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Can Restorative Justice Provide Alternative Criminology?

Info: 3648 words (15 pages) Essay
Published: 11th Jun 2021

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Jurisdiction / Tag(s): UK Law

Restorative Justice

  1. Crime is primarily an offense against human relationships, and secondarily a violation of a law (since laws are written to protect safety and fairness in human relationships).
  2. Restorative Justice recognizes that crime (violation of persons and relationships) is wrong and should not occur, and also recognizes that after it does there are dangers and opportunities. The danger is that the community, victim(s), and/or offender emerge from the response further alienated, more damaged, disrespected, disempowered, feeling less safe and less cooperative with society. The opportunity is that injustice is recognized, the equity is restored (restitution and grace), and the future is clarified so that participants are safer, more respectful, and more empowered and cooperative with each other and society.
  3. Restorative Justice is a process to “make things as right as possible” which includes: attending to needs created by the offense such as safety and repair of injuries to relationships and physical damage resulting from the offense; and attending to needs related to the cause of the offense (addictions, lack of social or employment skills or resources, lack of moral or ethical base, etc.).
  4. The primary victim(s) of a crime is/are the one(s) most impacted by the offense. The secondary victims are others impacted by the crime and might include family members, friends, witnesses, criminal justice officials, community, etc.
  5. As soon as immediate victim, community, and offender safety concerns are satisfied, Restorative Justice views the situation as a teachable moment for the offender; an opportunity to encourage the offender to learn new ways of acting and being in community.
  6. Restorative Justice prefers responding to the crime at the earliest point possible and with the maximum amount of voluntary cooperation and minimum coercion, since healing in relationships and new learning are voluntary and cooperative processes.
  7. Restorative Justice prefers that most crimes are handled using a cooperative structure including those impacted by the offense as a community to provide support and accountability. This might include primary and secondary victims and family (or substitutes if they choose not to participate), the offender and family, community representatives, government representatives, faith community representatives, school representatives, etc.
  8. Restorative Justice recognizes that not all offenders will choose to be cooperative. Therefore there is a need for outside authority to make decisions for the offender who is not cooperative. The actions of the authorities and the consequences imposed should be tested by whether they are reasonable, restorative, and respectful (for victim(s), offender, and community).
  9. Restorative Justice prefers that offenders who pose significant safety risks and are not yet cooperative be placed in settings where the emphasis is on safety, values, ethics, responsibility, accountability, and civility. They should be exposed to the impact of their crime(s) on victims, invited to learn empathy, and offered learning opportunities to become better equipped with skills to be a productive member of society. They should continually be invited (not coerced) to become cooperative with the community and be given the opportunity to demonstrate this in appropriate settings as soon as possible.
  10. Restorative Justice requires follow-up and accountability structures utilizing the natural community as much as possible, since keeping agreements is the key to building a trusting community.
  11. Restorative Justice recognizes and encourages the role of community institutions, including the religious/faith community, in teaching and establishing the moral and ethical standards which build up the community.

In society, there are contradicting attitudes in regards to how crime should be dealt with, with a growing interest in the new approaches and alternatives to the traditional state led response to crime. The traditional retributive system primarily concentrates on the punishment of offenders through the use of formal social controls, such as incarceration and parole. A problem with this system is it fails to meet the needs of victims and integrate offenders back into society (Dzur & Olson, 2004). It has found that almost two thirds of imprisoned offenders will re-offend within two years of being released (Home Office, 2007). As well as causing higher crime rates in society, this also costs society an estimated £13 billion a year (Hansard, 2001).

Restorative justice is a theory which predominately focuses on identifying and repairing harm caused to victims, encouraging offenders to take responsibility for the crimes they have committed. One of the key principles in restorative justice is that crime is viewed as an act against individuals, instead of an act against the state. The main principles aim to resolve conflict in communities by the ‘bringing together of victims and offender’ (Hudson, 2003: 178), using informal social methods to transform the relationship between community and government and ultimately prevent crime.

In the United Kingdom, restorative justice is a relatively new theory of justice and only plays a minor role in the criminal justice system. There has been much debate regarding the efficiency of restorative justice as social control in comparison to the formal social methods used by retributive justice.

There are a variety of programs and ideas implemented by restorative justice. The processes involved engage both the victims of crime and offenders through restorative programs, such as family group conferencing, mediation, victim support and community panels. The programs allow members of the community to take an active role when dealing with crime prevention and safety in their local area, and those that were affected by a crime are offered the chance to engage and communicate with the offender, hearing the reasons as to why the individual committed the crime, as well as explaining to the offender the impact it subsequently had on their lives. The offender must take responsibility by acknowledging the damage their actions have caused, and also by agreeing to certain obligations such as paying compensation to the victim or partaking in community service. These obligations seek to restore the relationship between victims and offender, as well as deterring the offender from later re-offending by integrating them back into society.

Evidence has suggested that the compliance rates of these programs are high, indicating the success of restorative justice as a social control. Latimer, Downden and Muise (2001) conducted a meta-analysis examining how restorative programs, such as mediation, affect recidivism rates. They found that offenders were significantly more likely to comply with restorative justice programs in comparison to offenders dealt with through court processes. Another meta analysis conducted by Umbreit, Vos & Coates (2006) found that the completion rates were significantly higher for offenders that participated in mediation and group conferencing programs.

It has been found that restorative justice positively impacts upon offenders attitudes, restoring their belief that the criminal justice system if fair (Morris, 2002). As offenders take a more active role in restorative programs, evidence has suggested that this makes individuals more likely to comply with terms and obligations(Roche, 2003). Braithwaite also argued that the success levels were due to restorative programs being ‘agreements, not court orders’ (1998a:6), indicating that if offenders are allowed to put some input into negotiating their obligations, they are more likely to comply. Furthermore, Morris argued that restorative programs enable offenders to feel more in control over their behaviour, encouraging them to lead crime-free lives after completion of programs.

For victims, their involvement in restorative justice program is voluntary. A problem with this is the possibility of victims not wishing to participate, meaning the restorative process will fail to progress as it requires the full cooperation of both offenders and victims involved in the crime. Another issue regarding the public involvement is that it is hard to decide which cases are eligible and appropriate for restorative programs. There are concerns that programs may involve inequalities, and that dominant family groups will have more power in decision making (LaPraire, 1995). There is also a possibility of further victimisation by bringing together victims and offenders in mediation programs. Whilst victims are in a safe and supportive environment whilst confronting their offenders, outside sessions victims may be targeted by their offenders. This may particularly pose a problem in small, isolated communities where individuals have no anonymity (Crnkovich, 1993). Therefore, care must be taken by community representatives ensuring that victims are not under threat when engaging with offenders.

A prime concern with restorative justice is that the programs can take more time to complete in comparison to traditional methods. It is difficult to predict how long individual programs will last, which may be a problem if there is not enough financial or administrative support (Lilles, 1997).

Despite this, it has been argued that restorative justice takes pressure of courts and prisons, by dealing with minor crimes at a local level. This allows courts to deal with more serious offences, whilst helping reduce imprisonment rates.

Another problem with restorative justice is that it relies on the offender to view his/her actions as wrong in order to change their behaviour and deter them from future offending. An offender might comply with restorative programs in order to avoid imprisonment, but then retreat to committing offences after completion.

Regardless of this, evidence from various studies has indicated that restorative justice reduces the rates of re-offending. A study undertook by the Oxford University Centre examined rates of re-offending in individuals that took part in conferencing programs in comparison to individuals that were processed under normal cautioning procedures. The study found that 17% of offenders re-offended within a year of completing restorative programs in comparison to 30% of offenders processed under traditional state-led procedures. Although this is not a significant decrease in re-offending rates, the results still point out that restorative programs are more effect in reducing recidivism in comparison to traditional methods.

A study conducted by the Australian Institute of Criminology used Braithewaite’s (1989) Reintegrative Shaming theory to investigate the impact of restorative practices in victims. It was found that 71% of victims which participated in the experiment received apologies from their offenders, in comparison to only 17% of those that took part in the conventional court based processes. The study also found that the program helped reduce anger in victims from 65% to 27%, and a significant amount of victims felt sympathetic to their offender by the end of the program. Many victims reported that the conferences helped resolve issues to do with the crime, and the programs were described as positive and helpful experiences. A study by Zernova also found that conferences received positive feedback by support workers, victims and offenders, especially in regards to the rehabilitative impact of conferences on offenders.Even in cases when the offender did later re-offend, it was found that the crimes were of less seriousness. (Nugent, Williams & Umbreit, 2003: RJC, 2006).

Critics have expressed concern that restorative justice fails to deliver what it claims in restoring victims and offenders, and it has been argued that restorative programs simply “soft” options to dealing with deviant behaviour as it seeks a mediated solution instead of enforcing punishment and possible imprisonment on offenders. The public demand for harsher penalties for criminals, alongside with the declined public’s confidence in the criminal justice system (Gallup Report, 1995), may discourage individuals from wanting to implement restorative schemas into their communities. Judges may be reluctant to adopting restorative approaches when sentencing offenders, or be resistant to giving the public control, instead opting for traditional based approaches. This means that restorative programs will struggle to progress as they rely on the cooperation of the public and government in order to succeed.

However, it has been argued that many of the criticisms are the result of a fundamental misunderstanding of what restorative justice seeks to achieve’, (Morris, 2002).

Retributive and restorative justice may provide the most effective form of social control when used together. For example, using electronic tagging alongside restorative justice helps reintegrate offenders back into communities as well as helping protect the public (Finn and Steves, 2002).

In conclusion, whilst restorative justice is not always the appropriate response to dealing with crime, there is significant evidence indicating the efficiency of it as control when dealing with minor offences. Restorative justice can also be seen as a successful social control in comparison to retributive justice, as it does not neglect the needs of victims, criminalise offenders or focus on punishment. Instead, the theory strives to deal with crime at its social context by using more treatment based approaches to dealing with crime. The approach is based upon the principle that crime is an act against individuals, not the state, and aims to create trusting environments for the community. Restorative justice has the ability to directly confront the offending behaviour and resolve conflict in communities, which conventional procedures fail to take into consideration. The framework acknowledges the harm caused to the victim, offering them reparation, whilst also aiming to reduce re-offending and imprisonment rates by reintegrating offenders back into society.

Empirical evidence has suggested that after the completion of restorative programs, individuals are less likely to re-offend, demonstrating the success of restorative justice as a social control. The restorative justice process has also shown to strengthen communities and promote changes that will reduce crime. Despite this, further research is required in order to gain an understanding of the full effects of restorative justice as a social control.

Donalds Black- “ideal is social harmony”1976

Bazemore (1996), argued that restorative justice offers a ‘fully fledged alternative’ to both punishment and rehabiltate offenders.

Judges, as a result of their training and experience, expect to control the court process and influence, if not determine its outcome. Circle sentencing insists that the judge surrender much of this authority and control to the circle and the community. Not all judges are comfortable or even capable of doing this.

If a consensus is not reached during the hearing, the judge can adjourn the case in order to obtain further information, to allow the parties to consider other options to resolve outstanding differences or to allow the offender to demonstrate his commitment to the rehabilitative plan. When it becomes obvious that there is no reasonable prospect for a consensus, the onus falls on the judge to make a sentencing decision. The absence of consensus should not be viewed as a failure, because the judge will have the benefit of detailed information and a full discussion of all outstanding issues and will thus be better equipped to make the sentencing decision (Stuart 1996).

By communities participating, the public have the chance to learn about the causes of crime, enabling future crime prevention.

At the same time, many of the concerns associated with restorative justice and community justice programs are alleviated. Offenders retain all of their due process protections. Communities can call on resources available in the formal justice system as well as those in their community. Victims are given a voice and an opportunity to confront their offender in a safe and supportive environment. The court imposes the final sentence and therefore offender accountability is increased. Circle sentencing holds the promise of not only improving the delivery of justice to the communities but also influencing the formal justice system to become more responsive and fair (Linker 1999). This will be accomplished when judges, lawyers and other justice system workers apply their experiences from circle sentencing in formal court.

Nevertheless, circle sentencing should still be considered a “work in progress”. Much more must be done to increase victim participation. Community participants require more support and training. Additional community based programs for offenders and victims need to be developed. Finally, comprehensive evaluations that measure more than recidivism rates are needed in order to make better decisions about what works best for victims, offenders and the community.

Contradictory to this, restorative justice is arguably not an alternative to punishment, just a different form of punishment which is more constructive in dealing with minor crime.

Reintegrative shaming is about the positive power of human relationships to deal with offenses and other types of behaviour that jeopardize harmonious community living. Restorative justice concerns the way in which the formal social response to offenses should contribute towards a context in which a constructive response can be made to these offenses.

Reintergrative shaming, a theory by Braithwaite (1989), which is based on showing the disapproval of offenders actions whilst still maintaining a degree of respect for the offenders. Shaming allows victims to express their moral outrage to offenders, whilst preventing the afflictive aspects imprisonment has on offenders (Book, 1999). It has been found that imprisoned offenders are more likely to be further criminalised by the retributive system, with many finding it harder to reintegrate back into society and in result turning more serious crime (Kahan, 1996). Braithwaite argued that reintegrative shaming is not a practice which should isolate and stigmatise offenders, rather it should help offenders connect with members of their society. In practice, Braithwaite’s theory is often used when studying the crime rates of white collar crime and various findings have indicated the success of reintegrative shaming when dealing with minor crimes (Morris and Young, 2000).

In spite of this, evidence from studies such as –, have found high rates of cooperation and satisfaction amongst both victims and offenders.

Evidence from a study by Zernova found that some victims felt uncomfortable during sessions.= Restorative justice: ideals and realities

Victimisation resulting from criminal incidents may also be compounded by a criminal justice system that appears to exacerbate victims’ traumatic symptoms (Campbell & Raja, 1999). Contact with legal proceedings represents a significant emotional stressor with these proceedings in direct opposition to many of the needs associated with victim healing (Herman, 2003). Victims are likely to be most satisfied with legal proceedings, however, when they are actively involved in the process and perceive that process to be fair (Lind & Tyler, 1988, cited in Herman, 2003). Restorative justice, therefore, appears most suited to achieving victim satisfaction. While traditional justice processes tend to marginalise victims (Kilpatric & Acierno, 2003; Zehr 1990), restorative justice procedures offer victims the opportunity to playa key role in proceedings (Bagaric & Amarasekara, 2001). Increasing the role of victims in criminal justice proceedings is likely to be readily accepted by those who have been victimised. Victims, who are given the opportunity to participate, appear eager to accept the offer leading to increased satisfaction with the criminal justice system (Herman, 2003).

The principles used in restorative justice reorientate the goals of the criminal justice system and offer more solutions to dealing with individual cases.

Restorative justice provides effective, non-violent and generally cheaper solutions to dealing with crime in comparison to formal social control methods such as imprisonment. What they do require is patience, skill, resources and a whole new mind-set to enable their development.

There are two different types of community that are involved in restorative justice programs, micro-communities which consists of the offenders family, friends and neighbours, and macro-communities which consists of the rest of the society (O,Manhoory, 2009). It has been found that restorative justice programs involving members of micro-communities are more effective in dealing with crime (McCold, 2004).

Restorative justice can be viewed as an effective form of social control as the programs allows nonviolent offenders to admit their wrongdoings and work with the community, proving to lessen the chance of them re-offending . The framework aims

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