Australian Criminal Justice System - Negative Impact of Restorative Justice Conferences - Essay Example

Page Australian Criminal Justice System Topic: Australian Criminal Justice System Criminality is inherent somewhere in human nature just like good virtues reside in some corners of human heart. Criminologists study and analyse criminal behaviour to rein-in such activities. With the changing of times new criminal opportunities have surfaced from the use of new technologies, new type of organisations and new markets. The Australian criminal justice system has also changed although Australian policing is rooted in the British 19th century model. Basically two models of criminal justice system have been in use. The one is ‘Due process model’ based on the philosophy of fairness and justice for all stakeholders and the other is Crime control model for punishing the criminals. The current system takes both models to base on its sense of justice. Some different types of models have been identified by the analysts, as alternatives to the existing models. A welfare model needs to be developed for the benefit of the community and people, offenders or victims. Restorative justice is one such type of movement in the history of Australian criminal justice system. Kathleen Daly and Hennessey Hayes have analysed the philosophy behind the idea of restorative justice. The restorative movement started in the 1990s and it has taken different forms in State and Territory jurisdictions. The idea of restorative justice has the capacity of becoming a model but there are limitations to it as well. Restorative justice conferencing is the other name of victim-offender mediation. Empirical evidence confirms that both the victim and the offender show satisfaction over the results and see the process as fair and show affirmation on its results by showing repentance in the form of heart-felt apology and working for the victim or the community. Although the participants don’t comprehend the idea well that the major aim of conferencing is the ‘restoration’, which happens in the form of encounters where ‘offenders apologise, their apologies are accepted, victims offer forgiveness, and conferences conclude with a feeling of mutual good will’, as quoted by Hayes (2006). According to Hayes (2005), a large number of researchers agree that restorative justice is a positive step towards treating the victims and offenders but opinion is not unitary that reoffending would reduce in future. Major Purposes of Restorative Justice Fulfilling Victims Needs Restorative justice fulfils the victim’s needs by developing a response to the crime committed. Traditional way of getting a response from the aggrieved victims was not satisfactory. The role of victims in the uncomfortable environment was lifeless. Victims had no idea of the processes of the cases lodged by them and only contributed in the assessment of the offenders’ role. But in the current context victims want a solid backing in role-play (Strang, 2002)). The purpose of restorative justice is to bring the victim back to the limelight of the criminal justice process. Conferencing offers an opportunity to the victim to tell the offender in a congenial environment how the offence has affected the victim and how the offender can compensate the loss caused (Hayes, 2005 p. 78). Fixing Offenders Responsibility Another significant purpose of restorative justice conferencing is to inculcate a sense of responsibility in offenders for the crime committed by them. Offenders are asked to explain their crimes, the reasons for committing the crimes and listen to the victims, how they feel at loss at becoming the target of crime. What generally happens at youth courts is that offenders show a passive attitude towards the process as their advocates proceed with the case and mostly the victim is not present. Accountability is a significantly crucial part of the conferencing process. When both the offenders and victims sit face to face, it becomes difficult for offenders to find excuses for their behaviour or show false faces; they show remorseful feelings (Btaithwaite, 2002; Marshall, 1999; Presser, 2003, as cited by Hayes, 2005 p. 78). Reparation Restorative justice conferencing helps in healing the victim by permitting the offenders, victims and their supporters reach a settlement so that the young offender could make up the loss to the victim. An apology or community work cannot minimise the impact of the crime. Coming face-to-face of the victim and the offender for settlement brings them a step nearer to reparation (Hayes, 2005 p. 79). Restoration Restoration is the main purpose of restorative justice conferences. Conferences may result in compensating the loss occurred to the victim of the crime by the offender as by holding conferences it brings the stakeholders nearer to take part in the criminal justice process. Effects and outcomes of the crime come in the open. Indulging in positive discussion on offenders’ criminal act with the victims and their supporters, they feel the sense of guilt with-in and try to be more responsive to the community they have abused (ibid). Crime Prevention Restorative justice can also lessen the chances of reoffending although such efforts should not be categorised on their ability to reduce recidivism; there are other benefits for the victims restoring the feeling of loss, for the offenders to change for the better. Nonetheless, it is important to know whether restorative justice conferences bring change in the offender and its link to recidivism (ibid). The empirical research on restorative justice is based on its major aims. Researchers conduct structured interviews like surveys to get answers to crucial questions on accountability, restoration, treatment and satisfaction over the results. The Need for Reconsideration of Practice The practice of youth justice conferencing in Queensland and the rest of Australia is based on some guiding principles. 1. It distracts offenders from the formal juvenile justice system. 2. It creates confidence in young offenders to feel responsible for their conduct. 3. It offers a chance to the victims to be a part of the process related to offences committed on them. 4. It instils a feeling of responsibility among the parents of young offenders to take good care and governance of their children. 5. It boosts positive dialogue responses among young offenders creating positive environment for those affected by the offenders. Till now, the process of conferencing has been going on but the desired outcome is missing. Apology and forgiveness has not been used extensively in restoration and peacemaking efforts. It puts a question mark on the seriousness of the restorative potential of justice conferences. There is need to help the young offenders in handling the touchy emotional issues that help them inculcate the spirit of ethical concept building in different ways. It seems that observers and critics of restorative justice have developed the concept well but the practice of getting restorative justice needs more guidance. Problem is that they are just ‘transformative’ choices to traditional courts; there is no difference of style or in the way of functioning (Hayes & Hayes, 2008 p. 386). Courts make judgements but here in youth conferencing judgement is already made and the responsibility of managing non-abiding individuals is given. Practice here could be different to what is practiced in courts but the result is the same. Offenders are supposed to agree formally that that they have committed the offence, which is a condition to their participation in the conference. In court, the deviant youth compensates the community by doing service to it but in conferencing, offender offers verbal or written apology, which in any case is less severe penalty in comparison to what is awarded by the court. In the so-called successful conferencing, coercive ways are used to bring the offenders back to the community environment. Apologising acts are not the outcome of wilful submission to the wrong committed. Saying that such acts will start the process of restorative justice is a wrong assumption. In stead of providing ethical recognition to the offender, such a practice puts break on the starting of the restorative process. The current conferencing practice hinders the young offenders to develop their ethical standing in respect to their behaviour. It is so because they are ‘being told’ to apologise either directly or indirectly, which destroys the productive and natural ethical instinct in them to do good work. It is the purpose of conferencing practice but when made ‘subjected to’ apologise, the very purpose is defeated. Let’s review the qualitative aspect of the impact on young offenders of conferencing and how offenders view these experiences (Hayes & Hayes, 2008 p. 387-388). Data for the given narrative was gathered by H Hayes for an Australian Research Council project the purpose of which was to know the young offenders’ reaction to such meetings that limited their desire to work for ethical grounding just because they felt the pressure from authorities to apologise before the victims. The main act of the conferencing i.e. story-telling should be tailored and designed to offer sufficient opportunity to the offenders to indulge in self-reflection. Their beliefs and opinions should be given due importance rather than imposing agreed ethical values on them. Offenders should be encouraged to express their views so that they work in the direction of ethical behaviour by feeling with-in that they were not on the right path. Let’s go through some examples of the interviews taken of the offenders ranging between the age 10 to 16, mostly males to know how they perceived apology and forgiveness sanctioned by the victims. One purpose of the narratives was to get the proof of coerced remorse. It was found that young offenders offered apologies not because of some inherent remorseful feelings but because they knew that they were supposed to offer apologies. Some offenders expressed the feeling that if they didn’t apologise, penalties could be more severe (Hayes & Hayes, 2008 p. 388). Interview Example QLD CARE-RJR 009 Interviewer: Alright. And, did you tell the victim you were sorry? Offender: Yeah, I had to apologise. Interviewer: You had to? Offender: Oh, well, I felt like I had to. Interviewer: Okay. Do you feel like you were pressured in to apologising? Offender: Yeah. Interviewer: Yeah, you were? Offender: Like I felt like if I didn’t say sorry they … Interviewer: Did you find another way to apologise to the other victims? Did you write a letter or do anything like that? Offender: Yeah, I have to write … I think I have to write a letter, I’m not … I’ve got a month to do it all, to finish the agreement. Interviewer: Alright. So you don’t … I guess when you send the letter you don’t know if they accept it or not, do you? Offender: Well, I don’t really care. I don’t reckon it’s going to do nothing. I reckon they’re just going to look at it and scrunch it up and throw it away. Interviewer: So it’s not going to have much of an impact? Offender: No, I don’t think. Conclusion The experience shared in the interview of one offender above say a lot on the negative impact of restorative justice conferences. It is clear that somehow directly or indirectly offenders are pressurised to express apology and request forgiveness by the victims. The offender’s mindset is such that if he or she doesn’t oblige to what the organiser wants, somewhere there lurks the fear of failing in evaluation resulting in severe judgement (Hayes & Hayes, 2008 p. 390). Secondly, forcing an offender to apologise may provoke the offender to show deviant behaviour. The young offender already faces dejection and is denounced by being asked to repent by apologising. The whole process of conferencing gives a message to the offender that what he believes and feels is wrong. Finally, forcing offenders to serve apology holds them back from engrossing in ethical work needed to create ethical identity. Their feeling remorse hinders the conferencing process which is supposed to work. This resistance is the important first step in the direction of critical self-reflection; it should be promoted in the young offender to create his or her ethical identity. In stead of finding fault with the young offender for the failing of the restoration process, we should find fault with the way of forcing an apology, which kills the resistance and creates hindrance in the process of critical self-reflection. References: Graycar, Adam. & Grabosky, Peter. Trends in Australian crime and criminal justice. Cambridge University Press. Retrieved January 10, 2010, from http://assets.cambridge.org/97805218/18452/excerpt/9780521818452_excerpt.pdf Hayes, Hennessey. (2005). Assessing reoffending in restorative justice conferences. The Australian and New Zealand Journal of Criminology, 38, (1). Retrieved January 10, 2010, from Ebscohost Database. Hayes, Sharon. & Hayes, Hennessey. (2008) Developing ethical identities in young offenders through restorative justice practice in Australia. QUTLJJ, 8 (2), Retrieved January 10, 2010, from Ebscohost Database Read More