Can Restorative Approach to Crime Achieve Fairness and Justice
Introduction
Restorative justice, also called reparative justice, is the justice that emphasizes on an approach to dealing with the needs of the aggressor, the victim and the community. This is in opposition to following the conventional legal principles that require punishment of the offender. This system requires the victims, offenders and the involved community to work together towards repairing the harm brought about by the committed crime and prevent any possible future recurrence or harm (Strickland, 2004, Pg.1). The main purpose of restorative punishment is to bring the offender’s attention to the magnitude of his/her offence, to help the victim, and to ensure the community heals. All this is done without necessarily applying common punishment to the offender. Furio (2002, Pg.7) says that restorative justice is that which is based on ethics and the strong convictions that all individuals deserve to be dealt with some semblance of respect and decency.
This essay seeks to find out if in real sense, restorative justice does achieve fairness and justice. It seeks to delve into the benefits of restorative justice and find out if it is practicable in the real world where crime is real and devastating to the victim, community and also sometimes to the offender, bearing in mind the often harsh consequences there are to face.
The approach of restorative justice does not diminish the offender’s wrongdoing or offence. It does not mean that the offender’s mistake is overlooked. Rather, it seeks to provide an alternative of the punishments that are common in the society. Furio (2002, Pg.8) asserts that restorative justice is not a trick to let the prisoners go free, but rather an alternative to provide a solution to violence. It facilitates dialogue between the offender and the victim. In this case, at the end of it all, the victim feels satisfied and the offender becomes more accountable. The principle of restorative justice goes back to 2060 BC. Therefore, the principle of restorative justice is not something new. This principle has enjoyed popularity for the last two decades, (Tapley, 2007, Pg.112). The society found a way of dealing with its wayward members without having to impart the known punishment actions. The society uses restorative justice to set guiding principles in the community. This brings the wayward members of the society back on track in a humane way.
The normal approach to crime which involves punishments for crimes committed is also called retributive justice. There are several differences between the restorative justice and retributive justice. For one, restorative justice narrows the nature of the crime to the individuals involved while the normal justice approach views crime as towards the state. The Conflict Solution Centre (Para. 3) states that in restorative justice system, the crime becomes a community’s responsibility. On the other hand, in retributive justice, the crime is the offender’s responsibility. Retributive justice also tends to capitalize on past behaviour of the offender while restorative justice tends to be more accommodative.
It is wise to note that the restorative justice has principles it adheres to in order to ensure that the offender becomes fully accountable of his mistakes (Liebmann, 2007, Pg.26). The victim gets healed of aggression, and the community learns valuable lessons. In addition, the chances of such an occurrence happening again are minimized.
Furio (2002, Pg.9) says that there are principle established to guide both criminal and restorative approaches to justice. Offenders take responsibilities of their actions. A dialogue is established so as to establish an amicable agreement among the parties involved. The offender is guided on how to avoid repeating this in the future. There is an effort to correct mistakes that had been committed. The community seeks to bring a form of reconciliation between the offender and the victim.
To the victims of crime, restorative justice is very helpful. Victims will always want justice to be done. They will want the justice commission to vindicate for them. Brennan (2008, Pg.62) says that restorative justice has a shaming principle that seeks to shame the offender and make him see the magnitude of his actions against the victim. The victim therefore feels heard, empathised and vindicated. It gives him some kind of closure.
The retributive justice system seeks to provide justice to the victim by punishing the offender according to a stipulated system. It deals with all similar cases in the same way and the crime committed in considered being against the state. However, restorative justice handles each case individually and seeks to understand the underlying issues and deal with the root of the problem. The feelings of the victim are prioritized. If the system is planned and resourced properly, it potentially has more benefits to the victim more than the retributive justice system. Where an agreement has been reached between the offender and the victim, the victim’s degree of anger and fear reduces substantially (Williams, 2005, Pg.130). Strung and Sherman (P.25, Para.3) agree that the restorative justice has substantial benefits that outweigh the potential harms. This is because the victim can indicate to the offender the consequences of the actions committed. Also, the family and friends cushion the victim from more negative feelings of resentment, anger and fear and also share in the emotional experience where the victim pours out their heart.
The most glaring difference between the restorative justice system and the retributive justice system is that the offender and the victim come into an agreement on the best course of action. It is not punishment passé but a way of making things better for the involved parties. Restorative justice tends to capitalise on three ‘Rs’ which are Responsibility , Restoration and Reintegration, which form a basis of its principles (Tapley, 2007, Pg. 112). Whatever decision they make may not be appropriate in the eyes of other people, who may be baying for blood, but their decision defines the course of action. With restorative justice, no two cases are similar as each has its own unique way. The victim and offender have to agree on what to do (Wright, 2008, Pg.27). If, perchance they do not agree, the court in brought in to decide
The victims get to be part of the justice process. The victim support systems established in the restorative justice assist the victim during the whole process. According to Liebmann (2007,Pg.28), the victims get someone to talk to in confidence, someone to educate them on police and court proceedings, connections to other organizations that may be of enormous help in the justice process, and the information they may need on insurance and compensation.
The support group also consists of professionals who assist the victim in the situation to escape from victimhood. In most cases where the offence is directly against the victim, for instance, rape or assault, the victim tends to harbour feelings of guilt and responsibility for what happened. Through therapy and counselling that comes in the package of restorative justice system, such feelings are dealt with, and the victim comes to some objective acceptance of the situation. In addition, the victims can look at it from an objective angle. The support group also ensures that the effects of the crime committed are minimized. The victim might have psychological reactions to the situation that they find themselves. For instance, the trauma can make them violent or even make them a future offender hence creating some pattern. The support works to minimize such instances.
The offenders also benefit from restorative justice. Not all offenders are monsters. Though their actions may portray them in a negative light, there is always a different story about the offender that the public does not and probably will never get to learn. In most cases, retributive justice brings out the worst in most offenders. They inwardly rebel against the system and eventually do not learn anything at all from the punishment that was supposed to correct. Research has shown that retributive justice that does not consider dealing with the root of the problem. In stead, it tends to push the offenders further into crime rather than rehabilitate them. Most of the prison experiences in government prisons leave offenders traumatized and with a larger probability of committing a crime in the future. Edgar and Newell (2006, Pg.9) say that criminal justice does not provide a wholesome solution in the case of a crime. It just seeks to punish the offender of the crime committed but does not address other needs that may arise, for example, therapy for traumatized victims, or treatment for cases of assault.
Restorative justice system seeks to go deeper and establish the cause of the offender’s actions. In this case, it deals with the cause so as to correct the offender. Contrary to popular belief that restorative justice is soft on the offender it tends to add a stimulating and relevant dimension to the whole purpose of punishment (Cornwell, McElrea, Blad & Cormier, 2006, Pg.xvi). Restorative justice assists the offenders realize the magnitude of their crime and become accountable for it. The victim opens up on the offender regarding the impact of the crime and how it has affected them. It opens the offender’s eyes to just how much pain and emotional stress the victim might be experiencing. Offenders are human too, and unless they are so disturbed that their conscience is no longer existent, they feel remorseful for actions they have done, especially after seeing in real life the suffering they impacted on a fellow human being. Restorative justice makes them be accountable for their actions.
Liebmann (2007, Pg.29) observes that the mere knowledge of the impact that a crime has had on the victim causes the offender to react positively to the corrective action taken against him. Most prisoners have an abstract notion of their crime. The prisoners just know that they did something wrong, and it landed them in prison. Had they not been caught, they would consider themselves lucky. Coming into contact with the victims, who were on the receiving end of their actions, make the offenders realize the actual result of their actions. This triggers genuine remorse in them. The chance to apologize to the victim during a restorative justice system gives them some closure. Healing starts with forgiveness both to the victim and the offender. They realize that even though they are sorry, they should be ready to bear the consequences of their actions. Restorative justice assists the offender to view the terms they serve as corrective efforts by the community to bring them back on track and work for a positive end. The difference between an offender in prison who has undergone restorative system and that one who has not is apparent in their general outlook to life and their term (Fattah, Parmentier & Peters, 2001).
Kartha (n.d, Para.9) asserts that every human being deserves a second chance to change and brings to light the hypocrisy in capital punishment. The law takes the life of an individual who has also taken the life of another individual. The law is no different from such an offender. Furthermore, the criminal process may be wrong about the accused offender and execute an innocent individual, which will be a loss of life over nothing. Restorative justice gives an accused offender the chance to be heard. Also, it assists the ruling court to make effective and informed verdicts.
Conclusion
It is with no doubt that restorative justice has benefits that outweigh its down side. The down side of this justice system is that it is not practical to apply it in every case. It is wise to note that restorative justice can only take place when the accused pleads guilty of the offence. Unless the offender accepts committing the crime, no restorative conference can be held. The victim also has to agree to meet the offender and discuss on the said crime. In most criminal trials, the offender and the victim are just spectators in the trial. This is because the prosecutor tries to present the case while the attorneys try to defend their clients. The outcome of the trial is usually in the hands of the court official s and is determined by the amount and quality of evidence present. Restorative justice system gives the offender and victim a chance to heal from the effects of the crime and to be more positive. Therefore, the criminal justice should find a way of incorporating the aspect of restorative justice in their system. This will ensure that both the victim’s and the offender’s needs are met adequately and that some humane aspects are introduced in the criminal trial proceedings.
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