CURATIVE JUSTICE THEORY
(A detail note by Justice Khalid Ali Z. Qazi, Judge, Sindh High Court)
The classical criminal justice theory is punitive. It is based upon the concept of deterrence. The perpetrators of crime are meant to be punished. And there is no scope of their reformation. The twentieth century, however, has seen a shift in such trends. The theory of deterrence has mitigated in favour of rehabilitation and reform for the offenders. The idea is that offenders commit crimes due to their sociological, economic or medical background and environment; any extreme harshness would turn the perpetrators into more hardened criminals, whereas an attempt to reform them can turn them into law-abiding citizens.
2. In the ever-escalating shift towards reform, fundamental inroads have been made by what is now called by the proponents as the “Restorative Justice Theory”. The original rehabilitative theory focused only on the reforms of the offenders; whereas the Restorative Justice Theory not only attempts to repair and ameliorate the condition of the offender but also the victim and their relatives or closed ones.
The Concept of Restorative Justice Theory: an overview
3. Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior. It is best accomplished through cooperative processes that include all stakeholders. Practices and programs reflecting restorative purposes will respond to crime by:–
(a) identifying and taking steps to repair harm;
(b) involving all stakeholders; and
(c) transforming the traditional relationship between communities and their governments in responding to crime.
4. Some of the programmes and outcomes typically identified with restorative justice include:–
* Victim offender mediation
* Victim assistance
* Ex-offender assistance
* Community service
5. Three principles form the foundation for restorative justice:
(a) justice requires that we work to restore those who have been’ injured;
(b) those most directly involved and affected by crime should have the opportunity to participate fully in the response if they wish;
(c) Government’s role is to preserve a just public order, and the community’s is to build and maintain a just peace.
6. Restorative programmes are characterized by four key values:–
(a) Encounter.–Create opportunities for victims, offenders and community members who want to do so to meet to discuss the crime and its aftermath;
(b) Amends.– Expect offenders to .take steps to repair the harm they have caused;
(c) Reintegration.– Seek to restore victims and offenders to whole, contributing members of society;
(d) Inclusion.– Provide opportunities for parties with a stake in a specific crime to participate in its resolution.
Restorative Justice: a detailed account
7. In Pakistan over the last 15 years or so, a lot of theoretical discussions to initiate restorative practices have taken place in respect of prison settings, though there has not been any coherent national strategy. We need to distinguish between restorative justice, which embodies discussion between a victim and an offender involved with the same specific offence, and restorative practices which are far broader in scope. A useful definition for restorative justice is given in “Restorative Justice: an overview” by T. Marshall (1999, a Home Office Occasional Paper) `Restorative justice is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future’. Restorative practices have included victim impact and offender behaviour programmes, as well as restorative work by prisoners in local communities.
8. Restorative justice in prisons should involve victims and offenders pre-sentence (i.e. offenders on remand), during sentence and pre-release.
9. Restorative justice is a new movement in the fields of victimology and criminology. Acknowledging that crime causes injury to people and communities, it insists that justice repairs those injuries and that the parties be permitted to participate in that process. Restorative justice programmes, therefore, enable the victim, the offender and affected members of the community to be directly involved in responding to the crime. They become central to the criminal justice process, with governmental and legal professionals serving as facilitators of a system that aims at offender accountability, reparation to the victim and full participation by the victim, offender and community. The restorative process of involving all parties – often in face-to-face meetings – is a powerful way of addressing not only the material and physical injuries caused by crime, but the social, psychological and relational injuries as well.
10. When a party is not able, or does not want, to participate in such a meeting, other approaches can be taken to achieve the restorative outcome of repairing the harm. In addressing offender accountability these approaches can include restitution, community service and other reparative sentences. In addressing victim and offender reintegration they can include material, emotional and spiritual support and assistance. Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished when the parties themselves meet cooperatively to decide how to do this. This can lead to transformation of people, relationships and communities.
11. Restorative justice is different from contemporary criminal justice in several ways. First, it views criminal acts more comprehensively — rather than defining crime as simply lawbreaking, it recognizes that offenders harm victims, communities and even themselves. Second, it involves more parties in responding to crime –rather than giving key roles only to government and the offender, it includes victims and communities as well. Finally, it measures success differently — rather than measuring how much punishment is inflicted, it measures how much harm is repaired or prevented.
Victim, Offender & Community Meetings
12. Meetings between victims, their offenders, and members of the affected community are important ways to address the relational dimension of crime and justice. It is accepted that the following three methods are hallmarks of restorative justice. Each requires that the offender admits responsibility for the offence. Each is limited to parties who volunteer to participate:–
(a) Victim offender mediation.–This is a process that provides an interested victim the opportunity to meet his offender in a safe and structured setting, engaging in a discussion of the crime with the assistance of a trained mediator. The goals of victim offender mediation include: permitting victims to meet their offenders on a voluntary basis, encouraging the offender to learn about the crime’s impact and to take responsibility for the resulting harm, and providing victim and offender the opportunity to develop a plan that addresses the harm. There are more than 300 victim offender mediation programmes in North America, and over 500 in Europe. Research on such programmes has found higher satisfaction among victims and offenders who participated in mediation, lower fear among victims, a greater likelihood that the offender will complete a restitution obligation, and fewer offenders committing new offences, than among those who went through the normal court process.
(b) Family or Community Group Conferencing.–This process brings together the victim, offender, and family, friends and key supporters of both in deciding how to address the aftermath of the crime. The goals of conferencing include: giving the victim an opportunity to be directly involved in responding to the crime, increasing the offender’s awareness of the impact of his or her behaviour and providing an opportunity to take responsibility for it, engaging the offenders’ support system for making amends and shaping the offender’s future behaviour, and allowing the offender and the victim to connect to key community support.
Conferencing was adapted from Maori traditional practices in New Zealand, where it is operated out of the social services department, and was further modified in Australia for use by police. It is now in use in North America, Europe, and southern Africa in one of those two forms. It has been used with juvenile offenders (most New Zealand juvenile cases are handled by conferencing) and with adult offenders. Research on such programmes shows very high degrees of satisfaction by victims and offenders with the process and results.
(c) Peacemaking or Sentencing Circles.–This is a process designed to develop consensus among community members, victims, victim supporters, offenders, offender supporters, judges, prosecutors, defence counsel, police and court workers on an appropriate sentencing plan that addresses the concerns of all interested parties. The goals of circles include: promoting healing of all affected parties, giving the offender the opportunity to make amends, giving victims, offenders, family members and communities a voice and shared responsibility in finding constructive resolutions, addressing underlying causes of criminal behaviour, and building a sense of community around shared community values.
Circles were adapted from certain Native American traditional practices, ‘and are being used throughout North America.
Repairing the Harm Caused by Crime
13. Each of the hallmark restorative justice processes — victim offender mediation, community or family group conferencing, and peacemaking or sentencing circles — ends with an agreement on how the offender will make amends for the harm caused by the crime. Four kinds of reparation frequently appear in these agreements:
(a) Apology.–An apology can be written or verbal. The three parts of apology are acknowledgement, affect, and vulnerability. With acknowledgement, the offender accepts responsibility for hurting the victim by his/her actions. The offender also accepts that there was real harm caused by his conduct. Finally, the offender accepts that the harm caused was experienced by another human being who did not deserve the harm.
The affect goes beyond acknowledgement of guilt to remorse or shame by the offender for what he/she has done. Regret may be expressed verbally or through body language. Witnessing offenders express regret can be healing for victims. However, the offender may feel deep regret but be unable to express it in ways that can be appreciated fully by the victim.
Vulnerability has to do with a shift in power ‘between the offender and the victim. One of the realities of crime is that the offender has asserted control over the victim in order to commit the crime. In, apologizing, the offender gives control to the victim, who can decide whether or not to accept the apology. The offender cannot know what the victim will do before offering the apology. In offering the apology, the offender cedes to the victim the control and power over himself/herself.
(b) Restitution.–This is the payment by an offender of a sum of money to compensate the victim for the financial losses caused by the crime. It is justified in a restorative perspective as a method of holding offenders accountable for their wrongdoing, and as a method of repairing the victim’s injury. Restitution can be determined in the course of mediation, conferencing or circles; it can also be ordered by a judge. In other words, it is a potentially restorative outcome that may result from either a restorative or a conventional process. Studies have shown that restitution increases victim satisfaction with the justice process. Some studies have shown that the use of restitution was associated with reductions in recidivism. Other studies have shown that when restitution is determined during mediation, it is more likely to actually be paid than when it results from court order alone.
(c) Changed Behaviour.–At the most basic level, changed behaviour by the offender means not committing crimes. This is why negotiated agreements will include elements such as changing the offender’s environment, helping the offender learn new behaviours, and rewarding positive change. Attending school and not hanging out in old haunts are ways to change the environment. Drug treatment programmes, anger management classes, and educational and job training programmes are ways that offenders learn new behaviours. Follow-up meetings to the encounters may be used to monitor the offender’s progress in trying to change and give him/her positive reinforcement on progress made.
(d) Generosity.–But the outcomes of restorative processes suggest that victims and offenders may move beyond simply balancing the books. Offenders may offer to perform services that are not related to the crime or to the victim, but that are understood by the victim as evidence of a sincere apology. For example, the offender may agree to perform community service at an agency the victim chooses.
Restorative Justice around the World
14. Although restorative justice is about 30 years old, its influence has spread around the world at a remarkable speed. We can track international development in two basic categories: innovation by countries in their use, of restorative justice, and integration by countries of restorative ideas into their justice systems. Following are examples of innovative restorative practices:
(a) Indigenous or customary practices are being adapted for use in the criminal justice system. Examples of this include conferencing and circles.
(b) Victim-offender encounters are taking place inside prisons in Europe and North America. In some instances this involves victims meeting with their offenders in a kind of “post sentencing mediation;” it is even used in this way on death row in Texas. In other instances the meetings involve groups of unrelated victims and offenders. These “surrogate” encounters may be used because the actual victim or offender is unknown or unavailable, or as a preparatory step toward a meeting of the person with the actual victim or offender.
(c) “Circles of Support” in Canada work with serious sexual offenders (often guilty of paedophilia) released into fearful communities at the conclusion of their sentences. The programme increases safety of the public by establishing a reintegration plan with the offender, by regularly monitoring the behaviour of the offender; and by ensuring that community resources needed by the offender are made available. It ensures the safety of the offender by offering a forum for community members to voice their concerns, by intervening with community members when necessary, and by working with the police and other authorities to provide protection and services at needed.
(d) Unique prison regimes have developed in Latin America and elsewhere in which prisoners volunteer to stay at facilities run largely by volunteers and the prisoners. The regimes establish a particular spiritual or cultural ethos that involves learning through example and apprenticeship
(e) Victim-offender-community being done at many phases of the justice process.–They are run by police prior to charge, by probation officers and on occasion by parole officers in Canada. This is in addition to the rich tradition of NGO provision of community-based victim-offender-community meetings.
(f) Restorative processes are being used to address conflict between citizens and the government. Examples include the Truth and Reconciliation Commission in South Africa and the Treaty of Waitangi Commission in New Zealand.
(g) Integration.–There are also signs that restorative approaches are joining the mainstream of justice around the world.
(h) Legislative action has reduced legal or systemic barriers to the use of restorative programmes, created legal inducements for using restorative programmes, guided and structured restorative programmes, and protected the rights of offenders and victims.
(i) Funding and staff for programmes is expanding.–Belgium, for example, has adopted a “Global Plan” to fight unemployment and to change certain aspects of criminal justice. Municipalities receive funding for programme staff if they agree to help carry out certain penal sanctions and measures such as policed-based mediation.
(j) Jurisdiction-wide planning is incorporating restorative principles in a systemic framework. This has been done at the state and provincial level, and on a national level in some countries. The purpose of the exercise is to involve criminal justice professionals and members of the community in a process that leads to a plan for implementation and expansion of restorative approaches.
(k) The number of restorative programmes is growing.–There are more than 500 mediation programmes and projects in Europe, and over 300 in the US. A Canadian survey of restorative programmes and projects in that country resulted in over 100 listings.
(l) Intergovernmental bodies are taking note of restorative justice. In 1999 the Committee of Ministers of the Council of Europe adopted a recommendation on the use of mediation in penal matters. The UN’s International Handbook on Justice for Victims notes that “the framework for restorative justice involves the offender, the victim, and the entire community in efforts to create a balanced approach that is offender-directed and, at the same time, victim-centered. Victim compensation has become a key feature of restorative justice in many developed countries.”
(m) Coordination and Strategic Reform
South Africa One Stop Child Justice Centre
South Africa has introduced an innovative multi-disciplinary team approach to juvenile justice all under one roof. The “One-Stop” model is a juvenile justice centre with specialized police, court and probation officers (social workers) all in the same location. Juveniles who are arrested are taken to the centre to be processed by the police and assessed by a social worker. The centre has special separate cells for juveniles who are detained during the investigation, as well as a specialized juvenile court. The model has helped improve coordination between the agencies, ensure that juveniles are kept separate and apart from adult offenders, and has allowed for more appropriate and timely resolution of juvenile cases.
(n) Legislative Reform
Philippines Study on the Age of Discernment of Out-of School Children
As in other contexts, raising the age of criminal responsibility had been a contentious issue in the Philippines. In order to support the proposed increase in the age of criminal responsibility from 9 to 12, the Philippine Action for Youth Offenders (PAYO) conducted a Study on Age of Discernment of Out-of-School Children. Researchers interviewed 300 out-of-school children aged between 7 and 18, most of whom were street children. The study, which followed up on a similar study conducted with school children, concluded that out-of-school youth have a lower ability to make positive choices in life and were generally at a very low level of discernment. At the age of 18, the out-of-school children tested were at a level of discernment comparable to a seven year old. This dispelled the common myth that street children “grow up faster” than school-going children, and the fact demonstrated that the contrary was true. While street children had become “street smarts”, their moral reasoning and cognitive development were impaired by the surroundings in which they were living.
(o) Juveniles and the Police
NZ Police Youth Aid Programme
New Zealand has instituted a Police Youth Aid programme throughout the country. Police Youth Aid Officers deal with majority of the young people who have been apprehended or are considered “at risk of offending”. The Youth Aid Officers are not present at the time of incident but receive reports regarding youth offences from the arresting officer. The police also run youth education and youth development programmes, which have been successful in reducing offences by young people. The Youth Aid Officers are fully qualified police officers who have chosen to specialize in dealing with young people and their families. It is his/her responsibility to manage matters pertaining to children and young people, including; implementing alternative methods of dealing with young offenders, other than through criminal proceedings; representing the police at the Family Group Conference: liaising with schools, government agencies and organizations; providing guidance and assistance to parents; and prosecuting or supporting prosecutors in Youth Courts (police in New Zealand prosecute in the court except in serious cases, or when the matter is being deliberated before a jury). The Youth Aid Officers play a key role in the youth justice process, including seeking appropriate solutions through warnings, diversion and other methods of dealing with the offenders (including those committing serious offences) without resort to the youth court or Family Group Conference. The law does not preclude any offence from being dealt with in this way. The Youth Aid Officer decides if there is an alternative way of handling the case, taking into consideration the attitude of the juvenile and of the family toward the offender. Majority of the offences dealt with through this process are property offences such as shoplifting, property damage, offences involving motor vehicles, burglary and driving offences. When the offence involves more than minor violence, the Youth Aid Officer will refer the juvenile to a Family Group Conference.
The Youth Aid Officers have been the key actors in making diversion options successful.
(p) Diversion and Restorative Justice
Lao PDR Village Mediation Units
In Lao People’s Democratic Republic (Lao PDR), villages have long had Village Mediation Units to resolve adult civil and some criminal disputes. As apart of a larger Children’s Justice Project to promote diversion, save the Children Fund UK and the Ministry of Justice supported the establishment of Children’s Mediation Units to operate at the village level. They mediate in children’s cases primarily brought by the victims, local police and parents. Mediation will not take place if children do not admit the offence. If the offence is too serious (murder, rape, extreme violence), it will be referred to the police. A Central Management Team comprising officials of the Ministry of Justice oversees the project on behalf of the Minister. At the provincial level, there is a Provincial Monitoring Committee and a Provincial Operations and Training Team; at the district level, it is the District Implementation and Monitoring Committee. Apart from the Central Management Team, these bodies are made up of a cross-section of senior members of the criminal justice system, e.g. the judiciary, police prosecutors’ office, mass organizations of the Lao Women’s Union and the Lao Youth Union and other relevant ministers.
(q) Child Justice Committees and FREELAVA Diversion Programme, Philippines
The Children’s Justice Committee (CJC) was formed in 2002 as a community-based structure within the l3arangay (village or smallest government unit) Council for the Protection of Children (BCPC) to promote community level prevention, diversion and mediation measures for juveniles in conflict with the law. The ‘ NGO, FREELAVA, provides assistance to the CJC members through guidance to implement the project in their own localities. When a case is referred to the CJC by the community or the police, the Committee members convene to verify the facts of the complaint. Community volunteers immediately inform the parents of the child and explain the mechanisms of the diversion programme to the victim. The CJC members summon both parties to discuss possible settlement/mediation of the case and to schedule subsequent meetings. If all the parties agree to the mediation, the offender is asked to present his/her written or oral apologizes to the victim and/or verbal reasons explaining why he/she committed the crime(s). Mediation must be heard in a private room, usually in one of the rooms of the CJC’s Centre.’ In case no settlement is reached, a formal case is filed. Where settlement is reached, CJC members recommend steps for further psychosocial intervention for the juvenile through a centre-based or family-based approach. Community volunteers continue to monitor the child, in conflict with .the law through centre/family visits. The. secretariat of the CJC keeps track of the records through a system of data collection and monitoring. FREELAVA offers a number of programmes to support juveniles who have, been diverted through this process.
(r) Alternatives to Pre-trial Detention
Many countries have struggled to find alternatives to detention for juveniles who, are street children, or who come from troubled families that cannot provide appropriate supervision. The following are some promising practices that are used to provide supervision to juveniles during the investigation/pre-trial stage as an alternative to hold them in detention:
(i) Family responsibility–Family members are encouraged to take greater responsibility by taking part, together with the juvenile, in the process of developing a supervision plan for the juvenile. Parents and the juvenile meet with the police and participate in deciding, what conditions should be imposed on the juvenile. This ensures that they are fully aware of their obligations, and also allows parents to suggest conditions that they think will help them to have better control over their child.
(ii) Mentor or Community Supervisor.–Under this model, a volunteer mentor or community supervisor is assigned to the juvenile to supplement the parent’s supervision. The mentors are usually members of the juvenile’s community or live in the same neighbourhood.
(iii) Day or Reporting Centres.–The reporting centre model is designed to provide intensive supervision for juveniles who are not in school or who spend time on the streets. Under the reporting centre model, juveniles are placed under the supervision of their parents, but are required to attend a reporting centre for a certain number of hours per day.
(iv) Youth Shelters/Open Custody.–Shelters provide an alternative for juveniles who require a residential placement because they are homeless and do not have a parent or other relative to provide supervision. Instead of being sent to a detention centre, the juveniles are placed in home-like centres located in regular residential areas. The centres generally house between 10-15 youth and are staffed by workers who have been specially trained to deal with troubled adolescents.
(s) Child-Friendly Juvenile Courts
Australia’s Aboriginal Juvenile Court
In 2004, the Australian State of Victoria created a new Children’s Koori Court. With this new initiative, the government is attempting to create a less formal, more culturally relevant justice experience for young aboriginal offenders, their families and the community. The court is to conduct procedures with “as little formality and technicality” as possible. This includes taking’ steps to ensure that the proceedings are comprehensible to the juvenile, family members of the offender and any member of the aboriginal community present in the court. In these courts, the physical setting is changed to create a more informal and culturally relevant environment. The magistrate does not wear the garb associated with his office and sits at eye level with the offender. Aboriginal community elders or respected persons sit beside the magistrate and offer insight on the particular case. The process includes all relevant voices to the case, including aboriginal .justice offices, community members and the victims in developing a sentencing plan that will support recovery and reintegration.
(t) Court-appointed Special Advocates in the Philippines
This volunteer programme provides a mechanism for skilled and trained child advocates to provide the needed services to juveniles in conflict with the law. Under the programme, volunteer “special advocates/guardians” receive training and are appointed by the court to present and support juvenile offenders. These volunteers may present written reports to the court, recommending what they believe is best for the juvenile and providing the judge with information that will help the court to make an informed decision. They also provide support and assistance to juveniles and their families throughout the proceedings and, when appropriate, may speak in the courtroom on behalf of the juvenile. Because they are specifically appointed to advocate the interests of the juvenile in the court, the volunteers are regarded as one of the most important forms of assistance to children and their families. The volunteers have become a powerful voice for juveniles and have significantly helped judges in handling juvenile cases.
(u) Non-Custodial Sentencing Alternatives
8% Early Intervention Programme, Orange Country, USA
The 8% Early Intervention Programme was developed by the Juvenile Systems Task Force to target young, high-risk juvenile offenders and their families. It was found that a small percentage (8%) of chronic offenders accounted for more than half of all juvenile arrests in Orange Country. These chronic juvenile offenders were usually aged 15 or younger at the time of their first violation and had at least two of the following characteristics: poor school behavior or performance problems, family problems, substance abuse problems and delinquency patterns. The programme employs experienced probation officers, with caseloads of no more than 15 clients each, to work intensively with the juveniles and their families. First, the staff tries to control the offender’s behavior ensure that he or she complies with the probation terms and conditions and stabilize the juvenile’s home environment through counselling, parent aides and respite care. Then the probation officer helps the juvenile develop the necessary skills to avoid a life of crime and trains parents on ways to supervise and support their children. Volunteers assist by mentoring young people and developing jobs and literacy programmes.
(v) Innovative Detention Centres
Open Prison, Ankara Reformatory, Turkey
The Ankara Reformatory is based on the philosophy of integration rather than isolation, and more than half the children leave prison every day, unaccompanied, to attend local schools or work in the local businesses. There is nothing to stop the children escaping, should they choose to do so: there are no perimeter fences or guards. Yet very few run away as the conditions and opportunities available in the open prison are so preferable to those in closed prisons (where they would immediately be sent if recaptured) and, in many cases, to file outside. Conditions are described as, “simple but very pleasant”. Primary level classes are held on site, whilst secondary standard children attend regular school. According to a Turkish law passed in 1971, any business with over 50 employees is required to ensure that 3% of the workforce are ex-offenders. So boys over the age of 15 (official school leaving age) find placements in the local factories, depending on their skills, or are trained in a craft at the reformatory. Anything they make during their classes (such as clocks, ceramics and stained glass) is sold to the community through regular craft fairs with the profits returned directly to the boy who made the item. Those with jobs get to continue their employment on release and to move into shared group accommodation. The reformatory also arranges regular trips to football matches, the theatre, TV studios, cinema and museums. Despite the serious nature of most of the offences (more than half are serving sentences of over five years for murder or serious sex offences), the local community does not object to the institution. Instead it actively supports it through voluntary classes, sports and crafts skills. The overall impact is that these boys are not isolated from society and are provided support to integrate into the local community.