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Can a restorative approach towards crime achieve fairness and justice for both victims and offenders, as advocated by its proponents? Support your argument by drawing upon the relevant theoretical perspectives and the findings of evaluative research.
Theories of justice, when it comes to criminal behaviour, encompass a wide range of issues including social, political and legal. Furthermore, there are multiple different theories relating to the way in which perpetrators of crime should be treated, particularly with regards to ensuring fairness and equality for all involved, including victims. One of the main approaches taken is that of restorative justice and the focus of this analysis is on whether or not restorative justice can ever be used in a way that achieves complete fairness and justice, for both sides, i.e. the victims and the offenders. During this analysis, consideration will be given to what exactly is meant by restorative justice and how it has developed, the limitations associated with restorative justice, and how it interacts with legal justice, before going on to consider the theoretical perspectives and practical examples of restorative justice, in a bid to determine whether or not this type of justice can ever fully result in a fair situation for all involved in the system.
Broadly speaking, restorative justice is an approach taken which encompasses the thoughts and needs of the parties involved in the justice system, in an active manner. This not only refers to the victims and the offenders, but also to the community at large, all of whom are encouraged to be involved in determining approaches to tackling certain criminal problems. The theory also recognises that these crimes need to be dealt with in a social context and that they need to look more towards preventing crime, rather than necessarily simply punishing those who commit crime. It is also thought to be a flexible approach which recognises the fact that society changes, on a day-to-day basis, and justice must also therefore change to reflect this fact. Essentially, restorative justice involves drawing in all parties in an active decision-making process as to how to deal with certain criminal activity, with a view to preventing it in the future.
Despite this seemingly soft approach to justice, the primary aim of restorative justice is to ensure that the victimsââ‚¬â„¢ needs are fully attended to where material loss and financial loss are concerned, but also regarding emotional and social issues. This approach may also extend to those who are close to the victim such as relatives. A further objective of restorative justice is to consider the community, as a whole, and how the individual offenders can be reintegrated into society, in a way that is beneficial to the entire community. This is an important part of justice, as criminal activity does not only impact on the immediate victim, but also on the whole community. Therefore, integrating these offenders back into the community in a useful manner to the community underlines this approach when dealing with criminal activity.
When dealing with the offender, specifically, the aim of restorative justice is to encourage the offender to take some form of responsibility for their actions and to enable them to reintegrate themselves, in a positive way. On a more long-term approach, this will involve establishing a community culture which supports rehabilitation and also deals with preventing crime, in the long term.
There are also aims relating to the way in which justice is administered, ensuring that there is a lack of unnecessary cost or delay. It can be seen that restorative justice, as a general approach, is already seen as underlining the criminal justice system. When looking at the new Crime and Disorder Act 2008, the focus is more on prevention of offending, rather than on the holistic approach encouraged by restorative justice; nonetheless, restorative justice is still deemed to be very current by academics and those involved in the practical reality of administering criminal justice.
Restorative justice is based on a number of assumptions which need to be borne in mind when ascertaining, in reality, how effective restorative justice is likely to be. One of the fundamental assumptions is that crime is fundamentally linked to the social context and social issues and that it is therefore necessary for the community, as a whole, to take a degree of responsibility when administering justice. It is also assumed that it is simply not possible for the system to deal with a criminal offence, without involving the individuals who have been directly impacted such as the victims and the offenders, directly. Fundamentally, however, restorative justice assumes that a combination of objectives must be followed and that not one overriding objective should ever take precedence.
Given the notion that restorative justice is seen to be an all-encompassing process for dealing with criminal activity, both in terms of preventing crime as well as dealing with the aftermath of crime, when it does occur, it is necessary to consider whether its limitations may impact on the effectiveness of restorative justice and also how restorative justice links with legal justice. A key difficulty that has been raised in relation to restorative justice is that it does not always work together with the criminal justice system that exists within the UK. The restorative justice approach is very much a negotiation based approach, and this does not always sit well with what is perceived to be a tough criminal justice system.
It has been recognised by Messmer & Otto (1992) that by giving too much power to the judicial agencies, which is a criticism of the current criminal justice system, it is simply impractical to expect restorative justice ever to prevail. Indeed, there has been a discussion as to whether or not the system relating to restorative justice could, in fact, exist as a completely separate system to the criminal justice system. Despite this argument, and the fact that such a large amount of power is devolved to the individuals through a restorative justice system, it is still maintained, in this case, that restorative justice should form a part of the criminal legal justice system (Marshall, 1997). It has been argued by these theorists that a process of whole justice should be followed and that they should each reinforce each other, in order to create a single system which is co-operative in nature and is mutually beneficial to all involved. This is particularly important to recognise because restorative justice requires a great deal of co-operation and this is also one of the fundamental limitations to restorative justice as, without co-operation, it is likely to fail, either entirely or in part. Formal legal justice systems may have to be relied upon in situations when restorative justice simply does not work, but there is a failing in terms of achieving a mutually acceptable scenario, indicating that neither one system can fully replace the other and both need to work together. It is relatively easy to see that restorative practices are likely to be more accessible by the various parties; for example, victims are going to be more inclined to deal with issues through restorative practices than they would be to initiate formal legal proceedings, due to fear of the formality of the legal system.
A further limitation exists in that the community is central to restorative justice practices and therefore a strong community needs to exist. Increasingly, the central notion of a community has diminished, in recent years, and therefore relying fully on the community may be seen as a growing limitation of this system. In order for the community to be such a formative part of this justice process, much background work needs to be undertaken, including education and training of community members to reduce the social inequalities that are often seen between communities and within individual communities.
An inherent inequality exists within society and this can be magnified when flexible systems such as restorative justice are put in place, with those who fully understand the workings of the system being able to manipulate it to their advantage more than others. These limitations will all add to the inability of the system to create fairness and equality, throughout.
In order to consider the limitations, raised above, and also the operation of the system of restorative justice, certain practical examples of how this system has been developed will be looked at.
When looking at the practical examples and the way in which restorative justice has operated, on a practical level, it is helpful to consider the barest of relationships that exist within the wider remit of restorative justice. Arguably, one of the most critical relationships is that which exists between the victim and offender. Currently, there are multiple systems in place that encourage the victim and offender to meet and to make direct steps towards repairing the damage that has been done by the offenders. This is achieved both through the use of regular meetings, but also through fines that are often imposed and that need to be paid directly to the victim. From a more restorative point of view, it is the meetings that are central, as these give the offenders an opportunity to face the reality of what was actually being done. These types of approaches can be seen as being useful, in certain circumstances, although it does naturally depend on the attitudes of the parties involved. In particular, victims can feel that they have taken greater control of the situation and can also feel that they have impacted on improving the position of the offender, so that it does not occur in the future. Social benefits associated with this type of activity include the ability to deal with each individual situation, rather than merely stereotyping groups of offenders or victims. Also, the community is better served because there is a greater chance of a lack of re-offending from offenders who have been through these types of activities (Restorative Justice Consortium, 2007).
There is also an important relationship to be developed between the victim and the community, which is more commonly associated with the victim's own peer group and acquaintances, rather than necessarily support that is generically offered by the community. Victim support has been established to fill this gap and there are other supplementary services such as ChildLine which deal with specific types of victims. However, these bodies have not been fully involved in the relationship between the victim and the offender and without this holistic link the bodies cannot all operate as one.
Of particular importance in this discussion is the relationship between the offender and the community. One of the underlying objectives of restorative justice is that of reintegrating offenders into the community, in a way that makes them functioning individuals, in the future. With this in mind, the success of restorative justice is likely to be heavily focused on how the community deals with offenders. Individual communities deal with these issues, on a regional basis, as well as there being some overall systems that are seen on a national basis. For example, typical projects operate in a way that assist with gaining a job or better educational qualifications, as well as tackling issues relating to drugs and alcohol, where appropriate. Although some of the systems are highly effective, on the whole, they are unsystematic in their application and this has severely hampered the impact and effectiveness of restorative justice as a national option.
However, there are barriers associated with these types of community initiatives, primarily linked to the fact that some communities have received negative experiences when undertaking these types of approaches. Much of the research, in this area, has focused on youth offending and, whilst these individual offenders are generally seen to be those who are most susceptible to change and are most likely to be successfully reintegrated, there is a need to extend this to all ââ‚¬Å“if it is to be entirely successful in the context of restorative justiceââ‚¬Â, (Utting, 1996). On the whole, however, the role of the community is very piecemeal and there is a lack of a national mission to ensure that restorative justice is effectively implemented.
Unsurprisingly, a great deal of research has been undertaken into the theory of restorative justice and the likelihood of this type of process achieving genuine equality and fairness. One of the first researchers to look into this type of justice was Howard Zehr (1985), and he developed this research further, in 1990. He actually considered the advantage of this approach to be an entirely separate theory to the current legal justice. The focus, in this initial analysis, was on the relationship between the offender and victim, thus suggesting that dealing with the relationship was central to the underlying operation of restorative justice. This theory was then extended by Zehr & Mika (1998), exploring the important role of the community in terms of influencing both victims and offenders. It was the fundamental issue of involving the community that ensured that restorative justice gained the level of support that it has, in recent years (Harding, 1992).
Over the years, however, the focus has generally shifted back towards focusing on the relationship between the victim and the offender, but in the wider context of the community and the social setting. Several theories consider whether or not restorative justice, as it has developed, can be brought in alongside the traditional theories of justice. It should also be noted that restorative justice has extended itself into the civil legal system, primarily due to its high reliance on mediation style processes (Christie, 1977).
Increasingly, restorative justice is looked at with the public interest in mind and, although this was not recognised until the mid-1990s, in the UK, it was something that was being developed at a rapid pace in the US, from the 1980s and in Japan, through the concept of forgiveness (Hayley, 1988).
When considering the various issues raised on how restorative justice has developed and the underlying theories behind what makes this type of system of justice successful, several factors became evident. Although there are clear benefits to be gained through the use of a restorative justice system, particularly where it is used alongside the more formal justice system, there are several limitations and assumptions which may ultimately mean that this type of system cannot ever be truly fair and equal to all parties involved.
It concluded that one of the main issues associated with this restorative justice system is the heavy reliance placed on the community. The current social contact does not, on the whole, indicate a strong community presence, in all areas of the UK. Moreover, where there is a community present, there is also likely to be inequality inherent in the community, which can create difficulties when it comes to enforcing restorative justice systems.
With this in mind, therefore, it is concluded that it is clearly possible for restorative justice to provide a fair and equal system but the underlying conditions necessary for this do not currently exist; therefore, inequality and unfairness are likely to exist within a restorative justice system, in the UK.