Restorative Justice Argumentative

Often it’s the criminal justice system itself that instigates criminals into ruthless felonies because of lack of rehabilitation, insufficient facilities for treatment and other indiscreet policies. Some blame the attitude and outlook of the society and government towards criminals, victims and public. This hark back memories of a cartoon that appeared on Earth Day 1970, a takeoff on the ‘war on crime’ and ‘us versus them’ mentality and said: “We have met the enemy and it is us”. The observation criticizes the freedom that most members of the society have.

Restorative justice might come as a solution to the problem when the conventional assumptions – victims and offenders are not natural enemies, victims may not primarily be retributive of justice and prison is not necessarily the best way to prevent them from repeating crime – are erroneous. Another misconception that offenders and victims are different from each other induces greater desire for the victim, taken by remorse, to seek revenge against the offenders and conceals the fact that most criminals have themselves been victims, some from an early age. Thus, there is always a social fabric the bonds everyone in the society, be it the victim or the criminal.

The canons of giving tougher punishments for restraining criminals to repeat crime has widely been criticized. The restorative system of justice argues that crimes can be prevented by fostering repentance and sympathy towards the victims in delinquents. Restorative justice is a more intelligent and effective in realizing the goals of justice. The use of human emotions in the process of justice enables better understanding of feelings and bond between victims, offenders and their families.

Various Forms of Restorative Justice

The evidence highlighted is just one from the various forms of restorative justice referenced by the Home Office (2003) strategy document, as quoted from Marshall (1999: 5): a process “whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. The method involves face to face interaction with victims, offenders and family members and can significantly reduce the repeat of crimes. It also helps victims condensing the post-traumatic stress as they return to their normal lives with fewer health problems such as coronary heart disease and reduced long term severity against the offender. Victim, delinquent mediation is another ‘direct’ method of restorative justice. This includes one way communications such as letter of apology to victims or his family members. One more ‘direct’ form of RJ is court-ordered restitution, also directed by youth referral panels and often the grounds for imprisonment in the US for non-payments. When put to judicious use, it can prove effective for preventing adult and juvenile delinquents, both novices and hardened, in regressing to misdemeanours.

RJ was first and primarily employed to cure minor felonies such as shoplifting, drunk driving and vandalism but have now been expanded to encompass more serious offences such as robbery, burglary and assault. A prominent distinction made in the justice system is “victimed” versus non-victim offences. Even though RJ has been traditionally used for non-victim minor crimes, theories such as of Braithwaite (1989) suggest that it can work even better for ‘victimed’ offences by reducing offender’s regression to crime. The review is not aimed at establishing RJ as a one solution for all, but rather suggests on what works for whom. It is beyond the purview to determine the best working solution as the conditions, circumstances and characteristics of the criminal justice process are numerous with myriad combinations of offence type, RJ method, stage of the criminal justice process, and offender age/gender/race/prior record.

Major dimensions of restorative justice

(a) Scope: criminal versus non-criminal

As it has been already mentioned this “Restorative Justice” is basically a way to evolve some sort of conflict resolution technique without confining it to some of the already defined nations of criminal and corresponding justice. The practice has got wide spread usage in an environment which resembles school and workplace or are similar to these settings. It forms the most important platform for creation of conditions that sermonizes the beginning of attempts which would finally lead to resolve the fall outs of transgressions by agencies of state with commissions based on truth and reconciliation.

(b) Standing: diversion versus supplementation

Restorative Justice in technique is a way of criminal justice thoroughly diverted from the formal justice system and established norms of crime handling. The offenders are mainly those who have entered into crime zone either for the first time or through some unusual circumstance. Juveniles are the one whose cases are forms the biggest to get solved through the above mentioned means. At the same time those who have been charged with offences which comparatively fall under the category of minor offence are also subjected to fall under the purview of restorative justice. Certain diversions can also be seen in case of extremely serious adult cases with Restorative Justice being counted as a reliable solution.

(c) Whose harm: personal versus collective victims

The possibility of restorative justice being propagated as a viable solution to maintain the rule of law is quite installable. The theory itself has been projected as a very effective solution to the cases involving personal victims as well as the circumstances involving collective victims. The concept of collective victims undertakes those who are either in form of corporations or communities. The possible cases can be like shoplifting with corporation as a victim while vandalism of public property like schools and park where the whole community is the victim. The factors like emotions and physical impact of the crime play the various units of the crime and its overall effect.

(d) Process: face-to-face versus all other methods

Face-to-face RJ circumscribes the process that entails direct discussion among the victims of a crime with intensifying the surge of emotions and its subsequent power on its way that might prove as a very critical factor to the complete process. In case of unwillingness or implausibility with more than one party being unavailable, solution in form of indirect mediation and discussion between the victim or the offender.

(e) Convening: negotiator or facilitator

Enabling new programs like “Victim-offender Mediation Programmes” which have been developed in a typical way that involves a mediator holding the responsibility of prevailing negotiation between the parties that would finally achieve a satisfactory outcome. This will result a very desirable outcome with both parties present and the mediator shuttling between them. The conference can be facilitated through the use of modern technology with intelligent programmes enabling virtual conference based chat forum. The facilitator ensures that the main issue remains the major part of the discussion with all the parties stay focused on the reasons for the meeting and the level of communication remain civilized.

(f) Outcome: restitution-centered versus other restoration

Restorative Justice when enforced in the form of court based redemption programmes and mediation programmes with victim and offender being focused on the basis of financial restitution to the victim. These typically pay less attention to victims’ emotional harm.

Face-to-face Restorative Justice

The evidence and the vision considered in this report are primarily, but not exclusively, about face-to-face RJ. Given the limits of length in a document addressed to busy policy makers, the report largely takes this focus for three reasons. First, the principles of the moral vision of RJ to strengthen interdependent communities resonate more with face-to-face RJ than with any other approach. Second, a preponderance of unbiased evidence about RJ comes from the face-to-face variety. Third, the criminological theory derived from the evidence on patterns of criminal offending and desistance over the life-course predicts that only face-to-face RJ could provide an experience with enough emotional power to substantially reduce repeat offending.

Stages in the criminal process: inventory of face-to face

Within the domain of face-to-face restorative justice, an extended sort of settings for RJ has evolved with respect to the smooth transition into effective criminal process. The provisions within this domain include a number of conditions:

Evidence Summation

The research is subject to substantial debate but conducted by best methods relying on the Cabinet Office’s “PICO” model adopted from the methods of the National Institute for Health & Clinical Excellence (2006: 16): population, intervention, comparison, outcomes. The model by weighing large sections of research data against each other helps medical practitioners with precise definitions of both populations and interventions. Thus the right treatment can be gauged. When applied to RJ the approach follows the Home Office (2004) adaptation of the University of Maryland’s scientific methods scale. A five point scale, it directs the level of internal validity or the control of bias in drawing inferences of source.

Thus, this assessment excludes results that fall below the scale of 3, i.e., those that lack direct comparisons while such comparisons are made for impact between the cases where RJ was used and those with predicted recidivism based on the OGRS2 scale corroborated by Home Office research on samples other than the RJ cases. The method is of the scale 4 as confirmed in the evaluation methods literature (e.g. Berk and Rossi, 1998). In UK attempts by courts to evaluate RJ failed as either the victim or the offender was unwilling. With such comparison in treatment between two groups that is difficult to make and thus any effect of the treatment can be biased, we tried best to eliminate something about those cases that make consent versus refusal a perplexing interpreter of recidivism, as doubtful and unsure.

Also many studies only account ‘completers’ of RJ, while the samples have no mention of those who didn’t or couldn’t complete. Though large samples carry them with reasons why they couldn’t complete it but matching ‘completers’ with the comparison group untreated can be biased. Applicable to traditional and historical controls, excluded as evidence of the impact of RJ, comparisons between offenders who do and do not get RJ (level 1) and before/after studies (level 2) that are susceptible to regression-to-the-mean are also excluded. The key findings in tables 1 to 5 rely on 23 reasonable estimates of the effectiveness and impact of RJ on repeat offending, six estimates of effects on victims, and five estimates of effects of diversion on felonies brought to justice. All level 5 researches employed random assignment to determine whether or not a case received RJ. Some of the point estimates are derived from subgroups of the full sample that was included in the random assignments.

Predicting RJ effects on repeat crime by offenders

Repeating crimes is often thought to be a small problem even when evidence in UK suggests otherwise: 76% of English and Wales people sentenced for indictable offences in 2003 were also earlier convicts. If preventive detention had been used, the percentage could have been higher. That proves – most crime is repeat crime. But to prove that RJ can help the samples should be unbiased and definitely not those with bias of self-selection. (eg Vignaendra and Fitzgerald, 2006). Also, the convicts who complete RJ are unlike those who haven’t in regard to their crime repeating tendency. Thus, taking into account convicts who complete RJ with lower tendencies to repeat the crime than others is what statisticians call spurious results. RJ studies suffer from this major flaw and hence, conclude with biased inferences.

With only police records as the sole criteria for measurement of suitability of RJ, it becomes difficult to take into account its unpredictable nature. RJ needs meticulous planning and research before proper execution. Randomised controlled trials (RCTs) by measuring the steadiness and effectiveness of delivery, and by analyzing the data on assignments than on RJ completion reduces any self-selection bias and fake causes of repeated crimes. The tests are controlled and provided by facilitators trained by a training firm and conducted for a particular population identified by characteristics earlier than random assignments.

• Violent convicts under age 30 in Canberra;
• Violent girls under 18 in Northumbria;
• Male property offender under 18 in Northumbria;
• Property and violence offenders aged seven to 14 in Indianapolis.
Tests other varieties of RJ such court-ordered restitution or intervention of various descriptions has reduced crime rate among
• Violent families in Newfoundland and Labrador
• Offenders in Washington Adult male property and violence offenders diverted from prison in Winnipeg (and recidivism no worse than from jail for youth in Idaho)
• Youth property offenders in Clayton County, Georgia;
• Youth violence and property, DC.

But similar tests also found that RJ delivered by the same facilitators made little or no difference in repeat crime rates in:

• Property offenders under 18 in Canberra;
• Violent males under 18 in Northumbria;
• Property offenders under 18 in Bethlehem, Pennsylvania.
Also the same methods have divulged that one to one RJ put forward as an excuse from court resulted in significant increase in crime rates of Aboriginals below 18 in Canberra caught for property crimes as compared to those randomly assigned to courts for similar offences. Moreover, the Bethlehem results with many Hispanics included in samples raise issues such as the impact of RJ on groups with alienated social roots and those with negative regional or cultural beliefs.

Another question raised is if RJ can be tailored to the needs of such alienated social groups, such as mobilizing aged aboriginals to participate in RJ conferences could help them decide against criminal tendencies. More insight can be gained by studying diverse groups under Non-RCT study, as in offenders under the age 18 in South Australia. It showed that offenders who felt regret had the lowest crime repeat rates, an example is the juvenile cases in New Zealand.

As in medicine where each product undergoes comprehensive testing before coming into any kind of practical use, RJ should also be researched and experimented studiously. It has to be discovered that on what kind of patient it works and how effective it is. Even though all treatments have negative reactions when used improperly, it is still not sufficient a reason to ban it completely. As penicillin and antibiotics saved lives, the right use of restorative justice can also prevent many injustices and wrongdoings.

The process of restorative justice

RJ depends entirely on a process that consists of a sequence of three important stages namely finding cases, getting consent and reaching agreements. Since this sort of judiciary is used as a supplement to normal criminal justice processes in some of the cases, this process needs to be completed in recognizable volume irrespective of public familiarity and popularity.

The phase of Finding Cases begins with getting an acceptance from both victim as well as offenders and hence a number of evaluation reports on RJ stress into the difficulty associated while recruiting victims and offenders into the process. After identifying the problem, it is being attached with a decision to verify RJ as supplement to already established path to justice. The production of restorative justice is being made simple by two conditions:

Once the identification of cases get finished, the communication between the offender and the victim is being enabled with victims getting an authority to express their grievances, which is quite different procedure as compared to normal criminal procedure in which the involvement of victims is minimal The proposed settings delivers where consent of the victim and offender and the completion of RJ processes happens with substantial frequency. The very aim of maintaining this swiftness is for raising the confidence of people in the processes of restorative justice.

After getting the consent of both offender and victim to agree in principle to the concept of restorative justice then facilitators go for the victim-offender agreement. And this is perhaps the most difficult part of the whole scenario. The offenders at many times have withdrawn because of being face to face with the victim. The obstacle has been the offender compliance issues which also becomes a issue with credibility of RJ comes into stress. The lack of a successful agreement would result erosion of victim’s faith in this form of judiciary and at the same time its reputation.

The researches are on the way with a number of modification is being suggested. Zeroing on one of such typical change of process, the implementation begins with RJ being offered to offenders without getting into the details related to victim’s willingness. This helps in getting over the dilemma of convincing the victims to go for any communication with the offender since it’s the offender who is being projected as the first willing party. So the primary thing is to figure out whether the offender is suitable for RJ and this is what the facilitators have to derive out. Now depending on the condition of the offender the further course of action is being taken.

How can Restorative Justice be best delivered?

Effective delivery of RJ is still a problem in UK where it is operated on a take-it-or-leave it philosophy. Courts do their best in asking people to participate, even in person, but in vain. Many bootless attempts have been made: prosecutors approving cases for RJ even after conditional cautioning and magistrates delaying sentences for RJ conferences. Today’s system left a great solution, an exception being, youth conferencing programme in Northern Ireland that is statutory. The study reveals that the programme works well and it seems to be successful via statutory and regulatory engineering of the justice system which could finally include an adjournment to allow police to visit victims and offenders and let them decide if they wish to participate in RJ. Risk assessment could drive the decision and also draw latest research on RJ cases.

Also a law, similar to that of police in Canberra, could force more efficient enforcement of RJ by making it a rule for officers to explain the possibility of diversion to RJ. In UK it might be seen as a method for encouragement but could be included in the standard information package to jail attendees. Also victims can be reached personally by coming to their doors. However, the prospect of wasting trained officers on such processes make leaders reluctant to facilitate RJ, though the cost of restorative policing can be reduced by assigning police community safety officers to work with small number of constables and offer help through police protection and bringing together offenders and victims through some community based knowledge. A competing argument is that the facilitators have no affiliation with justice agencies even as there is no proof that the practice can attract more participation. The best large-scale delivery of RJ is police organized and led meetings.

More justice, less crime: a way forward

Restorative justice is evidently helping offenders feel more responsible, victims feel safe and easy, cutting government costs. The evidence since collected support a decision to roll out RJ on a promise for a major shift in justice policies and more evidence for its efficiency to prevent theoretical based attacks. A solution can be the creation of an independent Youth Justice Board (an RJ agency). It may consist of members drawing from various constituencies concerned about criminal justice and civil rights. With the power to suggest and make recommendations for statutory and policy changes for widespread use of RJ, a small budget would be sufficient enough to enable it achieve the goals of restorative justice through research, planning and execution. The other focus would be to fill the evidence gap dug in the study –community level impact.

References

Angel, C (2005) Crime Victims Meet Their Offenders: Testing the Impact of Restorative
Justice Conferences on Victims’ Post-Traumatic Stress Symptoms, PhD dissertation University of Pennsylvania, 2005

Berk, R and Rossi, P Thinking About Programme Evaluation (Newbury Park, California:
Sage, 1998)

Beven, J, Hall, G, Froyland, I, Steels, B and Goulding, D (2005)“Restitution or
Renovation? Evaluating Restorative Justice Outcomes” in Psychiatry, Psychology & Law 12 2005, pp194-206

Bonta, J, Wallace-Capretta, S and Rooney, J Restorative Justice:
An Evaluation of the Restorative Resolutions Project Ottawa: Ministry of
the Solicitor-General, 1998

Braithwaite, J (1989)Crime, Shame & Reintegration Cambridge: Cambridge University
Press, 1989

Braithwaite, J (2002) Restorative Justice & Responsive Regulation; Oxford: Oxford
University Press, 2002

Cormier, R (2002) Restorative Justice: Directions & Principles – Developments in
Canada Ottawa: Department of the Solicitor General, Canada, 2002

Crawford, A and Burden, T (2005) Integrating Victims in Restorative Youth Justice,
Researching Criminal Justice series; Bristol: Policy Press, 2005

Davis, R, Tichane, M and Grayson, D (1980) Mediation & Arbitration as Alternatives
to Criminal Prosecution in Felony Arrest Cases: An Evaluation of the
Brooklyn Dispute Resolution Center (First Year) (New York: Vera Institute of
Justice, 1980

Home Office (2004) Home Office RDS & YJB Standards for Impact Studies in
Correctional Settings
http://www.homeoffice.gov.uk/rds/pdfs04/rds_correctional_standards.pdf

Vignaendra, S and Fitzgerald, J (2006) “Reoffending among Young People Cautioned by
Police or Who Participated in a Youth Justice Conference” in Contemporary Issues in Crime & Justice no 103 Sydney: New South Wales Bureau of Crime Statistics & Research, 2006