The Way Forward for criminal justice
The rationale behind this assignment is to highlight restorative justice and the aspects of it, in terms of how it differs from the traditional legal justice system. This will include a critical analysis of restorative justice while evaluating its strengths and weaknesses as a different approach to crime control. I will identify underlying theory, legislation and policy that brought restorative justice to the forefront of opinion, and specifically relate it to the Northern Ireland criminal justice system. The aim is to identify if it is a meaningful system to all parties involved and why/if it is necessary in the present criminal justice system.
In an age of “hoodie culture” and prison overcrowding, questions are being asked over the efficacy of the criminal justice system and how much of a deterrent from crime it really is. Following a long period of differing regimes, such as retribution, rehabilitation and restructure, all competing to be the dominant influence in the criminal justice system, there has emerged a ‘new’ approach to crime control, that of restorative justice (Hughes, 2001, p247). The aim of this approach is to provide an opportunity for the rehabilitation of the offender, as well as punishment of the criminal behaviour, with a central role in regards to the rights of, and provision of justice for the victim (Hughes, 2001, p248). The commonly accepted definition of restorative justice is; ‘Restorative justice is 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’ (Marshall, 1999, p5). According to Hughes (2001) Restorative justice aims to bring the process of criminality back into the ‘community’, enabling all parties affected by criminal behaviour to be involved in working towards resolution and future planning (Hughes, 2001, p248). This is a new concept, as traditionally criminal justice was retributive and aimed only to address the offence by punishing the offender.
In recent years, restorative justice has been a process that has been adopted by an international audience, particularly the USA, Australia and New Zealand, each employing it to address some of the traditional concerns of the formal justice system (O’Mahony and Doak, 2004, p484) i.e. the effectiveness of prison acting as a deterrent for crime, or victims lack of inclusion in the criminal justice process. The ‘new’ restorative justice system aims to move away from the traditional notions of retribution into a new context of restoration. Most international practices are supported by Braithwaite’s (1989) theory of reintegrative shaming, which exerts the idea that the offender should be encouraged to experience shame for their actions and work towards absolution (O’Mahony and Doak, 2004, p484). The process attempts to ‘repair the relationship’ between the victim and the offender and begin a ‘healing process designed to meet the needs of the victims, whilst also reintegrating the offender into society’ (O’Mahony and Doak, 2004, p484). Braithwaite’s theory is based on the proposal that the process of restorative justice will address the needs of the victim materially, emotionally and psychologically, whilst also helping them emerge from the process with more respect for the system (O’Mahony and Doak, 2004, p484).
Another theory of restorative justice was first introduced by the New Zealand Maori and their principles of collective responsibility, where restorative justice seeks to decentre the state’s status as the responsibility of dealing with crime (Tauri and Morris, 2003, p44). Instead, operating by drawing together all those involved in an offence to an environment, promoting equal power relations, while discussing the harm caused, and jointly agreeing on how reformation can be made (Tauri and Morris, 2003, p44). A central component to restorative justice is that the community is seen to be a key stakeholder in the offence (Zehr and Mika, 2003, p41). This can take a variety of forms, from the vicinity in which the offender and victim live, or their wider social networks of family, friends and colleagues (Zehr and Mika, 2003, p41). This allows for comprehensive information sharing beyond that of only the offender and victim, so that the scale of the harm caused by the offender can be explored. This is the main difference between the formal justice system and that of restorative justice, where all parties can contribute information of the offence and the harm caused, while also having an involvement into meaningful reparation.
Restorative Justice in practice
Restorative justice in practice is a relatively new concept in the UK, having elements such as reparation orders in the Crime and Disorder Act (1998), and referral orders in the Youth Justice and Criminal Evidence Act (1999) (Crawford and Newburn, 2002, pp476-478). Within Northern Ireland it was the Criminal Justice Review (CJR) (2000) which provided recommendations to involve victims in the criminal justice process and develop restorative justice approaches for juvenile offenders. The review concluded that restorative practices for adult offenders and young adult offenders (aged 18-21) be piloted and evaluated before whole schemes are introduced (Criminal Justice Review, 2000, p203).
Since then, within the UK and indeed internationally, there are the three common practices of restorative justice used within the criminal justice system, these are; 1) Victim-Offender Mediation (VOM) – a face-to-face meeting with a trained mediator, the offender and the victim to discuss the offence and reparation. VOM is predominantly offered to incarcerated offenders. 2) Family Group Conferencing (FGC) in Youth Justice – is open to a wider number of participants including the offender, victim, victim’s family and professionals who are linked to either party, where the aim is to resolve conflict or behaviour, and discuss reparation. Specifically used within youth justice as an alternative to formal prosecution, encouraging offenders to achieve empathy towards their victim, while also assuming responsibility for their behaviour. 3) Restorative/Community Conferencing – Open to a wider circle of participants including the offender, victim, both families and members of the community who discuss the offence and how to repair the harm caused. Conferences hold the offender accountable, but also offer reintegration into the community.
(Extracted from www.restorativejustice.org.uk)
FGC in youth justice is seen as one of the most successful models of restorative justice, widely used internationally in New Zealand, Australia and parts of the USA, and gaining momentum in the UK (O’Mahony and Doak, 2004, p485). FGC aims to be an alternative to formal prosecution, providing the offender, victim and families with an opportunity to understand the offence and the implications of it. The main aim of FGC as a form of restorative justice seems to exist to prevent younger people becoming implicated in the adult criminal justice system, having countless disadvantages for their future. FGC specifically seems to be effective as it uses a holistic understanding of the offence. It incorporates collaboration between the offender, victim and community i.e. friends and family, to find suitable resolution to the offence. This perhaps creates a more ‘person centred’ justice system realising each person’s needs are different but equally important. A reflection of this on a wider scale is that – should the reparation fit the people rather than the crime? Restorative justice practice shows that it is necessary to meet all parties’ needs, and not just the offenders. This relates to changes in policy which recognises the victim as a central aspect of the criminal justice process.
In other areas of the criminal justice system, such as with adult offenders and serious crimes, restorative justice only operates within the already established systems of punishment. Restorative justice is not used to substitute traditional measures, i.e. retribution, but to work alongside them. Restorative justice for serious crimes is not used unaccompanied without formal justice, as legislation and policy do not currently permit it. Marshall (1999, p7) claims restorative justice should be used with serious offences as there is more to gain in regards to victim benefits, and also crime prevention. However, it remains to be seen if this could be functional as the only form of justice, and without punitive measures would the behaviour be negatively reinforced?
Within Northern Ireland restorative justice is a relatively new concept which has been introduced under different circumstances and will be discussed below.
Restorative Justice in Northern Ireland
As mentioned earlier restorative justice in Northern Ireland was a result of the recommendations made from the Criminal Justice Review (2000), and the Justice (NI) Act (2002); each identifying that the victim should be central in the criminal justice process. This became the state led restorative justice approach, but a community based restorative programme was unique to Northern Ireland and the ‘Troubles’ at that time. Restorative justice and theory became prominent during the Northern Ireland peace process as an alternative to paramilitary violence (McEvoy and Mika, 2002, p2). First introduced from the Good Friday Agreement (1999), community projects were established, in part, to remove ‘paramilitary policing’, while reflecting the desire for community-based justice (Gormally, 2006). Projects were established in both communities – Northern Ireland Alternatives on the Loyalist side and Community Restorative Justice Ireland on the Republican side (Gormally, 2006). Both projects now operate successfully throughout Northern Ireland, each having numerous locations. The main agenda for the projects are to provide victim-offender mediation and reparation of the communities, with the community playing a significant role in each. It is also indicated that beyond the non-violent alternatives to paramilitaries, the projects now extend into ‘broader mediation and conflict work’ (McEvoy and Mika, 2002, p7). Critics of the community-based projects claim that paramilitary violence still occurs, only under the ‘respectable cover’ of these schemes (www.mediationnorthernIreland.org) leading to questions being asked about its legitimacy. However, evaluation of the projects show punishment violence related to crime and anti-social behaviour has decreased dramatically within each community (McEvoy and Mika, 2002, p8).
As well as the strengths of restorative justice and the benefits it provides it is also necessary to discuss possible draw-backs in order to be fully aware of the system. This will be discussed below.
Critical Analysis of Restorative Justice
Restorative justice, as mentioned earlier, has a strong theoretical basis and practical application. However, as it is a relatively new concept it is imperative to discuss potential shortcomings as well as benefits in relation to retributive forms of justice. The four main criticisms that will be discussed below will relate to the offender, community, victim and retribution in relation to restorative justice.
The principles of restorative justice are about redefining crime as harm and giving stakeholders a share of power (Marshall, 1999, p6). The benefits of this are well documented in practice, especially within youth justice, with the young offender more likely to complete reparation plans if they themselves have helped construct them. However, it remains to be seen if this practice is completely ethical. When facing a victim, in a room full of strangers and perhaps their own parents, a young person is likely to comply to any measures, without dispute, in order to hasten proceedings (Daly, 2002). The victim may also be revengeful or unforgiving and want a harsher punishment with pressure on the young person to agree, creating a power imbalance similar to punitive measures. The young person may then regret volunteering for the restorative process, aiding the break down of restorative plans, making the process ineffective and meaningless.
Possibly one of the biggest critiques of restorative justice is its reliance on community relationships, with the community playing a large role in the reintegration of the offender back into society. Marshall (1999) claims that communities are not as integrated as they once were, with many individuals wanting greater privacy and self-sufficiency. Leading to questions; who are the community and how can they play a significant role in the rehabilitation of the offender? According to Zehr and Mika (2003) the community can take a variety of forms, for example, the neighbourhood where the offender and victim live, or their closer social networks of family, friends and colleagues. Braithwaite’s (1989) theory of reintegrative shaming claims that strong relationships within the community helps limit wrong-doing because of conscience and anxiety. For those offenders that commit crime ‘shaming’ then is an integral part, not only for reintegration, but for crime prevention. Restorative justice then needs community and family relationships to be effective, if the offender does not take responsibility for their crime or feel shame, then they cannot be rehabilitated correctly or reintegrated into society. Does restorative justice then have its downfall if there is no bond to society?
Another criticism of restorative justice is that it is open to offender manipulation and other symbolic implications. Is it seen as an easy option? Perhaps it is all too easy for an offender to say sorry and ask for forgiveness, without actually being punished appropriately for their actions. Daly and Stubbs (2006) claim that without treating offences seriously, the wrong message can be conveyed to the offender e.g. that their behaviour is acceptable, and therefore reinforced, leading the victim to feel injustice and therefore re-victimised. This is one of the major downfalls when it comes to adult restorative justice; if it was the only form of justice it is open to manipulation and coercion of the offender.
Retribution vs. Restoration:
The main question that needs to be addressed is ‘can restorative justice exist without retribution and the formal justice system?’ In regards to juvenile court it is possible to exist alone, if the offence is minor. But for adult offenders, with major offences, the process is not so simple. According to Mead’s ‘psychology of punitive justice’ (cited in Daly, 2002, p59) there are two contrasting methods responding to crime. 1) ‘The attitude and hostility toward the law breaker, which brings attitudes of retribution, repression, and exclusion’ which identifies the offender as the ‘enemy’, and 2) Outlined in youth justice, is the ‘reconstructive attitude’, which tries to ‘understand the causes of social and individual breakdown’ & ‘not to place punishment, but to obtain future results’. It is a contrasting method which identifies differing views, which is fundamentally what restorative and retributive justice represent. The question that needs to be addressed is ‘can restorative justice exist alone as a justice system for all crimes?’ According to Morris (2002, p601) it shouldn’t have to meet the standards of conventional criminal justice, but just consider what it has already achieved, and what it can still achieve.
It is now accepted that restorative justice should be used to integrate with traditional forms of justice, to provide an effective service to all those involved & to offer a ‘whole’ justice (Marshall, 1999, p8). Marshall (1999, p8) claims both forms of justice should now support each other to become a single system in which the community and formal resources can work in partnership. Nevertheless, without current legislation or policy that governs restorative justice practice, this leaves the projects that do exist in Northern Ireland, and the rest of the UK, operating in an informal basis with a lack of safeguards, resources and support to gain proper momentum.
The criticisms of restorative justice practice are negative, but research nationally and internationally can show us just how successful it can be, with victims and offenders experiencing greater satisfaction with the processes and outcomes of restorative justice compared with attending court (Ashworth, 2003, p175 and Daly, 2002, p208). Properly done, restorative justice can have many benefits to not only the offender, but to the victim and community as well, providing a balance that is surely the way forward for the criminal justice system.
The question for this assignment was ‘restorative justice aims to address the consequences of offending for victims, offenders and communities in a meaningful way’? Evidence shows that restorative justice works within the youth justice system, but due to restraints on policy and legislation it is limited in the adult justice service. When restorative justice is implemented properly, it is effective at meeting the needs of offenders and victims, but to decide if this is meaningful is based on an individual experience, which I do not possess.
On the theory of restoration vs. retribution – to combine them, rather than separate them provides all stakeholders with a ‘whole’ justice, capable of meeting physical, emotional and social needs, while also considering all parties as equal.
There are many criticisms of restorative justice, but evidence shows that it is effective and provides reformation far beyond that of retribution. It provides explanation of behaviour, which in itself is meaningful, and is more than traditional methods provide. Restorative justice is an internationally respected system, and identified as a person centred form of justice, representing all parties equally, while balancing reformation with understanding.
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Braithwaite, J. (1989) ‘Crime, Shaming and Reintegration’, Cambridge, Cambridge University Press
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Daly, K. & Stubbs, J. (2006) ‘Feminist engagement with restorative justice’. Theoretical Criminology, 10:1, 9-28.
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Morris, A. (2002) ‘Critiquing the Critics: A brief response to critics of restorative justice’. British Journal of Criminology, 42:3, 596-615.
O’Mahony, D. & Doak, J. (2004) ‘Restorative justice – is more better? The experience of police-led restorative cautioning pilots in Northern Ireland’, The Howard Journal, 43: 5, 484-505
Tauri, J., & Morris, A. (1997). ‘Reforming justice: The potential of Maori Processes’. Australian and New Zealand Journal of Criminology, 30:2, 149-167.
Zehr, H and Mika, H (2003). ‘Fundamental concepts of restorative justice’
In E McLaughlin, R Fergusson, G Hughes and L Westmarland (Eds). ‘Restorative Justice: Critical Issues’. London. Sage Publications. The Open University.
http://www.mediationnorthernireland.org/documents/BrendanMcAllisterEuropeanRestorativeJusticeConferenceJune2006.pdf – Accessed 22/10/09
http://www.psni.police.uk/index/updates/index/updates/consultation_zone/eqia_of_youth_diversion_scheme.pdf – Accessed 19/10/09