. Paradigms provide ways of looking at life. A theory is a systematic set of interrelated statements that intends to explain some aspect of social life. Thus, theories flesh out and specify paradigms” (Babbie, 1995, pp.). If restorative justice is to develop as a paradigm, postulates, theories, propositions and concepts all need to become established. A postulate of restorative justice, for example is that crime injures people and relationships. A theory of restorative justice for example, might be that justice is predicated upon meeting the needs of those affected by crime. Restorative justice concepts include victim, offender, community, harm, needs, obligations, reparation and reconciliation, etc. A restorative justice proposition might be that meeting the needs created by a crime will provide a satisfying sense of justice being done. A hypothesis of restorative justice, for example, is that participants will rate restorative processes as more satisfying than traditional court processes. This reply to the challenge issued by the Maximalist model is specifically about shaping restorative justice theory from what is now a loosely defined paradigm. It is likely that theories that develop early in the paradigm shift will hold great sway over the nature of practice and research for years to come. This section will discuss the role of theory in the wider restorative justice movement and locates the present efforts among the various grand theories proposed in the literature. How shall a mid-range theory of restorative justice be developed and built upon when it is part of a larger paradigm? The place to begin is the basic postulates of restorative justice. Crime is personal. A crime is an injury to people and relationships. Justice is a search to make things right as much as possible. "This is a quite different definition from the retributive definition of crime, which considers it as a transgression of a general juridical-ethical rule." (Walgrave, 1999, p. 141). Theory consists of sets of abstractions and generalizations, both of which are dangerous where the intent is the personalization of harm done. We now have a growing body of research on programs that everyone agrees are truly restorative, clearly demonstrating their remarkable success at healing and reconciliation. Therefore, restorative justice theory needs to develop closely in tandem with its practice or risk losing its way. Generalizations must also be made carefully because the restorative paradigm is still largely unexplored. For example, generalizations must be as true for New Zealand's Maori conferences as it is for Indianapolis Police conferences; and as relevant to the Navajo peace circles as it is to New-foundland's family group decision-making in order to be included in a theory of restorative justice. Abstractions and generalizations that are meaningful in Canberra but have no context in Hollow Water cannot be said to be true of restorative justice generally.[2]The parameters of a general theory of restorative justice will eventually emerge out of a recursive process of studying restorative practices, developing generalizable principles, inducing psychological, sociological and political causal structures, empirically testing those theoretical structures, and revising and refining the theory based upon the empirical science. Today we struggle to understand what it is we see, although those observing the transformations that can occur in restorative processes would agree, we "know it when we see it." A shared language will eventually develop from how we interpret what we see and how we express those visions to others. This requires defining terms and exploring the meaning of ordinary words like harm, crime, community, healing, punishment, and justice, among others (McCold, 1996, 85-102). For the purpose of developing a mid-range theory of restorative criminal justice, it is useful to limit consideration, for the moment, to common crimes (i.e., theft and assault) and the harms created by them. Zehr (1990) asks, who was affected and what are their needs and responsibilities? Who are the affected stakeholders and how shall they be represented? A useful framework for the development of a mid-range restorative justice theory was first suggested by Virginia Mackey (1990,p. 42) and later elaborated upon (McCold, 1996, 85-102). The stakeholders each have roles defined by their injury, corresponding needs, and their responsibilities in relationship to a given incident of wrongdoing. There is a direct relationship between the injury, need, and responsibility. The injuries caused by crime produce a need to repair those injuries, and the need to repair injuries produces a responsibility to take affirmative action to seek satisfaction of those needs. The real needs of victim, offender, and their personal communities are known in general, but how specific needs could best be met in any given incident are personal matters that cannot be predetermined. The needs of the society--the community-neighbourhood-city-etc.--will be a function of which definition of community we have in mind. Restorative justice has come to mean all things to all people. We agree with Walgrave and Bazemore: “A coherent definition and vision should serve as a unifying focus for reflection and experimentation among practitioners and scientists, and should inform policy makers and the public about what restorative justice is and is not” (Bazemore and Walgrave, 2001, p. 46). The current approach to formal restorative justice, such as conferencing that encompasses shaming, is cautious in its dealings and is only available to juvenile offenders . This approach maybe viewed as merging a new approach that will complement the existing traditional court management. As testament to this new approach there has been numerous studies documenting a high level of satisfaction that has been delivered in meeting emotional, procedural and substantive outcomes by restorative justice processes and these successes need to be promoted to the community for awareness. Interdependency is a social bonding condition of individuals and the networks that they participate in where they are dependent on others to achieve valued goals and others are dependent on them. (Bloom, 1999, 259-60) To be able to integrate healthy shaming a communitarian society needs to be in existence. Within this society association conditions individuals that the community is one of trust and help if required. Not unlike alternate lifestyle initiated in the early sixties with theories to create a better culture environment based on peace, trust and, honest communities personal obligation. The goal of reforming the judiciary is to transform the system of justice founded on the basis of the rule of law and human dignity as opposed to that guided by socio-political interests. The imperative for judicial reform is underlined by the capacity of an impartial and effective judiciary to offset the deep causes of conflict by providing a platform for dispute resolution. International efforts in providing effective courts system in post-conflict societies have not been as elaborate and perhaps successful, compared to military and police reform. Although, training and financial assistance towards judicial reform have been committed by the donor community in countries emerging from conflict, however this has often been on an ad hoc basis and funds have been comparatively limited. For example, the USA recently boosted donor funding for judicial reform in Liberia by providing one million dollars for the development of the judiciary. Yet, as clearly indicated by a UN mission in Liberia representative, 'significant additional resources are required' for the execution of judicial reform programmes. Additionally, rather than focusing on building a permanent institutional and technical capacity in the judicial system, external actors have been heavily committed to setting up temporary judicial framework such as truth and reconciliation commissions and special criminal courts on an ad hoc basis. Orthodox international assistance for post-war peace-building thus appear to be obsessed with the idea of truth commissions and war crimes tribunal to the detriment of, and deflecting from, the more important need for concrete judicial reform. Restorative justice is commonly used in today’s courts, the main goal is to restore the victim, community and offender and to help them become “whole again”. (Geof, 2000, 88-90) “Restorative justice is being seen as one of the tools in the tool box and one of the options that should be available for conflict resolution” (Hall, 2008). To accomplish this, the use of fines, restitution and community service are frequently used by sentencing judges. When restitution is order the offender is to pay the victim on an instalment basis. This money is later used to provide services to the victim or victims such as counselling or any other issues that may come up. The federal courts see the use of restorative justice as a way to reintegrate the offender to the community and at the same time place responsibility on the offender. “Restorative justice is designed, according to Jacqui Smith, the Home Secretary, to "shock" young thugs into changing their behaviour by confronting them with the bloody reality of what a stab can do “ (The Daily Telegraph, 2008). It gives the offender a chance to take action to repair the harm. There is also a lot of emphasis on dialogue and negotiation as well as promoting direct involvement between the offender and the victim. The punishment should fit the crime, and since murder is a capital offence, justice demands capital punishment” (Delgado, 2000, 751). Restorative justice attempts to change the offender’s life by giving them a second chance to restore their life and become honourable citizens and part of the community. Restorative justice sees crime as a violation of human relationships, more than a violation of the law (Viano 2000). Crimes were seen as something done against victims and the community and not against some abstract government (Viano 2000). In the current justice system, the court focuses merely on which laws were broken, who disobeyed them and how to deal with these lawbreakers (Viano 2000). Restorative justice actually focused on who had been harmed by the crime and how the victim suffered or experienced losses (Viano 2000). It also focused on how to restore what the victim had lost (Viano 2000). This aimed to address the needs of the victim and the community first and those who had suffered the harm (Viano 2000). The offender would also be given a chance to be accountable for the victim and accept full responsibility for the restoration of the harm caused (Viano 2000). Insisting on punishment only showed that they gave up on the offender and treated them as “throw-aways” (Viano 2000). They were not given chances to correct their wrongdoings as well as redeem themselves (Viano 2000). Why Victims Should be Given a Role The victim should be given a role because the victim’s resentment that was justified and the reasons behind such feelings provide for significant information for the community and the offender regarding the crime that was committed (Whiteley 1998). The community can also influence the victim to moderate his or her resentment to an appropriate and manageable level when the justice system gives the victim a role (Whiteley 1998). This role would give the victim the opportunity to explain the feelings and point for information for the intent of the offender (Whiteley 1998). The significance of such information lies in the fact that the offender needs to know the human impact of the crime committed (Whiteley 1998). Resentment would be a personal and deeply human response to the offender’s disregard for the moral uprightness (Whiteley 1998). The current justice system was incorporated towards Kantian notions (Whiteley 1998). It ruled out the fact that victims had emotions and the assumption that they remain uncontrolled and irrational (Whiteley 1998). The system in fact insulated the offenders from the human impact of their crimes (Whiteley 1998). Not all offenders get to be face to face with their victims that leaves them indifferent to the real effects of their crimes. The failure of the system to give the victim a distinct role deprives the offender of having gained a full understanding of the harm the crime has done (Whiteley 1998). The community also needs the opportunity to influence the victim’s resentment over the offender. The personal, intense nature of resentment of the victim and the reactions that came with that is a matter of concern for the community (Whiteley 1998). Victim and offender mediation empowers the victim, the offender as well as the community to be able to resolve the conflict created by the crime and influence the aftermath because of their active participation (Whiteley 1998). Under this process, the offender would be encouraged to apologize and redress the harm that was done (Whiteley 1998). The victim can acknowledge the apology and affirm his dignity that was lost when the crime was committed (Whiteley 1998). Genuine reconciliation can never take place if the victim’s retributive sentiments would not be expressed and acknowledge thus pointing to the importance of the role given to the victim (Whiteley 1998). Mediation as a restorative justice already has a place within contemporary sanctions, but like all other restorative justice methods in the criminal justice field is limited to those offenders who admit their responsibility, and both victim and offender are willing to take part (Graef, 2000). Victim/offender mediation can be face-to-face or if the offender or victim is to fearful to meet then indirect mediation can be implemented whereby a trained mediator acts as a go-between and pass on concerns from one to the other, or letters can be exchanged. Sometimes the distinction between offender and victim is blurred, for example men in a fight or warring neighbours. Under these circumstances, a criminal prosecution isn't the best way to resolve the matter but mediation can be used to resolve sensitive issues such as these (Graef, 2000). Another option if some people are cautious about meeting their own offender or victim is to attend a victim/offender group that allows victims to meet offenders that have committed similar crimes. This can also be undertaken on a one-to-one basis. Victim/offender conferencing follows the same kind of principle as victim/offender mediation but entails more people. It gathers together victims, offenders, their family and supporters, and appropriate professionals to examine the offence, and to construct a plan to put things right and prevent more offending. When this process incorporates a private time for a youth offender and their family it is termed Family Group Conferencing (FGC) (Graef, 2000). Essex Police Service has developed the use of FGC's with young offenders aged 10-17 who commit serious offences, or are at high risk of re-offending the local. Early indications show positive results; victims are happy with the process and there has been a reduction in re-offending (Home Office, 2003). Victims of crime have reported that they are more satisfied by restorative justice than conventional criminal justice and punishment (Johnstone, 2002). In his study Umbreit (1998) recorded 79% of victims involved in mediation in New Mexico, Texas, Minnesota and California expressed satisfaction in the way their cases were handled compared to 57% not involved in mediation (Graef, 2000). Although many restorative practioners believe participation should be voluntary, I believe that even reluctant offenders would benefit from mediation: meeting their victim promotes a sense of accountability absent from the impersonal environment of a court. Victims can convey their feelings, an opportunity not available in the court, especially when a guilty plea means no trial. Bibliography Babbie, E. (1995). The practice of social research. 7th ed. 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