To what extent does restorative justice represent a viable alternative to “retributive” justice?
...t how best to deal with the offender", (Morris and Maxwell, 2000). They suggest that the central player within the restorative justice scheme is the victim; this however has been shown not to be specifically the case, furthermore, within the British model of restorative justice the British Crime Survey has contested that in 1998 only 41% of victims were agreeable as to meeting with their offender or offenders, (Mattison and Mirrlees-Black, 2000). In 2004 the Labour government have shown country wide support and investment for the restorative justice strategy, they feel that this new approach can have wide ranging effects on whole communities, (Home Office, 2004). The current strategy on restorative justice follows the model laid down in July 2003, David Blunkett, the Home Secretary asked for a consultation paper to be written in an attempt to tackle crime and bolster society as a whole. “ I believe that restorative justice can have an important part to play at all stages of the criminal justice system, as part of effective policing, as a diversion from prosecution, and in sentencing it can also be effective within community and custodial regimes”(Blunkett, 2003). The aim of restorative justice within the U.K. and following the consultation document of 2003 is the focus on three elements of the strategy; this follows the three categories of restorative conferencing. The first example of the restorative conferencing model is the indirect approach, this example allows offender and victim to communicate through a conference facilitator, the guilty party and the victim do-not meet at this stage, but communication between the parties would normally be via messages and or letters. The second example of restorative conferencing is known as the Direct Stage, this stage is again governed by a facilitator and would involve the meeting of both victim and offender, and this meeting might also involve both community servants and supporters of both parties. The third stage of restorative conferencing is known as “Family Group Conferencing”, this stage is in itself a duplicate of the direct stage but is felt to be a preferable tool to be used for younger offenders, furthermore, it is also felt that with the attendance of the offenders family, there may be a well informed family support structure assisting each side. Within the United Kingdom it is felt that restorative justice gives voice to the victims of offenders, but also allows the offenders a full chance to explain him or herself and offer a meaning-full apology. Research has shown that in 1998 only 41% of victims suggested that they would accept, if offered, the opportunity to meet with their offender should they ever be arrested, (Home office, 2003). Furthermore, evidence from the same survey showed that 60% of victims again suggested that they would accept reparation from their offender again should they ever is arrested. A further key issue from the same research project showed that over 70% of victims who exhibited an interest in doing so, and who actively took part in the restorative conferencing strategy felt that they were glad they did so. In a recent restorative justice strategy titled, "The Newcastle Prolific Offenders Strategy", (May, 2002), using the three conferencing examples and also probation orders and supervision orders, 31 extreme repeat offenders were being "managed" within their own communities. Of these 31 subjects, 17 (57%) have been free of offences or have shown a marked reduction in the previous offending behaviour. Of the remaining 14 offenders who were remanded back to the courts, or who breached their conditions, 9 had been returned back to custody quicker than they would usually have been, thus, it is felt reducing potential for committing crime, (Crime reduction, 2002). In conclusion, With the interests of the victims of crime being at the forefront of the restorative justice schemes, it is both the government and the community who is responsible for the implementation of a coherent restorative model. Restorative justice has been a viable option in contrast to retributive justice within youth justice since 1998, the restorative justice strategy from within the adult criminal justice system has and continues to be, developed by the voluntary sector and the criminal justice boards of England and Wales, at home and abroad for many years. It is hoped that the restorative justice systems will develop, so as to bring a more balanced approach towards sentencing and justice, and also to enhance confidence for the criminal justice system for society as a whole. The benefits for adopting these new strategies in sentencing and restorative justice methods can be thought of as allowing both victims and society to become more involved with the penal system. Restorative justice also enables the education of offenders and allows them to comprehend the impact on the victim, and their community; moreover, further benefits are that of the reduction of the "Fear of Crime", as the victim is empowered through the restorative justice system. It may also be reasonable to suggest that through such a system and along with the reduction of the fear of crime, the restorative system may also achieve the widely debated subject of “Victim Healing”. A widely recognised advantage to the restorative system will be that of the penal economics. Using the restorative justice system, the effect on the reduction of caseloads on magistrates and the Crown Courts, could possibly begin to significantly reduce court waiting times, dramatically reduce prisoners on remand and alleviate the swelling numbers of the daily prison population. “Punishment is the last and the least effective instrument in the hands of the legislator for the prevention of crime”. – John Ruskin. The term restorative justice is a relatively new phenomenon that has many historical roots, it is widely accepted that restorative justice theories were developed in the early 1970s’ throughout various states of North America (Native American Sentencing Circles), and also within limited areas of Great Britain, South Africa and New Zealand (Maori Justice), (Marshall. 1999). “Historically, it is argued, the state has stolen the dispute from the hands of the victims and the offenders”, (Christie, 1977). Whilst the development of restorative justice continues to gather pace it is to the classic retributive model of justice that I will turn to initially. From the earliest periods that have been recorded, is the concept that the infliction of loss and pain should be the equivalent if not greater than that, which was inflicted upon the victims, moreover, it is from the Bible that we may observe early examples of retributive justice. From the earliest forms of the bible comes the term “lex talions”, this is known as the law of “measure for measure”, latterly “an eye for an eye”. The idea of retributive justice could possibly appear as a little archaic in today’s modern society, but it is with out doubt associated with the idea of a “Vengeful God” from the Old Testament. The practise of retributive justice in the more modern times has existed in many countries around the world; these include China, South Africa and the United States of America. Retributive justice has been also practised in most parts of modern Europe and Great Britain and became the focal point for many penal reformists. In the mid 17th century came the writings of the father of British utilitarianism Jeremy Bentham. Benthams’ reformist writings are regarded by academics as essential reading for the political philosopher; however, His most important theoretical work is the “Introduction to the Principles of Morals and Legislation” (1780). In 1785 and on Benthams return from Russia came the concept of the “Panoptic Prison”, it was Bentham who actively campaigned for his idea for the “Model Prison”, moreover, Benthams’ architectural designs for the panoptic prison where realised as a pre-cursor for today’s modern C.C.T.V society. With Bentham’s recognition coming from mainly overseas, Bentham was made an honorary citizen of the fledgling French Republic in 1792. Further to the work of Bentham came the writings of French psychologist and historian Michel Foucault. In 1975 Foucault penned his genealogical study of the more benign philosophies of imprisonment, this work is known as “Discipline and Punish”. Within this work Foucault analyses the evolution of retributive justice in France from the 17th century to the modern day era, he places great importance on the platform of the prison as an institution of both punishment and of reform. Foucault strongly believed that it was possible to “Punish less but certainly to punish better” (Foucault, 1975). He further suggested to us that a new and more lenient method of punishment could become the model of control for a complete society. At the center of Foucault's picture of a modern "disciplinary" society are three primary techniques of control: platformed observation, judgment, and the examination. To a large extent, control over people (power) can be gained purely by observing them. So, for example, the rows of seats in a stadium not only makes it easy for people to observe but also for security cameras to observe the audience. The ideal system of surveilence would allow one prison officer to view everything (an archetectural feature exhibited in Jeremy Bentham's Panopticon). Foucault’s’ examination of the design of the Panoptic prison, suggests to us that, Foucault indeed felt that this design was the “Ideal architectural model for modern disciplinary power”, (Gutting, 2003). From the mid 1970’s the concept of restorative justice has been built upon using initiatives in various countries, these countries include New Zealand, Australia, Canada and South Africa as well as some states in North America and Great Britain, (young, 2001.) Traditionally the basis of restorative justice is mediation, a growing example of restorative justice using mediation and group conferencing is that shown in South Africa. Following the release from prison of political prisoner Nelson Mandela, and the abolishment of the aparthied system on a county wide scale, the “Truth and Reconciliation council of South Africa” has led the way in showing to the ever observing world’s media that racial discourse at an institutional level may be addressed. “In 1994 South Africa’s brutal Aparthied system was finally over thrown. In the spirit of reconciliation, President Nelson Mandela and his leaders offered Amnesty to those who had committed human rights abuses, providing they told the truth and could prove that they were following orders. The victims would have the chance to tell their stories and to confront their persecutors, 21,500 of them testified before the Truth and Reconciliation commission”. (Malan, 2002). The Crime and Disorder Act of 1998 also provided specific platforms to enable restorative conferences, section 68 of the act provides that “ The victim’s views must be first sought, where the victim does not require reparation it may be made to the community at large”(Dignan, 1999). In their work “The Practice of Family Group Conferences in New Zealand”, Morris and Maxwell wrote that the “Principle purpose of restorative justice is to share informa...