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From the beginnings of human society, whether it is by scaring offenders straight, rehabilitating them or by incapacitating them, the objective of the criminal justice system has always been the administration of punishment. However it is the ever changing dynamics of society and thus the constant shift in the penal system, which forces us to question whether the aims, purpose and forms of punishment are to merely manage offenders rather than to restore and prevent crime. Why should offenders be punished; how much punishment should be inflicted; for what kinds of action and thus, is it effective? Increasing rates of offences and repeat offending of criminal activity suggests that current mechanisms in place, such as that of restorative and retributive responses, no longer suit the contemporary ideals of justice. Thus, the failure of traditional regulatory approaches therefore gives rise, to the questioning of the need for an alternative response.
The practice of retributive punishment is interpreted as the punishment of those who have violated societal rules and the reinforcement of those societal values violated by the offence administered upon the offender. Retribution reflects society's moral disapproval of crime, through the use of punitive measures (e.g., prison sentences), assigned through unilateral processes (e.g., a judge determining the appropriate sentence for a crime) (Darley & Gromet 2009). Retributive theories focus on the crime rather than on the individual who committed it. Thus, Individuals are often classed according to the severity of crime and dangerousness, therefore resulting in the warehousing of criminals (e.g. over representation of indigenous youth in prisons), as a means of regulating and controlling crime (new penology), rather than the deterring of future crime or repairing the individual.
There is no regard with the future effects of the punishment but rather with a justified response to wrongdoing. Thus, even though arguments have formed to maintain that retribution not only acts a just response to crime but also as a means of deterring potential offenders through retributive consequences of crime. White (2010), illustrates that once integrated back into society a substantial proportion of prisoners return to prison or to some form of correction or rehabilitation program within two years of their release, thus, resulting in their overcrowding and expense. Paulich (2005: 67), further argues that retributive punishment "encourages recidivism not least because its alienating and demeaning structures encourage low self esteem; but because it also does not require offenders to face up to the consequences of their actions or take responsibility for the harm in which they have caused".
Amongst today's society, many people believe that criminals should "get what they asked for" in the form of retributive punishment (Regoli & Hewitt 20008:315). The idea of just deserts equates to determining a sentence which is proportionate to the crime, hence the ancient lex talionis: an eye for an eye or life for a life, is designed to balance the harm caused by the crime - not only in proportion to the seriousness of the crime, but also in reflection to the nature of the crime (such as fines for theft, beatings for assault, and castration for rape). Thus, it is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing, and that the severity of the appropriate punishment depends upon the depravity of the act (Regoli &Hewitt 2009).
In contrast, to that of "rehabilitative or punitive models, restorative justice aims to restore conflict and repair harm. It encourages those who have caused harm to acknowledge the impact of what they have done and gives them an opportunity to have their harm or loss acknowledged and amends made" (Restorative justice Consortium 2006 AS SITED IN Liebmann 2007:25). "Restorative justice operates through the offender completing reparative sanctions (e.g., apologizing to the victim, community service) that are determined through bilateral processes (e.g., conferences in which offenders, victims, and community members determine what must be done to repair the harm caused" (Darley & Gromet 2009: 1). According to Marshall (1998), this is a process whereby "all the parties involved in a particular offense come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future" (Daly et al. 2007: 441).
Restorative justice aims to restore the well being of victims, offenders and communities damaged by crime, and to prevent further offending. However, restorative justice measures are often unlikely to have any long-term impact on the fundamental causes of an offender. Recidivism rates suggest that offenders who take part in rehab programs, conferencing juvenile justice and receive warnings and cautions are eventually imprisoned (Strickland: 2004). Paulrich (2005: 80) emphasizes that the reoccurrence of crime, following attempts of restorative punishment is due to the fact that "most programs focus on restoring individual offenders to the very social settings whose strategic envelopes and power differentials generated the identities that got both of them into conflict initially, rather than communal change".
The criminal justice system is concerned with having offenders held accountable for their actions, hence that means making sure offenders get the punishments they deserve. "Restorative justice is expressly designed, then, to hold offenders properly accountable to victims and communities for the offence (serving custodial time does not necessarily satisfy that requirement) to encourage personal transformation and help them to integrate into the community" (Paulich 2005: 67). Restorative forms of punishment provides offenders with the life skills (anger management, drug and alcohol programs, literacy programs, etc) to achieve necessary changes that will help aid them in reforming themselves into law-abiding citizen. Hence, Braithwaite (1989) argues that if the offender is simply stigmatized he will be alienated and less likely to change his behavior, whereas if he is allowed to express his regret and to be re-accepted by the community this may be more effective in preventing reoffending (As sited in Paulich 2005:67). Yet we are forced to question whether these programs are in fact the punishment in which they deserve; hence, do such programs offer the victim adequate compensation?
The failure of traditional regulatory approaches therefore gives rise, to the questioning of the need to address the aims, purposes and forms of punishment through an alternative response. It is through our response to crime that we should seek to repair, restore and reconcile through imposing offenders with the punitive burdens they deserve (Duff, 2002:2). Adopting a hybrid approach such as this incorporates both forms of punishment, and thus abandons any attempt to accept a single satisfactory principle. Retributive justice and Restorative justice often share competing ways to view justice, yet share a dual responsibility in punishing the guilty while simultaneously protecting the innocent. Hence, through the establishment of a form of punishment which utilizes the ideals of both retributive and restorative approaches, thus, the adoption of just deserts as a means of compensation through the use of mechanisms which will in turn restore the individual and thus prevent future crime occurrences, a medium pertaining to crime prevention, control, reduction and the enforcement of criminal law will be developed (Hess & Orthmann 2009).
Thus, both retributive and restorative punishments present two contrasting responses to crime. While one "focuses on addressing the moral wrong of the offender through the use of punitive sanctions, the other focuses on addressing the harm that has been caused through reparative measures" (Darley & Gormet 2009: 1). Hence, as crime continues to increase, society is becoming evermore fearful as we aim not to eliminate or prevent crime but instead to merely make it tolerable, we are therefore forced to question the appropriateness of such approaches in the prevention and reduction of crime. Hence, through the introduction of a hybrid approach, thus, by combing both the retributive and restorative measure the criminal justice system will seek to maximize the potential of restoration through the practice of traditional retributive punishment.