IS RESTORATIVE JUSTICE A PUNISHMENT OR A FORM OF PUNISHMENT?

The debate about restorative justice has been discussed in the public arena for a long period of time. The topic is still controversial even in the present times. A section of the population argues that restorative justice is a form of punishment, while others argue that is an alternative to punishment, a method that will achieve two goals at the same time. This is the rehabilitation of the individual, and the assurance of justice. Theoretical considerations have also been put forward to explain the concept of restorative justice. This paper argues that restorative justice is an alternative to punishment. The paper shows that restorative justice has very many advantages compared to punitive justice. The first part of the essay considers some theories explaining restorative justice.

THEORETICAL CONSIDERATIONS

The theoretical definition of restorative justice emphasizes the repairing of a harm that has been caused or revealed by criminal behavior. The process of restorative justice is achieved by involving all the stakeholders, including the person who has committed a crime. The stakeholders aim at identifying and repairing the harm, involving all the stakeholders in the process and transforming the coexisting relationship between the offender and the offended. Mantle, Fox and Dhami (2005) outline the three theoretical considerations that explain the concept of crime, and their relation to restorative justice. In his explanation of restorative justice, Braithwaite (1989) relates restorative justice to some forms of traditions like subculture, labelling and the learning theories. The labelling and subculture aspects are viewed as social aspects of restorative justice, apart from the learning theories. In regard to these, Braithwaite and later contributors to the subject of restorative justice have considered three major individual theories of crime. These are classism, individual positivism and the conservativism of law and order. A close examination of Braithwaite’s work shows a dedicated advocate of restorative justice, to the extent of labelling it a theory of res reducing crime in the society (Braithwaite 2002).

The emotional and moral-psychological theory of restorative justice posits that the two processes of symbolic and material reparation occur during a restorative justice conference (Scheff and Retzinger 1996). The theory posits that the process of material reparation leads to a permanent settlement between the offender and the victim. During the process, agreements between the victim and the offender are discussed, as well as, how community service will be carried out. Through symbolic reparation, forgiveness, remorse, courtesy and respect are exchanged between the offender and the victim. Scheff and RetzingerAccording to this theory, the emotional healing for the victim and the offender are the goals of outcomes of the conference, and they should relieve the two sides the emotional burden of a hurtful and oppressive past (Scheff and Retzinger 1996)process will achieve greatly. Going by these propositions, the emotional and moral-psychological theory supports restorative justice instead of formal punishment.

The individual positivism theory of restorative justice connotes that; an individual engages in crime, mainly because they have not been schooled, or socialized by the societal value system (Mantle, Fox and Dhami 2005 P. 17). According to the theory, under-socialization of an individual may also lead to occurrence of crime. Some three sources of under-socialization are identified. These are innate traits of an individual, failure of the societal system, and the social influence of peers. Since the theory considers the crime behavior to be a result of the antecedents of an individual, it posits that an individual should be treated, rather than being punished. The relationship between individual positivism is in that; the two of them agree that the responsibility of crime lies on the individual. Restorative justice and individual positivism view social order from a similar perspective. They both have the aspect of reintegrating offenders, and they both define crime and punishment from a social perspective.

The theory of conservatism posits that all human beings have the obligation to deal with their internal zeal for self-fulfillment (Mantle, Fox and Dhami 2005). It encourages submission, discipline, and sacrificing in order to adhere to the set rules. According to Young (1981), the theory of conservatism sees social order as emanating from an act of an individual allowing the good of others to surpass their personal interests. In regard to this, the offenders are supposed to be punished harshly to make them adhere to the law, and to instill moral lessons to them. The aim of this discipline is to serve as an example to the others. A close examination of restorative justice and conservatism shows that the two have various similarities. They have a broad definition of crime, which is beyond the legal definition adopted by the classists. Also, the two appearto go hand in hand in strengthening societal values and ties. In line with this, restorative justice emerges as an alternative to the state’s idea of coercion of justice. It is, therefore, an alternative to the state’s principle of social control. It is a principle that encourages the individuals in the community to support the victim and the offender. Through this, restorative justice encourages being concerned about the common betterment of the people rather than, self-interests (Johnstone 2011). In consideration of these, restorative justice is more desirable, because it takes care of both, the victim and the offender, and brings them back to the moral level of expectations of the society.

RESTORATIVE JUSTICE AS AN ALTERNATIVE TO PUNISHMENT.

Having looked at the theoretical considerations in restorative justice and crime in general, this section is dedicated to restorative justice as an alternative form of punishment, which has more advantages than punitive justice. Braithwaite (2002) directly associates restorative justice to a form of an alternative to punitive justice. He sees restorative justice as a method of justice that has both rehabilitative factor and welfare factor. It is seen as a form of disciplining offenders that is less punitive. It focuses on both the offender and the victim, and this is considered a very important aspect of punitive justice. According to Braithwaite, the importance of restorative justice, in relation to conservatives’ theory, is its ability to empower the victim, and the individual. This happens in family group conferences. Again, the application of restorative justice to white-collar crime has been seen to appeal much to pro-business politicians compared to the retributive approach of the punitive form of justice. Maxwell and Morris (2001) endorse restorative justice with the case in New Zealand, as well as, Australia in that, it has been applied for a long time and has emerged out to be very supportive to the work police do.

According to the Conflict Solutions Center (2009), restorative justice is considered an offence against an individual and the community at the same time. When crime is combated through this view, better results are realized. This is because reformation and restoration of justice will be realized in both the individual and the community. It can also be considered through the eyes of the conservatist’s theory of crime, in that it tries to teach the societal members to shun crime. Restorative justice also assumes that crime control lies to the community (Conflict Solutions Center 2009

An important advantage of restorative justice as an alternative to punitive justice is that it enables the society to feel the sense of being accountable for the crimes committed by their members. Braithwaite (2002) agrees that restorative justice is all inclusive. All the stake-holders in the justice system are involved in the process. The importance of this is to confer good results to the community, the individual offender, and the victim.

According to the Conflict Solutions Centre (2009), punitive justice does not factor reforming behavior. This brings a gap in the justice system, which can be filled through a system that ensures that behavior is reformed, so that the offender will not go back to the same crime that they committed. When, for example, the conservatism theory of crime is considered without considering restorative justice, behavior cannot be reformed. According to Young (2009), conservatism aims at punishing the offender harshly so that they can be an example to the others. This aspect does not consider the fate of the offender, and the effect this will have in the community, in the case where the offender does not reform. This necessitates restorative justice, so that the aspects of deterrence and rehabilitation can both be considered. The advantage of restorative justice in reforming behavior is its aspect of involving all the stakeholders (Van Ness and Strong 2013). They all focus on one thing: bringing the offender back to the norms, values and ties of the society.

Restorative justice considers victims as being central to reforming crime. This is a good consideration of ending an evil in the society. This is unlike punitive justice that focuses on the crime that the individual has committed. It appears to value demonizing the individual rather than reforming the individual to prevent crime in the future (Conflict Solutions Center 2009). According to Braithwaite (2002), restorative justice considers the offender in relation to their capacity to make reparations. The making of reparations enables the offenders to reconcile with the victim. This is beneficial to the community, the victim, and the offender. When punitive justice is considered, it doesn’t have a provision for reconciliation. Reconciliation can only come as an initiative of the offender, and it comes very rarely. This breeds perpetual enmity to the society. Restorative justice, on the other hand, considers the welfare, and the co-existence of peace in the community (Braithwaite 2002). Also, the focus of restorative justice is on negotiation, problem-solving, and the future. This ensures that, even after the crime, the community stays in peace. Another very important aspect of restorative justice is its focus on restitution in order to restore both parties (Conflict Solutions Center 2009). The actual goal is reconciliation and restitution. The community is involved actively, and it acts as the facilitator of the process.

The application of restorative justice principles has been seen to be very effective in the western world (Home Office 2003). Its introduction focused targeted young offenders in the beginning, but it has been found to be very effective even in adults. According to Shapland et al. (2006 p 506), the application of restorative justice measures in the England and the Wales has borne the UK much fruits. The programme involves all the events of restorative justice such as direct and indirect mediation, as well as conferencing. In their study of 2006, Shapland et al. argues that; their involvement in conferences involving direct cases of restorative justice has enabled them prove wrong the theorists who are against restorative justice.

The broadness of the concept of restorative justice gives it the diversity of the advantages that it has. Shapland et al. (2006 P. 506) refers to restorative justice as an “Umbrella concept”, referring to the broadness of the concept, and the diversity of its advantages. In their explanation of restorative justice, Shapland et al. (2006 P. 507) assert that it involves the people who are at stake, as they come together to think about the aftermath of crime, and the implications that it might have in the future. This enables the members of the two sides to come together in a reconciliatory mood.

The restorative aspect of restorative justice needs to be re-emphasized. A common question that people ask themselves is whether a punishment can be restorative. Daly (1999) answers this question by considering the cases of legislation in Australia and New Zealand. In Australia, for example, restorative justice is mainly used for juvenile offenders, as a diversion from the court, and has been seen to achieve various results. Daly (1999) shows that the cases in Western Australia and Eastern Australia have been very successful and effective. The New Zealand model of conferencing is applied, where it involves two professionals. Daly (1999) sees the cases of the young people in Australia, in regard to restorative justice, that they reported a positive outcome of conferencing. According to Daly, young people in Australia reported that conference, a procedure in restorative justice, had better results in preventing crime in the future. The children claimed that restorative justice reformed their behavior and that it is utilitarian in future, thus they disregarded punishment, that it does not add value to them. Further, the varied understandings of the meaning of justice among the young people makes restorative justice the best alternative to punishment. Some of the young people associate punishment with pain, connoting something unpleasant. To a greater extent, young people do not view a conference as a form of punishment. Although they view the sanctions part of the conference as punishment, this is beneficial, because restorative justice does not mean that the offender walks free after committing a crime. These postulations by Daly (1999) show the essence of application of restorative justice in young people. According to Young (1981) PERPETUALpunishment to young ones may cause them more violent, predisposing them to crime more than they were before. In view of this, it is paramount to adopt restorative justice as an alternative to punitive justice.

The works of Daly (1999) and Braithwaite (1989, 2002) clearly sum up the essence of restorative justice. They posit that restorative justice is far from punishment, and cannot be a form of punishment, rather an alternative to punishment, which can be applied to do away with the evils of punitive justice. Its essence is to repair and to restore. Further, these works recommend looking at the aspect of the sense that children see in punishment, as compared to restorative justice. From these works, it is evident that the political class and the stakeholders in the judicial sector should consider the views of young people concerning restorative and retributive justice. The perspective of retributive justice tries to suppress the feelings of young people about punitive justice, while the restorative approach tries to address these views by approaching crime through conferences, circles and family groups.

The applicability of the concept of restorative justice has been confirmed (Daly 2011; Braithwaite 2002). Brathwaite himself applied restorative justice to young people in the ears of nineteen ninety’s. From these applications, restorative justice comes out as a means of transforming the entire society, and not just the individual who has performed crime. On the same, Braithwaite and Daly see restorative justice as “holistic restorative justice” (Daly 2011 P 12). It is agreeable that restorative justice can be described as being holistic. It is considered holistic because it seeks to repair the broken souls of the offender and the victim. Also, viewing restorative justice from this sense, it facilitates the transformation of families, societies, the entire legal system, the political system, and the families’ lives, especially the family of the victim and the offender.

The implications of restorative justice are far reaching, and the efficiency with which it transforms societies is noticeable (Roach 2000). Roach argues that the rate at which restorative justice has risen shows that its implications are desirable in the society, as compared to punitive justice. According to Hudson (1998), restorative justice is an alternative in the application to offenders of sexual and racial violence. Hudson argues that if this strategy is applied systematically, positive results are likely among sexual and racial offenders.

CONCLUSION

In conclusion, this paper has argued that restorative justice is an alternative to punishment. Restorative justice is effective when applied to young people, and also in adults. The several studies that have been reviewed agree that restorative justice is a method of reforming the individual offender, community, and the victim, together with their families. If restorative justice is adopted and given the necessary political and legal support, it can do very well in transforming the entire legal system and the society in general.

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DO NOT BID IF YOU DONT HAVE TEXTBOOK!!!
Ethical Dilemmas and Decisions in Criminal Justice
Author: Jocelyn Pollock
Edition: 8 TH
Publisher: Wadsworth Cengage Learning
ISBN-13: 978-1285062662
Prepare an essay response for the 3 questions listed. List the textbook and one other reference.

As the executive director of a progressive restorative justice program in a small rural region, you constantly struggle to convince the various local juvenile court systems to refer delinquents into your program. Despite the struggles, the idea of restorative justice is slowly being accepted by an increasing number of the local city and county court systems. You are particularly excited that you are receiving the first referral from the adjacent county court system, which has so far been reluctant to emphasize restorative justice methods.

As you open the case file, you notice that the clients are two teenage females where one was badly beaten in an unprovoked attack. This type of offense is typically handled by a victim-offender reconciliation meeting which encourages both parties to interact and resolve the issues with you acting as the mediator. From the very beginning of the meeting, however, you realize this will not be your typical case. The offender refused to show remorse to the victim, and both parents are also uncooperative. You are forced to end the reconciliation meeting early due to the lack of respect each party has to the process.

After the parties have left your office, a decision must be made on the best course of action. You write a letter to the referring judge explaining how the meeting went. This is frustrating, as this unsuccessful meeting will likely lead the judge to regret handling the case by restorative justice and less likely to refer future cases. You are also frustrated with yourself, as perhaps another restorative justice method would have worked more effectively than the reconciliation meeting.
1.What other restorative justice programs would have been available for this case?
2.Should the judge give up on restorative justice on this case?
3.Was this the proper type of case to utilize restorative justice programs.