Restorative Justice in Corrections (PEN3701) Practice Flashcards

Foundations of Restorative Justice as a Reaction to Crime

Restorative justice ( ext{RJ}) represents a fundamental paradigm shift in how the South African criminal justice system responds to criminal behavior. Since the introduction of democracy in $April\,1994$, there has been a transition from the punitive "Prisons" status to "Correctional Centres." This change was guided by the White Paper on Corrections ($2005$), the South African Correctional Services Act $111$ of $1998$, and the move toward an Integrated Justice System. Traditionally, the focus was on apprehending and punishing offenders; however, the new focus is on healing and restoring relationships through a paradigm that addresses the needs of victims and communities. Restorative justice asks critical questions: "Who has been harmed by crime?", "What is the harm caused?", "Who caused the harm?", and "What needs to be done by the offender, community, and the criminal justice system to repair the harm?"

Tony Marshall ($1996$) define restorative justice as a process where all parties with a stake in an offence come together to resolve the aftermath collectively. Howard Zehr ($2002$) refined this, describing it as a process to identify and address harms, needs, and obligations to heal and put things right. The Restorative Justice Briefing Paper ($2005$) emphasizes a theory of justice focusing on repairing harm via cooperative processes. The Truth and Reconciliation Commission (\text{TRC}) of South Africa ($1998$) views it as a way to redefine crime as violations against human beings rather than just law-breaking, focusing on reparation and the accountability of offenders. In the correctional setting, Mokoena ($2018$) defined it as elevating the role of victims and the community to hold offenders directly accountable through dialogue and problem-solving.

The Principles and Values of the Restorative Lens

Restorative justice is anchored by five key principles often illustrated by Zehr as the "Restorative Justice Flower." Rooted in the soil of respect, the petals represent: ($1$) Focus on the harms and needs of victims, communities, and offenders; ($2$) Addressing obligations resulting from those harms; ($3$) Using inclusive, collaborative processes; ($4$) Involving all stakeholders; and ($5$) Seeking to put right the wrongs. The fruit of this flower is the restoration of that which was broken. Restorative justice is primarily about making things right and reintegrating everyone affected back into the community.

The practice of restorative justice is guided by essential values. Participation ensures those most affected are the principal decision-makers. Respect dictates that all human beings have equal worth. Honesty allows parties to speak about the impact of incidents beyond establishing guilt. Humility recognizes the vulnerability of all humans. Interconnectedness acknowledges that the community shares responsibility for its members. Accountability requires offenders to accept full responsibility and demonstrate remorse through reparation. Empowerment restores personal agency to victims and encourages offenders to take responsibility. Hope fosters a sense of healing for victims and change for offenders.

Differences Between Retributive and Restorative Justice

Retributive justice differs significantly from restorative justice in its philosophy and outcomes. In retributive justice, crime is defined as a violation against the state, whereas in restorative justice, it is a violation of people and relationships. Retributive justice focuses on punishment, establishing blame, and past behavior; restorative justice focuses on accountability, problem-solving, and the consequences of behavior. In retributive systems, the community is on the sidelines, and the process is adversarial. In restorative systems, the community facilitates the process through mediation and dialogue. While retributive justice imposes pain to deter crime, restorative justice uses restitution to repair social injury and restore relationships. Repentance and forgiveness are not encouraged in retributive systems but are central possibilities in restorative justice.

Case law in South Africa has increasingly recognized these differences. In $\text{S v Shilubane}$, which involved the theft of $7$ fowls, the court set aside a nine-month prison sentence in favor of a suspended sentence, noting that restorative justice and compensation would better serve the complainant. In $\text{S v Maluleke}$, Bertelsmann J emphasized that restorative justice could combat recidivism by encouraging offenders to take responsibility and easing the burden on overcrowded correctional facilities. In that murder case, the offender was ordered to apologize to the victim's family as a condition of a suspended sentence.

Legislative and Policy Mandates in South Africa

Several pieces of legislation provide the mandate for restorative justice. Chapter $2$ of the Constitution of the Republic of South Africa ($1996$) protects human dignity and equality, which implies the rehabilitation of offenders. The Criminal Procedure Act $51$ of $1977$, specifically $\text{Section } 299A$, grants complainants the right to make representations at parole hearings for crimes such as murder, rape, kidnapping, and robbery with a weapon. The Correctional Services Act $111$ of $1998$ requires that offenders be assessed for restorative justice requirements upon admission ($\text{Section } 38$) and allows the Parole Board to set conditions such as paying compensation or participating in mediation ($\text{Section } 52$).

The Child Justice Act $75$ of $2008$ establishes a restorative system specifically for children, emphasizing accountability and $\text{Ubuntu}$. Policy-wise, the White Paper on Corrections ($2005$) views correction as a societal responsibility. It identifies six objectives for restoration: addressing offences committed, assisting victims to reach forgiveness, promoting rational thinking to eliminate anti-social habits, restoring offenders as family members, and enhancing social cohesion. The Department of Correctional Services (\text{DCS}) Policy on Restorative Justice ($2007$) provides the framework for victim-offender mediation (\text{VOM}) and integrating these practices into core correctional programs.

Victim Empowerment and National Strategies

South Africa implemented the National Crime Prevention Strategy (\text{NCPS}) in $1996$, which shifted the focus from state-centered systems to victim-centered restorative systems. Under "Pillar One" of the \text{NCPS}, the Victim Empowerment Programme (\text{VEP}) was launched in $1998$. This interdepartmental effort, led by the Department of Social Development, aims to make the justice system sensitive to victims and reduce secondary victimization. The Integrated Victim Empowerment Policy (\text{IVEP}) provides a model for service delivery where victims can move from being "victims" to "survivors."

In $2004$, the Service Charter for Victims of Crime in South Africa (Victims' Charter) and the Minimum Standards on Services for Victims of Crime were approved. These documents establish rights for victims, including the right to receive information, protection, assistance, and restitution. The Victims' Charter specifically outlines the responsibility of the \text{DCS} to ensure victim participation in parole boards and notifying victims of release dates. These local strategies are aligned with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power ($1985$), which mandates compassion and redress for victims.

Major Role Players in the Restorative Process

There are three primary role players in restorative justice: the victim, the offender, and the community. The term "victim" includes anyone who has suffered physical or mental injury, emotional suffering, or economic loss, as well as their immediate family. The roles for victims include dialogue with the offender and expressing the impact of the crime, though risks like re-victimization or pressure to participate must be managed. For offenders, the role involves taking responsibility, understanding the harm caused, and making amends. The community acts as a support system, helping ensure agreements are met and addressing the underlying causes of crime.

The benefits for victims include emotional relief, receiving answers, and achieving closure. Offenders benefit by reconciling with the community and repairing relationships. Communities benefit from a potential drop in recidivism and a sense of ownership over local conflict resolution. Partnerships with non-governmental organizations (\text{NGOs}) are vital. The Restorative Justice Centre (\text{RJC}) builds capacity for restorative programs. Khulisa Social Solutions ($1997$) runs victim-offender mediation, especially for serious violence. NICRO ($1910$) offers programs like the Youth Empowerment Scheme and Family Group Conferences. Hope Prison Ministry, led by Jonathan and Jenny Clayton, runs an intensive $8$-week course and Victim-Offender Dialogue (\text{VOD}) in facilities like Pollsmoor.

Restorative Justice Programs and Interventions

The "Restorativeness" of a practice is often measured on a continuum. Fully restorative processes involve the active participation of victims, offenders, and the community (e.g., conferencing). Mostly restorative processes might miss one group, and partially restorative processes might involve only the offender or victim (e.g., victim impact panels). Key programs include: ($1$) Sentencing Circles, which seek consensus on outcomes; ($2$) Restorative Conferencing, involving a wider "community of care"; ($3$) Victim-Offender Panels (\text{VOP}), where unrelated groups share testimonies; and ($4$) the \text{DCS} Restorative Justice Orientation Programme, which is a compulsory module to prepare offenders for further interventions.

Two primary interventions are Victim-Offender Mediation (\text{VOM}) and Victim-Offender Dialogue (\text{VOD}). \text{VOM} involves a trained mediator facilitating a meeting to create a mutually acceptable plan for restitution. \text{VOD} is a victim-centered conversation aimed at exploring the crime and seeking answers, usually occurring only after the offender has accepted responsibility. Participation in these programs is growing; for the $2018/19$ financial year, $\text{DCS}$ recorded $21\,935$ victims participating in restorative justice programs. This emphasizes the department's belief that restorative justice enhances rehabilitation and personal transformation.

Victim Participation in Parole Boards

In line with $\text{Section } 299A$ of the Criminal Procedure Act and $\text{Section } 75(4)$ of the Correctional Services Act, the National Commissioner of Correctional Services issued directives in $2005$ (published $7\,April\,2006$ in Government Gazette $248(28646)$) to regulate victim involvement in parole hearings. Victims must register their request to be involved and provide the offender's details and case number. They have the right to attend the hearing, submit written inputs, or provide video/audio recordings. The Parole Board must consider the victim's representation alongside the offender's risk prognosis and participation in restorative programs. If a victim is dissatisfied with a decision, they can write to the Correctional Supervision and Parole Review Board. These directives ensure the system adheres to the "audi alterem partem" rule, allowing both parties to be heard while protecting victims from intimidation.

The Philosophy of Ubuntu in the African Context

Restorative justice is deeply rooted in traditional African culture and the philosophy of $\text{Ubuntu}$, which translates to "humanness" or "I am what I am because of who we are." This concept emphasizes communal responsibility and the healing of broken relationships. $\text{Ubuntu}$ implies that a person's humanity is inextricably bound with the humanity of others; thus, dehumanizing another dehumanizes oneself. This philosophy decolonizes the justice system by moving away from Western adversarial models toward indigenous traditions like the $\text{gacaca}$ courts in Rwanda or traditional meetings in Zambia and Zimbabwe. Desmond Tutu described $\text{Ubuntu}$ as a gift that focuses on hospitality and the common good. It served as the backbone for the South African $\text{TRC}$, allowing perpetrators to come to terms with their actions through the "balm of acknowledgment" and communal healing.