It is important to note that the current systems of justice are built on the framework of retributive justice. Restorative justice is an alternative to the latter, which is based on the principles of harm repair rather than punishment. The concepts behind the methodological notion have practical examples, such as juvenile justice. The purpose of the given document is to demonstrate how restorative justice can effectively set desired incentives among the subjects and mitigate the costs of retributive systems by providing insights from its pragmatic uses.
Restorative justice emerged in the 1970s in Canada, Australia, and New Zealand, then in the United States. At first, in the United States, restorative justice was used in court cases involving non-violent minor offenses (Gavrielides, 2017). This was different from Germany and Austria, where the emphasis was often on violent crime. The most common form of Restorative Justice in the US is the Victim-Offender Reconciliation Projects (Marshall, 2020). The first such program appeared in North America in 1974, in Ontario, at the Mennonite Central Committee. In addition, most of the programs focused on juvenile delinquency.
Restorative Justice in America
Restorative justice is concerned with the restoration of former rights and the return to a normal life of ex-prisoners and other places of detention. It is no secret that such individuals are met with caution, fearing a relapse. In such cases, restorative justice helps those who have stumbled on the right path and re-enter society (Strang & Braithwaite, 2017). In the US, the power to prosecute crime is not only in the hands of the federal government. It is divided between individual states and the country as a whole. The US Constitution allows the states individual legal power to prosecute criminals, as this power no longer resides solely with the federal government.
In addition, federal laws cannot apply exclusively to state issues that do not involve interstate issues. The differences between state and federal government are defined by the vast body of case law. As a result, the federal and state systems deal with each crime independently. These systems find reconciliation, with the result that 95% of crimes in the US are prosecuted in one of the 50 states (Gavrielides, 2017). Each state organizes its own prosecution system in its own way, and so some criminals move from a state where they have the death penalty for their crime to a state where they get off with a long prison sentence in the hope of getting out early for desirable behavior. In all but five states, the decision to punish the offender is made by the chief prosecutor, who has the appropriate jurisdiction and is elected by the local residents of the county or district of the United States.
The decision to cooperate in the field of restorative justice programs is made by an independently elected person. Therefore, it is not surprising that there are different methods of adjudicating similar criminal cases. Some state laws encourage the use of restorative programs for certain types of crimes, but the final decision depends on an independent prosecutor chosen by the locals, who enforces the law, considering the most appropriate court decision for the local community. Most states leave the decision to the local attorney. In this context, there are non-traditional alternatives to the criminal justice system. Thus, restorative justice programs have been established at all levels in numerous US jurisdictions. However, these programs vary according to the policy pursued by the Attorney in the field (Gavrielides, 2017). Restorative justice has evolved, focusing on the impact of crime on the victim, the offender, and the community as a whole. The influence of restorative justice is growing, and the main focus of this justice is to clarify the damage caused, accept responsibility, and compensate the community for damages.
Restorative justice seeks to reconcile the relationship between the victim, the offender, and the community through the equal contribution of all three participants in achieving three goals. This includes the security of the community, accountability to victims, and the offender’s competence and reintegration into society. Restorative justice differs sharply from traditional Retributive Justice, the main purpose of which is retribution and reparation for damages. The latter almost does not consider the crime’s impact on the victim and the community, considering them equal partners in resolving the case (Marshall, 2020). Restorative justice considers not only punishment but also the fact that the offender must realize that his or her actions were wrong and return to their community as a contributing member.
Currently, most of the programs deal with juvenile court cases. They allow the victim and the offender to meet face-to-face to discuss the impact of the crime on all involved in the case. The latter are given equal opportunity to discuss their feelings, understand the harm caused by the crime, and draw up a plan for an agreement to secure reparation, which can be either monetary or symbolic. A large number of such agreements are implemented, in contrast to the reparation measures offered by traditional methods. Gradually, the mediation process began to include more parties with income from the crime committed. A number of US jurisdictions have Citizens’ Councils. They are mainly engaged in non-violent youth crime (Marshall, 2020). Council members meet with victims and offenders who are sentenced to suspended probation. Victims show a high level of satisfaction with restorative justice decisions compared to traditional solutions.
Restorative Justice Globally
Although in most countries, the implementation of restorative justice is only a form of experimentation and is applied at the level of individual courts or territories, more and more people speak favorably about this process. Statistical studies have shown that victims and offenders who have held a joint meeting with the participation of a mediator evaluate its results positively (Strang & Braithwaite, 2017). Less fear was noted among the victims who took part in such events, and after the meetings, the offenders more often fulfilled their obligations to compensate for the losses caused to the victims. In addition, recidivism statistics are reduced compared to persons who were prosecuted in the implementation of traditional punitive justice and served their sentences in the existing penitentiary system of the state.
It should be noted that restorative justice was formed not as a specific response to the behavior of a person who committed a crime but as a fundamental view of how one should generally respond to a crime. In this sense, the category of restoration must be interpreted not from a formal legal but from a broader social point of view (Strang & Braithwaite, 2017). This is a form of “healing” of the victim, compensation for the harm caused to him, the acceptance by the person who committed the crime of responsibility for his actions, as well as the restoration of disturbed social relations within both a separate community and the state as a whole.
Restorative Justice for Juvenile Crimes
Restorative justice programs are increasingly being used to adjudicate non-violent and petty offenses, and these include vandalism, petty assaults, and theft. Increasingly, however, these programs are being used in the adjudication of violent and sexual crimes. For example, assault with a bodily injury, assault with a weapon, murder, and attempted murder. One type of restorative justice is the Victim-Offender Dialogue Program or the Victim-Offender Mediation Program (Winn, 2017). According to these programs, the victim must initiate the process, and the offender participates in it, voluntarily meeting face-to-face with the victim (Wilson et al., 2017). The development of these programs inevitably entailed a reassessment of the actions of restorative justice and its ability to meet the various needs of victims and offenders in such cases (Winn, 2017). It is assumed that a new model of restorative justice is needed for specific cases relating to serious crimes.
Due to the nature of such crimes, it can take many years for victims and offenders to meet face-to-face. If the offense resulted in the loss of life, the meeting of the parties is no longer a matter of resolving the conflict; that is, it is a problem of pain and the way such a wound heals. The Program must change to accommodate such a sensitive issue in this case. The case should be prepared in such a way as to avoid the risk of harming the victims a second time (Wilson et al., 2017). Therefore, in the case of serious crimes, restorative justice is not a mediation because it is a way to alleviate severe pain. Serious crime mediation poses a particular challenge in which reparations need to be sound, given that crime and pecuniary redress are not always clear-cut.
Based on this, the essence of restorative justice lies in the fact that in criminal proceedings on categories of cases committed by minors, the actual damage caused can be compensated or compensated in another way. The principle of the inevitability of liability can be replaced by a provision on the obligation to expiate guilt and compensate for harm. The main task of restorative justice is to ensure the protection of the rights of minors who have committed crimes, primarily the right to a decent life and free development (Winn, 2017). The refusal to apply criminal law measures or their minimization is aimed at realizing both the interests of the child and society as a whole.
Application of Restorative Justice
The policy of a number of developed countries in the field of juvenile delinquency is becoming more humane. In particular, when resolving criminal disputes, attention is paid not only to the offender but also to the victim. Based on this, it is possible to formulate the main goals of juvenile justice (Wilson et al., 2017). Firstly, there is a strong need to prevent crime and re-offending. Following this attitude, the state seeks to protect not only society as a whole but also each of its citizens, especially a minor. Secondly, it is important to note that there is a basis for social adaptation, re-adaptation, and reintegration of offenders. If the state provides the opportunity for offenders to return to a full life in society, this will significantly reduce the level of new crimes (Winn, 2017). Thirdly, such a fundamental goal as caring for the interests and needs of the victims is becoming increasingly important in the modern world. When resolving criminal disputes, the state, represented by authorized bodies, should strive not only to bring the victim to just punishment but also to provide assistance to the victim.
The results of applying these measures are different for each of the stakeholders. For example, victims are provided with psychological assistance in order to compensate for the moral and material harm caused, to provide an opportunity to share experiences and be heard, and to restore a sense of security (Wilson et al., 2017). For the juvenile offenders themselves, this is a good opportunity to rehabilitate, realize the extent of the harm done, correct the damage done, take steps towards reconciliation with the victim, feel remorse and receive forgiveness. In addition, this is an excellent opportunity for society to restore peace, affirm the significance of social values, to instill mandatory norms in society (Wilson et al., 2017). The most important thing is to comprehensively resolve the current situation, to prevent the disintegration of the victim and the perpetrator and the onset of even more adverse consequences for society and individuals.
Subsequently, the indicated direction of the development of children’s justice should be considered as directed in two directions: to meet the interests and needs of the victims and on the educational impact in relation to the offender oneself. This concept has a number of advantages that emphasize the importance of its application in resolving criminal disputes involving minors. This is a meeting with reality or the possibility of a minor facing the negative consequences of a crime (Winn, 2017). A direct meeting of the offender with the victim gives the opportunity to understand her experiences and what harm was caused by the perfect act.
However, the most important thing is also the opportunity to recognize and, on your own, at least partially make amends for the harm done. Such a measure turns out to be more effective and pedagogically meaningful than punishment, including conditional punishment, which is most often perceived by a teenager as an opportunity to avoid real responsibility (Winn, 2017). If the punishment is real, then the teenager, due to age-related mental characteristics, often feels like a victim, which negatively impacts the perception of himself and creates the basis for adverse consequences in the future.
However, there is a danger of excessive state participation in the restorative justice program, resulting in its bureaucratization, where it should be personalized, with a flexible approach. However, Restorative justice planning allows for the provision of assistance to stakeholders, including law enforcement, courts, social services, schools, and communities (Strang & Braithwaite, 2017). Restorative justice has become an important form of jurisprudence, addressing all people affected by crime. It has become an alternative method to encourage law enforcement to seek relationships with people.
The concept of restorative justice does not negate the possibility of applying certain negative sanctions provided for by criminal law in relation to juvenile offenders. A number of Western studies suggest that restorative justice programs by themselves have little effect on offenders since intervention by such programs is more of an auxiliary element of influence (Wilson et al., 2017). Mediation between a juvenile offender and a victim should be combined with other educational measures. The most successful results are achieved in close cooperation with social workers, psychologists, and educators, who together form structures for working with juvenile delinquency. These structures work in a restorative approach.
Thus, the issue of the effectiveness of the law as an instrument of power relations should be considered in the context of the ability and willingness of state bodies and local governments to become open to productive interaction with civil society (Strang & Braithwaite, 2017). The document itself includes a wide range of tools, mechanisms, and technologies that make it possible to eliminate the alienation of the people from power, to make democratic rights to information and communication realistically feasible. Thus, the subjective right of citizens to freely seek and receive information about the activities of state authorities and local governments in order to obtain knowledge about their activities is fixed (Strang & Braithwaite, 2017). This is an indispensable condition for the formation of effective feedback from the population to the authorities, in which administrative pressure on public opinion is excluded.
Restorative justice as an alternative to sentencing strengthens its influence on the sentence. In addition, restorative justice methods are often used to resolve other conflicts that are not necessarily related to crime, such as absenteeism, work and family problems. Restorative justice appears to be the only applicable Program in the community. For example, schools teach non-violent methods of conflict resolution. This is considered a positive experience in preparing future citizens to conduct business in their communities. A program trains teachers, administrators, and counselors on how to deal with difficult children in schools. It has become a practical approach to the application of restorative justice. Communities are experimenting with different models of restorative justice.
Community-supported Restorative Justice helps to minimize the feeling of powerlessness occasionally experienced by members of the Community. Public provision of information is a form of accountability of authorities to the population, a universal characteristic of state and municipal government quality. Its widespread and complete implementation within the framework of administrative reforms should significantly increase the fruitfulness of interaction between the state and society.
When it comes to addressing the issues in the restorative justice system and maximizing its beneficial elements, it is critical to address them systematically. The solution to the problem of transparency begins with the introduction of the institution of public disclosure of state information, that is, the provision of access to legally significant information of the state for an unlimited number of persons carried out without sending a special request. At the same time, access itself is defined as providing an opportunity to get acquainted with information for a person who is not its owner. Conscientious implementation of the law will help to solve a number of problems that did not allow considering the degree of public access to management information as corresponding to the norms of a democratic society.
Gavrielides, T. (2017). Restorative justice: Ideals and realities. Routledge.
Marshall, C. D. (2020). Restorative justice. Springer.
Strang, H., & Braithwaite, J. (2017). Restorative justice: Philosophy to practice. Routledge.
Wilson, D. B., Olaghere, A., & Kimbrell, C. S. (2017). Effectiveness of restorative justice: Principles in juvenile justice. U.S. Department of Justice.
Winn, M. T. (2017). Justice on both sides: Transforming education through restorative justice. Harvard Education Press.