The
term “restorative justice”, first appeared in common law system countries in
the late 1970s, was used to describe the emergence “victim offender
reconciliation programs” in North America.
Let me take Bunche
High School in American as an example to show that restorative justice helps
solve conflicts better.
A. Comparison
between formal justice and restorative justice
a.
Formal
justice does not help solve conflict
Before conducting
restorative justice, Bunche High School applied punishment for misbehavior by
students. Such as detention, suspension and expulsion. To the misbehaved
students, the punishment did not work. It even resulted in higher rate of
cutting class, high crime rate and disrespect for teachers. The negative
effects show that conflicts are not well solved. The misbehavior students just
receive the punishment but not feel guilty at all. There is still a huge
possibility that they will become offender again. Because as a competing
conflict-management style, it is power-oriented and approaches conflict into a
win-lose situation (“Managing Conflict”, 1982, p.70).
Expanding the scope of
outside the school, “criminal policy” was prevailing before the emergence of
“restorative justice”.
The term “criminal
policy” was first put forward in 1803 by Feuerbach. Crime prevention
measures is essential for social life, therefore, criminal policy already
exists at the beginning of t human social life. However, all kinds of
unrestrained vengeance would brought enormous harm. In order to reduce the
damage, primitives found all kinds of parity recognized standards for damages
after a long-term trade-off. This standard made them form a new concept of the
relationship between people or between people and things. Thus, the rough
equality - the nature of life for a life, was finally replaced by the economic
equality, revenge has undergone a fundamental change - retribution instead of
revenge.
Revenge and retribution are one kind of response to
wrongdoing and criminal behavior. Their existence has a reasonable basis. They
all reflect a simple human justice as generally recognized: that a person has
committed a crime, the concept of social justice and balanced social and
psychological order were expressed by the punishment of crime. In this sense,
although revenge is a low-level crime pattern respond to primitive society. But
retribution comes from the decay of revenge, it retains the correspondence
between revenge and punishment. It also reflects the simple concept of equality
and justice. So we call the justice objectives pursued by revenge and
retribution as retributive justice.
Retributive justice, once there, it has strong
vitality. After entering class society, the rulers who have mastered the power
of the country, were influenced by this retributive justice. They formed a
simple criminal policy to deal with crimes, and then under the guidance of
criminal policy, developing the criminal law and providing penalties.
Thus, from the revenge
in primitive society to the penalty in modern society, whether in the
punishment of crime or in the reforming of crime, the value of retributive
justice has dominated criminal policies of all countries. One important reason
of the persistence of retributive justice, is that human beings have a
retributive emotions. The so-called “retributive emotions”, is people’s
psychological hint “evil with evil”. It is a natural instinct pursuit of
reciprocity, embodies the pursuit of a just plain as human feelings.
Retribution for a crime to punishment is a common impulse legitimate way to
vent. If you cannot give retributive criminal punishment, it will trample
people’s pursuit of simple justice, and also not achieve the value of justice
pursued by criminal law (LV & HAN, 2004).
b.
Restorative
Justice does a better job
Under the guidance of retributive justice, criminal policy emphasizes
punishment. Whether it is divine retribution, legal retribution or moral
retribution, it never break away from the track of punishment, but the means of
punishment are becoming civilized with the progress of society. In modern penal
structure, it is still imprisonment-centered. And this deprivation and
restriction of personal freedom punishment did not meet the public expectation
- to reduce the incidence of crime by this kind of retributive punishment. In
contrast, the imprisonment has brought a series of difficult problems for the
world. Moreover, the retributive imprisonment did not bring improvement to the
social order. From the beginning of the 1950s, crime rates rise sharply again
in Western countries. In particular, the recidivism rates increase
substantially. This situation brings two very different reactions, which is the
polarization trend in alleged criminal policy circles. As the famous Japanese
scholar Morishita pointed out, “After World War II, the criminal policy of the
world is toward so-called loose criminal policy and severe criminal policy in
two directions. This phenomenon is called the polarization of criminal policy.”
While the restorative
justice is from the perspective of the society and the victim, thinking the
rights violations of victims at first. Next, considering the violation of
interest relationship among offenders, victims and society. Thus, restorative
justice concern is how to proceed from the actual needs of the victim and the
community, to restore various losses caused by the crime, including the
victim's loss and loss of society. This is accord with restorative justice
descripted by Howard Zech, “crime causes injury, injury causes obligation, and
justice means to make everything be back to normal.”
Restorative justice
and retributive justice are very different because they pursue different value
content, different understanding of crime, different response to crime,
different ways to practice justice, and therefore achieve different social
effects. In short, the justice goal of retributive justice is “one’s guilty
must be punished, and the punishment should fit the crime.” The restorative justice
goal is “make up for the loss to full recovery.” Specifically, restorative
justice not only emphasizes on the compensation to victims, restore the
victim’s original physical and mental condition, but also concerned about the
offender's recovery. Since the non- penalty punishment of crime can make
offenders not be far away from the community, and through their remedial
behaviors can they be forgiven by victims and community, reintegrate into
society again. What is more, restorative justice also pay attention to the
recovery of social relations or social security. Because the crime itself is
the result of the social conflict escalates and social tensions. While the
retributive justice “Guilty shall be punished” will not help solve social
conflicts, but generates new conflicts between the victim, the offender and the
community. Thus, restorative justice advocates the reconciliation and
compensation between the offender and the victim, will resolve conflicts,
easing social conflicts. In this way, social relations will be restored to the
state before the crime occurred, or even achieve a more harmonious world.
Continuing the case
talked above, however, the poor situation of Bunche High School changed after
restorative justice was introduced. Instead of punishment, the offending
student is given the chance to come forward and correct the mistake. Usually,
he sits down in a circle and works together with the teacher and the affected
parties to work it out (as the video shows). The restorative dialogue is a
process that both victim students and offending students express their inner
ideas. And it leads to help the offending students to find “meaningfully
accountable” for their misbehaviors, which would heal victim students. As a
positive result, the school is safer and students are more focused on their
studies.
Restorative justice is
a process involving the primary stakeholders in determining how best to repair
the harm done by an offense. The three primary stakeholders in restorative
justice are victims, offenders and their communities of care, whose needs are,
respectively, obtaining reparation, taking responsibility and achieving
reconciliation. The degree to which all three are involved in meaningful
emotional exchange and decision making is the degree to which any form of
social discipline approaches being fully restorative (Leigh, 2009, p80-86).
While simple punishment, only offender involve in problem solution. Compared
with restorative justice, this type cannot achieve full accomplishment.
During the restorative dialogue, both victims
and offenders could take the perspective of the other party, and by seeing the
world through the counterparty’s eyes; it could enhance the ability of solve
the conflict (Leigh, 2009, p81). With
open talk, the offenders have a chance to understand the feeling of the
victims. Opposite with our commonsense, victims often feel shame even if
offenders go wrong (Wachtel, 2013). In this kind of respective environment,
victims can inform their pain to the other two parties. While other parties
have the opportunities to acknowledge the reasons of the wrongdoing. As they know the target, all stakeholders
focus on healing instead of distracted by other affairs.
Furthermore, restorative justice offer
conditions that every party can provide information about interests and
priority. In the case of NetWest High School, each party has the chance to talk
about what they really care about in the circle.
Besides, what is most important in getting
win-win negotiation is to make multiple offers of equivalent value
simultaneously. Through cooperation with public, victims and offenders can have
more solutions to the same problem.
What is more, by developing the agreement
together, restorative justice could bring healing to victims and
rehabilitation to offenders, thus it reaches to a win-win strategy (“Managing
Conflict”, 1982, p.70). The win-win negotiation style indicates that both
victims and offenders are assertive and cooperative so that they are highly
concern for relationships as well. While applying it to conflict management
style, restorative justice is categorized to relationship-based attributes
(McALLUM, 2013, p54).
Proponents
of restorative justice argue that truly “just” and effective solutions must
address the harm caused by crime and the needs of those harmed victims,
offenders and their families and communities, and that is doing so, they must
involve all these parties in this decision making process and in the
intervention itself to the greatest extent possible. Repairing harm,
establishes a set of outcomes for restorative practice including holding the
offender accountable to victim and community for the harm caused by their
behavior, making amends, and rebuilding or strengthening relationships.(
Bazemore et al., 2005)
Restorative values and principles,
such as healing over hurting and participation and reintegration, had
widespread endorsement from participants in the study. The findings suggest
that restorative practices can be an effective process for repairing
relationships, acknowledging consequences of behavior, and solving disputes.
Participants also noted that
restorative practices provided an opportunity to teach for transformation. In
other words, they provided a formal way to teach about the ethics and ideals of
justice, citizenship, and positive relationships. The experience suggests that
restorative practices can provide students with important opportunities to
understand the impact of their behavior on others and promote accountability
within a community or collective context. According to participants, the best
environment for such transformation is one in which notions of democracy,
student voice, and participation are consistent or aspirational features of
school practice.
At Alternative Primary School, a
school for emotionally and socially disturbed young people, the initiative
focused on the use of restorative language and circles. Emphasis was placed on
teacher modeling of restorative behaviors, and teachers were encouraged to look
at every student wrongdoing as a teaching opportunity. One teacher commented,
“Restorative practices have been an incredible success story. The challenging
behaviors and presenting characteristics of the student cohort has not changed.
The records for the time-out room (used for violent kids) have shown a dramatic
change. This term there has been none, and in the corresponding time last year
there would have been three incidents a day.” There was also evidence that
restorative practices opened up opportunities for teachers to support students’
emotional needs more confidently and to engage in problem-solving
conversations. According to respondents, the use of problem-solving questions
helped improve behavior management. It was suggested that questions that
promoted discussion about consequences and personal reflections had the
potential to trigger empathy and remorse.
For some teachers and
administrators, the use of restorative practices represented a fundamental
shift in thinking about school justice and discipline. The application of
restorative practices may threaten some teachers with a perceived loss of power
and control, particularly within frameworks that involve compliance with school
rules regulated by punishment regimes and the conferred power of teachers.
However, the experience of
participants suggested that punishments based on a high-control, low-support
paradigm are less effective in changing negative behavior. The premise put
forth by Wachtel that people are happier when those in authority do things with them rather than to them or for them resonated with participants.
Restorative practices were appealing
to participants because of the potential to build coherence between a school’s
educative purpose and its discipline and punishment regimes. However, high
ideals, such as “building communities of care” around participants, using such
practices as community conferencing, require strong administrative support,
collective will, and time. For example, it was reported by the Assistant
Principal from Rural A Secondary College that when under pressure some teachers
were unable or unwilling to use restorative practices, resulting in the use of
contrary measures or passing problem students on to senior staff: “Past
practices often meant that staff would pass problems on to Year Level
Coordinators or the Assistant Principal. This has changed to a degree, but for
some staff it is still too difficult. The age of staff (older) is one factor,
as they are grumpier and less tolerant. The time of the day and time of the
year can also influence whether staff have time and the energy to work things
through. Sometimes it is just more convenient to give the problem to someone
else.”
Conclusion
In short, the focus of
restorative justice is not revenge or punishment, but treatment of wound and
recovery of broken relationship. Restorative justice emphasizes not only
resolve the inner resentment, resentment or hatred for members of the
community, but also emphasizes correct injustice relationship between social
structures, prevent potential damage behaviors, and change the kind of
structural violence and symbolic violence inherent in the system arrangements.
Restorative justice is a dialectical unity of peace, truth, responsibility and
forgiveness, making it possible to free the injured social actors from the
opposing state, rebuild or restore tolerance, solidarity and mutual recognition
between each other.
It is believed that
there will be more and more countries adopt restorative justice. In the course
of its development, the applied countries should be based on the reality of
change, constantly looking for the best way to make restorative treatment
methods to get the best effect of reconstruction. Such improvements will
continue deepening the global understanding of restorative justice.
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