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RESTORATIVE JUSTICE IN PRACTICE
RESTORATIVE JUSTICE IN PRACTICE
challenges of restorative justice
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1 Introduction
Punishment is central to any legal proceeding where the accused is found guilty. It falls directly under criminal law and is determined by punishment theories. Whether South Africa is moving towards restorative justice approaches influences many aspects: it allows protection of society and results in more crime-free life for the offender. Consequently, it gives offenders the chance to learn from their experiences, gain insight into their behaviour and allows victims to handle their injustice. If South Africa is truly moving towards applying restorative justice principles in the resolution of disputes it will be evident in the legislation and recent case law in different fields; including crimes of child offenders, less serious crimes and serious crimes.
2 Restorative justice versus traditional theories
Punishment theories such as retributive and utilitarian approaches focus on ‘righting the wrong’. Retributive theories are based on the idea where the offender can only pay for his ‘sin’ by suffering. Whereas, utilitarian approaches are focused on the legal and moral order, protecting society and potential victims from the offender. This approach also centers on using the deprivation of liberty, pain and suffering to punish current and potential offenders. Both of these theories focus on punishment as penance. However, neither of these theories is concerned about the effects of the punishment on the accused nor the interests of the victim.
Restorative justice is “an essentially non-punitive [, or less punitive,] resolution of disputes arising from the infliction of harm, through a process involving the victim, the offender and the members of the community.” It focuses on the “healing of breeches, the redressi...
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RSA Sentencing (A compensation scheme for victims of crime in South Africa) 97.
RSA Presentation on restorative justice national conference on victim’s charter 2012.
Law Journal articles:
Skelton A & M Batley “Restorative Justice: A Contemporary South African Review” (2008) 21 Acta Criminologica 37.
Tshehla B “The restorative justice bug bites the South African criminal justice system” (2004) 17 SACJ 1.
Cases:
Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA).
S v Maluleke 2008 (1) SACR 49 (T).
S v MALGAS 2001 (1 ) SACR 469 (SCA ).
Manyolo v S [2011] JOL 26684 (ECG).
S v Matyityi 2011 (1) SACR 40 (SCA).
S v Melapi 2014 (1) SACR 363 (GP).
S v Nkunkuma [2013] JOL 30832 (SCA).
S v Shilubane 2008 (1) SACR 295 (T).
Legislation:
Child Justice Act 75 of 2008.
Criminal Law Amendment Act 105 of 1997.
Probation Services Act 35 of 2002.
Society has long since operated on a system of reward and punishment. That is, when good deeds are done or a person behaves in a desired way they SP are rewarded, or conversely punished when behaviour does not meet the societal norms. Those who defy these norms and commit crime are often punished by organized governmental justice systems through the use of penitentiaries, where prisoners carry out their sentences. The main goals of sentencing include deterrence, safety of the public, retribution, rehabilitation, punishment and respect for the law (Government of Canada, 2013). However, the type of justice system in place within a state or country greatly influences the aims and mandates of prisons and in turn targets different aspects of sentencing goals. Justice systems commonly focus on either rehabilitative or retributive measures.
Greg Mantle, F. D., & Dhami, M. K. (2005). Restorative justice and three individual theories of crime. Internet Journal of Criminology IJC , 1-36. Retrieved from http://www.restorativejustice.org/articlesdb/articles/5914
Question 1. Both Thomas Mathiesen and Stanley Cohen argue that alternative criminal justice responses that were presented after the 1970s were not real alternatives (Tabibi, 2015a). The ‘alternatives’ which are being questioned are community justice alternatives generally, and Restorative Justice specifically. The argument here is that Restorative Justice cannot be a real alternative because it is itself finished and is based on the premises of the old system (Mathiesen, 1974). Moreover, Restorative Justice is not an alternative, as it has not solved the issues surrounding the penal system (Tabibi, 2015a). Cohen (1985) supports this sentiment, and suggests that community based punishment alternatives have actually led to a widening and expansion
There are three type of sentencing models used by judges for the sentencing phase of trials; indeterminate, determinate, and mandatory. These sentencing models are used to bring justice to those who are convicted of crimes and must now live with the consequences of their actions. Justice is a word that has a different meaning to each individual person. This paper will discuss, in detail, the meaning of justice, the three types of sentencing models, the pros and cons of each model, and the impact each one has had and continues to have on corrections.
Zehr (1990) who is thought to be one of the pioneers leading the argument for restorative justice highlighted three questions presented when taking a restorative approach; what is the nature of the harm resulting from the crime? What needs to be done to make things right or repair the harm? Who is responsible for this repair? He ascertained that ‘crime is fundamentally a violation of people and interpersonal relationships’. He also noted that violations create obligations and liabilities and that restorative justice seeks to heal and put right the wrongs. Restorative jus...
Restorative justice can be defined as a theory related to justice that is concerned on repairing the harm that is caused or revealed by a criminal behavior (Barsh 2005: 359). Over the years, restorative justice has been seen as an effective way of dealing with both social as well as cultural issues of the aboriginal people. Because of these, restorative justice is used in many of the local communities in an effort to correct criminal behavior. This concept is seen as a conceptualization of justice which is in most cases congruent with the cultural and the community values of the aboriginal people. There is growing body of evidence which suggests that there are a number of challenges which accrue the effective implementation of restorative justice amongst the aboriginal people.
This essay has identified sanctions imposed on offenders including imprisonment and community corrections. Described how punishment is justified with the just desert and deterrence theory. Discussing the rate of individuals being imprison comparted to community, provided rates for assault which shows crime being maintained and community member feel safe enough to allow for this to
Agreeing on a definition of restorative justice has proved difficult. One definition is a theory of justice that focuses mostly on repairing the harm caused by criminal behaviour. The reparation is done through a cooperative process that includes all the stakeholders. Restorative justice can also be explained as an approach of justice that aims to satisfy the needs of the victims and offenders, as well as the entire community. The most broadly accepted definition for restorative justice, however, is a process whereby all the parties that have a stake in a specific offence collectively resolve on how to deal with the aftermath. This process is largely focused around reparation, reintegration and participation of victims. That is to say, it is a victim-centred approach to criminal justice, and it perceives crime differently than the adversarial system of justice.
Feinburg (1994, cited in: Easton, 2012: 4) says that punishment is “a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment”. When punishing an offender there are two key principles that determine the kind of punishment. These are the Retributivism response and the Reductivist response. The first principle, Retributivism, focuses on punishing the offence using 'denunciation' where they denounce the crime that has been committed so society knows they have done wrong, and it also uses 'just deserts' where the equity 'eye for an eye' is the main idea. The second principle, Reductivism, believes that deterrence, incapacitation and rehabilitation is the best strategy to use to punish, its aim is to reduce crime and use punishment to serve a purpose. This essay will look closer and outline the purpose of just deserts and deterrence as punishment in society, although these punishments are used widely across most crimes, this essay will look specifically at prolific offenders.
When Mary Catherine Parris was told that I would be talking to her about restorative justice, her response was, “Is that a real thing?” (personal communication, September 23, 2015). Through this assignment I realized that restorative justice is not talked about within the criminal justice system. For both of the individuals I spoke with, the idea of restorative justice seemed like a joke. In trying to persuade them both that restorative justice is a real thing, I was met with very similar beliefs and comments from both individuals. They both believed that restorative justice would not work and believed that some aspects of the approach were completely useless (M. C. Parris, & R. Clemones, personal communication, September 23, 2015). The responses
Pros of the restorative justice system are that it brings parties together in crime. Instead of a short term goal, the restorative justice system takes a long-term approach to reducing crime and violence using different kinds of methods. In restorative justice programs, offenders work with others affected by their criminal actions. Restorative justice promotes instilling positive behaviors in young criminals and teaching long-lasting changes in behavior to prevent future crimes. There also could be negative consequences from the restorative justice system. For restorative justice to work, criminals and their victims must communicate about the crime and its consequences. Since violent crimes often leave victims feeling helpless and vulnerable, encouraging communication can result in increased anxiety and fear. Additionally, communication might breach confidentiality for victims of violent crimes, such as rape and assault, because they must discuss the outcome of the crime and how it has impacted
Although both have differences, restorative justice is a much more practical approach to crime in contrast to traditional justice. The traditional justice system views crime as an act committed against the state, and an offence of the law. Whereas the restorative justice approach views crime as an act not only against the victim but the community as well. It is important to realize that each approach controls crime differently. Restorative justice believes that crime control lies mainly within the community, while traditional justice demonstrates that the criminal justice system is in control. With respect to the community, traditional justice believes that crime should solely involve the state, and that crime is an individual act. Contrasting restorative justice which believes that the community should be involved and crime is not an individual act as there are societal factors that contribute. Restorative justice focuses on the offender taking responsibility, and to repair harm, whereas traditional justice is simply defined as taking punishment and not focusing on the victim. As victims in a traditional manner are not essential to the process, however when looking at it from a restorative point of view the victims are the central focus of the process to resolving crime. When focusing on crime, is it important to not only acknowledge the past but
It is morally right as the when the person is convicted, they must get the punishment. It is opinion of the public to the bad guy without concerning with the outcome of the punishment. This theory also is regarded as the offenders deserve to get the punishment not as to prevent from future wrongdoing . This theory also as the metaphorical to scared the society for not doing the same offense. Richard Swinbume, in his recommendation of retributive punishment, indicated that the state only has authority to impose punishment for criminal harm where it serves as a proxy for the individual harmed.' This is ‘‘one of the oldest and most basic justifications for
Punishing the unlawful, undesirable and deviant members of society is an aspect of criminal justice that has experienced a variety of transformations throughout history. Although the concept of retribution has remained a constant (the idea that the law breaker must somehow pay his/her debt to society), the methods used to enforce and achieve that retribution has changed a great deal. The growth and development of society along with an underlying, perpetual fear of crime are heavily linked to the use of vastly different forms of punishment that have ranged from public executions, forced labor, penal welfarism and popular punitivism over the course of only a few hundred years.
takes account of the victims and the community effected by the offence. Restorative justice measures