JS 318 - Restorative Justice - Midterm

Define restitutive justice

A gain or benefit wrongly taken/enjoyed should be returned 

• Mainly deals with compensation

• Can serve any number of criminal law purposes

• Restore rational equality

• Wants to create a situation where all parties can relate to each other as free and equal citizens

Define rehabilitative justice

Assumes something is inherently wrong with the offender so we should “fix” them. Its offender focused and tries to correct the causes of criminal behaviour on an individual basis

• Defines offenders by their deficits, not by their capacity

• Can it provide anything to the victim?

Define retributive justice

It seeks to establish/re-establish social equality between the victim and perpetrator

• Philosophical inherent for punishment

• Social equity is achieved by using a particular set of historical practices called punishment (evening the score)

• Essentially and inherently a social approach

• Not just a crime against a person but a crime against the state

• Offender becomes known as the public enemy

Define restorative justice

Resolving harm caused by crime that focuses on the needs of the victims, offenders and communities 

• Claims its roots in both Western and non-Western traditions 

• Historical accounts of justice have been accused of discovering/uncovering so-called “dominant” forms of justice that are used to provide support for the present approaches to justice 

Define vigilante justice

Taking matters into your own hands

Define ‘just deserts’

You get what you deserve

Define proportionate punishment

If you get what you deserve then you get what you deserve and not much more. Cost benefit analysis, the benefit should slightly outweigh/be more painful than the benefit 

What is Status Quo Ante?

Returning things to the way they were before

What is ‘bean-counting’

Puts a price tag on the emotional, physical, psychological and any other harm done to others

Define general deterrence

Sending a message through the punishment of others/offenders

Define specific deterrence

Imposing a sanction/punishment to deter the offender from reoffending

What are the focuses of each paradigm? (ex; offender focused, victim focused, etc)

1. Restitutive = Victim focused

2. Rehabilitative = Individual basis - Offender focused

3. Retributive = Individual guilt

4. Restorative = Outcome focused 

What are the rules of engagement?

1. Ethnocentrism - we think within the confinements of our own beliefs, values and norms, we have a tendency to believe they are superior 

2. View of the majority - not the same thing as justice

How did Howard Zehr describe paradigms?

“They provide the lens through which we understand phenomena. They shape what “know” to be possible and impossible. Paradigms form our common sense, and things which fall outside, seem absurd”

What is crime and what is justice?

Crime is the violation of criminal code; norms and values; relationships

Justice is a response to a powerful moral institution that “something must be done”

It is said that Paradigms create patterns of thinking, why is this necessary?

We don’t have the capacity to deal with the onslaught of information we are constantly confronted with

What are the criticisms of restitutive justice?

1. Limited in its focus

2. Does not repair harm/address the harms

Which school of thought has been the most influential in Criminology over the past 200 years?

Rehabilitative justice

Which 2 paradigms aim for there same outcome? What do they aim to achieve?

Retributive & Restorative: Both paradigms share a common conception ground in their commitment to establishing/re-establishing social equity

Who is Herman Biachi?

He suggested that scholars, particularly those from the West are so attracted the the punitive model, which forms the backbone of our current justice system, they are unable to contemplate the success of other models in other time and places.

Biased historical accounts have clouded our ability to become detached from the punitive (retributive, punishing offenders) model

What did Howard Zehr say about paradigms?

They provide the lens through which we understand phenomena. They shape what we know to be possible and impossible. Paradigms form our common sense and things which fall outside, seem absurd.

What did Howard Zehr suggest in terms of restorative justice?

1. For most of history non-legal dispute resolution techniques have been dominant and humans figured out how to deal with crime without the law

2. Private justice

3. Community justice

What are the 7 ideas in terms of Modern Roots of Restorative Justice

1. Victims rights and assistance

2. Prison abolition 

3. Informal Justice movement 

4. Social Justice 

5. Indigenous Justice 

6. Reparative Justice

7. Communitarianism 

Explain victims right and assistance

1. Initially focused on promoting victims rights in conflicts with offenders

2. Advocate for reparation and comprehension as resulting in deeper satisfactory outcomes for victims rather than simple punishment as well as victim participation in the legal process

Explain prison abolition

1. Emerged with critical criminology

2. Failure of the CJS, particularly prisons 

3. Critical criminologists described quite convincingly the counterproductive effect of criminal justice and its incapacity to ensure peace 

4. Counter productive - they “did their time” but there is still stigma surrounding a person who commits a crime

What did Ezra Fattah say about why punishment doesn’t work?

1. Ineffective in terms of changing peoples behaviour 

2. costly 

3. treats human beings as means to and end (sent a message, this behaviour will not be tolerated)

4. penal sanctions amounts to punishing the victim, punishing the offender doesn’t necessarily do anything to repair the harms to the victims

• Argues prisons are just warehouses 

• We should only put people in prison that we’re scared of, not people that we’re mad at 

• Not as victim focused/victim centred

What is informal justice movement

• Emphasised informal procedures with a view to increasing access and participation in the legal process

• Today’s societies have too little conflict, not enough meaning the participation on the resolution of conflict is not enough

• We don’t like conflict and our feelings get hurt too easily

• 911 mentality

Who is Nils Christie and what did he suggest?

“Conflict as Property"

He called for participatory justice

1. Victim is a double-loser

2. Involvement not represented 

Value of conflict 

1. Reduce segmentation 

2. Opportunity for norm clarification 

3. Reduction in anxiety and misconceptions 

What does Nils Christie mean when he says the victim is a “double loser”

The victim has experienced: 

1. A loss because of the victimisation 

2. A loss because they have virtually no say in the court process, once they are turned over to the process of the institution, they are left out

What is social justice?

1. A set of ideas, values, and social practices to ensure that everyone can enjoy economic security, can participate effectively in democratic decision-making, exercise mutual respect and caring for one another, and life their lives in ways that protect and sustain the natural environment for future generations 

2. Working for a vision of justice as concerned inherently with social well-being 

3. Justice a “peacemaking”

Who is Kay Harris?

Stated rather than a punishment, need a caring and interdependent response to crime

What is Indigenous justice

1. Has had a large impact on restorative justice

2. Can be retributive (banishment)

3. Intention to repair harm rather than inflict equivalent harm 

4. Conferencing and sentencing circles have their roots in Indigenous justice

What is reparative justice and who is the individual involved with it

1. Restitution “rediscovered” in the 60’s

Albert Eglash “Creative Restitution”

1. The offender is required to make amends for their actions but is free to determine for themself what form this amends takes

2. Their choice is made within the framework of “guided restitution”

What are the 5 rationales to support the use of "restitution”

1. The victim is the party harmed by the behaviour

2. Alternatives to restrictive sanctions such as imprisonment are needed

3. There may be rehabilitative value in requiring the offender to pay the victim

4. Relatively easy to implement

5. Might lead to a reduction in retributive sanctions, when the public actively sees the offender actively repairing harm

what are the 4 characteristics of guided restitution

1. Restitution is an active effortful role for the offender

2. The active effortful role is also a constructive and helpful effort directed toward the victim

3. The constructive or helpful aspect is related to the nature of the harm

4. The nature of the relationships of the restitiutional act and the offence is reparative of the damage done to person or property

what are the 2 characteristics of creative restitution

1. The second mile; The reparative effort goes beyond restoring a situation to the status quo ante

2. Mutual help programs (an offender engages in an activity on behalf of or to support other offenders ex; AA or NA)

What is communitarianism

1. Leads to communities as both the means and an end for restorative justice 

2. Relational justice 

• Relationalism might offer an antidote to problems plaguing the cjs

• Fostering genuine respect, concern and dignity, elements that are essential in conceptualising and handling conflict and crime at the individual level and in social context 

What are the 3 common aspects that the majority of definitions of RJ take into account, explain them

1. Encounter conception = The importance of stakeholder meetings and benefits that come as stakeholders discuss crime

2. Reparative Conception = Crime causes harm and justice must repair the harm to the stakeholders, stakeholders coming together to agree

3. Transformation Conception = Addresses broken relationships at multiple levels of society to avoid the pitfall of the status quo ante

What is the Van Ness and Strong definition of restorative justice

• restorative justice is a theory of justice that prioritises repairing the harm caused or revealed by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders. This may result in transformed people and structures 

What is the first RJ principle 

JUSTICE HEALS

1. Justice requires that we work to heal victims, offenders and communities injured by crime

2. Victims are not all the same, they may experience harm resulting from crime very differently (primary & secondary victims)

• 2 common needs for victims: vindication & regain control over their life

3. Community as victim

• Community of care: the presence of connectedness and relationships

• Community of victim: willingness of members to act accordingly to interests larger than their own 

4. Offender as victim: the victim does experience harm as…

• factors contributing to the commission of the crime

• as a result of their commission of the crime

What is the second RJ principle

JUSTICE INCLUDES

• victims, offenders and communities should have the opportunity for active involvement in the justice process as early and as fully as they wish 

• “double-loser” mindset/Nils Christie

• voluntary processes

• Justice is the moral obligation to make things right

• Make amends

What is the third RJ principle

JUSTICE SHARES

1. We must rethink the relative roles and responsibilities of government and community: in promoting justice, government is responsible for preserving a just order and the community is responsible for establishing a justice peace

• Order: preserving safety through rules and regulation through the state

• Peace: maintaining harmony, balance and relationships

2. Both order and peace are means for achieving public safety

• Inverse relationship = the better a community is at establishing peace, the less need or preservation of order. One goes up, the other goes down.

• “facilitate” people solving their own problems