Law Essays - Criminal Justice System
Criminal Justice System
Restorative justice, as part of criminal justice system, has given a fresh outlook to the way we regard criminals, by forcing communities, workplaces, and neighbourhoods to treat criminality with forgiveness and understanding. With the inherent moral and religious backing, it could create better healing. Meetings of community leaders, religious priests, volunteers all come under RJ that assists criminals' reintegration into community by intensive individualisation. Restorative justice works in the lines preached by various religions, which uphold forgiving as superior than pursuit of revenge. It does not push offenders away from the mainstream of society. There is a real need to support teens, their families and the affected communities. RJ mends the offender's ways, renders mental tranquillity that his guilt had been amended and makes chances of reoffending obscure. It gives satisfaction to victims that their worries did not go unheeded, and their cultural dignity was restored. RJ is the most important underlying principle of referral and supervision orders, or any other process to make the offender being accepted back into the society. It is also the basis of victim - offender reconciliation.
Restorative justice on the other hand is the process used when one person or a small group of persons has committed a crime against an individual or the community. In restorative justice, there is a victim and an offender, says Howley, P. (2002, p.199).
The desire of the victims to be counted is the most important part of restorative justice and how well this is covered, is the main parameter of its success. Victims want a less formal process without publicity or legal complications, but would like to be aware of processing and outcome of their cases. They want to participate, to be treated respectfully and fairly, want material and emotional restoration and an apology.
1. Restorative Justice Programs should be evaluated according to how effectively they deliver restorative values, which include: Respect for the fundamental human rights specified in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its Second Optional Protocol, the United Nations Declaration on the Elimination of Violence Against Women and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
2. Restorative values include the following values to be found in the international human rights agreements
- Restoration of human dignity
- Restoration of property loss
- Restoration of injury to the person or health
- Restoration of damaged human relationships
- Restoration of communities
- Emotional restoration
- Restoration of freedom
- Restoration of peace
- Restoration of empowerment or self-determination
- Restoration of a sense of duty as a citizen.
- Braithwaite, (2002, pp.14-15).
The success also depends on its coherence, efficiency and durability. It needs a strong and sustained impetus for reform. It also depends on the common ideology of the people involved. To some extent, success depends on the transparency of Governments in power. The attention given to the practical details of the case before intervention is important too. This should be followed by single-minded determination, inclusiveness and supervision of all co-ordinating agencies. Success also depends on the outcome and cost-effectiveness, mainly because at times, restorative justice tends to become more expensive.
Assessing the success depends on the short term and long term achievements of restorative justice, main criteria being the reintegration of criminals into the mainstream. Initially, there might be a temporary rapport between the community and the criminal, which might slowly wan off and here the success is not noteworthy. Communities might remember the offender every time there is a crime in the vicinity and this shows that the purpose has not been served. Evaluation has always been not easy. Evaluation has proved difficult. First the various mediation projects have different objectives, and second despite its name, in the particular case of penal mediation, actual mediation takes place only in a minority of referrals. The absence of uniform reporting standards precludes comparative surveys, according to Miers (2001, p.17).
Ranking of the criteria differs depending on the circumstances of a particular case. Cases cannot be standardised as restorative justice is about individualisation of cases and every case differs from the other. Main factor is the restoration of dignity of the victim. Where victims have been given the right to speak, either to the prosecutor, as in the Netherlands, or in court, as in parts of North America and Australia, it is apparent that they are not nearly as demanding as criminal defence lawyers had feared, says Strang, (2002, p.15).
This is followed immediately by the reintegration of the criminal back into the society. Third factor is the prevention of further criminality by the offender. Fourth one is the susceptibility and vulnerability of the criminal to other crimes in the society. It should be seen that the community is not suspicious of the offender, without proper evidence. This might lead into psychological persecution the victim. Level of acceptance by the community should be complete and irrevocable, which might not happen under all circumstances. The next factor is the time taken for restoring the justice. The last factor is the expense involved and if it was justified.
Victim offender mediation, helped by a facilitator, communicator to reach an agreement followed by a restorative conferencing with supporters, also with a trained facilitator, for examining the offending behaviour and involving in a rehabilitation programme are the first steps to success. Involvement of both families, with an independent facilitator, to draw a plan for acceptance is an absolute necessity. It is better to have group conferencing with members of extended family participating, along with the mediator. Meeting of the community volunteer panel members and offender and his family is important. Deciding on community service activity or embarking on a reparative process like an oral or written apology, or compensating the victim financially or through an activity should be decided later. It should give importance to witnesses after going through an irritating experience of attending the enquiry. Conventional criminal justice is an expensive process and if RJ works, it might not be needed. It makes the community more tolerant, inclusive and responsive. Usually custodian sentence is used as a last resort. RJ makes offender aware that there is a real person at the receiving end whose feelings were hurt as a consequence of his rude behaviour. Criminology must continue to be supportive of restorative justice because it offers us an analytic framework that insists we would have a lot to say to one another about what 'crime' signifies emotionally, if only we knew how and when to speak and how and when to listen, say McLaughlin et al (2003, p.17).
Character development, accountability, trust, intention and choice, realisation of impact of his own action; coming face to face with the victim and hearing the harrowing story as a result of his offensive act and resulting remorse pave the way for a better future of offender. Building public confidence, restorative cautioning on a statutory basis, developing a pilot to test RJ as a diversion from prosecution are necessary for success.
Restorative Justice supports victims, offenders and communities in seeking to repair the harm caused by crime, with mediation a favoured approach, http://www.mediationuk.org.uk/template.asp?lv=1&MenuItemID=48&MenuID=1
There are many problems in evaluating the success of Restorative Justice. There is a possibility of community, even after the RJ rendered, of excluding the criminals from its ranks and leaving them to their fate as marked men. It is not always easy to forgive their crimes, if it is a particular heinous one. The problem here is that restorative justice can become what it opposes: a practice which closes, limits and excludes individuals, rather than reintegrating them, according to McLaughlin et al, (2003, p.186). Another point is RJ takes away the right of law to punish the criminals; thereby mildly justifying criminality, setting up a dangerous trend. This could also provide an acceptance of violence against women. Rather than providing a barrier and safeguard against offending, it may provide social and cultural legitimation for violence, (p.186). Criminals might take it as an easy way out to continue criminality. It is easy to show remorse and crave for forgiveness knowing that they would not mend their ways. Victims could be targeted for further victimization either to 'teach a lesson' or to discourage from reporting. Sometimes Restorative Justice may not compensate enough, or may not tally with the seriousness of offence, being too trivial compared to crime. Easy letting off should not encourage hardheaded criminal for further crime. Victims should not end up as marked men looking over their shoulders. Institutions of law could be discouraged and untrained lawmakers of community could attain prominence. Corruption could crop up in community and defend an offender. Fear of law could be undermined.
Today, RJ has been introduced even in the international level, in the form of national apologies, compromises, occupation withdrawals, financial compensations, resurrecting diplomatic relations, or just the pure regret for having committed a crime. The crime might have been committed much earlier; still it is regarded as the national crime, for which the later generations of that country are morally responsible. Genocides, bombings, slavery, occupations, one-sided wars, killings of civilians by the army, lootings and other national offences are regretted and decompensate in many ways. This enables regularisation of relationships, friendly ties, further trade and commerce relationships for mutual benefits, and diplomatic relationships. In International law, RJ has been given prime importance.
It restorative justice would not be treated as easy way out of a critical situation, it could be beneficial for criminals, community and nations.
1. Braithwaite, J., (2001), Restorative Justice & Responsive Regulation, Oxford University Press.
2. Howley, Pat, (2002), Breaking Spears, Mending Hearts, London, Zed Books Limited.
3. Miers et al, (2001), An International Review of Restorative Justice, Crime Reduction Research Series Paper 10, Home Office.
4. Marshall, Tony (1999), Restorative Justice, An Overview, London, Home Office.
5. Miers et al, (2001), An Exploratory Evaluation of Restorative Justice Schemes, Home Office.
6. McLaughlin et al, ed., (2003), Restorative Justice, Critical Issues, London, Sage Publications.
7. Roche, Declan, ed. (2004), Restorative Justice, Ashgate; Aldershot.
8. Strang, Heather (2002), Repair or Revenge; Victims and Restorative Justice, Oxford, Clarendon Press.
1.http://www.mediationuk.org.uk/template.asp?lv=1&MenuItemID=48&MenuID=1 accessed on 17.2.2005, Restorative Justice by Mediation UK.
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