Many citizens of Canada believe the formal criminal justice system is failing. It is frequently criticized for being too costly and time consuming (RCMP website, 2006). The present system, focused primarily on retribution, does not seem to be helping the victims, who are largely excluded from meaningful participation and are often re-victimized by the legal process. Nor does it help a large percentage of the offenders, who do not learn in prison the kinds of behaviors that make them better, more responsible citizens. They instead, often continue their criminal tendencies once released (Bloom, 1999).
A more satisfying system of justice is needed, and with this in mind, reformers in the field of penology are looking at alternative forms of achieving justice. A restorative response provides one such option to the traditional retributive justice system which prevails in Canada today. The philosophy of restorative justice varies greatly from that of a retributive system, but although it challenges us to rethink what justice is all about, perhaps there are situations appropriate for each of these approaches in a modern Canadian criminal justice system.
This research paper will define the concepts of restorative and retributive criminal justice, and describe the foundation upon which each is based. The goals, processes, and desired outcomes associated with each system will be explained in detail. Strengths and weaknesses from perspectives of victim, offender, and community, will be reviewed. Canadian Criminal Justice Today – Does It Meet the Needs? Crime means breaking the rules of the land. In Canada the “rules” are the laws set forth by the Canadian judicial system. Age-old human needs are such that justice must be seen to be done in response to violations of the law.
Expectations include such things as punishment, deterrence, behavior change, safety of citizens, victim compensation, and victim satisfaction (Bloom, 1999). These aims of the justice system are not, however, always realized in daily practice. What would be the ideal outcomes of a “perfect” justice? In terms of the offender, one might hope to see effects such as appropriate punishment, zero recidivism, absolute deterrence, ongoing liaison and follow-up, and reintegration into society (RCMP website, 2006). Victims would be actively involved in the justice process and ideally, offer forgiveness.
An ideal system would provide healing for all parties (victim, offender, and community), and all would experience a sense of closure and satisfaction. Although there is little likelihood of such a perfect system ever evolving, incorporation of restorative justice principles into the present system could offer outcomes closer to the “ideal” ones mentioned. Retributive Justice The traditional, formal criminal justice system in Canada today, is based on retribution. Retributive justice provides reason for the existence and limits of law, as defined in the Criminal Code of Canada.
The offender deserves punishment because he/she has offended the laws and moral code of the land. An individual’s conduct is classified as a violation of a law and the offender becomes accountable to the authorities for the misbehavior. As a result, the authority figures and the offender are in an adversarial relationship ( O’Connor, 2006; RCMP website, 2006). Accountability is equated with suffering, and a systematic infliction of punishment justified on the grounds that the criminal has disrupted the social order, ensues. Offenders are defined only by their crimes.
Victims are defined only by their material and psychological losses and are not directly involved in the process of responding to and resolving the misbehavior (Bloom, 1999; O’Connor, 2006; RCMP website, 2006). Retributive justice originated in the time of the Norman Conquest, when feudalism was developed and servants swore allegiance to their king. This made any criminal offence a crime against the state rather than a crime against another person. The state needed to declare that it was powerful and did so by means of the punishment that it inflicted on an offender.
Therefore, punishment was carried out because it needed to be done – cold, without emotion, and out of consideration for the state’s need for power (O’Connor, 2006). Retributive justice today, still reinforces the “power” of the state. To adopt a position that the punishment “is deserved” does not always reflect that the offender deserves punishment but more that the law requires that it be assessed. To punish is simply carrying out a moral obligation in seeing the law come to completion. There is no expectation that the punishment will accomplish any purpose or consequence.
As such, it’s a kind of suffering that the offender must go through. In cases of wrongdoing, an individual who deserves certain benefits has lost them, while someone who does not deserve those benefits has gained them. Punishment imposes a penalty that in some way is seen to balance the harm inflicted. It is viewed as a debt that the wrongdoer owes his fellow citizens. Retributive justice aims to restore both victim and offender to their appropriate positions relative to each other. It attempts to balance the scales of justice.
It requires that the punishment fit the crime and that similar cases be treated alike. Offenders deserve blame and punishment in direct proportion to the harm inflicted (Maiese, 2003). The retributive approach to criminal offenders is simply to punish them and leave whatever regret or remorse is theirs up to them (Bloom, 1999). A retributive justice system transfers the responsibilities for affixing blame and punishment from the victims to public bodies such as courts of law. These institutions, using trained judiciaries are best equipped to establish penalties according to the rule of law.
They aim to effectively bring offenders to justice by giving them the punishment they deserve. The process of retributive law seeks to answer three questions: 1) What laws were broken? , 2) Who did it? , and 3) What punishment do they deserve? (Bloom, 1999). A traditional court system caries out this process in a methodical manner. The police first assess blame through a process of investigative fact-finding, often focusing on facts, to the detriment of feelings and emotions. Focus is on the offender, which establishes the rationale for punishment.
The victim and community often seem forgotten. A level of punishment is next established based on actions of the offender. There is an unspoken understanding that for each case there is one winner and one loser, thereby establishing a very adversarial situation. Someone always loses. This system often establishes a sense of alienation for both victim and offender. The stigma of charges, and oftentimes removal from the community to serve a sentence can alienate an offender. Victims are also often isolated by the process, complaining that they have no voice in the system (RCMP website, 2006).
Victim related anxiety, depression, and self-destructive behavior as a result of unresolved emotional trauma sometimes occurs (Bloom, 1999). Restorative Justice Restorative justice is a growing movement that is gaining popularity as an option to a strictly retributive system. It is a response to wrongdoing that focuses on offender accountability, problem solving, and creating an equal voice for offenders and victims. Restorative justice encourages dialogue and responsibility for past behavior while at the same time focusing on future problem-solving and offender accountability (RCMP website, 2006).
The philosophy behind the restorative approach is to transform wrongdoing by healing the harm, especially to relationships, that is created by harmful behavior. Those involved in restorative justice processes are the person(s) who caused the harm (offender), the person(s) harmed (victim), and the affected community (Cavanagh, 1998). Restorative justice views crime as an act against victims and the community, a violation of one person by another, not simply as a breaking of the law. The offender is accountable to the victim and the community and must take responsibility for his/her behaviors and the harm resulting from those behaviors.
Victims and community are directly involved and play a key role in response to the misbehavior. Offenders are defined by their ability to take responsibility for their actions and to change their behavior. Victims are defined by their losses and capacity to participate in the process of healing and recovering from their losses (O’Connor, 2006; RCMP website, 2006). Restorative justice is rooted in the communal practices of pre-modern societies where the offender’s family and the victim’s family got together and worked solutions out privately.
These early societies experienced hundreds of years of trying to make a life together on earth. Native cultures in North America have passed down their experiences from one generation to another, telling tales of what works and what doesn’t in human relationships and societies. They’ve explored what brings healing and what causes suffering, and their wisdom about justice involving facing hurts, listening to each other, and seeking mutual healing, is credible (Living Justice Press, 2006).
Modern Canadian and American courts began experimenting with victim-offender reconciliation programs in the 1970’s, and in the 1980’s there were many activists such as Zehr, who were influential in spreading word of the restorative justice movement (O’Connor, 2006). The goal of restorative justice is to achieve reconciliation between crime victims and the persons who have harmed them. This is accomplished through the use of various forms of mediation and non-violent conflict resolution.
The system aims to see the offender achieve a state of regret or remorse for his/her misbehavior and it places emphasis on the rights of victims. Usually the offender and victim are required to confront one another in some way. A desirable outcome of this encounter is to ensure that the victim obtains some compensation or sense of being made “whole” again (O’Connor, 2006). Simply put, the purpose of restorative criminal justice is not to impose judgment or punishment, but to address the needs on all sides, and to work for healing that includes everyone involved (Living Justice Press, 2006).
The process of restorative justice is such that all parties can be winners, for everyone present is involved in finding a resolution to the incident. By collectively identifying and addressing the harms, needs, and obligations resulting from wrongdoing, healing can be created and things can be put right again (Cavanagh, 1998). The process provides an opportunity for offenders to accept responsibility for what they have done and to understand the impact of their behavior on others. This realization often results in sincere feelings of remorse and empathy.
As a result, when offered the chance, many offenders are willing to do whatever they can to repair the harm they have caused. When victims are able to express how they have been affected by what has happened and then see genuine expressions of remorse they are often able to accept and to forgive. This brings about the closure that is required to move on with life (RCMP website, 2006). There are a number of options or strategies within the restorative criminal justice approach, it really depends on the community involved.
Some of the typical programs identified are: victim-offender mediation, conferencing, circles, and in the case of the RCMP, community justice forums (CJF’s). No matter what the strategy, the fundamental questions underlying the process are: 1) Who has been hurt? , 2) What are the needs of victims, offenders, and communities? , and 3)What are the obligations and whose are they? (Bloom, 1999). In order for the process to proceed, the offender must admit responsibility for his/her actions and all parties, victim, offender, and where desired, community or family members must willingly agree to participate.
A trained coordinator or facilitator establishes a safe, controlled environment for the meetings, then sets the process and guides the discussion. It is important that solutions for resolution of the problem come from the participants, not the facilitator. Once an agreement is reached, be it an apology, community service work, counseling, addictions treatment, or compensation for the victim, it is usually recorded, then signed by all parties (RCMP website, 2006). This lends closure to the situation.
Though obviously not an option for all types of crime, restorative justice is a more cost-effective, immediate type of process than the traditional court system and provides all those involved the opportunity to be heard and to have a say in the outcome. Conclusion As traditional, retributive ways of responding to wrongdoing and conflict prove less effective, our society is challenged to reassess and restructure the present Canadian criminal justice system. A system which incorporates both retributive and restorative justice concepts may be an alternative which supports personal, community, and system needs.
We need to rethink what justice is all about. Does the present system produce justice, does it address the needs of all involved, and does it address the underlying causes of crime? Obviously flaws exist. With a purely retributive system there is a dangerous tendency in the criminal code to focus on revenge rather than on the individuals involved. It is not surprising that revenge seldom brings the relief that victims seek – there is little room for apology or forgiveness.
A restorative approach not only addresses issues of social justice but also incorporates conflict resolution, rehabilitation, and cooperation between individuals. It holds offenders accountable for their actions while at the same time giving victims a greater voice. There is no doubt that restorative justice practices require patience, knowledge, and experience, but with them hurts can be healed. Crime is not excusable, but only by modifying the present criminal justice system can we hope to develop effective, fair, and human responses to it.
Although retributive and restorative justice philosophies differ greatly from each other, there is a place for both in our society. The traditional system must be retained for serious criminal cases, where the punishments of the “code” must be endorsed with up-most severity, but there are many situations of a lesser severity where conflict could be resolved in a restorative manner. A community and criminal justice partnership would provide a positive alternative to the formal justice system which exists in Canada today.