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Alternative retributive justice
Can Restorative Justice Be Used As An Alternative To Retributive Justice: A Comparison England And Wales With New Zealand.
Restorative justice has been shown to be an effective and controversial tool within the justice system, but can it be used as an alternative to retributive justice in today's modern society? To answer this question firstly what restorative and retributive justice are shall be discussed; this will be followed by how both forms of justice currently stand in modern society. The utilisation of restorative justice in the United Kingdom and New Zealand will then be compared in order to understand and evaluate their effectiveness in these given societies and how their cultures influence it.
When discussing restorative justice it is important to understand that the theorists and advocates of restorative justice do not all share the same ideas of what this form of justice entails, (McCold 1998). There are however common themes that are largely shared. One such theme is that the way we view and deal with crime in modern society today is not the only method that has been envisioned and used in the West. Our distant ancestors did not view crime in the way we do today, they did not see it as a distinctly deviant act against society but rather a conflict between members within a community. Unless the crime was considered to be against the state or the church, state authorities did not get involved (Bianchi, 1994) and allowed the conflict to be resolve within and by the community. Justice within these communities involved convincing the parties involved to compensate and show remorse for the actions they committed against the damaged parties. This could be said to be a very crude form of what restorative justice tries to achieve today.
Restorative justice tries to rehabilitate the offender within the community; to make them realise how their actions adversely affect their victims and damage their community. It is not too dismimilar from the way the Navajo nation views justice (as described by Yazzie, 1998). They see offenders acting “as if he has no relatives”. What this means is that offenders have no ties to their communities and have become disconnected from the people around them. Thus offenders' actions have no regard for the community or victims. To remedy this, communities must be able to forgive and re-integrate these offenders in order to give them a personal founding and a sense that they have a stake in the well being of their surroundings. In the same way, restorative justice methods in modern society attempt to “re-connect” offenders with those around them, often through mediation and by bringing the family and victim together with the offender. This allows all parties to tell their story and the offender to offer genuine repentance for their actions. This allows for the parties to get a better sense of who the offender is, (Mika et al. 2003) and hopefully gain some compassion and empathy for the offender; putting aside their thoughts of anger and vengeance. Having a better understanding of the offender's action also allows the family to help support the offender to rehabilitate themselves instead of blaming and alienating them further from those around them.
Over the last three decades restorative justice has seen a significant increase in the amount of its practice. It was estimated by Van Ness (2002) that over one-hundred countries are currently practicing restorative justice methods. This could be attributed to the growing public interest and concern with community spirit and a dissatisfaction with the way the current judicial system. People feel that the current methods of dealing with crime does not address the “causes” but the “symptoms” ; and rightly so, the current retributive system can be heavily criticised for simply putting criminals in prison to keep them out of society instead of trying to rehabilitate them and address the causes of their behaviour. Morris (2002) described how people also feel dissatisfaction with the current system of law because of the emphasis on the offender's crime instead of the damage inflicted to the victim and community.
The concept of restorative jusctice may still seem a bit alien to people in western society. With the ease of travel and the ability to quickly access information, people do not rely on their community and do not value its importance. Whereas restorative justice portrays the community as a living entity and when one amongst it harm the entire community is harmed in one way or another.
As one might expect, there are allot of political, social, ideological and psychological barriers that restrict and hamper the use of restorative justice; the biggest of which is that restorative justice schemes rely on state funding. This presents a problem because restorative justice does not follow the same ideological principles as state used retributive justice. As a result restorative justice methods tend to become narrowed down to simply being used as a possible method of correction for probation.
One of the main core themes of restorative justice that contrasts it to retributive justice is the focus on the victims needs over the punishment of the offender. Because of retributive justices' apparent blindness to the needs of the victims, said victims traditionally never felt justice to be done. This has however changed somewhat in recent years (especially in the UK) with government policy giving more power to the victims with such things as compensation, being informed of the offenders release and movements as well as victim impact statements. However, within a retributive system even with the victims more empowered their needs are still only secondary to societies desire to punish the offender. From this it is possible to infer that, whilst the empowerment of victims within the retributive system is a positive thing; in order to fully meet the needs of victims retributive methods must be dropped in favour restorative methods, (Van Ness, 1993).
Of course Victim focus is only one of the core themes. Even though victims needs are put over punishment of the offender, restorative justice methods also try to “heal” the offender; by taking into account their story and trying to show them what they did was wrong and why, helping them feel less alienated and thus less likely to reoffend. In some cases the offender can completely “reconnect” with the community and become a normal member of society again.
An example of restorative justice in practice.
There are many practiced forms of restorative justice; a brief overview of such a practice shall be given in order to give an understanding of just what restorative justice entails. Zehr (2002) believed that the core of restorative justice methods within modern society emerged in the 1970's and 80's with the Victim Offender Reconciliation Programs in the USA. These somewhat controversial (at the time) efforts brought victims and offenders together with a trained mediator in a method of restorative justice which is known as Victim Offender Mediation, or Victim Offender Conferencing as some professionals worry that having mediation in the name takes its restorative emphasis away in favour of falling into another method of mediation. This form of restorative justice focuses on allowing both offender and victim to tell their sides in the story and hopefully allow for healing to happen. This method of restorative justice is constantly undergoing changes, for example a representative of the community is often now included in order to voice the view of their community. Studies into Victim Offender Mediation have shown that the great majority of victims get satisfaction from the process (Umbreit et al. 2003). This is one of the major benefits of restorative justice methods; emphasis is placed on the victim and allows for the damage done to them to be repaired. In contrast retributive justice pushes the needs of the victim to the side in favour societies own needs, the punishment of the offender for breaking it's rules.
An example of victim offender mediations effectiveness is a “Convenience Store Robbery Case Study”, (Luther, 1999). In this case study the perpetrator “John” robbed a convenience store with two of his friends. They appeared armed to the shop clerk who handed over one-hundred dollars. Two years later after John's capture and during his judicial process, both “Ruth” the shop owner and himself agreed to meet for victim offender mediation. Ruth expressed little faith in the process but agreed to do it anyway. Both participants were very scared of meeting the other. Ruth had suffered a frightening ordeal from which she had not yet fully recovered. Ruth questioned John about his actions and found that john had been homeless and desperate; he did not target the shop for any reason other than this. Ruth also found that John was turning his life around, now had a job and an apartment. John also displayed genuine remorse for what he had done at his low point and expressed to Ruth his regret. Even though Ruth went into the mediation scared and sceptical, she became empathetic towards John and did not wish for him to serve a jail sentence as it would casue him to lose his job and put him back to square one. Thus she agreed to testify at his court hearing. Her testimony swayed the judge to give a suspended sentence so that john did not lose his job. John also agreed to write to Ruth every three months in order to let her know how he was doing. This shows how restorative methods help the victim and offender understand each other and facilitated for healing, as when Ruth came to understand the desperation of John her fear was replaced with pity which allowed for forgiveness.
As shown this method can be effective, however for it to work both offender and victim must be willing to meet in order to talk. This is one of the major draw backs of this method as it places allot of pressure on the victim who may be too scared to meet their offender face-to-face. Also the offender may have no wish to meet the victim and explain themselves as they have no remorse for their actions what so ever. In these cases other methods of restorative justice must be employed.
Campaigners for restorative justice have celebrated significant successes within the last ten years. Governments and justice agencies are beginning to take restorative justice methods more and more seriously and have started implementing and funding restorative justice methods within the justice system, (Johnstone, 2002). However there are those among restorative justice advocates that are apprehensive about the use of restorative justice in mainstream justice systems. It is possible to see why; fears arise whether some methods of restorative justice being implemented by governments are simply retributive methods disguised as restorative methods. For example “Community payback” schemes in the UK offer what one would expect of a restorative justice method but under false pretences. In this scheme offenders who are often youths, must payback their community by performing such acts as clearing litter and repainting vandalised surfaces. Whilst this goes some way to restore damage to a community it is often viewed as a lip service. Offenders do not reconnect with and understand their impact on their community, their stories are not heard and the needs of the victims are not truly appeased. It is simply a retributive punishment disguised as a restorative method.
Restorative Justice In England And Wales
Restorative Justice first appeared in England and Wales during the 80's in the form of victim offender mediation (the same first method that appeared in the USA). Before this, victim offender mediation was only used as a formal or semi-professional way of dealing with civil matter (such as divorce), labour disputes and international relations, (Marshall, 1996). It was used predominantly by probation officers who saw opportunities to do their case work through reconciliation rather than the common punitive methods adopted by criminal justice. During the late 90's New Labour began to take restorative methods more seriously and passed the Crime and Disorder Act. 1998 and the Youth Justice and Criminal Evidence Act. 1999; which were outlined in the “No More Excuses white paper (Home Office, 1997). Both these acts claimed to build upon the principles of restorative justice focusing on the “3 R's” that are restoration, rehabilitation and responsibility, (Crawford and Newburn, 2002).
In England and Wales restorative justice could be argued to still be on the side lines of criminal justice. Its most prominent use within England and Wales is for youth justice. An example of restorative justice's utilisation for youths is the study carried out in schools on Bristol, (Maddern, 2009). In this study Victim Offender Mediation was used as an alternative to traditional school punishment. For example a teacher would mediate between a bully and victim. The study was carried out in an area of Bristol where exclusion rates high and exam results low. The results from using restorative methods report a fifty percent reduction in exclusion rates and increased attendance. Pupils reported that they felt restorative methods had led to a reduction in bullying and improved relationships among peers. Teachers reported feeling more “emotionally literate” and that pupils took more responsibility for their actions.
This study shows that Restorative methods can work. Pupils get to discuss their views and sort out their problems. They begin to understand how they can negatively affect those around them and the implications of doing so. As shown this leads to a stronger, better sense community among pupils and reduces the damage they are willing to cause to it as well as taking responsibility for their own actions. However, this does not work in all cases; those who have become completely disengaged from school show no improvement from this form of restorative justice. An example from this study is a fifteen year old pupil who said “Sometimes even if things have been sorted out, you leave there even more pissed off because you've wasted a whole day talking to someone you hate”. This follows the Navajo philosophy of peacemaking, that said pupils have become so disengaged from school (or as the Navajo would say, their community) that they have no problem harming it. It can be argued that to solve this in a restorative method a more intense form of restorative justice must be adopted; similar to that utilised by the Navajo people. Involving the community, family of the offender and victim helping the offender to reintegrate or reconnect with those around them and thus caring how their actions affect others.
Restorative justice has mainly been used as a method to deal with youth crime in England and Wales. However within the last ten years it is been used more and more to deal with cases of adult crime; in fact Sherman and Strang (2007) have found that whilst typically used for youth crime, restorative justice can be more effective in dealing with adult crime. Many programs have started using restorative justice for dealing with adult crime. However these programs tend to use restorative justice as a supplement to traditional criminal justice methods rather than an alternative. This can be argued to be the case because restorative justice is still a relatively new concept in England and Wales. The effectiveness of such methods are still being explored, but they are being taken seriously enough to be used alongside traditional methods. Thus far the probation service has been the main source of restorative justice for adult crime, (Miers et al. 2001), in which meeting with the victims have been part of the offenders community sentence. This does beg the question of how effective this is though because if the offender is forced into restorative justice methods rather than being allowed to decide for themselves may make them inclined to see the meeting as a simple lip service thus diminishing the effectiveness of restoration.
It must also be asked how the criminal justice system in England and Wales deals with serious crime in adult offenders. Often when restorative justice is discussed it is thought of as a way of dealing with trivial crime which is often committed by youths; but is not taken as a serious option when dealing with more serious crimes. This could be said to be a serious short coming. There is not much research in the area of serious crime, possibly due to a general unwillingness to commit to doing so in case of it being ineffective and thus unsafe. However the current research available suggests that restorative methods can be effective. For example the Justice Research Consortium states that there is no increased risk to the victim when using restorative justice in serious crime. Also that of six hundred serious cases being tracked to date there has not been one case of hostility from the offender towards the victim.
According to Sherman and Strang's (2007) research, contrary to the conventional wisdom heard in discussions with government officials in November 2006, restorative justice has been used in England and Wales for cases of serious violence and property crime. From 2001 to 2005 restorative justice was used for such serious cases, for example robbery. Offenders tended to have a long history of crime sometimes with fifty or more conviction. Victims showed to benefit greatly from this process showing signs of reduced post-traumatic stress. Unfortunately this program was discontinued due to lack of funding. This speaks great volumes about the use of restorative justice in England and Wales, even though it is shown to be an effective method for post-sentence victim support it has fallen to the sidelines and out of use due to the countries focus on punitive punishment of the offender.
The future of restorative justice in England and Wales is unclear for adult crime and as an alternative or diversion from traditional retributive proceedings. Though there have been many research programs into the area and the Home office and the Criminal Justice Act. 2003 have tried to adopt restorative methods in principle; applying restorative methods nationwide under a retributive criminal justice system has been difficult for the government to achieve. Restorative practices are used across the nation but not enough for its effects to be noticed. An example of restorative justice's poor application under a retributive system is that the crown prosecution service in London was barred by national policy from using restorative justice as a possible route of action in half its cases, (Sherman and Strang (2007)). This is a fine example of a prediction by Messmer and Otto (1992) coming true; that the retributive system would get in the way and undermine the practice of restorative justice.
As expressed by Marshall (1999), many theorists believe that in order for restorative justice to work in England and Wales it must operate as a completely separate justice system from retributive justice. This however can be criticised as impractical, maybe even impossible. It would be extremely difficult to operate two completely different systems of justice in England and Wales that are both philosophically different and practically different at the same time, as equals. It would be even harder to keep these two systems completely parallel as they are bound to influence each other. This would render having separate systems pointless.
Limitation Of Restorative Justice In Enalnd And Wales
A major limitation of Resotrative Justice in England and Wales is that it relies on the community. Communities in England a Wales are not as strong and integrated as they once were; there are large and still growing divides in sub-cultures and age groups. There is also a great emphasis on self autonomy and privacy in today society; people often don't even know their neighbours. This causes a problem because a weak community makes it hard for an offender to be rehabilitated or a victim supported within said community. Neighbours are going to have varying degrees of tolerance and empathy for offenders around them thus restorative schemes that draw on the community for aid will be trying to draw on support that is not there.
Even though Restora t i ve Ju s t i c e involves a greater or lesser degree of devolution of control to individual citizens and communities, it is now generally accepted that Restorative Justice can and should be integrated as far as possible with Legal Justice as a complementary process that improves the quality, effectiveness and efficiency of justice as a whole.
It is this concept of integrted or ‘whole' justice (Marshall, 1997) which underlies the concept of Restora t i ve Ju s t i c e outlined on page 5. It is not just a matter of new and diffe rent practices, but of traditional practice too, informed by the same underlying principles. In this way the two processes reinforce one another to mutual benefit, and evolve towards a single system in which the community and formal agencies cooperate. It is in this context that issues of legality and control must be resolved (see below, Major Issues).
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