Restorative justice means repairing the harm done to the injured parties and restoring the offender to a law-abiding life, writes Diarmuid Griffin
In light of the current climate of panic and crisis that dominates the political debate on justice issues, it is refreshing to see the Oireachtas committee publish a report recently on restorative justice. In the report, the committee recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.
The report proposed that the programme would act as an alternative to more traditional punishments for minor offences. But what exactly is restorative justice, what are the benefits of its use in the criminal justice system and what are the challenges facing its introduction?
Restorative justice is a new phenomenon that developed relatively late in the 20th century. It is often described as a non-punitive alternative to more traditional methods of justice such as imprisonment.
Traditionally, when an individual has been convicted of a criminal offence, the sentence is determined by a judge in court. Victims can sometimes feel excluded from the process, community interests are represented by the State and the process is adversarial in nature.
In the restorative model of justice, the primary focus is on repairing the harm done to the injured parties and restoring the offender to a law-abiding life. This is achieved through bringing the individuals affected by the crime together to negotiate a settlement.
There are different models of restorative justice in practice in a number of countries but it can generally be said that restorative justice involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour. For example, rather than sentencing an offender to a traditional term in prison, a judge may refer an offender into a restorative programme where such a negotiation may occur.
When a referral is made, a conference is convened whereby the participants engage in a process of mediation. The victim is provided with the opportunity to tell the offender of the effect the crime had on him or her. It is believed that this will result in a realisation by the offender of the damage caused and the need to take responsibility for his or her behaviour. It is desirable that the offender apologise and make some form of reparation to the victim.
The focus of the meeting is to determine the outcome for the offender. The outcome can vary but examples would include requiring the offender to make financial reparation to the victim, to participate in a rehabilitative programme or to enter an educational programme.
The use of restorative justice as a method of dealing with offending behaviour may be beneficial in a number of ways. Restorative justice is inclusive of victims and a victim is a full participant in the process. The exclusion of victims is a criticism that is often levied at the criminal justice system. A restorative justice programme may go some way toward redressing that perceived imbalance.
The number of offenders sentenced to a term of imprisonment that subsequently reoffend is a matter for concern. There is evidence that suggests restorative justice may be more effective in reducing the likelihood of an offender reoffending and becoming a career criminal.
The use of the restorative justice may also be more cost efficient. Sending an offender into a restorative programme is an attractive alternative when compared with a pricey term of imprisonment.
There are, of course, a number of challenges that exist when considering the adoption of a programme of this nature. If it is decided that a restorative justice programme should be established, it will require the introduction of well thought out legislation that follows international best practice, the recruitment and training of mediators capable of facilitating restorative conferences and ensuring the judiciary is aware that it is an option at sentencing stage.
While restorative programmes may be more inclusive of victims, it may also place a burden on victim-participation as successful restorative justice can be dependent on the involvement of the victim. Not all individuals will want to engage in a process that involves meeting the offender. This will place a limit on the extent to which restorative justice will be used as an option.
In relation to the potential for restorative justice to reduce the rate of reoffending and to be more cost effective, this will be largely dependent on the type of behaviour the programme will be used for.
For example, there is little point in stating that restorative programmes are more financially efficient or effective at reducing reoffending than a term of imprisonment if the programme is used for offences that do not warrant a term of imprisonment in the first place.
A restorative justice programme would be of most benefit if targeted at those who are at risk of becoming further involved in crime. Of course, it is not envisaged that it would be appropriate as an option for those in society that commit serious offences. However, it would also be a shame to waste such an opportunity by limiting the use of such a programme to petty offences.
The greatest challenge will undoubtedly be in successfully developing restorative justice in areas where there has been a breakdown in community values. Restorative justice is a community-based solution but a strong sense of community is becoming rare in modern society, particularly in the areas characterised by high crime rates.
Programmes of this nature can already be seen in operation in Ireland through the Garda Diversion Programme, which deals with juvenile offending and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght. Much could be learned from these programmes when considering the potential for providing the option of restorative justice on a State-wide basis.
While the adoption of a model of this nature is not without difficulty or challenge, it will be a beneficial resource in dealing with offending behaviour outside the prison system. The setting up of a working group by Minister for Justice Michael McDowell to draw up proposals for a restorative justice programme for adult offenders should facilitate an examination of these issues in establishing such a scheme in Ireland.
Diarmuid Griffin lectures in criminal law, criminology and the law of evidence at the faculty of law, NUI Galway.