This essay will attempt to analyze the extent to which developments in restorative justice practices are for the benefit of victims and is a useful alternative to our traditional criminal justice system. Restorative justice has been defined in several different ways. In essence, it involves trying to restore victims, offenders, and the wider community to something like the position they were in before the offense was committed, ideally by involving them all in the decision-making process and, where possible, attempting to reconcile their conflicts of interest through informal discussion. The classic definition was Marshall’s: he argued that restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future, but this definition is not fully inclusive of all the possible approaches to restorative justice. For example, it leaves out shuttle mediation and written apologies. It also implies an individualistic model of restoration, which arguably excludes possibilities such as truth and reconciliation commissions with a national remit (Liebmann, 2007).
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Restorative justice: alternatives
Some commentators use the phrase restorative justice more generally to cover any intervention which aims to hold offenders to account by providing opportunities to make amends to victims, either directly or indirectly. However, it is questionable to what extent interventions can be regarded as a restorative when, for example, offenders do not know that community work they undertake compulsorily as part of a court sentence is of indirect or symbolic benefit to victims, and the term can be used so loosely as to be almost meaningless.
Zehr (2004) provides a helpful list of what they regard as the essential characteristics and principles of restorative justice. These include the idea that it is important, to begin with, a recognition that victims and community have been harmed and need restoration and, consequently, victims, offenders, and the affected communities are the key stakeholders in justice offenders obligations are to make things right as much as possible but voluntary involvement is preferable: coercion and exclusion should be minimized. They go on to argue that the community’s obligations are to victims and offenders and for the general welfare of its member’s victims needs should be the starting point of justice dialogue should be facilitated, and the justice system should be mindful of the outcomes, intended and otherwise, of interventions in response to crime and victimization. (Liebmann, 2007) Their model is deliberately provocative and has a rhetorical element: it is far removed from the reality of most existing justice systems and, indeed, the authors go on to suggest that it is aspirational rather than being descriptive of any current system. Nevertheless, it is useful in providing an ideal type against which to test the claims of particular projects or initiatives to embody restorative principles.
The idea has connotations traditionally of returning things to the state as they were. It is a capacious concept which generally stands for the repair of harms and ruptures to social bonds resulting from crime; it focuses on the relationships between crime victims, offenders, and the community. The last decades of the twentieth century witnessed the contemporary re-surfacing of appeals to traditional non-statist, communitarian modes of justice, ironically alongside the simultaneous renaissance of incapacitation and a retributive model of justice. (Walgrave, 2002) According to the idea of restorative justice, justice is primarily a process of reconciling convicting interests and healing rifts in communities resulting from harms committed. The restorative justice movement is a body of work that has gained much momentum in societies that have managed in part to re-discover, to varying degrees, the systems of justice of their indigenous peoples, such as Canada and New Zealand’ (Zehr, 2004). And social theologians have also sought to recover what may be a rich but largely suppressed tradition of communally based restorative justice when a crime is understood as interpersonal harm rather than as a violation of an abstract legal rule (Liebmann, 2007). These harms are viewed as creating obligations and liabilities which have to be put right by the parties concerned themselves, with the state and its agents only minimally involved. Zehr argues that justice (now generally interpreted narrowly as due process, fairness or impartiality in modern Western legalism) needs to be re-entwined with conceptions of respect, love, peace, and community. There is also a much wider abolitionist’ body of literature on restorative justice (Zehr, 2007), which has criticized the workings of the formal criminal justice system across a whole gamut of fronts. Abolitionists are keen to remind us that the events and behaviors that are criminalized make up only a minute part of the events and behaviors that can be so defined. They suggest that crime is not the object but the product of crime control philosophies and institutions. More particularly, social problems, conflicts, and troubles are an inevitable part of everyday life and therefore cannot, or rather should not, be delegated to professionals and specialists claiming to provide solutions’. (Sullivan, 2005) When professionals and state agencies intervene, the essence of social problems and conflicts are stolen’ and represented in forms that only perpetuate the problems and conflicts. Traditional state-based, adversarial justice thus makes both the victim and the offender passive spectators, at formal and legalistic court proceedings. It is suggested that the abolition of the crime control industry’ would also revitalize the social fabric by allowing other forms of conflict resolution, peacemaking, and community safety to be imagined and properly resourced (McLaughlin, 2003) .Supporters of the restorative justice movement argue that it is not a soft option for offenders. Instead, they point to the stress on personal responsibility for harms done, from which offenders cannot hide. The emphasis on using the techniques of reintegrative shaming, mediation, and reparation, in turn, is meant to work on the conscience of the harm-doer in ways that formal legal procedures do not. In accord with the general drift of communitarian thought, Braithwaite, as the most famous theoretician and proponent of reintegrative shaming, does not flinch from arguing that society’s response to crime must be moralizing (but not rejecting). Examples are offered of community conferences (or Family Group Conferences) for young offenders in New Zealand which are based’ on Maori traditions conducive to reintegrative shaming, involving kin and significant others of both the victim and the offender (Sullivan, 2007). In acting as a form of communion’, it is further contended that such conferences are de-professionalizing, empowering women, oriented to flexible community problem-solving, and for the most part, narrowing the nets of social control.
Examples of the workings of restorative justice
Great claims have been made for reintegrative shaming and family group conferences as concrete examples of the workings of restorative justice. (Sullivan, 2005) However, it is wise to remain circumspect about their potential for creating the conditions for a radical, non-discriminatory approach to justice. Significant questions also remain about the theory and practice of reintegrative shaming as a form of restorative justice. For example, it has as yet to be shown that reintegrative shaming will not be mobilized against the most vulnerable sections of the society and indeed be employed for trivial offenders without any reduction in the use of traditional custodial sentences. Furthermore, the lack of accountability and the absence of protection for the offender in terms of appeals to legality and due process remain major areas of concern associated with most forms of restorative justice (Zehr, 2004).
In terms of criminal justice system practice, restorative justice is viewed as a set of alternatives within the system to formal justice, for example, siphoning off less serious cases and providing opportunities for victims and offenders to meet and perhaps make amends. For the most part, practices are contained by formal criminal justice. There is also the question of the extent to which restorative justice initiatives, administered in a governmental context and subject to bureau-professional capture may extend the net of social control deeper into the community. At the same time, it is questionable whether any of the above criticisms negate the progressive potentialities of restorative justice per se. Rather, such criticisms demonstrate in part both the pitfalls of poor implementation and the subversion of restorative justice’s principles in specific projects’. A more general difficulty with restorative justice concerns its assumption alongside retributivism that individuals are autonomous, rational individuals able to make free moral choices for which they may be held to account. However, restorative justice continues to provide an alternative to punishment, violence, exclusion, and coercive power to effect change in our lives and our social institutions. Restorative justice practices can make a substantial contribution to victims of crime. It would be a good idea to involve attaching restorative justice practices to existing court procedures, they can both emerge to make the system more effective.
- Liebmann Marian, (2007) Restorative Justice: How It Works. Jessica Kingsley Publishers.
- McLaughlin, E, Fergusson, R, Hughes, G and Westmorland, L (2003) Restorative Justice-Critical Issues, Milton Keynes: Open University Press.
- Sullivan Dennis, Tifft Larry, (2005) Restorative Justice: Healing the Foundations of Our Everyday Life. Criminal Justice Press; 2nd Edition.
- Sullivan Dennis. (2007) Handbook of Restorative Justice: A Global Perspective. Routledge Publishers.
- Walgrave, L (ed) (2002) Restorative Justice and the Law, Devon: Willan Publishing Ltd.
- Zehr Howard, Toews Barb. (2004) Critical Issues in Restorative Justice Criminal Justice Press.