Restorative Justice

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Restorative Justice

Restorative justice is a process in which the parties involved, that is an offender and a victim engage in a discussion to substantiate how each has been affected by the said injustice and decide together on the possible solution for their repair. (Braithwaite, 2004). This is an approach that is centered on the victims and offenders engaging in mediation through argument for mutual satisfaction with the involvement of the community. In this case, the former take a very active role in this process as the latter embrace responsibility for their actions in an attempt to rectify their fault, redeem themselves from the wrongs, and avoid future offences.

This approach is based on the Theory of Justice according to which, rather than wrongdoing being considered crime against State, it is regarded as an offence against an individual or community (Alec, 2015). Unlike other traditional criminal justice ways that seek to know the laws that have been broken by who and the most appropriate penalty, restorative justice bases on an individual who has been affected, what has been interfered with, their stake, possible causes and the relevant process of resolution (Zehr, 2005). There exist various sources of restorative approaches to crime and offence dated to several years back such as the Code of Ur-Nammu of 2060 BC which necessitated restitution in cases of violence in Sumer, the Code of Hammurabi in Babylon, and the Twelve Tables in Rome among others.

In an attempt to restore tranquility in the society and repair harm caused by conflicts, crimes and victimization as well as mending broken relationships to bring people together in the United States, Canada, Europe and other nations, restorative justice has seen fast growth to become an international social movement. This effort is attributed to the contributions of the First Nations people of the United States and Canada, the Maori of New Zealand, a representation of the way of life embraced by indigenous groups. This was a way of restoring the moral traditions, allegedly repressed by colonial powers (Zehr, 2005). This has been further enhanced by the Church of Mennonites in North America through Mennonite Central Committee, the church’s social action arm by popularizing this theory and practices of social justice. This is perceived as a more humane as other criminal justice ways. Such has been recently followed by support of various NGOs such as Victim Offender Mediation Association as well as establishment of academic centers like Center for Justice and Peace Building and Center for Peacemaking and Conflict Studies at Eastern Mennonite University in Florida and Fresno Pacific University respectively, among others (Johnstone et al, 2007).

There are a number of examples where restorative justice has been put into practice such as in criminal cases, system-wide offences in confinements and matters pertaining to social justice. An illustration extract from the New York Times on page A 13 of April 4, 2013 sheds light on the efforts made by a non-profit making NGO known as Restorative Justice for Oakland Youth that have had to leave homes due to misunderstandings as well as those at school. Mr. Butler, one of the coordinators of the program takes part in such resolutions to restore the relationships and lost ties emanating from these misunderstanding without the involvement of law enforcement agencies and without taking legal actions against offenders.

In restorative justice, an individual victim is perceived to have an upper hand in conflict resolution, this is attributed to the fact that having been harmed and having lost something of value either in person or of an item, he/she is expected to demand what, according to them befits the offender in recognition of the offender’s ability to compensate in certain conditions. It therefore leaves the offender with no alternative but to comply, only subject to the mercy of the victim and the community acting the midwifery role. This is unlike other legal dispute resolution ways where both parties have equal rights such that the final verdict depends on specific laws and statutes of legal proceedings. This pauses some challenges some of which include breach of the state or national laws in which circumstances and situations recognized by law as a way defense for offenders may be disregarded in the pursuit of peaceful settlement. There also exists the possibility of extortions against the offending party in a case where the accused has the ability to meet the demand of the victim or one is seen capable of shouldering the cost of damages in case of personal property of the victim. One may place too high demand in an expectation to gain more than they actually deserve. Another major impediment is inability to actually determine the truth due to lack of involvement of law enforcement urgencies with expertise in investigative activities. The result of this is likely to be unfairness on one party over the other. Therefore, the solution to this would be to restrict these negotiations within the legally recognized stipulations so that in as much as relations are restored, the laws of the country are not violated while at the same time encouraging restorative justice for amicable resolution of conflicts for the good of the citizens. As noted, restorative justice left alone mainly for the affected to take active role in addressing the crime with law professionals taking secondary roles in the process may not yield desired outcomes as far as national values and constitutional stipulations are concerned. In many instances the affected party is likely to go beyond limits in setting standards and conditions aimed at ill-treating the culprit. In a case where the accused is a peace-loving individual, this is likely to force them to struggle and meet such set conditions, a possibility of untenable strains on an individual. In the process, one is likely to commit another or more crimes either deliberately undeliberately so as to settle the existing score. Another big impediment towards the effectiveness of this that requires consideration of the laws of the land is the inability to dig into the root cause of the crime by the accused. Owing to the fact that the offended party has to negotiate with the offender, there are high chances of emotions to reign during the negotiation process catapulted either by personal differences or other issues. In this case, peace may be restored at the expense of real justice. Therefore, Restorative justice should be encouraged but within the bounds of clearly stated laws recognized justice to prevail.

References

Boyes-Watson, C. (2014). Suffolk University, College of Arts & Sciences, Center for Restorative Justice

Braithwaite, John (2004-01-01). “Restorative Justice and De-Professionalization”. The Good Society. 13 (1): 28–31. doi:10.1353/gso.2004.0023. ISSN 1538-9731.

Johnstone, Gerry, Daniel W. Van Ness. Handbook of Restorative Justice. Devon, UK: Willan Publishing, 2007: 55 (footnote).

Zehr, Howard. Changing Lenses – A New Focus for Crime and Justice. Scottdale PA: 2005 (3rd ed), 271