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Unformatted text preview: Restorative Justice Restorative Justice
Policing, Community, and Justice Philosophical Background Philosophical Background to Restorative Justice Restorative justice seeks to create a ‘different form’ of justice from which we are generally used to and expect from the criminal justice system. Restorative justice is important for us because it organizes and gives centrality to the notion of community policing. It is difficult to imagine community policing, therefore, without rethinking the common presuppositions of justice that inhabit our culture and society. By looking at restorative justice we will also find an answer to the question of community policing’s growing popularity and importance within criminal justice circuits such as the courts, prisons, etc. Crime, we have argued, cannot be seen as anything else but a ‘complex problem’ that requires complex ‘problemsolving’ techniques. In order to get to the heart of the whole issue of problemsolving we must seriously interrogate the idea, concept, or notion of justice. The Criminal Justice The Criminal System What we often overlook about the criminal justice system is that this system is supposed to deliver justice. Accused, victim, offender, parolee, and community are said to receive justice. But is this always the case? What is, in sum, the justice of the criminal justice system? Therefore, we need to spend some energy thinking about justice as an idea and how this idea is put into practice by a very fallable system. This approach will allow us to think about restorative justice and the important role that the police have to play in this. Finally, this allows us to ask the question of whether, and to what extent, the criminal justice is able to deliver justice. We may ask: given the present institutional frameworks of the justice system, is it possible to imagine how and under what circumstances justice can be amplified and improved? Or, is it impossible to fully conceive of an appropriate strategy because the criminal justice system is not designed to deliver justice? What is Justice? What is Justice? This definition is as old as ‘thinking humanity’. All human societies have come up against this question in various ways. For example, all societies must figure out how to distribute scarce resources and honors to members of its community; they must determine what form of desserts is appropriate for various types of behaviour; it must decide how deviancy and nonconformity are to be treated. A basic definition of justice is: an attempt to think and institute harmony and balance at the cosmic, political, and social level. These philosophical questions have now entered the central position in the debate over the administration of justice. There has been a ‘general return’ to these philosophical questions on the part of practitioners and criminologists. This is largely so because of the general failure of traditional approaches. Many have come to realize that our ‘idea of justice’ will have a great impact on the type of system we design as well as the type of justice we deliver. In sum, we must emphasis that the idea of justice is open to interpretation and debate. Retributive Justice Retributive Justice
Our modern, Western form of justice attempts to incorporate various models. One of the most significant is the perspective known as retributive justice. This is the most common and familiar model of justice and many claim that this model is innate, natural, or instinctual to humanity. What are its general features? It is based on the premise that a balance or harmony is attained when each gets what they deserve based on their individual actions. The classic expression of this idea is found in the JudeoChristian notion of an ‘eye for an eye’. This means that if one does harm to another there will be a rebalancing that must be established through reparation. In a disorganized or decentralized (non modern) type of society justice will often take the form of vengeance or vendetta. In a nonstate context this form of justice can breed greater anarchy and chaos. However, when it is backed up by a ‘stateform’ it breeds a sense of justice that is like our own. With a state in place, justice is practice by the state on behalf of the aggrieved parties. The state, in other words, becomes a symbolic mediator of the grievances of its citizens. The state or the Queen become the ‘true victims’ in the eyes of the law. Continued Continued This model of justice also places great emphasis on the establishment of guilt. We generally seek to blame the individual. Also, our justice system believes that it can mete out pain in appropriate measures. There is supposed to be a ‘right amount of pain and suffering, on the part of the offender, that will satiate the victim and the state. The notion of an ‘eye for an eye’ is still strong in our justice system. Adversarial Model of Court Adversarial Model of Court Procedure When it comes to translating these ideas into institutional practice, we must examine how the courts take and implement a certain idea of justice. In an adversarial system there are two opposing views and advocates. On one side, we have the state, prosecution, or Crown. There job is to prove, through the use of evidence, witnesses, cross examination, and legal precedent, the guilt of the accused. On the other side, stands the accused of the defense. The job of defense lawyers, as well as the accused herself, is to prove their innocence. What is the contradiction of this system? Adversary has the sense of an enemy. In many ways, this reflects the idea of ‘trial by battle’ that is very ancient and found in many warrior societies. The basic idea of this notion is that justice and truth will emerge from the violent clash of combatants. To call someone out, to accuse them of a crime in our system, is to put justice in the hands of God, because God will always let the side with truth and justice on its side win. In the courtroom we have replaced this trial by battle and its direct violence with a symbolic or mediated form of violence Problems with Adversarial Problems with Adversarial Procedures The basic and problematic assumption of this system is that a fight or battle will naturally or selfevidently reveal the truth. The assumption is that truth and justice will emerge at the end of this aggressive process. However, in reality both sides seek to obfuscate the truth. They will do whatever is required to win. The truth may end up as a causality or victim of this process and not a result of the system. We know, for example, that the coaching of witnesses occurs, that police officers will rework and manipulate their own testimony to fit a prosecution strategy, and that evidence is often manipulated and controlled. To manipulate the truth, to have the jury or judge see a distorted and onesided truth, is the goal of the participants in this process. One side wins while the other loses. But can the social problem of crime really be summed up in this idea. Can one side really win? Or does society always lose? Justice and the Focus on Justice and the Focus on the Individual Our justice system places a strong emphasis on the individual. The criminal law tells us that it is the individual that is responsible for crime. Further, the social order can be reharmonized when the individual pays for or does penance for the crime. An appropriate amount of pain may be logically extracted. Criminality, in our society, is generally worn as a personal badge or stigma. The basis of this model of individualism and its affects on the criminal justice system are found in the general philosophy of liberalism. People, in this belief, are the holders of rights that are embodied in documents such as the Charter of Rights and Freedoms. However, they are also responsible, in a close to complete way, for the actions that they take. Therefore, if one of us is charged with a crime it is us (the individual) versus the state—Smith v. R. By doing so, we often ignore the complexity of social networks and informal controls that go into keeping someone away from criminality. Also, more than just the individual can be blamed for criminal events. Communitariaism and Communitariaism and Restorative Justice Communitarianism developed as a strong critique of the liberal obsession with individualism. It argued that justice must also be seen as concern of, by, and for communities. Communitarianism has a long intellectual history and includes such notables as Plato, Hegel, and modern thinkers such as MacIntyre, who argue that individual rights might be trumped by collective rights. In liberalism we have generally had a problem in conceiving of rights in a collective fashion. We might ask general questions such as: How does crime affect various communities? Are communities victims? And do communities have concerns and innovations that can be used to reorient justice policies? Communities might be particularly affected by corporate polluters more so than a particular individual. Restorative justice and communitarianism, therefore, are both concerned with redefining justice as a community concern and are further interested in re focusing communal energies in coactive ways. General Features of General Features of Restorative Justice Restorative justice seeks to bring together various involved actors. 1. The victim and the victim’s family. 2. An active and healing role is played by the offender herself. 3. The police and the legal system. They move into the area of conflict resolution and mediation. The police officer becomes less a purveyor of violence and control and more of a community worker. 4. The community in various forms and ways. This includes social clubs, private businesses, nonprofit groupings, and churches. Aboriginal groups have taken the lead in this regard with their notion of the ‘healing circle’. The basic premise here is that: If a crime occurs the entire community will suffer the consequences of a disharmony. That is, an imbalance has been created by the crime that needs to be addressed and resolved—balance and harmony must be, in other words, restored. The police must, in sum, move from the role of an occupying and aggressive force in certain criminogenic communities to one of “organizing and facilitating community conferences” (Whitelaw, 155). Continued Continued As Whitelaw says: “Patrol officers not only need to understand the principles of restorative and community justice, but must also develop the skills to bring together the various stakeholder groups, including the offender and the victim, their respective support groups, and other parties” (155). ...
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This note was uploaded on 04/07/2011 for the course CRIM 101 taught by Professor Morgenson during the Fall '08 term at York University.
- Fall '08