Prior to the introduction of the Restorative Justice Act, criminal justice was primarily punitive in its nature. Restorative justice is not something new. It has been in existence for some time and is used as an alternative to punitive forms. However, although restorative justice is not new, it still is comparatively modern, taking into consideration that criminal justice the world over was originally punitive in its nature. In fact, restorative justice came into being due to the failure of the punitive system in preventing further offending.
Restorative justice, unlike the punitive system, advocates forgiveness, healing, reintegration, reconciliation...- Ann Marie Mangion
Why did the punitive system fail society?
According to Julia Fionda, the punitive system failed due to the traditional penal sanctions that included the collapse of the welfare ideal and of the rehabilitative ideal (Devils and Angels, Hart 2005, p. 175).
Ms Fionda added that the punitive system failed society because it further excluded the offenders from a society in which they already felt ostracised and, moreover, the punitive system ignored the needs of the victims.
In fact, the punitive system was solely interested in punishing the offender. The victim had no place in the punitive system. The victim was simply used and then discarded in the pursuit of determining whether the accused is guilty or not.
Restorative justice is unlike the punitive system. It is not only concerned with the offender but also with the victim and the victim is given an important role in the restorative model.
Fionda opines that “Proponents of the restorative justice approach argue that any attempt to deal with offending behaviour must restore, as far as possible, equality between the parties and maintain equal respect for all involved. So too must the criminal justice system recognise that the victim is equally entitled to consideration in a process that is ordinarily heavily offender oriented and this is achieved by the application of the restorative philosophy” (p. 177).
The aim of restorative justice is to restore the balance because it is believed that when a person commits an offence against another person there will be a shift in balance due to the conflict created. Thus, through restorative means, this model aims to eliminate such conflict and restore the balance.
In fact, the Restorative Justice Act brings into practice two major previously non-existing elements in our criminal justice system. These are parole and the victim-offender mediation.
Although parole has just been introduced in the criminal legal system, still it is not that new to our knowledge. The term parole is derived from the French phrase “word of honour”, according to Richard Worth in Probation and Parole, US, 2002, p. 40. Early forms of parole have been around since the 19th century in places such as the US and Ireland (p.41).
Parole does not merely mean that the convicted offender is set free before having spent the entire conviction sentence in jail but it is a major step forward towards actually restoring the convicted offender back to a society that is ready to ostracise him/her.
However, the major step forward towards restorative justice, and perhaps the most unheard of, is the victim-offender mediation. One might wonder what sort of mediation can be done and what sort of agreement can ever be achieved between the offender and the victim.
The victim-offender mediation offers reconciliation and closure. However, not everyone is eligible to go to victim-offender mediation.
First of all, the offender must admit committing the offence in question and must also be willing to enter into mediation. The offender must voluntarily agree to take part in the victim-offender mediation. The victim, just like the offender, must voluntarily agree to take part and be willing to enter into such mediation.
Whether victim-offender mediation takes place or not will be especially determined by the nature of the offence, including the level of harm caused by or violence involved in its commission according to the law. Not all victims and offenders are eligible to victim-offender mediation and account will be taken of the victims’ motivations in meeting up with the offender and vice-versa.
The personal characteristics of both the offender and the victim will be considered as well as the impact of the offence as seen by both the offender and the victim.
The possibility of psychological repercussions on the victim is also taken into account as well as the offender’s remorse for his/her actions.
What is interesting is that the victim-offender mediation takes place without any legal counsel ends when agreement is reached, when an agreement cannot be reached or when the parties do not wish to carry on with the mediation.
The agreement reached can include compensation for damages, non-pecuniary compensation, community service or even rehabilitation programmes and formal apologies. This is not an exhaustive list.
Restorative justice, unlike the punitive system, advocates forgiveness, healing, reintegration, reconciliation and is specifically aimed at offenders and victims. It also offers support to offenders and closure to victims and also strengthening the relationships in communities.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.