Criminal justice and the study of deviant behaviors has seen many paradigms shifts since its inception. From the pseudo-science of phrenology to the cruelty of the Pennsylvania prison model, these non-evidence based approaches to criminal justice has brought tangible harm countless victims.
If we presuppose that the aim of criminal justice is to reduce the likelihood of offender recidivism then this premise will provide us with some indicia of how the current systems are performing. The adversarial model of criminal justice is widely accepted in western societies as both familiar and entrenched in tradition. In this model, criminal matters are deemed settled when the offender in question is assigned a specific punishment for their respective transgressions. (Maschi, 2014) Punishment is nearly universally limited to housing individual offenders within a prison facility based on their respective criminal offence and risk based demeanor. This punishment serves the dual purpose of incapacitating a specific offender for a determinate period of time and acting as a deterrent to the overall public. Administratively, this process of criminal justice is unaffected by the desires of the victims, it does not seek to make the community whole nor does it attempt to make the offender understand the deleterious nature of their action. The most damning condemnation of the adversarial model of criminal justice is that it fails to transform offenders into law-abiding citizens after their institutionalization. Statistically, once a prisoner has been released from an in custody facility there is an approximately 50 percent chance that they will be reconvicted of a criminal offence within 3 years. (Nagin et al., 2009) This data is relatively consistent over multiple countries that employ a western model of criminal justice. Within the United States, the issue of recidivism is further exacerbated by the mass incarceration rates, which shows that around 2.3 million Americans are in some form of custody. (Nagin et al., 2009)
As presently constructed, the adversarial model of criminal justice employed in the United States has undoubtedly failed in its raison d’etre. Based on the statistics mentioned above, we can extrapolate that the economic burdens along with the sheer concentration of human suffering produced far outweighs any actual benefits derived.
So where do we go from here? If we concede that rehabilitation is the central component to the process of obtaining justice, we have no alternatives but to evoke a radical paradigm shift towards a truly restorative justice model.
Restorative Justice Principles as imagined by early proponent Howard Zehr is based less in the procedure of jurisprudence and focuses more on the communal effects of crime. (Maschi, 2014) Victim Offender Mediation open up the pathway of healing for both parties involved in a crime. The victim who was wrong is allowed to speak their feelings and the offender is able to see how their actions affect the community as a whole. Contrary to popular opinion, this system of justice produced through a sentencing circle provides both accountability of offenders and can utilize punishment other than imprisonment. Evidence surrounding restorative justice system shows strong reduction in decreased recidivism and an increase compliance with other forms of restitution. (Maschi, 2014)
Critiques against transitioning to a Restorative Justice System can come from multiple approaches. Pragmatically, an overhaul of the current system is seen by many as unnecessary given the presence of the adversarial model. However, this argument is academically inadequate because it is rooted in a lack of understanding rather than conveying any tangible benefits of the current systems. As a scientific field, criminal justice should seek to continuously improve upon it systems based on evidence supported by new research. Furthermore, with shifts towards specialized courts for individuals of the following categories veterans, drugs and mental health patients we are seeing a natural progression towards restorative justice practice as a society.
Another common critique levied by advocates against restorative justice model is that this type of proceeding is suitable only for minor offences. However contrary to this belief, New Zealand operationalized restorative justice conferences for serious violent offenders with police diversion reserved for minor offences. (Morris, 2002) Research results demonstrates that in comparison with a control group of similar offenders a marked improvement is observed from the conventional criminal justice proceeding. (Morris, 2002)
Moving towards new systems of criminal justice can be daunting however, this alone should not be the reason progress is halted. There is an ethical imperative for practitioners and professionals to call for a reformation of the current criminal justice system towards an institutionally restorative model.
- Maschi, T., Leibowitz, G., & Mizus, L. (2014). Restorative Justice. In L. Cousins (Ed.). Encyclopedia for Human Services and Diversity (pp. 1142-1144). Thousand Oaks, CA: Sage Publications.
- Wenzel, M., Okimoto, T. G., Feather, N. T., & Platow, M. J. (2008). Retributive and restorative justice. Law and Human Behavior, 32(5), 375–389. https://doi.org/10.1007/s10979-007-9116-6
- Nagin, D. S., Cullen, F. T., & Jonson, C. L. (2009). Imprisonment and reoffending. Crime and Justice, 38(1), 115–200. https://doi.org/10.1086/599202
- Morris, A. (2002). Critiquing the critics: A brief response to critics of restorative justice. British Journal of Criminology, 42(3), 596–615. https://doi.org/10.1093/bjc/42.3.596