Law Essay Example on Restorative Justice

Young people have borne the brunt of the punitive criminal justice system for a long time. However, the rates of reoffending have not decreased. Consequently, restorative justice has been embraced with a view to reducing the reoffending rates and deterring new offenders from involving themselves in criminal or deviant behaviour.

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In England, restorative justice has been in use for a long time at various levels for solving situations. This paper seeks to evaluate the effectiveness of Restorative Justice in working to stop reoffending in England and its impact on victim of the crime. Restorative justice is a concept that has ample room for multiple definitions nod implementation methods. In the last two decades, the idea of restorative justice has cropped up in different locations globally under multiple definitions. It has cropped up in the workplace, in academics, politics and the judicial system. Restorative justice on the broad outlook may be used to refer to a mode of resolving conflicts where there is unconventional sanctioning option or a different from the usual mode of criminal justice which centres on the fundamental principles of restoration to victims, offenders and the immediate community as asserted by Cunneen & Hoyle. Restorative justice may also be used to refer to resolution methods that deviate from formal court procedures. These methods may encompass meetings between the accuser and the accused during the resolution process, actions taken that run parallel to court decisions and other actions that are necessary for the resolution process. Restorative justice has been used in criminal cases, child welfare cases and juvenile justice. The concept has many aliases which include reparative justice and informal justice.

Despite the many definitions of restorative justice, it has a singular meaning which it represents. The core underlying principles of restorative justice remain similar despite the different definitions or explanations. Similarly, the methods which are used in restorative justice may differ but the end goals remain the same based on the fundamentals. The main emphasis of restorative justice is to repair the damage caused by criminal activity and to mend the social ties broken by criminal activity. The central focus of restorative justice is the relationship between the accuser, the accused and the surrounding community.

History of Restorative Justice

The history of restorative justice cannot be simplified into independent categories because the events in the build up to the concept of restorative justice of today took place in overlapping layers of actions, thoughts and decisions some of which are connected while others are not related. Consequently, to understand the past of restorative justice, one has to look at events in their singularity. Restorative justice has developed into an item in the catalogue of the global justice market. Some parties are more concerned with the idea of selling it rather than establishing its usefulness and impact on social, philosophical, and political implications. However much the concept of restorative justice may seem as simple based on the ideal fundamentals it stands for; the debates that arise from the concept make it complex. For example, the reasons behind punishment for crime, the most ideal methods of conflict resolution (their strengths and weaknesses) and the relationship between individuals, the community and the state.

Usage of the term restorative justice was first introduced in modern-day criminal justice circles in the 1970s. Zernova is of the opinion that Albert Eglash instigated use of the term in his articles in 1977. However, Skelton as quoted by Walters asserts that Eglashs articles were reprinted from another series published by Eglash in 1958-1959. However, the 1970s was a time when the criminologists of the time held a largely unfavourable opinion of the modern criminal justice system. Consequently, there was a need to seek out alternative systems of criminal justice. The modern day criminal justice system was considered as a punitive mechanism of handling crime and delivering justice. Alternative mechanisms were hypothesized. Attention to the concept of restorative justice was highlighted by articles published in 1977 by Randy Barnett, Nils Christie, and Albert Eglash. Their work brought to attention the quagmire in the present day criminal justice system that was not effective in handling crime from the perspective of all the parties involved. Consequently, this work formed a basis for victimologists such as Hans von Hentig (1887-1974) and Benjamin Mendelsohn (1900-1998) to research their theories. In addition, Margery Fry (1874 1958), a British reformist was of the opinion that victims were neglected by the current system which focused its attention on the accused. Fry made a proposal that desired to use restitution formally.

The Early Societies

Raymond Michalowski is of the opinion that the human societies that have been in existence can be classified into two wide historical categories. These categories are: acephalous and state. Acephalous societies are the first groups of humans to be recorded in history and have certain distinct characteristics. They can be identified by their kin-based organisation, social bonds tied to group values and their drawn-out organization. The Acephalous are also the initial type of human beings in organized society and the only organized society for an estimated 30,000 years. According to Arthur Hartmann, acephalous societies can be identified from nomadic tribes and segmental societies. The difference between acephalous, nomadic tribes and segmental societies was that the last two were lesser, did not cooperate much economically among themselves and were to a greater extent egalitarian.

Rene Kuppe comes forward with three fundamental features of acephalous societies. Firstly, these societies had a close link between their societies and their lebensraum. Secondly, from the Western sociologists point of view, these societies were assumed to be without organized state and social stratification. Thirdly, conflicts were handled in a manner that did not involve execution of institutional power by the state authority. The premise suggested by Michalowski to explain the reason these states could control potential deviants is that the society ran on collective responsibility. The instilment of group feeling by the society led to less likelihood of egoistic behaviour. On the other hand, at times, deviance did occur. When deviance occurred, it was handled by taking action on the offender or doing something for the victim. This process was handled without a formally structured legal framework.

Perhaps, one of the most suitable historic examples of victim restoration is narrated by historian Franklin Barton, a researcher into the acephalous society of Ifugao of Northern Luzon in the Philippines. Barton narrates that the relations to both parties expressed desire for an amiable settlement where such a solution was possible. The general feeling among the neighbours and other village members was a united society that could withstand internal conflicts with minimal damage. As opposed to a quarrel, claims, arguments and counter-arguments were communicated through the monkalun [the go-between/mediator]. The exchange ended when an agreeable settlement was arrived at.

Michalowski further suggests that the acephalous society had four ways in which they restored the balance of the community that had been earlier disturbed by an undesired event. These were blood revenge, reprisal, satisfaction by rituals, and the most popular was restitution. In todays context, the implication of the latter is different. For example, it could be used to refer to restoration, making of amends, reimbursement or pardon. In the initial acephalous societies, antisocial behaviour was perceived differently by the community members, victims and offenders as compared to the current modern point of view. The ancient acephalous communities took restitution in its full meaning. Michalowski particularly states that the interaction between the offender and the victim was more personal than is seen today. Consequently, strong bonds were formed and at times this resulted in deterrence of future deviant behaviour. The core principle was that deviant behaviour was regarded as a community problem rather than an individual issue. Where deviance was exhibited, the community took the blame rather than an individual who was expected to take damage control measures for their wrongdoing. As a result, resolution of an offense involved active participation of both the victim and the offender. The process of justice was normally a restorative process. The role of the mediator was left to the community who participated through selected representatives. The fundamental belief behind the dealing with offenses at a personal level was that the offender would be rehabilitated and the potential deviant would be deterred. Moreover, the victim would have their sense of loss removed and the balance that had been disturbed in the social relationship in the community restored.

Historical recollections of the execution of justice systems in initial societies mostly agree that punishment was not the focus of the system. Punishment was a...