Putting the ‘Individual’ in crime…

“Restorative justice is a theory of justice that emphasises repairing the harm caused by criminal behaviour. It is best accomplished through cooperative processes that allow all willing stakeholders to meet leading to transformation of people, relationships and communities” Restorative justice asks people to consider crime, and individuals’ responses to crime.

Instead of focusing on the crime itself, and finding a worthy punishment to fit, restorative justice places the focus on the harm caused, and aims to reduce further harm with effective crime prevention. By achieving justice through the reparation of harm, and bringing the involved parties together to determine those decisions, fundamental transformations in people, relationships and communities are the ultimate goal, and do occur through the process. For an effective restorative justice process, there needs to be the inclusion of all parties, an indirect or direct encounter of the other side, the opportunity to make amends for the harm caused and reintegration of the parties into their communities.

The criminal justice system currently puts the prosecution solely in the hands of the state; restorative justice strives to ‘actively invite all affected parties – victims, offenders, and community members – to participate in resolving the crime’. This difference is especially crucial for the victim as they do not have official recognised legal standing in most mainstream criminal justice systems. The victims’ voice within the process brings a sense of humanity to the discussion of reparation, and the harm is addressed. Inclusion seeks participation from all parties involved with the crime and calls those people to actively pursue their own interests. As all situations are different, flexibility is required as new approaches and methods are always being explored. Therefore, for effective restorative justice, all parties involved with the crime must be included in the process of reparation.

Restorative justice strongly encourages an encounter between the victim and the offender, with a facilitator assisting the process. These encounters can occur in a variety of structured meetings including victim offender mediation, conferencing, circles and more. If either of the parties would prefer indirect meetings then the option to communicate via letters, tapes or videos is a possibility. Although the encounter is an ideal cornerstone of restorative justice, it is also not necessarily essential, as there are situations where a party involved does not agree to meet.

A restorative encounter has five important aspects that work together to create healing and restoration to all parties. These five elements are: meeting, narrative, emotion, understanding and agreement. The meeting directly engages the parties, unlike normal court proceedings where each party will only observe the other’s statements to judge or jury. The narrative gives both parties the chance to tell one another their stories, and how the crime has affected them, or how they were lead to that point. The narrative then permits all participants to express emotion which is important as, “crime can produce powerful emotional responses that obstruct the more dispassionate pursuit of justice to which the courts aspire”. The combined use of meeting, narrative and emotion can then lead to understanding.

For the victims; they may begin to see the offender as less malevolent, while the offender may be confronted with the humanity of their victim, changing their attitude about criminal behaviour. Reaching this understanding creates a foundation to seek an agreement. Instead of searching for precedents that fit the crime, an agreement can be formed around the specific situation. By reaching an agreement through negotiation, the victim and the offender can guide the outcome. Although these elements may not always yield reconciliation, it can increase the parties’ ability to see each other as humans, to respect each other and to identify with the experiences of the other.

Restorative justice places hostility and reconciliation at opposite ends of the scale. If movement has been moved towards reconciliation, the hostility that is often found within the victim-offender relationship should lessen. And that in itself, is a worthwhile outcome. Therefore, although not essential, having all parties involved with the crime encounter one another in an effort to find steps towards reconciliation is an important pillar of restorative justice.

The next step, and pillar, of restorative justice, is the reparation of harm done by the crime. Restorative justice values efforts by the offender to make amends. Once again, there are a number of elements involved to reach the beginnings of reparation. These involve apology, changed behaviour, restitution and generosity.

Firstly, the apology can be written or verbal and must come from the acknowledgement of the offender’s actions, acceptance of the harm their actions has caused, and vulnerability, which has to do with the shift of power between the offender and the victim. By apologising, the offender gives power to the victim, who can decide whether or not to accept it.

Secondly, changed behaviour at the most basic level means that the offender ceases to commit crimes. Negotiated agreements between parties will include elements to change the offender’s environment, to aid in them changing their behaviour and experiencing positive change. Attending school, drug treatment programs, anger management classes, educational courses and job skill courses are all ways to assist the offender in changing their behaviour.

Thirdly, generosity asks more than the required agreements decided between victim and offender. By offering more to the victim, the offender can show that their apology is sincere. For example, the offender may agree to perform community service where ever the victim chooses. And finally, restitution can be made by returning or replacing stolen property, paying money or providing services to the victim. Therefore, restorative justice requires the offender to make amends for the harm they have caused, in a sincere and generous way.

The final step and vital part of restorative justice is the reintegration of all parties into their communities. Crime often results in both the victim, and the offender, experiencing stigmatization. Therefore, restorative justice aims to see both of them become whole, contributing members of their communities. Victims often feels stigmatised by family, friends and their community, which often results in loneliness and isolation. Out of fear, or lack of understanding, people with good intentions may, instead, push the victim to ‘get over it’ or even place blame on the victim. Likewise, offenders face stigmatisation. Crime causes fear, and society looks at criminals as villains, incarcerating them and separating them from their families and communities. Once released, the offenders lack support, finances, housing and other basic needs. Reintegration occurs when the victim or offender can become active and productive members of their community. For this, they must find “communities with the following characteristics: (1) mutual respect for those in the community, (2) mutual commitment to others in the community, and (3) intolerance for–but understanding of–deviant behaviour by members of the community.” Communities such as support groups, circles of support or faith communities can become places that offer friendship, material aid, spiritual or moral direction, and help individuals step out of their shame to become contributing members. The responsibility to take part in these communities is on the victim and the offender. Therefore, reintegration is a vital step in the restorative justice process.

“Restorative justice views crime as more than breaking the law – it also causes harm to people, relationships, and the community. So a just response must address those harms as well as the wrongdoing.” Restorative justice is an alternative to the disconnected and impersonal system currently determining outcomes to the crime occurring within our societies. While the criminal justice system often leaves victims without support and closure, and offenders locked away with no hope of rehabilitation, restorative justice aims to bring collective resolution with all parties involved in the process. By taking all parties through the process of inclusion, encountering the other, making amends for the harm done and then reintegrating them back into their community, restorative justice hopes to change the way society views crime and the treatment that all parties are normally subject to.

– Brea Robertson

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