Restorative Justice and Serious Crime

'An eye for eye only ends up making the whole world blind… … we win justice quickest by rendering justice to the other party'1 Since the emergence of Restorative Justice (RJ), many critics have argued its use is inappropriate for serious crime,2 asserting it to be too 'soft' on criminals, and fails to deter crime by sending the wrong message to potential perpetrators. 3 However, such arguments ignore the complexity of issues associated with serious crime,4 not only in how we respond but also in how we perceive crime and the people involved.

Addressing the problem of serious crime must entail moving beyond the nescient, 'eye for an eye' approach demanded by the critics,6 who all too readily resort to ineffective 'zero tolerance' policies in response to serious crime issues. 7 RJ offers a fresh new approach,8 and this paper will critically examine the viability of such a paradigm shift, and how it might impact on the participants in the process.

WHAT ARE WE TRYING TO ACHIEVE IN CRIMINAL JUSTICE?

Examination of RJ principles in application to serious crime first requires identification of the key objectives of justice. 9 The key goals of justice are reflected in the NSW Attorney-General's 'Role' and 'Vision' statements,10 and are to '[p]rovide a just and safe society through the reduction of crime, protection of human rights and community standards'. 11 Key elements in achieving this goal of social harmony, is dealing with all participants in the process with dignity, respect and recognition. 

Justice is therefore ultimately about guiding community behaviour, by motivating people to willingly pursue a life style that both benefits and minimizes harm to all; human relationships are the core of justice. 13 III SERIOUS CRIME – WHAT ARE THE PARAMETERS? There are many ideas as to what serious crime actually is, ranging from definitions based on statutory penalties,14 to popularist ideas defined in the media. 15 A broader definition is that serious crime involves serious harm,16 which imposes obligations reflective of community expectations and requires action to prevent the occurrence of future harm.

Typically, serious crimes may include those involving violence, such as sexual assault, murder and robbery and are often consistent with traditional 'felonies'. 18 IV RETRIBUTION – MEETING GOALS OR MISSING POSTS? The existing criminal justice system adopts a central controlling role by 'influencing' community behaviour through fear of punishment. 19 Victims and perpetrators maintain passive roles throughout the whole process in a neutral and impersonal manner; human relationships are not factors in the process. 20

Perpetrators are brandished an evil threat to society and excluded from it through incarceration. 21 The system does not facilitate or encourage perpetrators to accept direct responsibility for their behaviour and the harm caused,22 which leaves the causal factors for the behaviour unaddressed. 23 V ENTER RESTORATIVE JUSTICE – A BETTER WAY? The concept of RJ is often misunderstood, and involves not just a different methodology but a complete paradigm transformation. 24 It encompasses social responsibility through inclusion, and direct accountability for deviate behaviour.

25 The focus is on the behaviour not the person,26 and practices are employed to restore the harm caused;27 not to compound the harm through degradation and punishment. 28 Victims and perpetrators are provided the leading roles,29 supported by mediators, family, friends and members of the community. 30 The process involves conferencing or 'peace circles',31 instead of the strictly formal adversarial process,32 and in cases of serious crime, multiple conferencing stages.

The entire process strives to pursue a positive and inclusionary path to repairing the harm caused, and to prevent future harm through direct accountability and willing behaviour change. 34 It is not a new concept, and loosely reflects ancient community principles of justice practiced prior to the 11th Century. 35 Whilst most RJ programs and research to date focus on non-serious crime,36 research suggests that its greatest potential lies with more serious crime because it focuses on meeting the needs of the traumatized participants; something traditional systems fail to do.