Comparative Analysis of Criminal Justice Systems - Essay Example

Title: Comparative Analysis of Criminal Justice Systems Customer Inserts His/her Name Customer Inserts Name of Tutor Customer Inserts Grade/Course (Date) Table of Contents Table of Contents 2 2 Abstract 3 Restorative Justice 3 Strengths of Restorative Justice 5 Limits of Restorative Justice 5 Indigenous Justice 6 Strengths of Indigenous Justice 7 Limits of Indigenous Justice 8 Therapeutic Jurisprudence 8 Strengths of Therapeutic Justice 9 Weaknesses of Therapeutic Justice 10 Similarities 10 Differences 11 Conclusion 11 References 12 Abstract In most common law countries such as Australia response to crime is geared towards two directions; innovative methods meant to guarantee justice for both victims and perpetrators; and traditional methods whose main aim is to punish the perpetrator and to deter other perpetrators from committing the same crime. Innovative methods include restorative justice, indigenous justice, and therapeutic justice while traditional methods involve punitive justice and retributive justice. Innovative methods focus on inclusion while traditional methods focus on exclusion. The innovative methods emerged as a result of failure of the mainstream traditional criminal justice systems. This paper reviews the differences and similarities between the three main innovative approaches to criminal justice: Restorative justice; indigenous justice; and therapeutic justice; and compares the three systems with the traditional retributive/punitive criminal justice system. Restorative Justice Restorative justice proposes that offenders should be held accountable through constructive ways without necessarily using harsh or punitive means. All criminal justice agencies including courts, the police and correction centers can use restorative justice.1 Restorative justice is only used in criminal contexts if there has been an admission of the offence by the offender as it deals with the penalty stage of the criminal process after the court has issued its sentence2. Restorative justice involves bringing all the parties involved an affected by the offence together so that they can collectively resolve how to deal with the impact of the crime and chart the way forward on how to relate with each other in the future. After the offender has admitted the offence, he or she together with his supporters hold a face-to-face victim with the victim and the victim’s representatives. The advocates and the police maybe present but the system is completely informal3. The process is pioneered by lay people rather than legal professionals based on the known facts of the case. The process aims at reducing the anger and the fear of the victim towards the offender and for the offender to acknowledge that the crime harmed and injured the victim and to apologize for the victim4. The offender explains the reasons as to why he committed the offence. The offender then explains how he or she intends to repair the harm done to the victim through avenues such as monetary compensation restitution, counseling, and working for the community or victim; and written or verbal apologies. Strengths of Restorative Justice Restorative justice mechanisms lead to satisfaction of all the parties involved as the process and outcome are perceived to be fair. The victim’s fear and anger towards the victim is also reduced significantly. Both the offender and the victim participate to a high degree as contrasted with the traditional retributive system where participation is low. Where the outcome is achieved through consensus and the offender is truly remorseful the degree of re-offending is reduced contrasted with punitive justice where convicts re-offend again and again5. Limits of Restorative Justice The process is affected by the demeanor and personality of the offenders and the victims. There are victims who are sympathetic towards offenders while there are victims who are unforgiving. There are offenders who are very remorseful for their actions while there are others who are unapologetic6. Restorative justice also lacks investigative and fact-finding mechanisms therefore it cannot entirely replace traditional criminal justice mechanisms. In most jurisdictions in Australia, the number of cases that can be diverted from the formal system to restorative justice are restricted. Indigenous Justice Indigenous justice refers to a practice where indigenous people and minorities are given a central role in crime response. Indigenous justice practices include sentencing circles, elders and community panels, participation of community justice groups in sentencing, and urban sentencing7. Indigenous justice is an avenue to redress the marginalization and destruction of the social organization and the culture of indigenous people by state violence and colonialism. The extent to which indigenous people exercise control over the criminal justice process varies from place to place. In Australia, the ideal indigenous justice practices involve advice or input of the opinion of indigenous groups or communities into sentencing decisions. This is done after consultation with the indigenous groups but there are complaints that the input of indigenous people is watered down by “white justice”. Practices such as indigenous urban courts have emerged in Australia to address the high numbers of indigenous people in the criminal justice system as the possibility of imprisonment of an indigenous adult is 15 times more likely than that of a non-indigenous Australian and to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody by dealing with indigenous offenders in culturally sensitive way so as to reduce the high rates of indigenous incarceration8. There are two levels of indigenous justice in Australia; one practiced at the urban level while the other is practiced at the rural level in remote areas. In indigenous justice systems, the indigenous or South Sea Islander offender must enter a guilty plea. The charge must one over which the magistrate’s court has jurisdiction. The offence must be within the geographical jurisdiction of the court9. The ultimate power to sentence the offender lies with the magistrate after consulting with the elders of the indigenous people. The elders’ roles include orally advising the magistrate, reviewing the offender’s behavior, determining the sentence, and continuing to monitor the offender’s conduct after the hearing. The number of elders varies from jurisdiction to jurisdiction10.In remote areas judicial officers travel on circuit and make decisions after seeking the views of the community's elders. Strengths of Indigenous Justice The system has enabled indigenous people to have trust and confidence in the decisions of the court. They are also able to understand the criminal justice systems due to inclusion and participation. The penalties rendered are appropriate since they are sensitive to the culture and practices of indigenous people as opposed to the insensitive retributive justice mechanisms. The system leads to reduction in re-offending rates as elders and community members continually monitor the offender. The attendance rate in the indigenous courts is significantly higher than the rate in punitive proceedings where the rate of attendance of offenders is significantly low. Limits of Indigenous Justice Indigenous courts are seen in some quarters as being paternalistic and as a form of neo-colonialism as consultation of indigenous people is done on a very low-level11. The separation of the justice system of indigenous people from that of mainstream Australians is seen as a form of “apartheid” as indigenous offenders get lighter sentences than other offenders. Judicial officers also have a hard time balancing the principles and rules of the formal justice systems with indigenous practices. Therapeutic Jurisprudence Therapeutic jurisprudence originated from the United States and focuses on the impact of the law on the psychological well being and the emotional lives of offenders and victims12. The concept originated from cases addressing mental health issues but has since been expanded to include civil, criminal, and family cases. They deal with issues such as drug abuse, physical abuse, and psychological abuse13. Application of principles of therapeutic justice enables judicial officers to have hope-inducing interactions with people before the justice system; to inspire offenders to solve and confront the problems causing them to indulge in crime by joining rehabilitation and treatment programmes; and to enhance interpersonal skills so as to understand the psychology of the criminal justice system. Therapeutic justice involves integrating case proceedings with treatment services; close monitoring of the offender; and collaboration with governmental and non-governmental organizations. Therapeutic justice became common in Australia in the late 1990s14. Therapeutic justice relies on behavior and social research and judging is geared towards changing the behavior of offenders. The strategy involves adopting a respectful attitude towards clients and incorporates aspects of collaborating and consulting with the community. Therapeutic justice is closely connected with restorative and indigenous justice15. For instance in establishing the Wiluna Aboriginal court, Magistrate Michael King reported that the magistrates used therapeutic justice to incorporate the views of the society. Therapeutic justice is used to enhance problem-solving and to promote respect and increase the degree of participation between the judicial officer and the parties to the proceedings16. Strengths of Therapeutic Justice It enables judicial officers to learn more about offenders, the context in which they offended; and the psychological causes of their behavior thus judges and magistrates are able to arrive at a balanced unbiased judgment. Participation and inclusion of parties to the proceedings enable them to perceive the court process to be fair as opposed to the adversarial system which is viewed to be unfair and prejudicial by participants. Weaknesses of Therapeutic Justice Therapeutic justice is criticized for subjugating the neutral role of judge’s, magistrates and other judicial officers by compelling them to empathize or sympathize with the parties to the proceedings. The ideal roles of prosecutors and defence lawyers are also challenged. The therapeutic process consumes a lot of resources, time, and energy making it a labour-intensive exercise. Similarities Therapeutic justice, indigenous justice and restorative justice are forms of informal justice. They are similar in that all parties are given a platform to participate in the criminal justice system as opposed to formal justice where legal professions play the major role and citizens play a very minimal role. The approaches incorporate dispute resolution methods and crime resolution through direct engagement and inclusion of offenders, victims, and the community17. Differences Restorative justice focuses on addressing the needs of both offenders and victims while therapeutic justice and indigenous justice focuses more on addressing the needs of perpetrators18. Restorative justice aims at improving the relationship between the victims, the offenders and the larger community while indigenous justice aims at improving the relationship between the mainstream white-dominated justice system and people of indigenous origin; therapeutic justice on the other hand aims at improving the relationship between offenders and stakeholders of the justice system such as police officers and judicial officers. Conclusion Restorative justice, indigenous justice and therapeutic justice approaches to criminal justice provide a feasible alternative to the traditional retributive systems as the harm done by commission of crime is addressed through constructive and inclusive ways. All the people affected by a crime are able to participate in the justice system in a manner sensitive to their cultural and behavioral needs. Punitive sentences are meant to punish, deter and reform offenders while restorative justice seeks to repair the relationships and the harm caused by commission of the crime. Restorative justice should be wholly embraced in the criminal justice systems to reduce prison populations and recidivism rates. References Chappell, D., & Wilson, P. (2007). The Australian criminal justice system. Sydney: Butterworths. Daly, K. (2008). Does Punishment Have a Place in Restorative Justice? Australia. Hinton, M. (2012). Indigeneous Australians & the Law. London: Routledge Cavendish Australia. King, M. (2009). Non-adversarial justice. Annandale, N.S.W: Federation Press. Stenning, P. (2010). Accountability for criminal justice: Selected essays. Toronto: University of Toronto Press. Read More