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Restorative Justice is seen by many as a meaningful way in which to right wrongs, offering reparation to stakeholders. This analysis would argue that the existing criminal justice system is draconian, ineffective and that restorative justice secures better outcomes. Opposed to this is the opinion that restorative justice is used by offenders as an easy way out, is futile as a deterrent in the long term and relies on re-traumatising the victim.
This essay aims to provide a critical evaluation of this argument within the context of the Northern Ireland (NI) criminal justice system. The focus will be on youth conferencing, which deals specifically with ten to seventeen year olds in NI. The consequences of crime on victims, offenders and the community within the retributive and restorative process will be compared via survey statistics and research to provide an evaluation of what, if anything, the restorative process holds that justifies it as an authentic approach towards achieving meaningful outcomes. Throughout this essay I will refer to restorative justice through a trainee practitioner's lens, reflecting on issues of anti-oppressive practice and inequality. The conclusion will be in agreement with Morris (2002) in that while it is unrealistic to criticise restorative justice for not achieving more than traditional justice has done, as a process for achieving better outcomes it is worthy of further use and evidencing.
The commonly held perception of what constitutes a victim . . . 'Ideal victims' are vulnerable, respectable and do not contribute to their victimisation and 'ideal offenders' are powerful, bad strangers, both of whom are in 'short supply'. (Cretney & Davis 1995: 160 cited in Daly 1999)
Victims surveys reveal that victims are more likely to be from disadvantaged areas, victims of violent crime more likely to be aged between sixteen and twenty four, single and male. The overlap between people most likely to commit a crime and be on the receiving end of a crime could be considered to be the same people. For this reason I have not separated the victims from the offenders or from the community. Within the restorative justice arena, community is taken to mean anybody or all of the community. The community is made up from the people who live there and these people include victims and offenders.
Community's reflect the inhabitants that live or work there, taking on their characteristics. Crime affects the appearance of the neighbourhood, the security felt by its residents and the wider implications of perceived or real fear that accompanies the life of a community. Even crimes regarded as victimless such as drug abuse and prostitution have major social consequences. Residents gradually withdraw from any commitment to their community and business's offering employment and economic security retract. There are those who believe that NI had less 'normal' crime during the 'troubles' attributing praise at the paramilitaries rule of law. Erickson (2007) explains that in any society in transition will experience an increase in 'normal' crime as former boundaries are dismissed and new ones appear to test.
Despite having over fifteen victim support and lobbying groups (Yell) in NI and legislation regarding victim's rights there exists a disparity between the criminal justice process and the reality of the victims experience. The role of the police is to identify the offender, gather information relating to the crime and administer culpability. The Prosecution service decides whether or not to prosecute and the court system adjudicates and sentences offenders providing 'justice'. Often the victim is irrelevant to the process as the state takes ownership, described as "stealing conflicts" by Christie (1977). Victims refer to being kept in the dark, being ill-informed and excluded from the justice process, often having little or no prior understanding of the system. Some would say this treatment could be defined as secondary victimisation. It could be argued though, that as the victim has already endured trauma, the state is acting from a position of protection with the victims best interests as central. This may be the intention, however, feedback from victim surveys shows that victims feel disenfranchised and marginalised within the justice system (Victim Support). Only sixteen percentage said they were satisfied that their views were heard in the traditional justice process (Victim Support) while in 2008/09 eighty nine percentage of victims were satisfied with the outcome from restorative justice (CJNI inspection 2008) This evidence appears to show conclusively that victims who attend conferencing plans are more content with their place within the justice system, however some consideration should be paid to the differing levels of offending. If the offenses directed towards conferencing were of a lower category, the crime not as severe then it stands to reason that the damage caused to the victim would not be as severe, thus may be easier to deal with. This may go some way towards explaining the disparity, as more serious crimes are dealt with by traditional justice.
Victimisation rarely stops when the crime is over. Victims may be subjected to unexpected emotional, physical and financial crisis's. Intense reactions can include anger, fear, terror, guilt and self-blame, humiliation and confusion. This can lead to long term emotional and psychological trauma (Victim Support). Victimisation can result in loss of autonomy and provoke an identity crisis leaving the already victimised with a need to question, rationalise and readdress the order, security and place in the world. Long term anxiety can result in disengagement with society, under the guise of avoidance as a protective measure, however this can result in social exclusion. Victim Support NI recognise that although the impact crime has on a person is determined by the efficacy of the person, the type of crime, past experiences and the support network they hold, the after effects of crime are long-term and serious for many. Whilst most of these concerns are out of the remit of this essay, further consideration of the problematic nature of the justice process itself and how it can further negatively impact on people already victimised is relevant. Research from victims surveys show that often this hurt is exacerbated by the unsympathetic, brash way they are treated by the police and other agencies, social work included, which participate in claiming ownership of the crime (CJR2008). It is claimed that better outcomes are achieved through restorative justice.
"Viewed through a restorative justice lens, crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance." Zehr (1990 p:181)
There is no one accepted definition of restorative justice. I have used this one from Zehr because it succinctly encapsulates a restorative meeting in words. The definition, history, practice and place for restorative justice are all widely disputed causing much controversy.
According to restorative philosophy, the definition of justice underpinning the western system of justice is fundamentally flawed (Achilles & Zehr 2000). They argue that at the heart of true justice lies the concept of victim centricity. All offending should be defined in terms of 'harms and the resulting obligations to victims' (Achilles & Zehr 2000 p:1). Acts that are considered criminal inflict harm upon all the involved parties; the individual responsible for the specific act, the receiver of the act along with the wider community. Contemporary restorative approaches are considered to be holistic, restoring the violation of relationships between all involved stakeholders, including the community (Levison 2002). Zehr (2012) takes this view further by describing restorative justice as a deeply meaningful human form of spirituality. Despite these profound statements from advocates, critiques of restorative justice see some restrictions in the evidencing of these claims. Limitations of the restorative process are numerous. It presupposes that people are empathetic and supportive of strangers who have harmed them and that offenders are capable of contrite and apologies (Daly 2005). There may be people who would feel un-empathetic towards a victim and they are completely entitled to their feelings. Restorative practices, unlike traditional justice are not adversarial, they offer a participative process, where there is no onus on the victim to do anything. The process is voluntary for all concerned. A frequent but understandable critique is that, at the heart of restorative justice is the theme of the victim as central to the process. As the offenders consent is a precondition, just how victim-centric is it really? Prior agreement gained from all stakeholders eludes to an intention to communicate, a willingness to share, providing a micro protective factor for stakeholders as they are in agreement. The offender, however has been directed to the conference plan via PPS or youth court. Conference plans are voluntary although once the offender has agreed to the plan, they have contractual obligations to the system. Non-compliance also has consequences. From a social work perspective the power imbalances here should be observed carefully as the offenders may feel coerced. When attempting to work in partnership with service users, the signing of contracts is both common place and good practice. Contracts stipulate the ground rules, clarify the context and record objectives, expectations and achievements. It is worth mentioning that despite clerical necessities, restorative justice claims to offer a more victim centric platform than existing systems. This opinion is supported by a research review by Sherman and Strang (2007) which showed that restorative practices provided the victim and offenders with more satisfaction than criminal justice, that victims who desired violent revenge found their desire reduced and a reduction in post-traumatic stress was found. Victim satisfaction surveys strengthen this further. While this sounds like a major breakthrough, it is necessary to scrutinise the research methodology before accepting the findings. As such these statistics may be misleading. However research from the Prison Reform can be acknowledged as empirical. In 2006 the combined reoffending rate for restorative justice was 37.7 % compared to 52.1% for community sentences and 70.7 % for custodial sentences (Prison reform ). It is accepted that sound evidence exists of high satisfaction rates for victims with both the process and the outcomes. Lower reoffending rates can only be a positive move for the offenders also. Restorative justice differs significantly from traditional strategies of justice.
Retributive justice considers punishment as the appropriate response to crime. When the law is broken, the offender is seen to have forfeited or suspended their civil rights. In order to make good their wrong they must be punished. The view of the offender as deviant, an outsider, separated by choice and action from the norms of collective society is a widely held stance. The assumption here, that the offender is a fundamentally different kind of person to the victim is far from the reality (Shermon and Strang 2007). The consequences derived from this Othering viewpoint are damaging, them and us thinking results in stereotyping and oppression. Vengeful conflict or vigilante action against an offender who is perceived as deviant and somewhat distant would seem 'easier' than against a person found to be similar in culture. It is worth noting that vigilantism is also a concern of restorative critiques, in that they believe restorative meetings may encourage such behaviour. Restorative justice is regularly used in schools, some residential homes and for less serious crimes within the NI youth justice agency.
The back ground to how youth conferencing developed in Northern Ireland needs to be understood in order that social work is appropriately informed to adapt, evolve and evidence practice within a relatively recent justice process. During the 'troubles' Northern Ireland was a deeply divided society. The legitimacy of the police was bitterly disputed and they were refused access to certain communities. Despite widespread disruption and upheaval these communities relied solely on paramilitaries to maintain social order. Serious concerns developed regarding the extreme reaction of the paramilitaries to young people's behavior. The response was punishment. The punishments consisted of coercion into recruitment of paramilitary cells, social exclusion, violence, beatings, kneecappings and public humiliation. No regard was given to fair trials or human rights.
Community based restorative justice emerged as a direct response. This was not unproblematic. Starting as a grass roots, bottom up movement it concerned itself with mediating a non-violent solution between young people and the paramilitaries. The existence of a community system of 'justice' was seen to be testing the legitimacy of the state, resulting in the politicisation of informal justice. Both community and state were competing for ownership of justice. The state won and youth conferencing (restorative justice) was implemented as a recommendation of the Justice (NI) Act 2002. For the state this was confirmation of its legitimacy, although it could be argued that this was the beginning of the end for bottom up community justice - swallowed up by the hegemonic power of the justice system (Erickson 2007).
The youth justice system was tasked with the statutory duty of protecting the public by preventing offending by children. Other notable pieces of legislation administering the delivery of youth justice in NI are the Criminal Justice (Children) (NI) Order 1998 and the Justice (NI) Act 2002. Section 57 of the Justice (NI) Act 2002) specifies that the Youth Justice Agency has a statutory role to involve victims in its various processes, while Article 3A of the Criminal Justice (Children) (NI)Order 1998 allows for the victim or a representative of the victim to be present at any meeting which is part of the conferencing plan. Whilst NI has undoubtedly advanced its youth justice system in a positive direction as regards treatment of and outcomes for the majority of young people, there is some trepidation as to the minimum age of criminal responsibility being kept at ten and the continued incarceration of young people. This is not an acceptable position from a social work or human rights perspective.
The youth justice agency is staffed by social work trained professionals who work on the interface of justice and welfare. As such, workers in this environment require a theoretical understanding of the multi-dimensional causes of offending and re-offending. It is understood what drives crime and antisocial behaviour. A myriad of complex issues are now understood to drive crime and antisocial behaviour. They include poverty, neglect, family breakdown, childhood abuse, unstable discipline, poor cognitive skills and low educational achievement (CJR 2008). If this is accepted it means that early intervention (Kazemain 2007) and welfare considerations should be a priority concern when working with young offenders.
There are two routes to youth conferencing; the youth court ordered route and the diversionary route instigated by Public Prosecution Service (PPS). A young person must be between ten and seventeen, live in NI, plead guilty or be found guilty and agree to attend and abide by the conferencing plan. It has been noted that the initial letter sent out to offenders contains complex jargon meaning that some may just ignore the letter and wait for a court date; those who agree to conferencing at this stage may not actually understand the implications of what they have agreed to do (CJR 2009). This could provoke negative reactions if either party is unexpectantly faced with the prospect of meeting the other. It has also become apparent that many offenders do not realise that a court ordered conference results in a criminal conviction(CJR2008). The conference is a semi-formal meeting where the offender may face their victim. It is theorised that the offender will gain insight into the harm they have caused when they hear about the impact directly from the victim. The victim can ask questions, realise the person behind the crime and seek restitution. Ideally an apology would be given and accepted. Restorative justice is not about saying sorry and leaving, it is about mending relationships and increasing social capital.
This essay has looked at victims, communities and offenders in the context of the restorative justice process within the NI criminal justice system. The objective was to critically evaluate outcomes for all stakeholders. This has been done via comparative research, exploration of victimisation and by providing some understanding of the background to the restorative process within NI. The restorative process is harmonious with the ethos of social work allowing for a holistic approach to the society we practice in. It encourages the building and restoring of human relationships, promotes social justice and challenges inequality. Even when taking into account the numerous critiques and limitations of the restorative process I have no hesitation in evaluating that restorative justice can and does produce more meaningful outcomes. That is not to say that the process is without its critiques, however it is worthy of further use and investigation.