The issue of models of criminal justice has drawn much consideration in the operation of criminal justice system since 1964 when first models were proposed by Herbert Packer in his publication “Two Models of the Criminal Process” (Roach 1999). Models are very useful in the criminal justice system as they help in navigation of the usually complex issue of criminal justice process. One notable role of the models is to help in simplification of detailed process and at the same time bring forth the trends and common themes in criminal processes.
Although models are hypothetical in nature, they do provide a coherent scheme that tests the multiple evidences from the decisions of the criminal justice players. It is therefore more important if we have multiple models that would work in tandem to highlight some of the various modes of operation in the criminal justice system. Models also provide better platform to evaluate the criminal justice system’s operations. For example, they would help us understand why most cases would end up with the accused pleading guilty and even prosecutor withdrawing the case (Bronitt, 2008).
It is also important to note that most models present a somewhat normative guide that provides the criminal law with values that it ought to uphold. Again, most models have been able to highlight some of the ideologies that surround the criminal process (Dubber, 2006). Indeed, the ones that have been considered useful have drawn much public debates and people have been able to recommend some of the necessary crime control methods as well as values that would guide the criminal processes.
Development in the construction of models over the years is much owed to Packer, whose models have not only been successfully but have provided the basis for the latter models development. Restorative Justice This paper is intended to look at restorative justice as a model in the criminal justice system. This model is widely used in Australia and has found a wider acceptance among criminal justice scholars most notable in UK, Canada and New Zealand.
The proponents of the model cite it one of the best alternatives to the criminal justice process because as it is defined, it provides justice through restoration of the harm resulting from the crime (Farmer, 1996)). There is a currently international social grouping proposing restorative model to be used in restructuring the criminal justice. Under this model, there is a paradigm shift from the punitive powers of the state to the more significant initiatives that would involve the community. This is argued would help in reintegrating the offenders with their community members as well as the victims of the crime.
In this regard, it offers a better alternative to the conventional retributive practices in the criminal justice processes (Wiener, 1991). The emergence of restorative model has been from what for a long time has been considered weaknesses of the retributive system that work to promote communal disintegration rather than harmony. The retributive system would advocate for an eye for an eye in settlement of disputes or justice, but as was cited in the Biblical teachings, the rule of the thumb most suitably applies to the civil law regarding compensation (Bronitt, 2008).
Perhaps it would be better to bring to the attentions of the opponents of this model that restorative justice has been dominant in most societies of the world despite it recent innovation as an alternative form of justice. According to Wiener (1991), the roots of this model are deeply entrenched in biblical teachings as well as classical sources that provided a platform for offenders to be integrated back into the society through community-based initiatives and recognition of the offenders’ legal rights.
In Australia, the model has been originated from the penal laws of the British common law and from the customary law of the Aborigine communities (Bronitt, 2008). This model calls for the participation of the community as well as the families of the victims and the offender. They provide support to both the offender and victim of the crime as well as helping them to reintegrate into the community. It therefore carries everyone affected by the harm on board in the search for justice for both the victim and the offender.
The first step in this elaborate process is to have the offender admit liability for their actions. Roche (2003) suggest that the most important thing in the process is the coming together of those affected by the crime and consensually determining the most appropriate way of dealing with the aftermath of the crime. In Australia, such meetings would be organized in conference halls. The facilitator normally leads such meetings where the impacts of the offence on the victim and community would be discussed and ways of dealing with the impact would be mooted.
It is important to explain from the onset that some cases would not find favour with restorative justice especially where offenders have failed severally to comply with the law (Bronitt, 2008). The system which is widely used in Australia has been extended from the juvenile courts to other parts of the criminal justice system. The models have been widely spread in the country and now Aboriginal courts have been established in most urban centres and rural areas. This initiative has gained much prominence from the earlier restorative models successes.
‘Circle sentencing’ court systems of Canada that has been used since 1990s, has greatly been credited for the entrenchment of the restorative model in Australia. Modelled alongside that of Canada, the Australians have claimed major success with their pilot initiatives (Dubber, 2006). The successes of the Australian justice system has emanated from the wider acceptance of the indigenous courts which developed as a result of the recognition of customary laws in the justice system especially in rural Australia where there are larger populations of Aborigines.
The emergence of indigenous courts which are quite different from the mainstream justice system has illustrated that legal pluralism can be accommodated in our criminal justice processes. These would not only improve communication among citizens and authorities but also the knowledge of the citizens on the due processes of the courts would be enhanced (Farmer, 1996). Strengths of Restorative Model It important to note that criminal acts conjures emotions of indignity to the victim of the crime. A victim of rape may feel shame within him/herself.
This shame would equally trigger a much deeper rage of shame which would only be sated by revenge by the victim of crime. A person may feel of paying back indignity he or she suffered by causing others the same indignity he underwent or through some criminal behaviour. The only way therefore to promote a sense of security in any community would be to restore both the offender and the victim back to the community they living in (Roche, 2003). Victims of any criminal acts feels disempowered as part of the indignity. Restoration of sense of empowerment therefore becomes paramount in the justice process.
It is most suitably where structural dominance is systematically working against the victim. An example of Australian Aborigines is given, where the community suffered in the hands of some insurance companies. The communities did not only get their losses back but also sought for corporate reforms. The restorative justice has been cited as a deliberative justice because it allows people affected by crime to deliberate on issues surrounding the offence and consensually come up with a better solution (Bronitt, 2008).
This is quite contrasted by the western criminal justice processes where the lawyers are known to hijack the process and argue purportedly in the best interest of their clients and deciding on the best course of action. Restorative justice therefore gives the citizens the opportunity to deliberate on the course of justice they would prefer. Restorative justice tends to promote harmony between the offender and the victim. The victim would most likely agree with the outcome of the justice process in which he/she participated and he/she would leave satisfied that justice has been done.
However, restoration of harmony within the community alone may not resolve some of the underlying injustices. It is therefore more important to go further and restore balance, but it is only logical if the circumstances that led to the offence can be said to be morally decent. Think of an example of an orphaned, poor child stealing food from a wealthy individual. In this context, it would not only be better to create harmony between the offender and the victims but to go deeper and find solutions to cause of the theft.
Possibly, the restorative system should provide for a better way of helping the child by bringing to the fore some of the underlying economic injustices in the society. Although, restorative justice may not resolve some deep-seated injustices that lead to problems such as hunger, it tries to mitigate the effects of such structural injustices (Bronitt, 2008). Again in the quest for harmony, the restorative justice should always benchmark its dialogue process on some of those underlying injustices. It is very important to probably avert your argument that the outcome may be eschewed towards one person and may not be just.
The restorative justice has got no answer for this age-old problem that questions what constitute a just outcome. Its most basic principle calls for the establishment of harmony between individuals through dialogue that unearths some of the relevant injustices at play (Dubber, 2006). It also ensures victims of crimes are provided with social support. The shame that engulfs most victims after the crime is mostly cited to be associated with lack of self-esteem, self-blaming and irresponsibility. To compound this, most victims are even rejected by their friends and relatives for lack of responsibility.
Therefore, victims may need encouragement and even support to be able to participate in the deliberations. Marchetti and Daly (2004) claim that restorative justice strives to avert this through institutionalization of the gatherings especially of friends in hour of need. Offenders sometimes do feel ashamed of their actions and arrest by the authorities. Although offenders do not suffer loss of property or get injured, their actions are sometimes driven by some previous injustices they had suffered. It is well in order therefore to work towards restoration of such offender’s dignity.
This is only done once the offender admits guilt and liability for the offence as well as through sincere apology to the victim. Restorative justice provides a platform for restoration of the offender’s dignity (Bronitt, 2008). Certain offences have over the years been associated with lack of security as well as a sense of disempowerment. There is indeed a debate among scholars and policy makers on what would best hamper crime recidivism. Again, it has been argued that violence by young African Americans has emanated from the group feeling that they have long been victims of discrimination.
How to address the issues surrounding cause of offences has found answers on the restorative justice. Restoration of the offenders’ sense of security as well as empowerment would be intertwined by the employment opportunities, educational progress or any other form of success. Restorative justice would promote deliberations that try to address some of the underlying societal problems like racism, police accountability and unemployment, and the best way to deal with them in the quest to minimize crime something that cannot easily find forum in most institutions like parliamentary and university debates (Marchetti & Daly, 2004).
Satisfaction of the offenders in any mediation process is far more important than that of the complainant. According to Roche (2003), if any mutual beneficial results are to be achieved, then the justice process must answer the concerns of the offenders much as it strives to seek justice for the offended. The western societies would continue to grapple with high crime rates until such a time when they would see the need of re-establishing the criminal justice system that restores the feeling of procedural justice to the defendants (Bronitt, 2008).
Restorative justice is quite helpful in reintegration of both victims and offenders into the community. Community in this context is the neighbourhood of the offenders and their victims. Community together would be much witness during the restorative process whereby the offenders as well as the victims are provided with the social support by their relatives and friends. It is therefore a bottom-up approach to the unification of community that has been ravaged by crime. Bronitt (2008) suggests that one of its most important initiatives is that it enhances community organization through schools, churches and even ethnic groupings.
In a more high level, restorative justice provides a better institution that addresses some of the communities’ social injustices that are crime related. This is the best’s channel that most of these issues would get the attention of policy makers at the national level. Limitations of Restorative Model It is important to note that restorative justice has gained much prominence due to the failures of most of the conventional criminal justice systems. But its successes have not been tested in a large scale and diverse society with distinct cultural practices.
That notwithstanding, the process has got some limitation that has made many scholars to reconsider whether it would be a better alternative to our criminal justice process. The restorative justice is much grounded on the premise of restoration of the victims, offenders and their communities. The major loophole in this whole process is the presumption that the offender is guilty and as such should plead his guilt and take responsibility for the consequences of their actions. This is quite more discriminating to the offenders who should be subjected to the due process of the law to plead his/her case (Marchetti & Daly, 2004).
Restorative justice put much burden on the victim who would be required to attend meetings with probably the whole village and friends behind him/her. This retrogressive method of settling dispute put much pressure on the victim especially when he/she is coerced to attend the meeting. Robinson and Darley (1995) claim that although the role of the victims were more elaborate than it is today, the unnecessary pressure and expenses of paying the court officials and constables lead to the formation of the official prosecuting procedures.
The situation is compounded if one offender is responsible for many crimes; victims may be required to attend as many meetings as the offences are. It would be dehumanizing for some victims to decide of the fate of some offenders. The suitability of restorative justice can only be applicable to certain isolated cases. Anthropologists have observed that most of the informal justice system that agitated reconciliation was inconsistent with certain offences.
According to Roche (2003), most indigenous laws employed reconciliation where parties had a continued as well as valuable relationship, for example, in offences involving domestic violence, or economic crimes that would threaten the harmony of the community. The other limitation of the restorative justice is its lack of crime deterrence process. It focuses much on the restoration which is a process that comes after the damage has been done. But totally lacks a framework that would prevent crime by new offenders. Conclusion
In conclusion therefore, it would be foolshardy to think that restorative justice model would answer all our criminal justice problems. In fact, it should be noted that it cannot by any means replace the conventional criminal justice processess. As I discuss earlier in the Australia case, some ofenders would not simply be ‘restored’. It is in such exceptional cases that i would recommend the use of certain aproaches that determine guilt and recommend punishment. But still this should be a last resort in our quest for justice to the victim, offender and the community at large.
We should strive to empoly a more dialogic means that help in restoration of the parties involved in the offense as well as deterrence methods that would enhance compliance with the law. References: Bronitt, S. (2008). “Toward a Universal Theory of Criminal Law: Rethinking the Comparative and International Project”. Criminal Justice Ethics. Volume: 27(1): pp. 53 Dubber, M. D. (2006). “Comparative Criminal Law,” Oxford Handbook of Comparative Law, ed. Reimann, M. & Zimmermann, R. Oxford University Press: Oxford, UK Farmer, L. (1996). “The Obsession with Definition,” Social and Legal Studies 5 Marchetti, E. & Daly, K. (2004).
“Indigenous Courts and Justice Practices in Australia,” Trends and Issues in Crime and Criminal Justice, No. 277. Australian Institute of Criminology: Canberra. Roach, K. W. (1999). “Four Models of the Criminal Process”. Journal of Criminal Law and Criminology. Volume: 89(2): pp. 671 Robinson, P. & Darley, J. (1995). Justice, Liability and Blame. Westview: Boulder, CO. Roche, D. (2003). Accountability in Restorative Justice: Oxford University Press: Oxford, UK. Wiener, M. (1991). Reconstructing the Criminal Cambridge. University Press: Cambridge, UK.