Restorative Justice and the Concerns of Victims of Crime - Essay Example

Restorative Justice [Name of the Student] [Name of the University] Restorative Justice Restorative justice effects repair of justice, via a reiteration of a shared value consensus in a bilateral process. This is in marked contrast to the system of retributive justice, which imposes punishment unilaterally, in order to repair justice. Thus, concerns relating to power and status pertain to the realm of retributive justice; whereas, concerns regarding shared values principally relate to restorative justice. It is important to realise that this process is critically dependent on the understanding that the involved parties entertain regarding their identity relation (Wenzel, Okimoto, Feather, & Platow, 2008, p. 375). To be precise, this process entirely depends on whether the respondents tend to share an identity with the offender. A greater degree of satisfaction has been expressed by victims with regard to restorative justice programmes, in comparison to retributive justice. For instance a study conducted in disclosed that restorative justice was deemed to be equitable by the majority of the stakeholders (Palk, Hayes, & Prenzler, 1998, p. 145). This has been attributed to the participation of the victims to a much greater extent in the process, and is not a consequence of the reparation (Wenzel, Okimoto, Feather, & Platow, 2008, p. 377). Moreover, emotional restoration has been seen to weigh higher than material restoration, in the context of victims. Nevertheless, a certain proportion of the victims had expressed dissatisfaction with restorative justice. As such, there is scant knowledge regarding the factors that induce a victim to prefer the restorative justice process (Wenzel, Okimoto, Feather, & Platow, 2008, p. 377). It would be naïve to presume that restoration constitutes nothing more than an option. This is on account of the fact that justice demands the employment of adequate measures, in order to ensure restoration with regard to the persons who had been directly affected by the crime. This requirement involves something more than the mere redressal of harm that is limited to physical and material harm (Doolin, 2007, p. 432). Justice, as such, demands that redressal should take into consideration emotional features and should attempt to restore the self – respect, feeling of safety and empowerment of the victim. In addition, it should involve attempts to preserve the sense of belonging of the offender and the reintegration of the offender into society (Doolin, 2007, p. 432). A detailed examination of the term restoration serves to divulge information regarding the kinds of harm to be restored and the manner in which such restoration is to be effected. Some of these means could consist of written or oral apologies, restoration to the community or the victim, restitution and compensation. A certain degree of contention prevails regarding the classification of other outcomes as restorative (Doolin, 2007, p. 433). To this end scholars of the ilk of Morris have appositely pointed out that even an ostensibly retributive measure, such as a term of imprisonment, could possess the capacity to incorporate a restorative outcome. Apparently, what constitutes a restorative outcome requires an assessment that is based on a long term perspective and the restorative effect of the result. It has also been argued that imprisonment can include restorative outcome (Morris, 2002, p. 599). Those who subscribe to this point of view believe that such sentence should not be the outcome of an agreement between the stakeholders, but should be for the reason that the offender is a source of continuing and grave danger to the other members of the community. All the same, there should be a sincere effort to obtain restorative results, during incarceration, and this could entail making prisoners undergo paid work in prison, so that they can compensate their victims financially (Doolin, 2007, p. 433). There is a marked preference for undertaking restorative justice with regard to non – violent offenders. It accords greater importance to providing reimbursement to the community and the victim. On occasion, such offenders are sentenced to participate in projects in the local neighbourhoods. However, these offenders may also be linked to treatment for addiction to drugs, health care, education and other social services. Such interventions involve close coordination with members of the community and not with criminal justice professionals (Sarnoff, 2000, p. 33). There is compelling evidence to believe that restorative justice emerged from the practices inherent in the indigenous societies of Asia, the Middle East and Africa. In fact, restorative justice prevails to some extent in some of these regions, and constitutes an integral part of their spiritual traditions. The developed world has been a laggard in adopting this mechanism, and such adoption can be traced to the 1970s developments among the Mennonite communities of the US and Canada (Hill, 2008, p. 52). Initially, this novel means of dealing with crime was restricted to property crimes, involving in the main juveniles. Subsequently, it was extended to encompass crimes of a more serious nature, such as assault, murder and rape. This trend proved to be very popular, and by the 1990s there had been a significant adoption of restorative justice programmes across the globe. This growth has been principally in small victim – offender mediation programmes (Hill, 2008, p. 52). . In the context of Australia, the first of the forays into the area of restorative justice was witnessed in the year 1991 in Wagga Wagga, New South Wales. This intervention was administered and implemented by the police, as it was perceived that conferencing would become diversionary to a much greater extent (Maxwell & Hayes, 2006, p. 135). In the year 1993, South Australia enacted laws that promoted family group conferencing. Thereafter, the rest of the states and territories of Australia, save for that of Victoria, implemented diversionary legislation for young offenders. This intervention incorporated restorative justice conferencing (Daly & Hayes, 2001, p. 2). These conferences require the offender to describe and account for their offence. Thereafter, the victims are required to describe the effect of the offence on them. After this the conference directs the offender to cogitate upon the victims’ comments. At this stage of the proceedings, the victim is encouraged to acknowledge the injury caused to the victims and to offer an apology to the latter. Finally, negotiations are conducted to determine the manner in which the offender can offer restitution for the harm caused by the offending (Maxwell & Hayes, 2006, p. 136). The New South Wales initially experimented with restorative justice for a few years and subsequently, enacted laws in this area. Restorative justice is administered in the New South Wales from a central directorate located in Sydney (Maxwell & Hayes, 2006, p. 137). Conferencing is limited in its application to the different types of offences. Thus, the New South Wales Young Offenders Act 1997 encompasses indictable offences that can be dealt with summarily and summary offences. However, serious sexual assaults and drug offences, breach of apprehended violence orders, certain traffic offences and offences that result in death do not fall under the purview of this Act (Maxwell & Hayes, 2006, p. 138). Such conferencing has been subjected to comprehensive assessment, due to the various research projects and surveys conducted in this area. In one study conducted by Trimboli in the year 2000, approximately a thousand offenders, victims and supporters were surveyed immediately after the related youth justice conference. The aim of this survey was to evaluate the extent to which the participants considered the process to be equitable and satisfactory (Maxwell & Hayes, 2006, p. 138). Trimboli determined from her study that the majority of the participants were of the opinion that the process was fair towards the offenders as well as the victims, the participants were treated with adequate respect and regard, and that the outcomes were satisfactory. These outcomes were seen to be similar to those obtained in other jurisdictions. Consequently, it can be surmised that the restorative justice conferencing process enjoys procedural fairness. Furthermore, an important study conducted in the year 2002, by Luke and Lind, disclosed that recidivism among those who had undergone restorative justice conferencing had reduced by 15% to 20%, in comparison to those sentenced by a court (Maxwell & Hayes, 2006, p. 138). In addition to juvenile justice, restorative reforms have made their presence felt in the area of adult offences. This has been specifically noticed in Australia, New Zealand and Canada. European countries are also strong votaries of restorative justice in the area of juvenile justice, and these nations have been seen to extend this concept to adult offences (Dzur, 2003, p. 280). For instance, a fifth of the cases in Finland have been relegated to the province of the victim – offender mediation programmes. In Austria and Germany, victim – offender programmes address serious adult offences, and 70% of the crimes so mediated related to violent crime. Although, the US does not promote this intervention to the same extent, however, there are some 300 odd programmes devoted to restorative justice in that country (Dzur, 2003, p. 280). Restorative justice, as practised in Australia and other nations, principally concentrates on conventional crimes committed by young persons. With regard to minor offenders, it has been frequently observed that they are provided with an opportunity to participate in a diversionary conference with the objective of making amends for their offence (Cook & Powell, 2003, p. 280). The usual participants in these conferences are the offender, victim, their supporters, police officers, juvenile case workers, and community representatives. It is the usual practice for these conferences to be commenced by a facilitator. This individual describes succinctly the offence committed and asks the offender to describe the wrongdoing and its outcomes (Cook & Powell, 2003, p. 280). It is important to realise that the guilt of the offender stands established at the very outset of the conference. Thereupon, the supporters of the victim and the offender are asked to discuss their opinions and arrive at an agreement regarding the restitution to be made by the offender for the injury caused to the victim. This, in general, consists of an apology, community service, monetary compensation, and other forms of restitution (Cook & Powell, 2003, p. 280). There are certain concepts that constitute the bedrock of the theory and practice of restorative justice. The most important of these is that of the issue of accountability. From the perspective of participants and advocates, accountability denotes the acceptance and recognition by offenders regarding the damage ensuing from their actions (Cook & Powell, 2003, p. 280). It is the objective of accountability to reverse the dehumanising process that results from offending. Another important concept is that of apology. This enables offenders to convey to the participants that the offence does not constitute the cardinal feature of their identity. This permits offenders to depict themselves as entities that are remote to the offence, and thereby recover moral personhood in the presence of the victims. An apology’s main characteristic is that it permits the victims to establish a personal relationship with the offenders (Hayes, 2006, p. 372). The concept of voice is significant in this area. It is commonly observed that the court process invariably restricts the extent to which people can express their opinions about events that influence their life. This is the consequence of the stringent parameters that control the rules of evidence and procedure in criminal trials (Cook & Powell, 2003, p. 280). On the other hand, restorative justice does not impose such restrictions and the participants can express their views more openly and these are included in the process and outcomes. As such, the process of restorative justice is crucially dependent upon the stakeholders being heard, for its success (Cook & Powell, 2003, p. 280). Another important concept is that of reconciliation. The aim of restorative justice programmes, per se, is to bring about reconciliation betwixt the community, offenders and victims. However, such reconciliation cannot be achieved in a coercive manner, or prior to the participants being prepared to understand and take measures to recover from their injuries. Thus, reconciliation has to be genuine (Cook & Powell, 2003, p. 281). Stated in brief, restorative justice from the perspective of the community level is chiefly seized with diminishing harmful behaviour and crime. In the aftermath of an offence, harmful and destructive emotions, such as anger and shame tend to arise. It is one of the objectives of restorative justice at the personal level to dissipate such negative emotions while encouraging positive feelings (Morrison, 2003, p. 694). This mechanism transforms conflict into cooperation, which in turn brings about a change in behaviour for the concerned individuals. Furthermore, this process addresses the requirements of the community with regard to security and safety. The most widely employed model of restorative justice is that wherein the victim and the offender are made to face each other, along with the other stakeholders. This conclave is conducted by a third party, and this model of justice has made its presence felt in diverse jurisdictions. Some of these areas are that of family welfare, criminal justice, juvenile justice, work places, and schools (Morrison, 2003, p. 694). As such, restorative justice constitutes an important component of a larger healing process, and it is distinguished by the drawing together of stakeholders in a specific offence. This bringing together of stakeholders has as its objective, the identification and coming to terms with the harm caused to the victim, and the requirements and obligations of these stakeholders (Hanser, 2009, p. 191). It would not be farfetched to contend that a plethora of restorative justice programmes are in vogue. However, the principle of direct participation by victims and offenders invariably constitutes their basis. In this system of justice, the victims are permitted to express their opinion regarding the manner in which the offence committed against them is to be resolved. This is accompanied by enjoining upon the offenders to comprehend the outcomes of their offence and the harm that it has ensued from it. The paradigm of restorative justice is of recent origin, and it is employed to designate a vast array of informal justice practices. These interventions mandate that the offender has to accept responsibility for the offences committed by them. In addition, offenders under this mechanism have to satisfy the requirements of the affected victims and communities. Restorative justice has as its objective the restoration of communities, offenders and victims, with emphasis on rectifying the harm caused by the crime. There is considerable evidence to indicate that victims, in general, benefit from the face to face conferences, which form an integral part of the restorative justice process. As such, it can be surmised that restorative justice is effective in providing justice to victims, as they participate directly in the conferences. In addition, the convoluted court process and the attendant humiliation due to exposure to the public are circumvented. Since the offender has to assume responsibility for the offence committed and make reparation to the victim, the latter is definitely benefited by restorative justice. List of References Cook, K. J., & Powell, C. (2003). Unfinished Business: Aboriginal Reconciliation and Restorative Justice in Australia. Contemporary Justice Review, 6(3), 279 – 291. Daly, K., & Hayes, H. (2001). No. 186 Restorative Justice and Conferencing in Australia. Trends and Issues in Crime and Criminal Justice, 1 – 6. Doolin, K. (2007). But What Does It Mean - Seeking Definitional Clarity in Restorative Justice. Journal of Criminal Law, 71(5), 427 – 440. Dzur, A. W. (2003). Civic implications of restorative justice theory: Citizen participation and criminal justice policy. Policy Sciences, 36(3), 279 – 306. Hanser, R. D. (2009). Conflicts and geographical flashpoints around the world: the effective application of restorative justice and peacemaking criminological perspectives. Contemporary Justice Review, 12(2), 191 – 2005. Hayes, H. (2006). Apologies and Accounts in Youth Justice Conferencing: Reinterpreting Research Outcomes. Contemporary Justice Review, 9(4), 369 – 385. Hill, F. D. (2008). Restorative Justice: Sketching a New Legal Discourse. International Journal of Punishment and Sentencing, 4(2), 51 – 81. Maxwell, G., & Hayes, H. (2006). Restorative Justice Developments in the Pacific Region: A Comprehensive Survey. Contemporary Justice Review, 9(2), 127 – 154. Morris, A. (2002). Critiquing the Critics: A Brief Response to Critics of Restorative Justice. British Journal of Criminology, 42(3), 596 – 615. Morrison, B. E. (2003). Regulating safe school communities: Being responsive and restorative. Journal of Educational Administration, 41(6), 689 – 704. Palk, G., Hayes, H., & Prenzler, T. (1998). Restorative justice and community conferencing: Summary of findings from a pilot study. Current Issues in Criminal Justice, 10(2), 138 – 155. Sarnoff, S. (2000). Restoring Justice to the Community: A Realistic Goal. Federal Probation, 65(1), 33 – 39. Wenzel, M., Okimoto, T. G., Feather, N. T., & Platow, M. J. (2008). Retributive and Restorative Justice. Law and Human Behavior, 32(5), 375 – 389. Young Offenders Act 1997. (n.d.). Act 54 of 1997. New South Wales, Commonwealth of Australia: New South Wales Consolidated Acts. Read More