Date: May 20, 2019
Category: Law Essay
Law essay

Restorative Justice (RJ) offers an alternative approach to deal with criminals. RJ models emphasize the needs of victims and offender accountability. Another important aspect of the RJ models is that the government is a secondary actor in the restoration process that has the main objective of restoring communities, offenders and victims in a wholeness state. RJ emerged during the 1970s and gained widespread popularity in the course of the 1980s. As of the 1990s, RJ models were a mainstream aspect of correctional practice and policy in the US and other countries across the globe. Presently, a convergence between the concepts of RJ and community justice has been fronted an alternative approach to responding and thinking about crime in society. Those supporting the use of RJ in the criminal justice system maintain that members of the community have a pivotal role in coping with consequences of criminal acts, bettering public safety, and advancing the goals and objectives of the criminal and social justice. This paper explores RJ, namely its history, forms of current RJ practice, RJ and corrections, challenges and issues for the RJ model.

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History of RJ

RJ is not a novel concept. Restorative tactics to crime and justice can be traced back to thousands of years. For instance, in Rome, convicted thieves were forced to pay twofold the value of the goods they stole. The Brehon Laws applied in Ireland (Old Irish) practiced compensation as a form of justice for the majority of crimes. In England, restorative principles formed the foundation of the Anglo-Saxon law prior to the arrival of Normans. Restorative values were integrated into diverse legal traditions such as Roman law. Furthermore, some of the earliest written laws such as the Sumerian Code of Ur-Nammu, Babylonian Code of Hammurabi and the Pentateuch used in Israel contained the elements of restorative justice. The majority of traditional justice systems used in Asia and Africa were also based on RJ principles. The justice system used by Native Americans and Aboriginal communities draw upon reparation and restoration. Justice in Aboriginal communities is intricately related to the religious framework and daily lives of people affected by the justice system whereby restorative circles are used in resolving conflicts and criminal acts. The RJ philosophy advocates for diverse human attributes such as mercy, forgiveness, compassion, healing, reconciliation, mediation, and sanctions when needed. Based on this, it is evident that the current trend towards RJ is not a new idea; instead, it is a revival of a historically prevalent tactic used in combating crime. The current justice system has been in place for a few centuries. In contrast, the RJ model has been used for much of Western history. Many authors agree that the RJ approach towards criminal justice has been in use for the bulk of human history.

In the course of the 1970s, a movement emerged advocated for the protection of the offenders’ rights as well as for reduction in incarceration and improving the conditions of correctional institutions. It was primarily driven by the discovery in sociology that adverse social conditions played a large part in influencing criminal behavior. This finding concurred with the movement that was against adversarial legal action as the only approach towards resolving conflict. Consequently, processes such as negotiation, arbitration, and mediation were prevalent in the family and civil law. Furthermore, there were heightened calls for the criminal justice system to offer the victims more significant voice as regards the criminal justice process.

Albert Eglash first coined the phrase restorative justice in 1977 in his work, Beyond Restitution: Creative Restitution (Helfgott, n.d.). He outlined three forms of justice, which included restorative, distributive and retributive justice (Helfgott, n.d.). During the 1980s, the doctrines of restorative justice gained extensive recognition. As of the 1990s, RJ had become an important aspect of correctional practice and policy in the UK, Australia, New Zealand, Canada, and the US as well as other nations across the globe (Helfgott, n.d.; Johnstone, 2011). Support for RJ came from multiple movements, including the increasing dissatisfaction with the criminal justice system among the public, critical criminology, the rights of victims movements, feminist criticism of the male-controlled justice system, and the change towards the use of community justice efforts such as community corrections and community policing (Wachtel, 2014). The increase in the crime rates, the widespread view that correctional system was not effective in lessening the rates of recidivism, and public activism necessitated the need to revise the criminal justice system (Helfgott, n.d.). Aforementioned factors played an integral role in setting the groundwork for the adoption of a new justice model.

Defining RJ

Contrary to the retributive justice model used in the U.S. criminal justice system, those supporting RJ consider crime as the harm that should be repaired using a holistic process that involves the public, delinquents, and victims. Under this model, the role of the government is to preserve order while the role of the community is to restore peace. RJ seeks to tackle the inherent antipathy in interests, needs, and rights of victims and offenders using practices, policies, and programs designed with the aim of restoring the communities, offenders and victims affected by delinquency.

The RJ approach can be characterized by numerous features, including a whole understanding of the delinquent; emphasizing reintegration and not stigmatization using repentance and forgiveness; recognizing the accountability of the offender and the rights of victim; involvement of the community in crime issues; using social action; resolving acts of crime using reparation, restitution, negotiation, and dialogue; emphasizing problem-solving; and defining crime as a harm. Other principles of RJ include providing the victim with an opportunity to play a key role in the criminal justice process and an inclusive justice process. Furthermore, under the RJ model, conflict and crime are considered to affect relationships between people rather than between the state and people.

Some concepts related to RJ and often used interchangeably with RJ include real justice, transformative justice, responsible justice, balanced justice, indigenous justice, relational justice, and community justice. Recently, convergence has been observed between community justice and restorative justice giving rise to restorative community justice, which indicates the shift towards increased involvement of the community throughout the various phases of the justice process.

Current Forms of RJ Practice

Presently, three models of RJ practice are dominantly used, namely circles, family group conferences (FGC) and victim-offender conferences (COC). FGC was first used in New Zealand during the 1980s, and they act as the main approach to justice for juveniles in the countries. Circles, known as peacemaking circles, originated from First Nation communities found in Canada. Victim Offender Mediation (VOM), Victim Offender Reconciliation Program (VORP) and Victim Offender Conferences (VOC) are the most common forms of circles. These programs were initiated during the 1970s in Canada and the US, which involve bringing the offender and the victim to dialogue under a trained mediator to resolve and heal harm attributed to the crime. Moreover, the offender may be requested to offer some form of monetary reparation. Circles, conferences, VORP, and VOM are provided at various phases of the criminal justice process such as institutional programs, community supervision, sentencing, and diversion. Other types of programs considered restorative are the community reparative boards, victim awareness programs and victim impact panels characterized by the involvement of the public in determining the reparative agreements often for nonviolent offenses.

Whereas VORP and VOM remain the most common applications of RJ, it is imperative to note that RJ is not limited only to mediation. In some cases, it may be impossible or undesirable to get the offender and the victim to dialogue, for example, when the encounter is likely to cause further hurt to the victim. Similarly, both the offender and the victim may be unwilling or disinterested in taking part in a dialogue. In this case, peacemaking or conferencing circles that allow the public and criminals to discuss accountability issues and understanding in the absence of the victim can be used. Contrary to VOM and VORP, FGC involves a diverse and large group of people seeking to tackle the crime. For instance, conferencing can entail criminals, victims, their respective family members, and other unrelated offenders and victims. Circles are often typified by the involvement of community members, facilitators, family members, offenders and victims in a circle with a talking piece to ensure that each individual has an opportunity to speak without interruption.

RJ in Corrections

RJ emerged an important aspect of corrections during the 21st century. RJ has been incorporated into the vision and mission of various state departments of corrections and correctional agencies in the US. The states that have included RJ in their vision and mission of their department of corrections include Vermont, Oregon, Washington, and Minnesota. Furthermore, countries such as the UK, Australia, New Zealand, and Canada use RJ in their corrections. The use of RJ principles in correctional practice involves making use of the community to tackle some of the outcomes of delinquency, including the needs of the offender and the victim, improving the safety of the public, and advancing the goals and objectives of criminal and social justice.

Restorative correctional policies, practices, and programs offer diverse opportunities for the participation of the community and the victim with respect to the reintegration and rehabilitation of offenders. Restorative corrections also require offenders to undertake efforts aimed at making amends and repairing the damage attributed to their wrongdoings. Correctional practices that draw upon the RJ principles exist in all correctional areas, including custodial and community contexts. Nevertheless, ascertaining whether a program uses RJ principles is an issue of contention. When assessing whether a correctional program uses RJ principles, the aspects to be considered include the level to which the program addresses the causes, needs, and harms; the degree to which the program is victim-oriented; whether the program encourages offenders to take responsibility for their crimes; whether all stakeholders are involved; and whether the program offers an opportunity for parties to be involved in decision-making and dialogue. Based on this viewpoint, it is evident that circles, conferences and reparative boards can be argued to be fully restorative whereas victim impact panels are partially restorative. Programs for the reintegration of the offender, work crews, and community service can be viewed as potentially restorative. Nevertheless, they are aligned with RJ principles in the sense that they involve all stakeholders, collective identification and addressing the needs of victims.

Other programs are characterized by bringing together citizens, offenders and unrelated victims in correctional settings providing with reading materials regarding restorative justice, engaging them in storytelling and discussions concerning the effect of crime, discussing the needs of victims and offenders, and emphasizing offender accountability. RJ is increasingly being implemented in correctional facilities involving adult criminals who have committed violent crimes. An example is a program implemented in the Graterford Prison in Pennsylvania, which is characterized by encounters between offenders sentenced to life imprisonment and family members of homicide victims. During such encounters, offenders and victims engage in dialogue and pose questions to the offenders. Through this program, victims interact with offenders asking them questions in order to facilitate healing as well as understanding.

The most common forms of RJ in correctional contexts include community service, restitution, victim impact assessment when making parole decisions, and VOM which have been in existence for several years. Newer forms of RJ in correctional contexts are community reparative boards, conferencing, peacemaking circles, victim-offender reconciliation with violent criminals, and surrogate encounter programs implemented in custodial contexts. Another form of restorative justice common in the US is the impact of crime on victim classes (ICVC) provided in nearly all prison institutions. An example is the restorative justice initiative implemented by the Missouri Department of Corrections, whereby victims are offered an opportunity to discuss the way the crime affected their daily lives in order to help offenders to be sensitive towards victims. Offenders also get to understand how their actions are affecting families and the community at large (Missouri Department of Corrections, n.d.).

RJ Challenges and Issues

A core issue for the future of RJ relates to the way RJ practices and programs can function meaningfully in the context of the broader retributive model. In this respect, those criticizing RJ maintain that the conflicting practices and principles of RJ and retributive justice make it difficult to adopt the RJ in the retributive framework. Another issue entails the scanty empirical studies that focus on the effectiveness of RJ programs targeting different categories of offenders in diverse correctional settings. Opponents of RJ claim that, even though RJ appears attractive, there is little empirical research supporting the benefits of RJ. It is important to make sure the needs of victims are met as well as to prevent further harm to victims and their families by RJ initiatives in the correctional system. RJ programs have also been criticized on grounds that they are not cost effective and have not been established to lessen recidivism. Other challenges hindering the effective implementation of RJ in corrections include the possibility of refusal to participate by parties, resolving conflicts involving cross-cultural offenders and victims, and the impact of RJ on blurring the line between the criminal and civil law.

 

RJ provides a substitute for the retributive justice model, which can be adopted in the correctional system to enhance the safety of the public and facilitate offender change. The grassroots feature of RJ has played a crucial role in facilitating its widespread adoption in diverse correctional programs. Some of the common strategies used in the RJ model include offender-victim reconciliation and mediation and family group conferencing. The challenge is to find the ways through which the RJ model can be functionally implemented in the retributive approach used in the U.S. corrections.