Restorative Justice as an Alternative to Criminal Justice
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The traditional way of dealing with crime and offenders is for the state to intervene and punish the offender in the light of a set of decided laws and rules. This punishment is considered to serve the purpose of justice and ensure deterrence from future crimes. According to the on-line encyclopedia, “Criminal justice refers to the system used by government to maintain social control, prevent crime, enforce laws, and administer justice. Law enforcement (police), courts, and corrections are the primary agencies charged with these responsibilities. When processing the accused through the criminal justice system, government must keep within the framework of laws that protect individual rights”. . However, since the 1970s, there has been a growing realization that the Western criminal justice system is flawed and there needs to be an alternative system of justice.
In the words of John Braithwaite, of Australian National University, “Western criminal justice systems are brutal, institutionally vengeful, and dishonest to their stated intentions”. . There may be numerous reasons for the perceived failure of these systems, but Braithwaite gives a theory in this regard. According to him, “the societies that have the lowest crime rates are the societies that shame criminal conduct most effectively. There is an important difference between re-integrative shaming and stigmatization. While re-integrative shaming prevents crime, stigmatization is a kind of shaming that makes crime problems worse. Stigmatization is the kind of shaming that creates outcasts; it is disrespectful, humiliating. Stigmatization means treating criminals as evil people who have done evil acts. Re-integrative shaming means disapproving of the evil of the deed while treating the person as essentially good. Re-integrative shaming means strong disapproval of the act but doing so in a way that is respecting of the person.” .
It is increasingly acknowledged that criminal justice systems must represent the interests of victims and communities by ensuring public safety, quality of life in communities, and a meaningful role for crime victims in the justice process. Such realization has given rise to alternative theories for dealing with crimes. One of these theories is Restorative Justice. This theory has gained much popularity and propogation during the last ten years. It has previously been known by different names such as peace-making, redress, reconciliatio etc. But the name which has come to be known most widely is Restorative Justice.
Restorative justice assumes that the victim or their heirs or neighbors can be in some way restored to a condition just as good as before the criminal incident. Substantially it builds on traditions in common law and tort law that requires all who commit crimes to be penalized. In recent time these penalties that restorative justice advocates have included community service, restitution, and alternatives to imprisonment that keep the offender active in the community, and re-socialized him into society. .
Restorative justice calls for criminal justice systems to work as partners with the broader community and in ways that reflect community values. It is an old idea with a new name. Its roots can be found in Aboriginal healing traditions and the non-retaliatory responses to violence endorsed by many faith communities. Restorative justice seeks to involve victims and the community in a process that holds the offender accountable for repairing the harms committed by the offender. In many restorative justice programs victims, and often community members, meet with offenders to understand why the crime occurred and discuss how to “make right the wrong”. These meetings often result in efforts by the offender to make amends to those that were harmed through some form of restitution or community service. How effective these efforts are in reducing further harmful behaviour from the offender is of growing interest to researchers and criminal justice agencies. .
There is no universally accepted definition of Restorative Justice. The concept itself is rather new and still under research, therefore, there are no set perimeters of this system as well. According to Braithwaite, “restorative justice means restoring victims as well as restoring offenders and community.” . Restoring victims takes primacy over other actions because he or she is the one who has suffered material, mental, bodily or multiple harm because of the crime. The way that Western legal systems handle crime compounds the disempowerment that victims feel, first at the hands of offenders and then at the hands of a professional, remote justice system that eschews their participation. Restorative justice aims to restore harmony based on a feeling that justice has been done.
Restorative justice cannot resolve the deep structural injustices that cause problems like hunger. But we must demand two things of restorative justice here. First, it must not make structural injustice worse (in the way, for example, that the Australian criminal justice system does by being an important cause of the unemployment and oppression of Aboriginal people). Indeed, we should hope from restorative justice for micro-measures that ameliorate macro-injustice where this is possible. Second, restorative justice should restore harmony with a remedy grounded in dialogue which takes account of underlying injustices.
Restorative justice does not resolve the age-old questions of what should count as unjust outcomes. It is a more modest philosophy than that. It settles for the procedural requirement that the parties talk until they feel that harmony has been restored on the basis of a discussion of all the injustices they see as relevant to the case. Finally, restorative justice alms to restore social support. Victims of crime need support from their loved ones during the process of requesting restoration. They sometimes need encouragement and support to engage with deliberation toward restoring harmony. Friends sometimes do blame the victim, or more commonly are frightened off by a victim going through an emotional trauma. Restorative justice aims to institutionalize the gathering around of friends during a time of crisis. .
In most cases, a more limited range of types of restoration is relevant to offenders. Offenders have generally not suffered property loss or injury as a result of their own crime, though sometimes loss or injury is a cause of the crime. Dignity, however, is generally in need of repair after the shame associated with arrest. A task of restorative justice is to institutionalize such restoration of dignity for offenders. .
The sense of insecurity and disempowerment of offenders is often an issue in their offending and in discussion about what is to be done to prevent further offending. Violence by young men from racial minorities is sometimes connected to their feelings of being victims of racism. For offenders, restoring a sense of security and empowerment is often bound up with employment, the feeling of having a future, achieving some educational success, sporting success, indeed any kind of success. .
In Maori thinking, civilized justice requires the offender’s loved ones to stand beside him during justice rituals, sharing the shame for what has happened. Hence the shame the offender feels is more the shame of letting his loved ones down than a western sense of individual guilt that can eat away at a person. The shame of letting loved ones down can be readily transcended by simple acts of forgiveness from those loved ones. .
Restoring community is advanced by a proliferation of restorative justice rituals in which social support around specific victims and offenders is restored. At this micro level, restorative justice is an utterly bottom-up approach to restoring community. At a macro level, important elements of a restorative justice package are initiatives to foster community organization in schools, neighbourhoods, ethnic communities, churches, through professions and other NGOs who can deploy restorative justice in their self-regulatory practices. .
How does Restorative Justice achieve this? Restorative justice encompasses a number of different practices or processes, the most widely known are listed below.
• Victim/offender mediation is a process in which an impartial and independent third party helps both victim and offender to communicate either directly or indirectly in an attempt to create a greater understanding between the parties that might ultimately lead to some form of tangible reparation.
• Reparation is an action undertaken by the offender in an attempt to put right the damage done by the offence. This reparation might be directly to the victim; it might however take the form of service to the wider community.
• Victim/offender conferencing follows the same principles as victim/offender mediation but has a wider group of participants, bringing in families from both parties and in some cases members of the wider community with some relevance to the situation. .
Ellen Halbert of the Travis County District Attorney’s office has served as vice chair of the Texas Board of Criminal Justice, which oversees the massive criminal justice system for the State of Texas. “The No. 1 thing victims want is for what happened to them not to happen to anyone else,” she said. “Through restorative justice programs, victims have discovered that their voices and their stories can change the lives of offenders from criminals to law-abiding members of our community. Can you imagine how that feels? It is the best example I know of the power of the victim’s voice.” .
As a researcher in the field of victim/offender mediation, Marilyn Armour has conducted research on two restorative justice programs: the Victim/Offender Mediated Dialogue program offered by Victim Services of the Texas Department of Criminal Justice and the Bridges to Life program. The Victim/Offender program is limited to offenders of serious crimes who are usually incarcerated for long periods of time or are on death role. She and other researchers have found that mediation dialogue programs have a profound effect on many victims, family members and offenders who participate. Life changes reported include letting go of hate, obtaining answers, placing anger where it belongs and remorse on the part of the offender. .
Restorative justice has many critics as well. The criticism of this theory revolves around the following points:-
• Lack of research on restorative justice initiatives in more serious crimes.
• Questions about offender participation motivation and sincerity and the belief that in some instances victims are re-victimized because of lack of preparation prior to the mediation or the attitude projected by the offender who may have been mandated to attend against his will.
• There also is criticism that, although the criminal justice system has a disproportionate number of persons of color, restorative justice is primarily serving Caucasians.
• The program also has been criticized as inappropriate for domestic violence because it potentially sets the victim up for further abuse. .
Evidence from the general literature indicates that restorative justice programs can have an impact on offender recidivism that ranges from a two to eight per cent reduction in recidivism. Thus, it is worth considering restorative justice approaches in the development of criminal justice policies. The effectiveness of restorative justice approaches may be accentuated by the inclusion of offender treatment. .
Much of the research on restorative justice focuses on the views and satisfaction levels of the participants. The studies that deal with offender recidivism are relatively fewer and many of these are methodologically weak. Continued, rigourous evaluations are needed to build confidence in this non-traditional approach to dealing with crime. .
In the contemporary world, as opposed to the world of our biological creation, retributive emotions have less survival value. Because risk management is institutionalized in this modern world, retributive emotions are more likely to get us into trouble than out of it, as individuals, groups and nations. All of the restorative values are cultural universals. All cultures value repair of damage to our persons and property, security, dignity, empowerment, deliberative democracy, harmony based on a sense of justice and social support. They are universals because they are all vital to our emotional survival as human beings and vital to the possibility of surviving without constant fear of violence. .
The world’s great religions recognise that the desire to pursue these restorative justice values is universal, which is why some of our spiritual leaders are a hope against those political leaders who wish to rule through fear and by crushing deliberative democracy. Ultimately, those political leaders will find that they will have to reach an accommodation with the growing social movement for restorative justice, just as they must with the great religious movements they confront. Why? Because the evidence is now strong that ordinary citizens like restorative justice. It is true that the virtues restorative justice restores are viewed differently in different cultures and that opinion about the culturally appropriate ways of realising them differ greatly. Hence, restorative justice must be a culturally diverse social movement that accommodates a rich plurality of strategies in pursuit of the truths it holds to be universal. .
More of the momentum for the restorative justice movement has come from the world’s churches than from any other quarter. Even in a nation like Indonesia where the state has such tyrannical power, the political imperative to allow some separation of church and state has left churches as enclaves where restorative traditions could survive. Religions like Islam and Christianity have strong retributive traditions as well, of course, though they have mostly been happy to leave it to the state to do the “dirty work” of temporal retribution. .
In our multicultural cities, the gains that can be secured from restorative justice reform are greatest. When a police officer with a restorative justice ethos arrests a youth in a tightly knit rural community who lives in a loving family, who enjoys social support from a caring school and church, that police officer is not likely to do much better or worse by the child than a police officer who does not have a restorative justice ethos. Whatever the police do, the child’s support network will probably sort the problem out so that serious re-offending does not occur. But when a police officer with a restorative justice ethos arrests a homeless child in the metropolis, who hates parents who abused him, who has dropped out of school and is seemingly alone in the world, it is there that the restorative police officer can make a difference that will render him more effective in preventing crime than the retributive police officer. .
The traditions of restorative justice that can be found in the entire world’s great cultures have been under attack during the past two centuries. Everywhere in the world, restorative ideals have suffered serious setbacks because of the globalization of the idea of a centralized state that takes central control of justice and rationalizes it into a punitive regime. Control of punishment strengthened the power and legitimacy of rulers. .
While it is a myth that centralized state law enabled greater consistency and lesser partiality than community-based restorative justice, it is true that abuse of power always was and still is common in community justice. And it is true that state oversight of restorative justice in the community can be a check on abuse of rights in local programs, local political dominations and those types of unequal treatment in local programs that are flagrantly unacceptable in the wider demos.
Equally it is true that restorative justice can be a check on abuse of rights by the central state. The restorative justice ideal could not and should not be the romantic notion of shifting back to a world where state justice is replaced by local justice. Rather, it might be to use the existence of state traditions of rights, proportionality and rule of law as resources to check abuse of power in local justice and to use the revival of restorative traditions to check abuse of state power. In other words, restorative justice constitutionalized by the state can be the stuff of a republic with a richer separation of powers (52), with less abuse of power, than could be obtained either under dispute resolution totally controlled by local politics or disputing totally dominated by the state. .
In answering the question, “How can we evolve a true, enlightened philosophy of justice?” Breton and Lehman’s answer is fourfold:
• Wisdom: seeking the big picture, the aim and purpose of justice.
• Courage, integrity: following through with personal and social change.
• Moderation, love and compassion: adapting change to where we are.
• Justice: a way of life that we create from who we are and that evolves with us.” .
In July 2002, the United Nations Economic and Social Council adopted a resolution containing guidance for member states on restorative justice policy and practice. This approach, which holds offenders accountable in meaningful and constructive ways, can contribute to a more satisfying experience of justice for victims and communities. Research shows that both victims and offenders have high levels of satisfaction with the process and the outcomes. Studies also suggest that offenders are more likely to follow through with restitution or community service, and that there is some reduction in repeat offending. .
Restorative justice represents a return of the simple wisdom of viewing conflict as an opportunity for a community to learn and grow. It operates on the premise that conflict, even criminal conflict, inflicts harm, and therefore individuals must accept responsibility for repairing that harm. Communities are empowered to choose their response to conflict. Victims, offenders and communities actively participate in devising mutually beneficial solutions, and implementing those solutions. Conflicts are resolved in a way that restores harmony in the community members’ relationships, and allows people to continue to live together in a safer, healthy environment. .
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