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To what extent is restorative justice the key to the problem of how to prevent crime?

Contents

Introduction. 2

Recent discourse on restorative justice. 3

Rationale for undermining imprisonment as a crime-prevention mechanism.. 5

Impediments encountered in the pursuit of restorative justice. 8

Recent trends in the adoption of restorative justice. 10

Criticisms about restorative justice. 12

Recent attempts to introduce restorative justice in prisons: Challenges and achievements. 13

Conclusion. 17

References. 19

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Introduction

Restorative justice is a new approach to criminal justice that is increasingly being used in Britain. It focuses on the needs of both the victim and the offender instead of blindly punishing the offender simply to satisfy abstract legal principles. In Britain, restorative justice is commonly used by police to caution youth offenders (Johnstone, 2000). Today, this approach continues to be subjected to a heated debate. Some of the main issues under discussion include effectiveness in reducing crime, feasibility in the context of the modern world, and benefits to crime victims. Another concern is that it may lead to the violation of the arrestees’ rights. Moreover, critics have expressed fear that restorative justice may end up being transformed into a degradation ceremony (Johnstone, 2008).

Restorative justice has its own advantages and disadvantages in the modern society. One of the main advantages is that it emphasizes on a reparative approach, whereby offenders are encouraged to take responsibility for their actions (Johnstone & Bottomley, 1998). To do this, they are required to undertake different reparative acts such as returning the stolen property, apologizing to the victim, or simply doing community work. However, according to Johnstone (1999), some scholars have criticized restorative justice on philosophical and empirical grounds. They argue that many offenders have severe difficulties facing up to the effects of their crimes. For such offenders the option of living in denial is better than that of owning up to their crimes and taking responsibility.  Nevertheless, restorative justice continues to gain popularity around the world mainly because of the way it questions the notion that wrongdoers always deserve pain (Johnstone, 2007).

The aim of this paper is to discuss the extent to which restorative justice is the key to the problem of crime prevention. Restorative justice is an effective approach for dealing with offenders who are ready to own up to their mistakes and crimes because it provides them with opportunities to repair the damage done and to develop new skills. Such opportunities are non-existent in the traditional justice system, which focuses primarily on punishing the offender for crimes committed. Nevertheless, restorative justice is not applicable to all situations. For example, it cannot be applied on offenders who refuse to take responsibility for their offences. The thesis of the paper is that the greatest good for the society can only be achieved through the concurrent pursuit of both restorative and punitive approaches to justice. The choice between them depends on the context of the offence and the circumstances in which justice is being sought.

Recent discourse on restorative justice

To understand the extent to which restorative justice is suitable for the modern society, emphasis should be on the cultural and historical contexts in which it is being applied. For example, shame sanctions are increasingly being used in the U.S. as part of the restorative approach. The objective is to ensure that offenders are subjected to the emotional response of extreme shame. However, this approach is increasingly being opposed by cultural radicals. This trend raises the serious question of the need to differentiate between penal and political factors as far as the act of shaming offenders is concerned.

Similar concerns are often raised regarding the act of forgiving as one of the components of restorative justice. The concerns relate in a significant way to the cultural objective of fuller realization of the offender. According to Johnstone (2001), scholars contributing to this discourse have to assess the point at which forgiveness becomes more of a vice and less of a virtue. On this basis, a conclusion can be reached regarding the extent to which restorative justice is acceptable as a way of resolving the problem of crime prevention.

In restorative justice, authorities are expected to adopt an emphatic, generous, rational, and supportive human spirit in dealing with offenders (Johnstone & Bottomley, 1998). The assumption is that offenders can contribute to improvement in their behaviour by first of all being apologetic of their offences. For this expectation to be actualized, the so-called “communities of care” have to be fully functional by providing all the necessary assistance and support (Daly, 2005). These communities of care should form a platform through which both parties can engage in consensual decision-making by reconciling antagonistic interests. The process of restorative justice can be weakened if such a platform does not exist.

Restorative justice may also be problematic because of the tensions created by difficulties in creating equity and proportionality across outcomes. The sensibilities of all participants should be put into consideration in order to achieve this proportionality. To this extent, critics may relent on their campaign of portraying restorative justice as an incomplete enterprise. This view is reinforced by the fact that justice, by its very nature, is impossible to achieve. All efforts made amount to mere attempts to reach for it. As Daly (2005) points out, society must tirelessly and constantly strive to achieve justice. In most cases, this quest ends up not being fully fulfilled.

In the traditional justice system, it is assumed that for justice to be achieved, the wrongdoer must experience pain that is proportionate to the magnitude of his wrongdoing. It is also assumed that the mandate of exerting such pain is solely vested on the state. However, such beliefs are severely challenged by restorative justice. In restorative justice, it is assumed that whenever wrongdoing is done to an individual, focus should be on repairing the harm done. According to this perspective, matters should not end at the point where the wrongdoer is subjected to pain. In some cases, the wrongdoer need not experience pain for the damage done to be repaired (Johnstone & Van Ness, 2006).

For the goals of restorative justice to be achieved, care should be taken in choosing the people who are at the forefront in spearheading the process of repairing the damage. A lot of focus should be on the needs of the victims of offenses as well as those who are close to them. These people should be involved in deciding which actions to be taken regarding the offence. According to Johnstone & Van Ness (2006), one of the implications of this approach is that it raises serious validity-related questions.

In recent years, advocates of restorative justice have expressed interest in transforming the way imprisonment is undertaken. In this transformation process, the advocates point out the need to provide an alternative to imprisonment instead of pursuing prison reform. To assess the validity of this suggestion, an analysis of arguments raised by opponents of projects aimed at establishing the so-called “restorative prison” should be examined (Johnstone, 2001).

Rationale for undermining imprisonment as a crime-prevention mechanism

The best starting point in this discussion is the assumption that justice is said to be achieved when offenders are subjected to a magnitude of pain that is proportionate to the pain that they cause to offenders. To many people, imprisonment is an indispensable practice in society. Its objective is to cause pain mainly through the deprivation of freedom. Every person cherishes his or her freedom. Any curtailment of this freedom is widely considered the best form of punishment to offenders. However, variations tend to occur as far as the amount of pain exerted is concerned. These variations normally take the form of differences in length of jail sentence. Imprisonment also facilitates the concurrent achievement of the goal of incapacitation, which is one of the fundamental objectives of criminal justice.

The fact that imprisonment allows for the introduction of monetary fines makes it highly advantageous. Through the setting up of different monetary fines, an excellent framework for creating variations in the amount of pain imposed is established. However, it is also associated with several enforcement problems. These problems arise mostly through the inability or refusal by many offenders to pay the fines imposed on them. Another problem is that another person who did not commit the offence may pay the fine. This leads to a situation where the wrongdoer does not experience any pain. Instead, this pain is incurred by another person who did not commit the offence.

Monetary fines are also considered inappropriate in societies that are characterized by uneven distribution of money. In such societies, the wealthiest individuals are highly likely to commit offenses with impunity. At the same time, imprisonment may be viewed positively when compared to the sort of pain that is normally imposed through corporal punishment. This is because of its compatibility with the ideals of contemporary sensibilities. These modern sensibilities tend to be accommodated by virtue of the fact that imprisonment is less offensive than corporal punishment. Similarly, monetary fines are more appealing than “community punishments”, which are widely considered insufficiently painful especially in situations where serious wrongdoing has been done.

On the other hand, imprisonment is also associated with several disadvantages. One of the disadvantages that critics point out is the fact that it is very costly to the state (Johnstone, 2007). Another disadvantage is this type of justice is associated with numerous unintended harmful consequences. These are the standard criticisms that motivate advocates of restorative justice to stick to their justice movement. At the same time, they are always keen to challenge the very assumption that forms the foundation of imprisonment. The assumption here is that justice can only be said to have been achieved when pain has been imposed on offenders. The concept of imprisonment is further attacked through advocacy on other more appealing routes after crime has already occurred.

Advocates of restorative justice also argue that if reparation is a core component of ensuring that experience of justice is created, imprisonment must be seen as a problematic practice. It must be viewed as a barrier to the realization of justice. The obstacles created may be psychological, whereby imprisoned wrongdoers started to view the prison sentence as the most acceptable form of reparation for crimes committed. Having stayed in prison for the duration of their sentence, such individuals may be unwilling to contribute to any other efforts towards reparation. The refusal to accept liability for reparation should be viewed as a major setback to ensure that the wrongdoer undergoes a holistic transformation for his own sake and for the sake of society. Even if the offenders accepted such a liability, they fact that they have been imprisoned makes it virtually impossible for them to work towards fulfilling it. Moreover, during imprisonment, wrongdoers tend to be cut off from money-earning opportunities. Therefore, they may lack the financial stability that would enable them to pay restitution. Moreover, they are unable to engage in reparative work simply because of lack of freedom.

The restorative process tends to be hindered by practice of imprisonment. One of the foundational pillars of restorative justice is the success of personal encounters between victims and offenders. These parties should come together and address aspects of the harm done and the various reparation options available. The option selected should be one that will yield the greatest benefits for both parties. It is important that these efforts enable the offender to come to terms with the harm he has caused to the victim. It is even better if the offender goes on to empathize with the victim. On the other hand, victims should get an opportunity to express their feelings about the harm that was caused to them.

One of the greatest challenges is that such interactions are rather difficult to arrange. These challenges are exacerbated by imprisoning the offender. This realization increases the level of the advocates’ opposition to the traditional approach to justice. This argument has for a long time continued to provide a strong impetus for opposition to imprisonment. In fact, restorative justice emerged as one of the “overgrowths” of the prison abolition movement. However, it is unfortunate that restorative justice movement has not achieved much success in effort to use restorative mechanisms as alternative to the practice of imprisonment.

Scholars observe that restorative justice continues to be used mostly in cases that would not result in prison sentences (Johnstone, 2008). Therefore, it becomes an ineffective tool of diverting individuals from impending imprisonment. This trend is especially common in the U.S., Australia, and Canada. In contrast, New Zealand seems to be achieving significant progress by replacing detention with restorative justice, the evidence available is still weak (Roche, 2006). Nevertheless, the vision of adopting restorative justice as a replacement to imprisonment remains acceptable to many people in the contemporary world. To achieve this vision, there is a need for advocates of restorative justice to address all or most of the impediments that make it seem like an invalid alternative form of criminal justice.

Impediments encountered in the pursuit of restorative justice

One of the impediments to restorative justice arises from its failure to encompass the notion of “displacing imprisonment” (Johnstone & Van Ness, 2006). Most definitions fail to state that the objective of restorative justice is to displace penal confinement. Moreover, the objective of reducing incarceration should be included as one of the primary goals of this alternative form of justice. Moreover, it should be accorded the prominence it deserves in current discourse.

Another impediment is failure by authorities to educate professionals regarding the importance of restorative justice. According to Johnstone (2008), the public are not as punitive as many people suppose them to be. For this reason, awareness efforts should be directed at professionals who work hand in hand with victims and offenders in the criminal justice system. Other professionals who should be educated include mental health, media, and social service experts. These people are in an excellent position to influence those people in society who wield immense political and financial power.

The goal of replacing imprisonment with restorative justice focuses more on theory than on practice. It is upon the implementers of this new approach to ensure that those subjected to restorative justice are prison-bound offenders. It is only on this basis that tangible practical steps may be said to have been made to ensure the adoption of restorative justice as a replacement to the traditional system of imprisonment. This is the best way of ensuring that advocacy is drifting the adoption of sentences in which imprisonment is not one of the options.

It is also unfortunate that research focus is yet to shift towards the identification of ways of making restorative justice schemes successful. The restorative justice movement should set the pace in highlighting new research frontiers in efforts to ensure that reliance on imprisonment by society is reduced. A core component of this undertaking should comprise of an analysis of the way things are being done and the changes that may be necessary in order for the new aspirations to be achieved.

Recent trends in the adoption of restorative justice

In recent times, proponents of restorative justice have continued to change their stance regarding the implications of restorative justice on the traditional practice of imprisonment. For instance, previously, focus was on short-medium term gains (Roche, 2006). Today, focus is on long-term gains (Roche, 2006). This change of tact arose from the realization that it may taking a long time before society changes its view regarding the need to adopt punitive measures as a way of dealing with crime. A major concern is that the reparative approach may lead to a rapid increase in crime rates (Roche, 2006). The advocates have had to come to terms with the implications of such concerns. One of the implications is that large-scale adoption of restorative justice is not achievable. At one time or the other, both elements of both reparative and punitive justice have to exist side by side.

The impossibility of achieving the goals of the reparative approach has further been reinforced by the controversy that the debate has triggered. This controversy has reached new heights following suggestions that restorative justice may be introduced in prisons. This move is not only contradictory but also dangerous. The core objective of restorative justice is to provide an alternative to imprisonment instead of playing a complementary role. This is simply because the damage that imprisonment imposes on the offender cannot be remedied through restorative justice. If anything, any efforts at restorative justice in prisons would be interpreted as a way of undermining the existing prison-based criminal justice system.

Nevertheless, this is not to say that restorative justice cannot exist side by side with the traditional practice of imprisonment. For this two-pronged approach to exist, voluntary involvement should be promoted. Engagement with the local community is also important. Additionally, the efforts should be pursued in an environment of flexibility and informality. However, failure to anticipate and influence responses from the sentencing authorities may make this approach a risky one. Care should be taken to ensure that restorative justice projects do not promote a new mindset whereby the sentencing authorities start regarding imprisonment as an attractive option by simply citing the success of restorative justice projects there. These projects should be implemented in such a way that these authorities get the feeling that even greater benefits can be achieved by replacing the imprisonment system with the restorative justice system.

Advocates of the new approach to crime prevention seem to be aware that their efforts may be used by conservative authorities to enhance the legitimacy of the traditional approach in the minds of the public. However, they insist that such tensions should not hinder the process of introducing restorative justice within the existing traditional prison institutions. This argument is based on the perceived need to bring about cultural and organizational transformation in prison as part of restorative efforts.

In the foreseeable future, imprisonment will continue to be most readily available form of punishment for offenders. Therefore, the best option for the restorative justice movement is to establish a system of incorporating restorative justice within the existing prison institutions. At the same time, they need to look for ways through which conflicts between the two approaches are acknowledged and resolved. If advocates of this approach refuse to introduce restorative justice in prison institutions, society may not take them seriously. This is because they will end up restricting the applicability of restorative justice to very simple cases where the need for imprisonment does not arise in the first place. Moreover, restorative justice will seem like just one of the many available alternative forms of non-custodial sanctions.

Criticisms about restorative justice

Many criticisms have been levelled against restorative justice over the years. One of the most dominant arguments made by critics is that it is not possible for the principles of restorative justice to be introduced in a social institution that is based on punishment (Guidoni, 2003). According to Guidoni (2003), most restorative justice projects tend to bring about ambivalent outcomes. This ambivalent situation is created by the tendency by these projects to create a situation where only a few aspects are adopted on a temporary basis. The more desirable option, of facilitating the adoption of the principles of restorative justice in their entirety, is rarely achieved. Critics argue that these few aspects are normally used as a basis for adding legitimacy to the ever-punitive institution.

In many cases, criticism is targeted at the already existing structures. For example, the existing structures within the traditional imprisonment justice are not clear on how the offender should be assisted to reconstruct his or her self-image. Restorative justice cannot be said to have succeeded if the offender is unable to change his identity and self-image. An excellent way of reconstructing this self-image is by providing assistance to victims. However, every prison institution in the contemporary world tends to operate within institutional frameworks that mortify and degrade offenders, thereby destroying their identity and self-image (Johnstone & Bottomley, 1998).

Restorative justice is also said to pose serious competition to the contemporary prison culture. In this culture, offenders are prevented from interacting with the world where their victims. Ordinarily, most victims would feel betrayed by the justice system if they saw their tormentor roaming around freely seeking forgiveness. Such victims would first and foremost want to see the offender “pay” for his or her crime by being subjected to punishment as deterrence. An ever bigger problem is posed by the highly influential subcultures that thrive inside the gates of every prison. These subcultures constantly alienate the prisoner from the world of free men which he may have wanted to inhabit upon completing their sentence. Some prisoners even come to view prison as their second home after becoming fully acclimatized to the subculture. In such situations, the odds are normally high for the prisoner to return to prison for committing another offence. Proponents of restorative justice need to be aware of these criticisms in order to have a good idea of the challenges that they should expect to encounter.

Recent attempts to introduce restorative justice in prisons: Challenges and achievements

There are many examples of efforts to introduce restorative justice projects in prisons around the world. The motivation for the introduction of these projects understandably varies from one country to the other (Johnstone, 2008). The same thing may be said about their origins, scope, form, aspirations, and level of success (Johnstone, 2008). One example is the Restorative Prison Project that was undertaken between the year 2000 and 2004 in Northeastern England. This project was undertaken by the International Centre for Prison Studies. The aspiration of this project was to provide a new, ambitious, imprisonment model that would grant them the social, purposive, and ethical input necessary in today’s technological world (Johnstone, 2008). The managers of this project also wanted to introduce a new kind of institution that would represent the new face of the traditional prison system. In this new institution, prisons would no longer be centres of exclusion. Instead, they would be transformed into centres of excellence in reparative efforts. They would achieve this goal by ensuring that positive work that is beneficial to the community is introduced.

In this Northeastern England project, one of the changes introduced addressed the relationship between prisons and the local community. Members of the local community were allowed to visit prisons and participate in the project work. Similarly, prisoners were allowed to go into the neighbouring community to engage in constructive work. Another element of change entailed providing prisoners with opportunities to work within the community for the benefit of other people. Moreover, efforts were made to create awareness among prisoners regarding the effect of crime on its victims. This was a difficult but very crucial part of the project. The difficulty arose because the level of hardship and victimization that exists in prison tends to discourage prisoners from thinking about the people they may have harmed.

One of the things that the implementers of the Northeastern England project realized is that conflict is inevitable in prisons. Whenever it arises, the best way of resolving it is by mediation. According to Roche (2003), formal methods have traditionally been unsuccessful in resolving even the simplest of prison conflicts. Therefore, for any confidence in these formal methods to be achieved, a change of management thinking is necessary.

In 2004, the Youth Justice Board carried out a national study on the objectives, challenges, aspirations, scope, and levels of success of 46 restorative projects in the UK (Wilcox, 2004). The most recurring objectives provided by these projects included reparation, mediation, victim awareness, and family group conferencing. Variations occurred regarding the extent to which they pursued the restorative justice agenda (Wilcox, 2004). On this basis, it is possible to rank them in accordance with their level of success in facilitating dialogue that brings together the victim, the offender, and the community.

In the study by the Youth Justice Board, victim awareness was described as partly restorative while family group conferencing was described as fully restorative (Wilcox, 2004). In most of the projects, a generalist perspective was said to have been adopted (Wilcox, 2004). This is because their efforts were categorized as being either fully or partially restorative. The study also portrayed a tendency by project managers to focus most of their restorative interventions to offenders who were in their Reparation Order or Final Warning stage (Wilcox, 2004). This demonstrated that the interventions were directed primarily towards offenders who had only recently ventured into a criminal career.

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In the UK, the offence that has led to referral for the highest number of times is theft (Wilcox, 2004). The second highest number of referrals has been targeted at offenders who have been convicted of engaging in violence (Wilcox, 2004). Wilcox (2004) also reports that in the UK, community reparation remains the most commonly used restorative intervention. Victim awareness is also being used widely in the country. Additionally, the number of cases that involve direct meetings has been rising dramatically in recent years. This trend is discernible in both large and small restorative programs implemented across the country.

Variations also tend to exist with regard to the delivery method as far as restorative projects are concerned. In some cases, ‘in-house’ approaches are used. In other cases, specialized teams are established within the prison system to spearhead the implementation of restorative projects. The in-house method is normally preferred because they create numerous opportunities for communication with victims in addition to recording higher levels of referrals. At this level, one of the priority areas is the improvement of victim contact. Care must always be taken regarding decisions relating to aspects such as location of staff, the range of restorative interventions provided, criteria for referral, and financial cost.

One of the most serious problems in restorative projects is in terms of difficulties in contacting victims. Some victims refuse to participate in the projects by insisting that they have already gotten over the offences that affected them and that they have since moved on with their lives. One of the causes of this problem is the ambiguous nature of legislation governing the process of contacting victims. This ambiguity is evident in many countries, including the U.S., Canada, United States, and New Zealand (Johnstone & Van Ness, 2006). This creates a problematic situation whereby different authorities interpret their duties, responsibilities, and obligations in varying ways.

In restorative projects undertaken in recent years, one of the most important lessons is that the person who contacts the victims greatly influences the extent to which the victims become cooperative. For example, victims generally agree to participate when the initial contact is made by a police officer. Afterwards, a professional project worker with in-depth knowledge regarding restorative justice may take over the task of regularly communicating with the victim. However, in the case of the study by the Youth Justice Board, local evaluators argued that it was necessary for this contact to be made by project workers because they are better equipped to handle the process more sensitively (Wilcox, 2004). Moreover, they have more time at their disposal to undertake the activity (Wilcox, 2004). This is demonstrated by the fact that police officers preferred to contact victims via telephone calls while most project workers preferred to write letters to them.

Although telephone contact is more expedient, it is not always the best because it does not create opportunities for the use of different restorative options for the victims (Johnstone, 2000). In contrast, an “opt-out” letter provides victims with many such options. For example, in an “opt-out” letter, the victim is required to maintain contact with the project workers in case they are not willing to participate. In this way, the project workers have higher chances of securing other opportunities for encouraging the victim to participate.

Furthermore, implementers of restorative projects have to be aware of the kinds of problems that are likely to emerge as far as the recruitment and training of staff is concerned. It is appropriate for all workers to be recruited on time to prevent delays in implementation timelines. The implementers should also create sufficient response mechanisms for dealing with employee turnover, otherwise the entire project may end up being derailed. In many projects, variations in the level of training tend to occur, whereby new employees replacing outgoing ones are not given the necessary training.

Regarding the intention to transform the prison, the outcomes of restorative projects may be placed in a continuum of sorts. One end of the continuum is occupied by projects whose intention is to increase the level of awareness among offenders regarding the harm they inflicted on victims and their obligation to avoid such wrongdoing in the future. Some of the restorative projects in this case often target behaviour change during the prison sentence while others focus on behaviour change upon release. In this end of continuum, no explicit attempts are made to transform the organizational culture of the entire prison system. One such project is being implemented at the Minnesota State Department of Corrections. Here, restorative project workers encourage and assist each prisoner to send apology letters to his or her victim. These letters are then deposited in an “apology letter bank”. Victims who are willing to read them can do so by visiting this apology letter bank. At the other end of the continuum, principles of restorative justice are used as a framework for guiding prison reform. Such projects tend to have the clearly stated goal of establishing restorative prisons.

Conclusion

This paper has discussed various elements of restorative justice, its benefits, its criticisms, and efforts to integrate it into the traditional imprisonment justice system. This paper concludes that attempts at immediate introduction of restorative justice on a large-scale basis are bound to fail. This is largely because of the existence of a deeply entrenched prison system that primarily focuses on punitive measures. In this system, pain that is commensurate with the amount of harm caused to the victim is inflicted on the wrongdoer.

The best option is for advocates of restorative justice to attempt to integrate the reparative principles into the traditional imprisonment justice. However, this approach is also problematic because restorative justice in most cases contradicts the goals of the traditional imprisonment justice. Throughout this integration process, implementers of restorative projects must always be aware of these contradictions to be able to devise expedient ways of reconciling offenders and victims. In today’s circumstances, the greatest good for the society can only be achieved through the concurrent pursuit of both restorative and punitive approaches to justice. In future, the choice between them will depend on the context of the offence and the circumstances in which justice is being sought.

References

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Johnstone, J. (2001). Restorative justice: ideals, values, debates. New York, NY: Routledge.

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Johnstone, G. (1999). Restorative Justice, Shame and Forgiveness. Liverpool Law Review, 21(2), 197-216.

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Daly, K. (2005). The Limits of Restorative Justice. New York, NY: Routledge.

Johnstone, G. (2008). The Agendas of the restorative justice movement, in Holly Ventura Miller (Ed.) Restorative Justice: From Theory to Practice (Sociology of Crime Law and Deviance, Volume 11), New York, NY: Routledge, pp.59-79.

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Roche, D. (2003). Gluttons for restorative ­justice. Economy and Society, 32(4), 630-644.

Wilcox, A. (2004). The national evaluation of the youth justice board’s restorative justice projects. Oxford: Centre for Criminological Research.

Guidoni O. (2003). The ambivalences of restorative justice: Some reflections on an Italian prison project. Contemporary Justice Review, 6(1), 55-68.

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