This article provides a more theoretical base for future posts related to Restorative Justice. In this article, I will discuss three aspects of restorative Justice. First, an introduction to Restorative Justice is given. The second part will show how Restorative Justice opposes the standard retributive judicial system as we know it, and thirdly different forms of Restorative Justice will be listed.
What is Restorative Justice?
Restorative Justice is a highly-debated concept which makes it difficult to define. According to Braithwaite (1999), Restorative Justice is a theory of Justice that is designed to repair the harm caused by a criminal offence. When defining Restorative Justice, it is crucial to include the process of Restorative Justice, its values and the outcome. Take for instance the definition by Professor Chris Marshal, where he writes that Restorative Justice is: "A voluntary process whereby those with a personal stake in an offence or conflict or injustice come together in a safe and respectful environment, with trained facilitators to speak truthfully about what happened and its impact on their lives, clarifying accountability for the harm that has accrued, and resolve together how best to promote repair and bring about positive changes for all involved".
Restorative Justice versus the retributive justice system
As stated above, Restorative Justice centres on an informal dialogue of people involved in an offence where they speak truthfully about the unfortunate incident and how it affects their lives. Such a discussion is guided by a trained facilitator and follows a particular pattern or direction. The dialogue between those involved seeks to answer three basic questions, and those are:
Restorative Justice questions
What happened?
Who has been affected?
How can things be made right again?
When you look at the first Restorative Justice question, I think it is safe to say that it involves touching back on the past. Talking about the incident that occurred (what happened?). The second question looks at the present moment, focusing on the consequence of the conflict the needs created as a result of the crime. The third question looks at the future, focusing on questions that need to be answered for their long-term or short-term remedy to the offence and what the offender is going to do to show remorse and what action he/she is going to take to make things right again.
If you then take a look at the criminal justice perspective, an entirely different set of questions are asked and those are:
Retributive Justice questions
What laws have been broken?
Who broke them?
What punishment do they deserve?
It is clear that formal criminal justice questions can quickly be answered without getting into the heart of the crime or wrongdoing. It does not address victim needs and does not seek to learn what is essential for those involved. Therefore, Restorative Justice deviates from the traditional judicial system.
Different forms of Restorative Justice
Restorative Justice presents an innovative approach to crime, and it sees offending as an injury, conflict, or injustice rather than a mere breaking of the law. Furthermore, Braithwaite (1999) noted that Restorative Justice is a compassionate approach to crime. Besides, the definition of Restorative Justice centres around the facilitation of participation and communication between the parties involved as a solution to the harm that satisfies all those involved. Those involved get the opportunity to speak about their experience of damage caused by the offence and allows the perpetrator to talk about their role in causing the harm to the other and together find a solution to resolve the injustice and bring about change.
As noted earlier, Restorative Justice brings together those involved in an incident. The primary stakeholders are the perpetrator, the victim, as well as the immediate circle of friends and family, and the community at large. Restorative Justice involves a face to face encounter of the parties, but still, some victims can choose to participate in an indirect way. During the conversation, those attending are empowered to speak freely for themselves about their experiences, questions they have and their need. Restorative Justice takes many forms, it is culturally sensitive, it encourages constructive conversations, and it does not rely on a fixed, standardized programme. It has different models, and those are:
Victim Offender Conferencing (VOC): Also called Victim-Offender Mediation (VOM). This is where a third party (facilitator) facilitates a direct encounter of the victim and the offender with of without the presence of supporting people like friends and family.
Family Group Conferencing (FGC): The state usually authorises this and it is where a family and extended family of a young person is brought together t discuss the young person's offending and come up with solutions to ensure his well-being and also in the process address the need of any victims. The primary goal of this model is to empower the family to address the needs of their children, which is why this meeting can take place without them.
Circle processes: A group of community members sit together in a circle and address any issues they might have or discuss norms and values that will guide their ways of living. In a Circle process, they use a "talking piece," where whoever is holding it gets to speak uninterrupted and the piece is passed around the participants. Circle processes are effective in addressing the imbalance of power among participants.
Community panels of boards: Is a way of holding a young offender or low-level offender accountable to a group of community representatives that can decide on the sanctions that will allow the offender to bring back to the local community. The primary purpose of community boards or panel is to enhance social control at the local level by involving citizens in the justice process. They are also an effective means of addressing harm and meeting victim needs.
Victim surrogate programmes: Are those where the actual victim of an offence chooses to participate in a therapeutic dialogue through an elected representative. Another type is where offenders, usually in prison or in a rehabilitative programme can meet with victims of other crimes to gain a deeper understanding of victimization and its consequences.
Truth and Reconciliation Commissions (TRC's): Many countries used them to address the aftermath of large scale crimes. A most famous example was the TRC in South Africa which addressed crimes of the apartheid era. They provided the opportunity for victims to tell their own stories and invited offenders to acknowledge their crimes in return for amnesty truthfully.
Concluding, the concept of 'Restorative Justice' came about out of concern for the victim, as the victim was seen to be ignored by the criminal justice system. Restorative Justice in itself is hard to define, and many authors have different definitions but what they all have in common is that Restorative Justice focuses on the harm that is suffered by the victim as a result of the crime and it seeks to repair that harm. Restorative Justice has many vital values which are; participation, truthfulness, safe environment, respectful environment, a commitment to repair the harm, and clarifying accountability for damage. These values are absent in the traditional judicial system. Restorative Justice takes many forms. Therefore, each of them will be more applicable to a specific situation.
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