What Is Another Term That Retribution Advocates Use to Describe the Concept of Blameworthiness?

This module is a resource for lecturers

Topic one - Concept, values and origin of restorative justice

Before looking at the concept of restorative justice, the Module explores how conventional criminal justice systems seek to achieve justice.

The criminal justice system and legal justice

Conventional criminal justice systems focus largely on applying the constabulary, assessing guilt and administering punishment. Sure acts are classified equally 'crimes' because they are considered to exist offences against lodge at large, not simply confronting individual victims. They are thought of as public wrongdoings rather than private and, appropriately, criminal justice systems respond on behalf of guild equally a whole. Conventional justice responses to crime tend to focus on punishment, deterrence, denunciation, retribution, and community safety for breaches of the law, considerations which have to be balanced by the court in the process of sentencing. It is worth noting, however, that rehabilitative goals, particularly for children, accept gained importance over by decades. Goals of rehabilitation are reflected, for example, in the Convention on the Rights of the Kid (1990), which places emphasis on diversion from formal proceedings and the utilise of alternative measures whenever appropriate (article 40 (iii)(b) every bit well as on the child'south reintegration, article xl (1)).

Punishment is the main style that society denounces a criminal human action as violating the shared norms on which social club depends. The severity of the punishment is meant to be proportionate to the seriousness of the human action committed, thereby rectifying the moral imbalance created by the offence. Considering penalty is concerned with the infliction of pain or the withholding of certain liberties, which must be advisedly and justly applied, criminal justice process has a range of in-congenital legal safeguards. To be considered 'just', punishment must exist both morally deserved and proportionate to the gravity of the offence.

In recent decades, efforts to strengthen the role of victims in criminal proceedings have seen the introduction of various mechanisms for victims to "inform the courtroom well-nigh the harm acquired by the offence" (Erez, 1994, p. 63). While these mechanisms differ, depending on the legal system and the legislation in identify in each state, it is largely the case that conventional criminal justice systems provide express scope for the relevant parties to appoint in dialogue with the aim of restoring respect and trust in relationships. Safeguards introduced through victim-focused reforms have been found to be fractional, meaning that victims could yet experience secondary victimization by the court process and/or as a result of measures to strengthen victims' rights (see Dignan, 2005). For example, victims' expectations accept non been met in cases were compensation was ordered but non paid to victims, or where fiscal compensation does little to come across victims' psychological and emotional needs. Limited implementation of victims' rights is likewise shown by a Victim and Witness Satisfaction Survey conducted in the United Kingdom, in which just 35 per cent of victims gave a personal argument to the courtroom (Forest et al., 2015). Results from the same survey show that ane fifth of victims reported feeling dissatisfied with the extent to which they were informed during the criminal process, and 19 per cent of victims expressed dissatisfaction with the Crown Prosecution Service (Woods et al., 2015). For farther information, see Module 11 on Admission to Justice for Victims.

Meeting justice needs

In contrast, restorative justice is an approach to crime that focuses on trying to repair the impairment that it has caused by involving those who have been affected. It understands offense not simply as a legal infraction that requires public condemnation, but also as an injury to existent people and relationships that needs healing. Those caught up in the event are left with a range of physical, emotional, psychological, spiritual and material needs, and these and then-called 'justice needs' have to be addressed if they are to experience that justice has been served.

Victims

Victims frequently take the most visceral needs. To be the target of some deliberate malice or violation by some other person can have a profound bear on on a person's sense of well-existence and cocky-worth. Victims are oft left feeling bewildered, demeaned, used, angry and insecure. Their sense of freedom is constricted by fears and anxieties, by anger and bitterness, every bit well as sometimes past concrete or material losses. The pain of the offence and the memory of the offender has the potential to practise a debilitating influence over the victim's entire life.

Historically, the criminal justice arrangement has given scant attention to the needs of victims. This is because victims are almost incidental to the judicial procedure since, in most modernistic criminal justice systems, the designated "victim" of the offence is the land, not the actual person injured, and the criminal charge is one of breaking the law, not harming the person. The part of the injured party is simply to requite bear witness on behalf of the prosecution and, beyond this limited part, victims are not typically given a stake in the process. Often, victims may not even need to exist personally present during the trial, since the criminal process is not really almost them, it is about the police. Consequently, when victims look to the courts to deliver them a sense of justice - as instinctively they do - they are oftentimes disappointed.

Offenders

Offenders as well accept justice needs. They demand a fair trial and due process. They need to come to terms with the consequences of their deportment and be held accountable for them. They need their full humanity to be acknowledged, not just their darkest deeds, and they oftentimes need help in addressing their own legacy of trauma, disadvantage and victimization. They likewise demand the opportunity to brand amends for their crime and be accepted dorsum into the law-abiding community.

In principle, the justice arrangement consciously tries to accost the needs of offenders, specially their demand for a off-white trial. Even so, in practice, the dominant goals of the system, in determining guilt and apportioning punishment, often eclipse whatever attempt to address the total reality of the offender'southward experience and needs.

The friends, families, colleagues, associates and other members of the customs of both the victim and the offender are also often afflicted by what has happened (see UNODC Handbook on Justice for Victims, 1999; and Module 11 on Admission to Justice for Victims). The harm ripples out to affect their lives in a diverseness of ways. While the justice system is intended to deed on behalf of the interests of the community at large, it does little to involve customs members in addressing the causes and consequences of behaviour that has acquired such havoc.

The touch of criminal offence, therefore, creates a complex range of justice needs for the people involved - needs which the conventional justice system struggles to run across adequately. That is not to say that the organization is totally indifferent to these needs. To find a meaningful sense of justice, victims oft need their abuser to hear of their hurting, answer their questions, reassure them of their safe, and affirm their dignity. Conversely, offenders need the victim to disembalm the human being consequences of their actions, to hear their remorse and receive their apology, and to give them a chance to make things right again. Both parties, in other words, hold important keys to the other's restoration - both have a part in meeting the other's justice needs and in transforming their relationship into a healthier condition.

This is where restorative justice has something special to offer. It brings together those afflicted past an incident of wrongdoing to name the wrong that has been done, to depict the needs information technology has created, to identify the obligations that now exist, and resolve together how best to repair the damage and prevent recurrence. It is these things that thing mostfor the individuals involved, and for social club as a whole.

What is restorative justice?

How can the concept of restorative justice exist understood, and what are the underlying values and principles at the heart of this approach?

Restorative justice refers to a way of responding to crime, or to other types of wrongdoing, injustice or conflict, that focuses primarily on repairing the harm acquired by the wrongful action and restoring, insofar as possible, the well-being of all those involved. It reflects a more relational theory of justice because it emphasizes the restoration of respect, equality, and nobility to the relationships affected by wrongdoing. Restorative justice is called 'restorative' considering it employs restorative processes, that is, processes that restore bureau, ownership and conclusion-making ability to those directly affected by the harmful event - victims, offenders, their supporters and the wider community. Rather than deferring all responsibility to the state or to legal professionals, it aims to appoint the immediate participants in resolving the harm.

Restorative justice is also chosen restorative considering it is guided by restorative values, those that favour collaborative and consensus-based procedures over the adjudicative and adversarial forms that often characterize conventional criminal justice procedures (Robins, 2009). When people who have caused injury are invited to truthfully acknowledge their wrongdoing, listen respectfully to those they accept hurt, and honour their duty to put things right again, pregnant steps are taken to restoring dignity and meeting the needs of all parties. Furthermore, restorative justice is also grounded in feminist relational theory, based on the relational nature of human being beings and "an understanding of the cocky as constituted in and through relationships with others" (Llewellyn, 2012). It views wrongdoing in relational terms, as "damage caused to individuals in relationship with others and in the connections between and amidst them".

The definition of restorative justice cited in the Key Terms of this Module, includes a range of key values, such as 'voluntary' participation, 'truthful' speaking, the creation of a 'rubber and respectful' environment, a positive delivery to 'repair' and a concern to 'clarify accountability for harms'. This is not an exhaustive list of cadre values, but it highlights how crucial relational values are to a restorative process.

Respect is of particular importance (Zehr and Gobar, 2003). Criminal offending, and other kinds of injustice, are experienced fundamentally every bit an act of disrespect, a failure to value one's inherent dignity, identity, rights and feelings. This boldness can only be remedied by respect, by a clear acknowledgement on the part of the offender that the victim did non deserve to exist treated as they were, and that their rights, feelings and interests matter every bit as much every bit those of the perpetrator. "Restorative justice offers an alternative vision criminal justice and rightly locates the interests of victims of law-breaking at its cadre" (Chan, 2013, p. 19).

While acknowledging the harm to victim/s is crucial, accountability also means bold responsibleness for addressing the consequences of one's actions (Zehr and Gobar, 2003). When the criminal justice arrangement holds someone accountable, this ways ensuring they become the penalization they deserve, irrespective of whether they accept personal responsibility for what happened. In restorative justice, accountability has a much more demanding character. It requires 3 things of offenders: an acceptance of personal blame for inflicting harm; a willingness to witness first-hand the consequences of their actions on the lives of those they hurt; and an supposition of agile responsibility for doing all they can to put things correct again (Zehr and Gobar, 2003).

Origin and development of restorative justice

The dialogical and restitutive grapheme of restorative justice is non unique. Similar values and processes are reflected in several ethnic cultures. An early pioneer of restorative justice, Howard Zehr, argued that prior to the emergence of the nation state, wrongdoing was primarily viewed in an interpersonal rather than a legal context. This era of customs justice was far less systematic and mostly had a restitutive character. The personal, customary and negotiated features of customs justice were somewhen replaced by a more institutionalized and centralized system of legal justice. Rather than communities, the state had responsibility to enforce a arrangement of laws and punishments (Zehr, 1990).

By contrast, most indigenous traditions viewed wrongdoing in profoundly communal rather than legal terms. This created a collective responsibility to respond to the impairment acquired by wrongdoing, involving a much wider web of relationships surrounding both offender and victim. These traditions have influenced the modern development of restorative justice, as highlighted in the preamble to the Bones Principles (2000): restorative justice "frequently draws upon traditional and Indigenous forms of justice, which view offense every bit fundamentally harmful to people." Arguably, 1 of the greatest harms perpetrated by European colonialism was replacing indigenous mechanisms of social regulation and belonging, with an abstruse, law based organization of state command and coercion.

The modern concept of restorative justice developed in the 1970s in Northward America, when the first restorative justice programmes emerged. In 1974, two probation workers in Kitchener, Canada, brought victims and offenders of a vandalism case together to bargain direct with the wrongdoing and discuss ways to repair the harm. This successful experiment led to the establishment of the Victim-Offender Reconciliation Program (VORP) nether the auspices of the Christian Mennonite Committee, and provided the inspiration that led to other innovations in North America and beyond. As the plan grew and developed over the post-obit decades, it generated a new paradigm for thinking about crime that somewhen became known as 'restorative justice'.

Around the same fourth dimension that restorative justice was developing in North America, there were similar developments occurring in Europe. Norwegian criminologist Nils Christie, one of the representatives of the abolitionist motion in Northern Europe, voiced his critique of the criminal justice system in his commodity "Conflicts as Property" (1977). He argued that the concept of crime was an abstraction that should instead be understood equally conflicts between actual people. Moreover, people take a proprietorial right to their conflicts. What transpires in the criminal justice process is that legal experts have stolen these conflicts away from the parties to which they belong, thereby denying victims and offenders the right to participate in the resolution of their case.

Christie argued that conventional criminal justice processes do non meet the needs of victims, offenders, and the wider community and, rather, those with a personal stake in a case should exist empowered to have buying of their personal conflicts to better meet their needs. The abolitionist thinking of Christie and other scholars (e.g., Louk Hulsman and Herman Bianchi) contributed to the theory of restorative justice and influenced its development, particularly in Northern and Central European countries (e.g., Norway, Republic of finland, Republic of austria).

The emergence of restorative justice has as well paralleled other reforms and innovations in criminal justice, in particular: the influence of the victims' rights movement; and attempts to strengthen the role of victims in criminal proceedings (justice for victims is examined in further detail in Module 11). Diversionary and rehabilitative approaches in sentencing take also impacted on the development of restorative justice and, in some cases, culminated in the introduction of legislative provisions for the commitment of restorative justice services, particularly for children in disharmonize with the police.

The reform of the youth justice system in Aotearoa, New Zealand following the passage of the 1989 Children, Young People and their Families Human action is sometimes misconstrued as a conscious endeavour to recover Māori customary methods of dealing with family or tribal disharmonize. Nevertheless, it was sensation of the devastating impact of the mainstream European justice and welfare systems on Māori children, in detail, that provided the impetus for youth justice responses that are more participatory, family-based, and more uniform with indigenous values. This led to the birth of Family Group Conferencing, an innovation that has played a significant function in promoting restorative justice throughout the criminal justice system of New Zealand and in other parts of the world (for analysis of the influence that Family Grouping Conferencing has had in Thailand, for example, see Roujanavong 2005).

In addition to its application in the field of criminal justice, restorative justice has informed practice in other areas, such equally child protection, educational settings (see for instance Karp and Schachter, 2018; Sellman et al., 2013; Thorsborne, 2008; Hopkins, 2004), workplace disputes (e.g., Dekker and Breakey, 2016), family conflicts (e.yard., Daicoff, 2015), environmental issues (east.g., Stark, 2016), elderberry harm (eastward.g., Groh, 2003), and in post-conflict settings (e.thou., Aertsen et al., 2012; and Valiñas and Vanspauwen, 2009. Run into also Braithwaite and Tamim, 2014, for assay of lessons regarding the utilisation of restorative justice in post-disharmonize Libya).

A meaning limitation, in the field of restorative justice, is that much of the academic scholarship on restorative practices derives from, and relates to, the contexts of Europe, North America and countries such as Australia and New Zealand. Accordingly, it is oftentimes the programmes in these countries that are well known. Yet scholars have also noted the importance of furthering research on restorative practices that build on traditional or customary restorative processes in regions such every bit Asia (Chan, 2013); and Africa (encounter, for example, Park, 2010, on Sierra Leone; Robins, 2009, on Republic of uganda; and Kilekamajenga, 2018, on Tanzania), and countries such as Islamic republic of pakistan (see Dzur, 2017, for example, for an interview with Ali Gohar). A leading restorative justice advocate, Ali Gohar, has worked extensively to highlight the complementarity of restorative justice, and the indigenous system of Jirga (a community based conflict transformation approach in the Pukhtoon chugalug of Pakistan) (Run into, for example, Dzur, 2017; Zehr and Gohar, 2003; and the website of the Just Peace Initiatives).

International framework relating to restorative justice

Of considerable importance for promoting restorative justice at the global level are the United Nations Basic Principles on the Utilize of Restorative Justice Programmes in Criminal Matters (2002), which provide standards and safeguards on the employ of restorative justice initiatives. Every bit emphasized in the Bones Principles, restorative justice is "an evolving response to criminal offence that respects the nobility and equality of each person, builds understanding, and promotes social harmony through the healing of victims, offenders and communities" (Economic and Social Council Resolution 2002/12, preamble).

Furthermore, the United Nations Proclamation of Basic Principles of Justice for Victims of Criminal offence and Abuse of Power (1989) underlines the value of breezy dispute resolution processes to enhance conciliation and redress for victims (for further information run across Module xi on Access to Justice for Victims).

Restorative justice values are besides reflected in other United Nations documents, such every bit the (legally binding) Convention on the Rights of the Child (1989), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice - the 'Beijing Rules' (1985), the United Nations Guidelines for the Prevention of Juvenile Delinquency - 'Riyadh Guidelines' (1990), the United Nations Standard Minimum Rules for Non-custodial Measures - the 'Tokyo Rules' (1990), and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders - the 'Bangkok Rules' (2010). These documents encourage Member States to promote greater customs involvement when responding to offending, and to enhance diversion and alternatives to imprisonment.

The 2015 Doha Proclamation (GA Resolution 70/174) emphasizes the importance of restorative justice in the resolution of social disharmonize through dialogue and mechanisms of community participation, as well as in the area of prisoner reintegration (article 5(j) and 10(d)).

In Europe, guiding documents adopted by the Council of Europe (CoE) and the European Union promote the utilise of restorative justice. Of particular importance is the Council of Europe Recommendation (2018) 8 apropos restorative justice in criminal matters, which replaced Recommendation Rec No. (99) 19 concerning mediation in penal matters. The 2018 CoE Recommendation aims to promote the development and utilize of restorative justice in the criminal justice context, and elaborates on standards for its use, encouraging safe, constructive and evidence-based practice. Moreover, the document aims to integrate a broader understanding of restorative justice and its principles than is laid down in the 1999 Recommendation. A further aim is to elaborate on the use of restorative justice past prison and probation services (encounter Commentary to recommendation CM/Rec (2018)). The recommendation emphasizes a broader shift in criminal justice across Europe towards a more restorative approach.

Furthermore, the European union Victims' Rights Directive (2012) establishes minimum standards on the rights, support and protection of victims of criminal offence and underlines the potential of restorative justice programmes. This legally binding and enforceable instrument can exist considered a milestone in providing protection and assistance to all victims of law-breaking in European Marriage Member States. It replaced Quango Framework Determination 2001/220/JHA on the standing of victims in criminal proceedings, which required Member States to make legislative provision for victim-offender mediation. This Framework Decision was relevant in several European countries to introduce mediation in penal matters and acknowledge the impact of restorative outcomes within criminal proceedings.

The Council of Europe Recommendation (Rec (2006) 2) concerning the European Prison Rules highlights the importance of restoration and arbitration to resolve disputes with and amidst prisoners (2006, Rule 56.2), too as when dealing with complaints and requests from prisoners (2006, Rule 70.2).

For children in conflict with the law, in particular, Council of Europe Recommendation No. R (2003) 20, apropos new ways of dealing with juvenile offenders and the office of juvenile justice, and Recommendation (2008) xi on European Rules for Juvenile Offenders Discipline to Sanctions or Measures (ERJOSSM) both refer to the employ of restorative justice and reparation. Recommendation No. R (2003) 20 emphasizes the use of more innovative and effective responses when dealing with serious and violent offending, and encourages the use of mediation, restoration and reparation to the victim (article 8). The 'European Rules for Juvenile Offenders Subject to Sanctions or Measures' recommend that mediation and other restorative measures should exist available at all stages of the criminal process, including at sentencing (2000, Basic Principle 12). The promotion of alternatives to judicial proceedings, especially mediation, diversion and alternative dispute resolution, is further emphasized past the Council of Europe Guidelines on Kid Friendly Justice (2010, No. 24). At a regional level, the Lima Declaration on Restorative Juvenile Justice (2009) aims to strengthen the implementation of restorative approaches in Latin America.

In addition to this guidance, devised largely at the international and regional levels, it is equally important to note that traditional and grassroots practices within communities are often based on restorative processes. Indeed, scholars have identified that effective restorative practices require a combination of importance grassroots principles virtually community justice, and broader mechanisms of conventional or restorative justice (meet, for example, Robins, 2006, with respect to Uganda; and Kilekamajenga, 2018 with respect to Tanzania).

Safeguarding principles for restorative justice processes

The Bones Principles provide fundamental safeguards for victims and offenders, such equally the right to exist fully informed of their rights, the process and possible consequences of their decision, the correct of minors to the assistance of a parent or guardian, and the correct not to participate in a restorative process (2002, Bones Principle 13).

As stipulated in the Bones Principles, restorative processes should always be based on the gratuitous and voluntary consent of both the victim and the offender, and they should exist given the option to withdraw their consent at any time during the procedure (2002, Basic Principle 7). Participation of an offender should not be used equally evidence of guilt in subsequent legal proceedings (2002, Basic Principle 8).

Equally further emphasized in Basic Principle xv (2000), outcomes of restorative processes should be judicially supervised or incorporated into judicial decisions or judgements and, in such cases, should have the aforementioned status every bit any other judicial decision or judgement. In cases where an agreement betwixt parties at a restorative dialogue cannot exist reached, this failure should never be considered to the offender's detriment (2000, Bones Principle sixteen), and failure to implement an agreement should never result in a more astringent sentence in subsequent criminal proceedings (2002, Basic Principle 17).

Further central principles refer to impartiality of facilitators, respect to the nobility of parties and awareness of local cultural matters (2002, Basic Principles eighteen and nineteen). Solutions should be proportionate and reasonable and agreed by all parties.

Moreover, the Basic Principles recommend that guidelines and standards on the utilise of restorative justice should be developed and include provisions virtually referral conditions and the treatment of cases, the skills and training of facilitators, the administration of restorative justice and rules of conduct relating to how restorative justice programmes operate (2002, Bones Principle 12). Such standards are important to ensure the high quality of practice and promote equal access to services.

Research relating to participant satisfaction

In terms of participants' experiences with restorative processes and outcomes, numerous enquiry studies have revealed high levels of satisfaction among victims and offenders (Shapland et al., 2007; Umbreit et al., 2008; Strang et al., 2013; Bolivar et al., 2015; Doak and O'Mahony, 2018; Hansen and Umbreit, 2018).

An evaluation of three restorative justice schemes in the United kingdom of great britain and northern ireland found high satisfaction rates for both victims and offenders - 85% of victims and 80% of offenders were very or quite satisfied with restorative justice processes (Shapland et al., 2007). Participants also expressed high levels of satisfaction with restorative justice outcome agreements. Xc percent of victims reported that their offenders had apologized.

Victims participating in restorative conferences reported:

"I was really pleased with what the offender said. He was sincere. At that place were some tools taken and I discovered where they were. He owned up to it."

"I felt the briefing was quite productive, he signed an agreement nigh drug awareness, he's going to write to me of his progress, and past April he's agreed to pay dorsum the money he stole. I'grand glad I didn't hit him, I took pity on him really, when I walked into the room and saw his mother and girlfriend crying. I am pleased with the effect provided he doesn't renege on information technology."

Offenders were also satisfied with the impact of the conference on them:

"Information technology went surprisingly well to be honest - did not think that information technology would really be like this. Actually he (the victim) was pretty OK with me because what I did."

"Nervous about taking function, quite panicky, only after I started to relax I felt really good to be there and see the person I troubled. I felt we had accomplished something - both myself and the victim."

Consequent with international findings, the New Zealand Victim Satisfaction Survey (2016) showed that 84 per cent of victims were satisfied with the restorative justice conference they attended, and 81 per cent reported they would be likely to recommend restorative justice to others in a like situation. The survey revealed even higher levels of satisfaction of victims in family violence cases (87 per cent) compared to those in not-family violence cases (82 per cent). The study also indicated that 81 per cent of respondents thought that the conference was a good style to bargain with the offence committed confronting them, and iii quarters of victims could name at least one way that restorative justice had benefited them. Nigh victims (91 per cent) said they felt safe at the restorative justice conference.

Enquiry has further revealed that restorative justice contributed to lower levels of fear and post-traumatic stress symptoms among victims, and that victims accept a lower desire for revenge after going through a restorative process (Sherman et al., 2015).

Impact of restorative justice on recidivism

In improver to the higher up-mentioned research, numerous studies take indicated that restorative justice contributes to reducing recidivism amidst offenders (east.one thousand. Sherman and Strang, 2007; Bonta et al., 2008; Shapland et al., 2008; Sherman et al., 2013; Sherman et al., 2015).

In their evaluation of three restorative justice schemes in England and Wales, Shapland et al. (2008) found that those offenders who participated in restorative justice committed significantly fewer offences in the following two years than offenders in the control group. Offenders' experiences with the conference, such as realizing the harm they acquired, actively engaging in the process, and communicating with victims, had a significant touch on decreased subsequent offending.

The New Zealand Ministry of Justice Reoffending Analysis for Restorative Justice Cases 2008-2013 showed that the reoffending rate for adult offenders who participated in restorative justice was 15 per cent lower, over the post-obit 12-month flow, than comparable offenders, and 7.5 per cent lower over iii years (New Zealand Ministry of Justice, 2016). The report plant reduced reoffending across various types of offences, including violence and property related offences.

Next: Topic two - Overview of restorative justice processes

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Source: https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-8/key-issues/1--concept--values-and-origin-of-restorative-justice.html