Restorative Justice: Views from Community Influentials and Justice System in Newfoundland, Study notes of Criminal Justice

Download Restorative Justice: Views from Community Influentials and Justice System in Newfoundland and more Study notes Criminal Justice in PDF only on Docsity! 1 Sociology 3395: Criminal Justice and Corrections Lecture 21: Victims and Criminal Justice 3: Restorative Justice: The final major response of the justice system to victims' concerns is restorative justice. Widely practised in small, agrarian, rural societies, restorative justice has a long and rich history in the aboriginal communities in Australia, Canada's First Nations, and the Inuit communities of the North. The quasi universal disenchantment with the traditional punitive/retributive justice system encouraged those calling for justice reform to seek alternatives to the current system of punishment - particularly in this area of community-based sentencing alternatives.*(Chart, p.2)* In 1977 Nils Christie published Conflicts as Property, in which he explained that the root problem of the system is that conflicts were stolen from their legitimate owners, the victims, and became the property of professionals rather than people. This work provided a strong impetus to those calling for the replacement of the current, ineffective system with the constructive practices of dispute settlement, conflict resolution, mediation, reconciliation and reparation. Advocates of restorative justice point out that in addition to its devastating effects on offenders, their families, and the larger society, the current system of punishment serves to intensify the conflict rather than solve it. Spearheaded by the Mennonite Church, and consistent with 1975 recommendations of the Law Reform Commission, victim-offender reconciliation programs were initially set up in Canada and the U.S. in the mid 1970's to serve as an alternative to jail. These programs then spread to many other countries - rapidly growing in popularity. The early programs, largely run by volunteers, have now been in existence for over 20 years, and the movement is expanding at a rapid pace. Dittenhoffer and Ericson, writing in 1983, conducted a study of one of these early Canadian victim-offender reconciliation programs. This was supposed to involve offenders agreeing to meet with their victim(s) post-conviction, negotiate over the amount of harm done, and decide on mutually acceptable terms of compensation. Voluntary participation in the program by both the victim and the offender was required. Dittenhoffer and Ericson interviewed judges, probation officers, and prosecutors, as well as examined the operation of this program during which time 51 offenders entered the program (which involved 47 crimes). 159 victims were counted in these cases. 85% of the offenders had no relationship to their victims prior to the offence. All referrals to the program were made through a probation order. There was victim-offender contact in 18 cases, and refusal to meet in 12 (6 victim; 5 Offender; 1 Both). The rest did not meet for administrative reasons. Dittenhoffer and Ericson's study found some serious problems in terms of meeting the initial goals of this victim-offender reconciliation program. Originally, it was to provide a new sentencing alternative which would allow the offender to pay for the crime by a method more constructive than imprisonment. The victim would also gain, becoming more involved in the 2 criminal justice process and further obtaining compensation for losses. The main goal was to be reconciliation: resolving the conflict between the victim and the offender and restoring balance to their relationship. However, the manner in which the program actually operates departed substantially from this picture. The majority favoured the program because of what it could do for the victim (e.g. often insurance companies recouping losses from clients), showed lack of interest in reconciliation, and had a negative attitude toward the program as an alternative to prison. Punishment and financial recompense received particular emphasis, perhaps in reference to a crime-control model, and this directly interfered with the reconciliation objective. Moreover, administrative interests influenced decision-making, with judges and prosecutors being very selective in choosing 'shallow end' cases, and program officials preferring them. This makes it doubtful offenders who would have gone to jail would be included. All of this suggests, like earlier correctional reforms, that victim-offender reconciliation was not answering the need for alternatives to incarceration, and that it too was destined to become part of the widening net of social control. Instead of avoiding problems created by the use of the prison system, another sentencing option has been implemented which pulls a different set of offenders deeper into the system of social control, and inevitably increases cost. Half a decade after Dittenhoffer and Ericsson=s study, Mark Umbreight (1989) added to this debate by doing an exploratory study on whether victim-offender reconciliation should be applied to violent crime. Using a very small sample (6 interviews, review of informal conversations with victims, and drawing on his experience as a mediator in 1 case), he argued that this process was quite helpful to victims in certain cases, in that it enabled them to get answers to questions about the offence and to gain a greater sense of emotional closure. While obvious methodological questions arise as to the representativeness of his sample, self-selection of his respondents, how they may differ from those not so willing, and the potential for Aexampling,@ he does make it clear that some Aselected@ victims of violent crime would welcome such a process. While not defining what he means by this, he does, however, urge caution about pushing victims into such programs, or even approaching them about it too quickly, as this may result in revictimization by the program. As well, he emphasizes that there need to be available more extensive casework services and resources than are found in the usual victim-offender mediation case. But restorative justice has remained a popular idea. I often refer to it as the “hot new thing” in criminology. Over the last decade or two, restorative justice initiatives have developed all over the commonwealth (e.g. Australia, Canada, New Zealand, South Africa and Britain). Typically, they are intended to involve offenders, their families, victims, other interested members of the community, and a facilitator. All affected by the crime are encouraged to actively participate in the resolution of matters arising from the crime. In principle, the victim is a central actor in this process. In practice, levels of participation in RJ schemes, at least in Britain, have been very low. In 2001, for example, only 7% of youth offender panels were attended by victims. Given that responses to a 1998 British crime survey suggested that 41% of victims were willing to meet with the offender, it=s possible that the problem lies with inadequacies in the means by which 5 to avoid incarceration, would help rehabilitate, and assist with community re-establishment. Other community respondents, not necessarily sharing this philosophy, thought that RJ=s potential for avoiding incarceration was not such a good thing, and would enable offenders to play the system. In the middle were individuals who work with both victims and offenders, who expressed both aspects as an upside and a downside, and felt that RJ gave another option given the right attitude, instead of just being seen as Aa better deal.@ Another theme was that RJ, if it worked, would hold offenders accountable, make them take a look at what they=ve done, take responsibility for their actions, and relieve guilt. It would get away from the current system where they are Acloistered@ away from the events and their victims. Many of the respondents expressing these views either worked in victims= organizations, or expressed, at least in part, a sympathy for the victim. Turning to the justice system respondents, some of the same themes emerged, such as avoiding incarceration, being held accountable, making offenders take a look at what they=ve done, countered with the potential that offenders may just see RJ as a Aslap on the hand.@ However, the issue of risks took on more of a legal flavor, with one official pointing to potentially giving up constitutional rights to keep silent and not incriminate oneself, while another did not see such problems if RJ was done prior to charges being laid. When asked about the possible risks and benefits of RJ to communities, the theme of cost- effectiveness emerged as significant. Some felt that this would save money on courts and the criminal justice system, but most felt that RJ masked a hidden agenda involving Adownloading@ costs onto the non-profit sector. Indeed, to really work as it should, they felt RJ should have sufficient resources put in place to enable agencies to do their job. The most critical in this regard were respondents somehow connected with victims= organizations. Those coming from an offenders perspective voiced some of the same concerns, but also, in line with their philosophy of reintegrating offenders, tended to also express that the community needed education to understand RJ, support it, and get involved. Other interesting comments included RJ as an artificial way to reduce crime statistics, the issue of just who would decide whether a case went to RJ, and the potential for an increased sense of control in stigmatized communities. As for the justice system respondents, the majority agreed with the philosophy of restoring peace as beneficial to the community. Indeed, several pointed out that there are already risks within the system, and in releasing offenders into the community. Others, however, pointed to the issue of properly informed decisions being made, with some particularly vocal about the problem of expecting high levels of expertise from small, poorly funded community organizations. Several pointed to the fact that the community would not like RJ - particularly Aget tough@ types - and that education was necessary. When asked about whether they felt that RJ would be effective, only 3 community respondents said yes without extensive qualification (possibly because they have already unofficially used similar strategies, as well as the fact that they work with offenders). More critical were victims groups and those with a victim orientation. Some of these felt that it would not be effective, that it should be carefully phased-in and evaluated to avoid revictimization, and that the lack of a 6 victims= veto would be a hindrance. Third, some commented that its success depended on how it was managed. Indeed, these latter respondents commented on how program statistics can be fixed, and that Ayou can build in success or set up for failure.@ Finally, two respondents commented that they didn=t know whether RJ would be effective. In the words of the latter Athe jury=s still out.@ The justice system respondents were fairly positive about the potential effectiveness of RJ. One Judge felt it would probably cut recidivism, while another felt that it would be more effective for young, first time offenders. One official found Athe theory quite compelling,@ while another felt that it would be effective Ain some cases,@ adding that RJ was Aworth a shot@ as the traditional system doesn=t do such a great job anyway. When asked whether RJ was likely to be efficient, community respondents became quite vocal: one simply said ABullshit!@ All denied its efficiency considering that (1) it is a government program, and (2) social programs dealing with human emotions aren=t geared to efficiency. It was felt that such a program would be expensive, and that the necessary resources needed to be put in place for the program to work . AIf rushed, it will be flawed.@ There was also some suspicion about why RJ was really being implemented, and that it was not really to help resolve crimes, but to save government money. Justice system respondents were split on efficiency, but spoke more from a systemic perspective. Several felt that initial diversion would clear up the court docket, while one Judge felt that it could slow things down if cases were put on hold to engage the offender in RJ. The issue of downloading came up among all respondents, and one succinctly commented, in line with the community respondents, that ANo system tailored to individual needs is efficient.@ Finally, the issue arose of Aefficient for who?@ Increasing court efficiency by diverting cases elsewhere may simply increase the burden elsewhere. Indeed, one well-placed official brought up the issue of the survival of the RJ program after federal financial support ends. When asked about whether RJ was likely to be equitable, community respondents broke down again largely on victim-offender lines. Victims= organizations, or those who took a victim perspective, felt that it would not be equitable for victims as offenders= rights were paramount, and there was no veto for victims. Offenders= organizations offered qualified hopes that RJ would be equitable. Examples inlcude: ASo long as people understand what=s involved@; ASo long as resources are put in place for all@; AI hope so. It may be painful but beneficial for victims and offenders both@; and AI guess I can always live in hope@. Two respondents also spoke of minority access issues in terms of gender, class, and particularly race. As for the justice system respondents, all commented on the lack of veto for victims. One official commented that the victim already has no rights, so is not losing anything in RJ. One Judge agreed, adding that victims now have an option they didn=t before, and that a veto would intrude on the rights of another party - the community. A government official commented how she once would have believed in a veto, but has since seen cases where it would have created an injustice (e.g. where the technical victim of an assault had a long history of abusing others, and a 7 person who fought back could then be forced, by the victims= veto, into criminal court for assault). A second Judge felt that the lack of a veto is not fair, but it should be possible to conduct RJ sessions in another manner if the victim does not want to be involved. All of these respondents commented that minority access was an issue that needed to be looked at. Finally, there were comments on RJ=s equitable implementation, such as making sure participants know what the parameters are, and the impact on participants perspective (e.g. comments on the possibility that RJ could achieve the same outcome as court in a shorter time with a greater feeling of having an impact on the result). As these interviews closed, respondents were asked to share their comments on any issues or concerns that RJ would raise for their particular organizations. Many of the above issues came up again, and will not be repeated here. New comments largely related to the mandate of the particular community organizations in question, and there was again a split between offender and victim-oriented organizations. A sampling of interesting issues raised include: - the possibility of being co-opted through funding; - downloading/ RJ done for wrong reasons; - RJ not really getting away from the adversarial model; - The potential for subtle dynamics of intimidation and control being used by offenders in sessions; - Parachuting Aboriginal models of conflict resolution onto culturally and numerically different communities and expecting them to work; - the potential impact of RJ diversion on police record checks; - the potential impact of RJ diversion on criminal statistics; - the potential impact of RJ on the pro-arrest/pro-charge policy in domestic abuse cases; - the need for sufficient training of staff; - parallels with problems occurring in family court mediation; - seniors probably wouldn=t want to be involved, except perhaps in family situations involving financial abuse; - if RJ allowed to expand, we may be able to expand our halfway houses/programs; - RJ provides more options for referral. The criminal justice respondents commented more from a systemic perspective in this regard. A sampling of issues raised include: - Increasing vs. decreasing delays and time demands; - How does information come before the court? Are RJ discussions privileged, or can they be used in cross-examination; - The relationship between RJ and conditional sentences - Whether non-compliance is like a breach of probation; - The possibility of RJ having unintended consequences; - The significance of RJ depending on its implementation and use in the system and community; - How records are to be kept and cross-referenced by community organizations; - How well-trained are community volunteers;