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Restorative justice

Is restorative justice a viable alternative to the current criminal justice system? Discuss with particular reference to young offenders

There are several difficulties in determining the best possible criminal justice system, both those related to the individual's concept of what works and what does not, as well as those that deal primarily with society's demands and expectations from the justice system. The criminal justice system must be concerned with making reparations to the victim, but it must also be concerned with satisfying the demands of society as a whole, often, society's demands for reparations and ‘fairness' can be louder than the victim's. The criminal justice system should deal with differing agendas; those needs of the individual, the need to create a safer society, and the need for the perpetrators to be dealt with fairly and in such a way that they are less likely to re-offend. Unfortunately, it is not possible to separate the emotions from the logical determination of the best course of action. Crime and punishment is a very emotionally wrought topic and people tend to have very strong reactions and opinions, regardless of what the facts might actually be. “Common sense” in this regard, tends to be both uncommon and less sensible.

The current system is based on an adversarial way of determining fault and seeking out reparations. Crimes are dealt with primarily through punishments which have little to do with the actual to contravene laws crime. A perpetrator of drug use is just as likely to have a prison sentence as someone who is guilty of kidnapping in large part because there simply is no real way to compose what would be considered ‘even' reparations. It is not always possible to make like-for-like reparation and there are those who argue that this is where the current judicial system falls down. Restorative justice is a criminal justice theory which focuses on a victim-centred mediation process, rather than on a state prosecutor system. In the current adversarial legal process, the concern is on determining the legalities of events, who did what to whom, what laws this violates, and how the perpetrator should be dealt with. Beyond the actual victim (or victims) in the case, the State itself is seen as a victim (Beven, 2005. P.196-206). The idea being that any individual law-breaker is threatening the safety and integrity of the state as a whole, as allowing people and ‘get away with it' undermines the security of other potential victims who may be at risk of new perpetrators determining that they, too, can ‘get away with it'. Therefore, even in ‘victimless' crimes, the State takes an active role in prosecution and takes a harder line on breaching the law that may have greater impact on the society at large .Restorative justice, on the other hand, looks at a mediation process which asks what was done to whom, what needs to be done to make reparations, and who has an obligation to provide those reparations (Braithwaite, 2002. P.249). The emphasis is on a more personal level, whereas the current adversarial position considers the State to be a victim in all crimes the restorative justice system is concerned with dealing with specific victims.

This change in perspective allows the victim to take a more active role in determining what costs they have been borne by the crime, they can ask any questions they may have about their rights and the events, and a more personal mediation is possible. What can be especially attractive about this process and what can also be most controversial is that it allows for the offender to hear personally what the impact of his or her actions was, specifically until they are able to fully understand the effect of their actions on the victim and understand why what they did was wrong. This process ideally allows them to understand to a deeper level the cause of and options to their crimes. The advantage here is that it theoretically reduces the rate of re-offending criminals who understand that there are people behind their crimes should have an emotional impact on their decision to re-offend in the future. It is often theorised that the current judicial system does not work in the same way because it is set up in such a way that the offender thinks very little about the victim as a person. Rather, they are set up to think only of the chance of being caught or not being caught weighing up whether or not to commit a crime becomes one of determining the likelihood of ‘getting away with it' and the penalty likely to be weighed against them, rather than a consideration of the human effect of what they are doing.

It is this philosophy that is probably most attractive when considering the youth offending culture. There are many fears that the current criminal justice system does little to stop problem behaviour early on. In fact, there are concerns that the penalties for crimes may actually lead to greater offending in the future. Adolescents and young adults who commit a crime early in their lives are sent away to pay out their sentence surrounded by other criminals, many of whom are career offenders. This is clearly not the ideal population to convince young offenders to change their ways and choose not to re-offend in the future. In fact, they may very well be encouraged to offend in new ways which are less likely to get them caught or punished; this may in actuality be acting as a ‘school' for offending. Clearly, this runs counter to both the ideals of making society safer and it does nothing to convince offenders of the more human aspect to what impact their actions have.

There is some precedent for seeing restorative justice theory as a viable option, especially when dealing with youth offenders. A research study which compared nearly 1,300 youth offenders against a control group, found that a restorative justice system which focused on mediation and understanding the victim's situation led to a greater than 32% reduction in re-offending when compared to the non-restorative justice group (Nugent, et al., 1999. P.1). This seems to make sense on an intuitive level; adolescents and young adults are still being ‘formed' in how they see themselves as a part of society and how they understand others to be a part of the same whole that they are a part of. Teaching them early to see their actions as having a real and personal impact on others would seem to allow them to change their ways in a real fashion. One of the greatest aspects of restorative justice theory is that it seems to have such an incredible impact on the victims themselves. Victims who went through a restorative mediation were less likely to remain fearful of being victims of future attacks, were better able to sleep at night and return to work, and were more likely to show understanding or sympathy for the offender's position and situation (Sherman & Strang, 2007. P.53-60). Where restorative justice does a great job at helping the victims to move on from their ordeal, the current system does less so. Currently, the victim is considered to be almost extraneous to the process. The only organisations which seek to help victims deal with what they have been through are outside the State's process. Often it falls to charities and other victim advocates to help them through the process and beyond.

Why, when restorative justice seems to have real benefit to the criminal justice system, especially with youth offenders, is it not more widely taken on board? One of the concerns is the cost. While there is new evidence to suggest that there is a greater amount of cost saved in the long term (based upon less re-offending, lower rates of imprisonment, and the cost of the judicial process), the cost of restorative mediation meetings are upfront costs which must be borne. It can be difficult for people as taxpayers to understand why it makes sense to spend more money from the outset, even when that means saving money in the long run. This is especially true in the case of proceedings which are often seen as ‘coddling criminals' or ‘being soft on crime'. The Ministry of Justice, for example, funded an independent survey of the cost-benefit of restorative justice systems and found that where there were face-to-face meetings arranged between offender and victim (a supplemental cost to the normal course of criminal justice proceedings), there was about £8 in the cost of crime prevented for every £1 spent on the meetings (Shapland, et al., 2008). Yet this evaluation was not given a great deal of attention in the popular press. Instead, it was produced and published without fanfare on the Ministry of Justice's website and left without much comment.

As mentioned early on, the criminal justice system is made up of people and people are necessarily emotionally invested in how crime is dealt with. When emotions are running high, it is not always possible to look at the system in a purely logical fashion. While we call for ‘justice', often what is of primary concern is a desire for revenge or punishment. While prisons are still considered to be the ‘gold standard' of punishment, (Rowe, 2008. P.60) there is often a stirring of outrage both at the cost of keeping prisoners (especially in light of greater amenities granted to offenders, popular newspapers can often be found publishing angry editorials based on the idea that prisoners are getting better treatment than ‘average' people living at home) and the rates of re-offending.

More and more, people are finding that they do not believe in the same way that prisons ‘work'. While statistics are easily manipulated to serve various purposes, there is an oft-quoted statistic that 60% or more offenders go on to re-offend within two years of their sentence ending. People struggle to feel safe as they (rightly or wrongly) believe that there are ever-increasing numbers of offenders getting sweet treatment in prisons and are then off to offend again as soon as they finish their sentences. Ironically, this perception that prisons do not work may actually be working against taking on board other judicial theories, such as the restorative justice theory. While the systems work completely differently and would therefore be more likely to have different outcomes, it is difficult to speak to society on a logical level about such an emotional issue. As people become more fearful of a society that seems to be more violent, especially one wherein youth offending appears to be becoming increasingly frequent and ever-more violent and out of control and more angry at the idea that there is an unfairness in how offenders are treated, they become less able to consider taking on board new theories and systems which may seem to be less punishing

Even on an individual level, restorative justice systems may not be an ideal solution. While there is a case to be made that victims who choose not to take part when offered restorative mediation are simply less informed about the process, there is also the very real problem that no all victims wish to deal with their offenders in a personal manner. While it sounds good on paper to think about getting the two parties together to discuss what has happened between them, in reality, many victims feel even more fearful when they consider having to deal with the person who has caused them harm in the past. It can be difficult to conceptualise how it can help when the victim is still dealing with the after-effects of being the victim of a crime. Clearly, this system has limited use for so-called ‘victimless' crimes. It is not possible to sit a jaywalker for example, down with his or her victim. There is no victim in a classic sense. The same is true for larger, yet non-violent crimes. Where does a tax evader go to meet his victim? Unless the system considers creating advocates to step in for Society as a Whole, there is no real way to mediate in such cases.

It is becoming increasingly clear that the current system does not address all the needs associated with a judicial system. There is not enough done to help a victim deal with what they have been through and there is not enough being done to help the offender to understand a more person-centred reasoning for why they should not offend. Restorative justice as a supplement to the current judicial system may very well address some of these shortfalls, and at a long term cost savings for the money that taxpayers invest into their criminal justice system. However, it is also clear that restorative justice as a criminal justice theory cannot stand alone in dealing with all of the problems of the judicial system. It is necessary that the two systems work together in tandem to deal with their respective strong points and shore up their weak areas. It is only by putting both together (or adding in other theories as needed) that the criminal justice system can develop into the type of responsive, flexible system that will serve to address the needs of a complex and varied population.

There is some precedent for seeing how the two theories can work together in a successful, meaningful manner (Nugent, et. al 1999. P.1). In situations where some victims have been offered the chance to speak with those who had offended against them, those that took up the offer and went through a mediation process found that they felt more comfortable with the legal system, were less fearful of being the victim of a crime in the future, and felt more compassion for the situation that led the offender to offend. It is worth noting that not all victims took up the offer to meet with their offender; there is still resistance to the idea that people do not need to remain in their rigid roles of “offender” and “victim”, seeking only punishment and retribution. As more and more people find the benefit in undertaking a flexible, thoughtful position in a more modern criminal justice system, however, it should lead to an increase in people who embrace the changes that come from blending new theories with the old. Clearly neither system can address all of the needs of the people wholly alone, but together, it is possible that they will form a better, more responsive system than had been found before.

References

* Beven, J., Hall, G., Froyland, I., Steels, B., & Goulding, D. (2005) Restoration or renovation? Evaluating restorative justice outcomes. Psychiatry, Psychology and Law. 12(1), 194-206

* Braithwaite, J. (2002) ‘Restorative Justice & Responsive Regulation', Oxford; Oxford University Press, 249.

* Nugent, W.R. Ph.D., Umbreit, M.S., Ph.D., Wiinamaki, L., Paddock, J. (1999) ‘Participation in Victim-Offender Mediation Reduces Recidivism'; VOMA Connections; Sum. [Online] Available from:

http://www.voma.org/docs/connect3.pdf

[Accessed 1 November 2009)

* Rowe, R. (2008) ‘Introduction to Policing', Sage Publications; London, 61.

* Shapland, J., et al (2008) ‘Does restorative justice affect reconviction? The fourth report from the evaluation of three schemes'; Centre for Criminological Research; University of Sheffield. [Online] Available from: http://www.justice.gov.uk/publications/docs/restorative-justice-report_06-08.pdf

{Accessed 6 November 2009}

* Sherman, L.W. and Strang, H. (2007) ‘Restorative Justice: The Evidence', London; Smith Institute, 53-60

Bibliography

* Hughes, G and McLaughlin, E. (2001) 'The Competing Logics of Community Sanctions: Welfare, Rehabilitation and Restorative Justice in Controlling Crime', second edition; Sage Publications in association with The Open University, [Online] Available from:

https://blackboard.le.ac.uk/webapps/portal/frameset.jsp?tab_id=_2_1&url=%2Fwebapps%2Fblackboard%2Fexecute%2Flauncher%3Ftype%3DCourse%26id%3D_4141_1%26url%3D

[Accessed 10 November 2009)

* Muncie J. (2004) ‘Youth and crime: a critical introduction', London; Sage.

* Roche, D (2003) ‘Accountability in Restorative Justice', Oxford; Oxford University Press

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