Chapter 3: 'Conflict resolution, restoration, and informal justice' BLOCK 2, BOOK 2.

Question 1

COMMUNITY JUSTICE

Answer 1

1. COMMUNITY JUSTICE: A term deployed generally to describe a range of conflict resolution strategies, usually associated with informal and restorative forms of justice.

Question 2

GOVERNMENTALITY

Answer 2

1. GOVERNMENTALITY: The proposition that social order is achieved not through a ‘disciplinary society’ or by state coercion, but through dynamic relations of power and knowledge to be found in a multitude of institutions.

Question 3

INDIGENOUS JUSTICE

Answer 3

1. INDIGENOUS JUSTICE: Rather than privileging the law, professionals and the state, indigenous justice prioritises exchange between offender, victim, and local community in the healing and rebuilding of relationships (though not necessarily without coercive outcomes).

Question 4

INFORMAL JUSTICE

Answer 4

1. INFORMAL JUSTICE: A variety of initiatives that are intended to either overcome the major limitations of formal criminal justice processes or replace the criminal justice system.
2. Advocates of informal justice point to its non-bureaucratic and de-professionalised nature as evidence of its progressive qualities in challenging the failures of formal justice.

Question 5

NET-WIDENING (COHEN, 1985).

Answer 5

1. NET-WIDENING: The process whereby attempts to prevent crime inadvertently draw more subjects into the criminal justice system.

 

Question 6

REPARATION

Answer 6

1. REPARATION: A strategy employed in the criminal justice system whereby an offender pays compensation to, or acknowledges their wrongdoing in the presence of the victim.

Question 7

RESTORATION

Answer 7

1. RESTORATION: A philosophy and practice of bringing offenders, victims and communities together in order to repair harms, reconcile conflicts and heal rifts.

Question 8

‘REINTEGRATIVE SHAMING’ and ‘DISINTEGRATIVE SHAMING’.

MODES OF PUNISHMENT.

Answer 8

1. SHAMING: A mode of punishment stigmatising deviant individuals or groups that turns them into identifiable outcasts, either on a temporary or permanent basis. Shaming may take both DISINTEGRATIVE and REINTEGRATIVE forms.
2. ‘DISINTEGRATIVE SHAMING’ - can lead to vindictive exclusion, degradation or public disgrace (as in some naming and shaming campaigns).
3. REINTEGRATIVE SHAMING’ - is designed to bring the offender back into the community by encouraging their acknowledgement of - and apology for - the harms committed (as in some forms of restorative justice).
4. Core element of R.J is that the denunciation of undesirable acts and a shaming of the perpetrator is more likely to have an impact on future behaviour than ‘RETRIBUTION’ or removal from the community, i.e prison.
5. ‘REINTEGRATIVE SHAMING THEORY’ is based on the belief that subjecting offenders to expressions of public disapproval, followed by repentance, and then re-acceptance and forgiveness by the community is likely to have the most positive outcome (BRAITHWAITE, 1989).
6. According to this theory - ‘REINTEGRATIVE SHAMING’ works and builds on moral conscience of perpetrator and deters others who wish to avoid shaming or shame. It also cements cohesion.
7. This is in contrast to ‘DISINTEGRATIVE SHAMING’ used in modern western judicial systems and communist states
8. DISINTEGRATIVE SHAMING - is evident in criminal court procedures and criminal justice processes which sever any bond between perpetrator and accuser, and condemn s the convicted offender to stigmatisation and social exclusion (BRAITHWAITE, 1989).
9. REINTEGRATIVE SHAMING - offers the possibility of preventing future offending by including the transgressor/perpetrator back into the community.

 

Question 9

TOLERATION

Answer 9

1. TOLERATION: The acknowledgement that non-intervention may be less socially damaging than repression.

Question 10

FORMAL JUSTICE AND ‘FORMALISM’ (belief in formal modes of justice, i.e punitive measures, court hearings etc).

NEGATIVES

Answer 10

1. The taken for granted primary response to crime is ‘FORMAL PROSECUTION’ of offenders, and where necessary formal punishment in the name of protecting the people.
2. In this process - the ‘RESPONSIBILITY’ for defining and responding to crime is taken by OFFICIAL STATE AGENCIES. Ideally acting with ‘FAIRNESS and IMPARTIALITY.’
3. HOWEVER FOR CRITICS -there is a concern that formal criminal justice is counterproductive in relation to its objectives.
4. It is argued by critics - that social problems and conflicts are an inevitable part of every day life, and their ‘OWNERSHIP’ is lost if they are delegated to professionals or specialists to that promise expert solutions
5. FOR CHRISTIE (1977) - the essence of social problems is stolen and repackaged in forms that perpetuate them.
6. FORMAL JUSTICE - is therefore mired in a recurrent crises of:

a) effectiveness
b) lack of public confidence
c) reproducing social inequalities.

Question 11

INFORMAL JUSTICE AND ‘INFORMALISM’ (belief in informal modes of justice, i.e restoration, and indigenous justice).

Answer 11

1. REFORMERS - have been seeking more inclusive and less destructive means of responding to crime to return OWNERSHIP of conflicts, disputes, troubles to those involved, i.e the victims and perpetrators.
2. In other words - modes of justice that move beyond formal criminal justice and legal institutions
3. Late 20th century - ALTERNATIVE forms of CONFLICT RESOLUTION were realised in the concept and practices of RESTORATIVE JUSTICE. Informal justice in the form of restorative justice.
4. EXAMPLE - INDIGENOUS JUSTICE in the form of RESTORATIVE JUSTICE.

Question 12

INDIGENOUS JUSTICE - EXAMPLE 1 - NAVAJO (USA):

HORIZONTAL JUSTICE used by NAVAJO

V’s

VERTICAL JUSTICE used by WEST.

Answer 12

1. Form of conflict resolution developed by aboriginal communities such as NAVAJO (USA), ZULU (SOUTH AFRICA), MAORI (NZ), and KIKUYU (KENYA).
2. How societies organise their processes of justice is fundamental to how they maintain stable communities.
3. NAVAJO - HORIZONTAL JUSTICE v VERTICAL JUSTICE:

VERTICAL JUSTICE:

a) They argue that vertical systems of the west rely on hierarchies and power
b) lawyers, jurors, participants sit at the top of court proceedings
c) the justice system uses rank and coercive power to address conflicts
d) power is an active element, judge makes decision that all must obey
e) the subjects have no power or say over the outcome passed.

HORIZONTAL JUSTICE:

a) no person is above the other
b) a model used to portray this is ‘THE CIRCLE’
c) a system of law that permits anyone to say anything during the dispute, and no authority has to determine what is true.
d) end goal is ‘RESTORATIVE JUSTICE’, which uses ‘equality’ and ‘full participation’ of disputants in a final decision.

Question 13

INDIGENOUS JUSTICE - EXAMPLE 2 - Based on UBANTU (Zulu) in SOUTH AFRICA.

Answer 13

1. UBANTU is central to ‘indigenous justice’
2. ‘GROUP SOLIDARITY’ is central to the survival of communities with a scarcity of resources.
3. Individuals existence and well-being are relative to that group
4. If individual accused is to survive within that group, there must be a collective effort for group survival.
5. A society based on UBANTU places strong emphasis on FAMILY OBLIGATIONS, whereby family members must help each other.
6. Group solidarity, conformity, compliance, compassion, respect are key social values of UBANTU
7. To realise peaceful co-existence recognised by INTERIM CONSTITUTION there is a need for understanding and reparation, not vengeance, retaliation, or victimisation.

Question 14

INDIGENOUS JUSTICE - EXAMPLE 3 - MAORI JUSTICE (NZ).

Answer 14

1. Maori justice is based on notions that RESPONSIBILITY’ was collective and not individual
2. And - that redress was due to the victims and the victims family
3. Understanding why this individual offended is linked to this collective responsibility
4. Reasons for offending do not lie in the offender, but ‘imbalances’ within the offenders social and family environment
5. Causes of this imbalance need to be addressed in a collective way
6. Balance between offender and victims family has to be addressed too
7. AGREED OUTCOME - May involve the offender giving his goods to the victim, or working for the victims family.
8. The role of the WHANAU (extended family group), and HAPU other groups of families in the community are of paramount importance to this process and decision.
9. Most decisions are made by both depending on the importance of the decision (CONSEDINE, 1995).

Question 15

POSITIVES AND NEGATIVES OF INDIGENOUS JUSTICE .

Answer 15

POSITIVES/ VALUES

1. Indigenous justice appears more democratic than western systems
2. It is less exclusionary
3. Capable of restoring well-being rather than pain through OVERT PUNISHMENT.

NEGATIVES:

1. Indigenous justice and punishments can be brutal (CURREN, 2006).
2. Offenders can be exiled
3. Harsh physical punishments can take place, i.e beatings and being speared.
4. Dearth penalty can occur (PRATT, 2002)
5. Villages may be destroyed
6. Offenders banished from village.

Question 16

KIKUYU INDIGENOUS JUSTICE - EXAMPLE 4 - KENYA.

Answer 16

1. KIKUYU - dominant tribe in Kenya
2. Systems of indigenous justice is based on the KIAMA (Self-appointed council of local elders with a high level of community involvement which resolves all disputes).
3. It is viewed as primitive and inferior by European colonials.

KIAMA INDIGENOUS JUSTICE INVOLVES:

a) no special law courts
b) no special judges/absence of professionals
c) no professional advocates - offender and victim plead own case/ elders are important but are often from ruling class who have paid with a goat.
d) witnesses seldom appear/required
e) when one wants to sue, elders from both sides plead cases
f) one man after another is allowed to speak calmly/quietly, showing no anger regardless of outcome.
g) collective judgement is made showing importance of community.

Question 17

WESTERN RESTORATIVE JUSTICE - a means of CONFLICT RESOLUTION.

Answer 17

1. Informal and restorative modes have been imported into western systems of justice since the 1980’s.
2. However - connections between ‘INFORMALISM’, (i.e belief in informal modes of justice), i.e restoration, and indigenous justice

and

formalism and administrative justice are not simple lines of connection

3. ALTERNATIVE CONFLICT RESOLUTION - in the form of:

a) mediation
b) arbitration
c) conciliation
d) tribunals

have long been used in western justice systems to settle disputes through use of an independent 3rd party, and without the the need for a formal court hearing.

4. However - this has been restricted to civil matters and corporate malpractice,m i.e:

a) child labour
b) environmental pollution
c) corporate fraud
d) marketing of life threatening substances (i.e Purdue Pharma and OXYCONTIN).

5. These have all been viewed as matters for REGULATION or VOLUNTARY COMPLIANCE rather than matters of CRIMINAL LAW (TOMBS and WHYTE, 2010).
6. HOWEVER - Attempts have been made to introduce ‘INFORMALISM’ into criminal proceedings, particularly for young offenders.
7. In 1970’s - 80’s - juvenile justice practitioners across North America, Europe, Australia, began advocating:

a) diversion
b) decarceration
c) deprofessionalisation
d) decentralisation
e) delegalisation

as a more appropriate way of dealing with youth in conflict with the law.

8. This led to the ABOLITION of the JUVENILE COURT and the establishment of the ‘CHILDREN’S HEARING SYSTEMS’ for u’16’s in Scotland 1971.

Question 18

RESTORATIVE JUSTICE MOVEMENT

Answer 18

1. Various movements challenged STATE and PROFESSIONAL POWER (COHEN, 1985).
2. Talk was of developing self-help and community control.
3. Since 1980’s - there has been a growth in interest in RESTORATIVE JUSTICE and VICTIM-OFFENDER MEDIATION.
4. These have had impact on C.J jurisdictions worldwide.
5. RESTORATIVE JUSTICE MOVEMENT first gained momentum in societies of justice used by indigenous people in Canada and New Zealand.
6. Putting harms right is viewed as an obligation of parties involved. Only minimal involvement of the state and its agents may be required.
7. Supporters of the R.J movement argue that techniques of:

a) reintegrative shaming
b) restitution
c) mediation
d) reperation

work on the conscience of the harm-doer in a way that formal legal procedures cant.

8. R.J has has greater potential to re-establish control of justice by citizens, and a feeling that justice has been done (BRAITHWAITE, 2003).

Question 19

PRINCIPLES OF RESTORATIVE JUSTICE:

Answer 19

1. Victim-offender mediation
2. Victim-young offender mediation
3. Community conferencing
4. Family group conferencing
5. Sentencing circles
6. Youth Justice committees
7. Circles of support and accountability
8. Serious and violent crime dialogue

RESTORATIVE JUSTICE UMBRELLA ANALOGY;

1) R.J defines crime as harm to people
2) R.J says response to crime should be making things right
3) People are the victims, not the state.

Question 20

RESTORATIVE JUSTICE INTERNATIONALLY

The proliferation of R.J around the world results in many competing definitions, but here are common elements that they all have.

Answer 20

1. RESTORATIVE JUSTICE - is a burgeoning worldwide industry with local projects proliferating across Europe, Africa, North America, and Australasia.
2. The UNITED NATIONS and COUNCIL OF EUROPE have given R.J their backing.
3. The EUROPEAN FORUM FOR VICTIM-OFFENDER MEDIATION AND RESTORATIVE JUSTICE was established in 2000.
4. COUNCIL OF EUROPE - RECOMMENDED THAT ALL JURISDICTIONS offer mediation and that it should cover all stages of criminal justice. It should also be separate from FORMAL means of judicial processing.
5. In 2002 - UNITED NATIONS formulated some basic universal principles of RESTORATIVE JUSTICE:
   a) there should be non-coercive offender and victim participation
   b) there should be confidentiality
   c) there should be procedural safeguards

EXAMPLE - AFRICA

a) STERN (2001) - has recorded a renewed interest in restoration/reconciliation/solidarity rather than colonial prison as the guiding principles for resolving disputes and getting justice in Africa.
b) As a result- SOUTH AFRICA’S TRUTH AND RECONCILIATION COMMISSION was given the task to investigate past human rights violations that occurred during apartheid.
c) They were able to grant amnesty for political crimes, and offer reparation to victims.

Question 21

IMPORTANT COMMON ELEMENTS OF RESTORATIVE JUSTICE:

Answer 21

1. OWNERSHIP - Conflicts belong to those parties directly involved, i.e the perpetrator and the victim, not formally constituted bodies such as the state.
2. families and communities are also important parties
3. Crimes and conflicts are regarded as breakdowns or violations of relations between these parties and can only be resolved effectively by them and among them.
4. There needs to be recognition of harm done for resolution to be understood as genuine
5. Resolution is viewed as impossible if the offender doers not understand the the magnitude of the consequences of his actions for others
6. If the victim has no understanding of the conditions which made the offender offend, or does nor believe the offender is genuinely remorseful, harm will remain unrepaired and resentment continues and dispute remains unresolved.
7. Families and communities will also continue to live wuth the anger/fear that the victim feels if dispute is not resolved and closed.

Question 22

FAMILY GROUP CONFERENCING (FGC)

Answer 22

1. FAMILY GROUP CONFERENCING (FGC) is one of the most common forms of conferencing
2. It was redeveloped in NZ through the ‘Children, Young Persons, and their families act 1989’, and is derived from MAORI indigenous justice.
3. EXAMPLE OF A successful application of the principles of restorative justice through FAMILY GROUP CONFERENCING is EXTRACT 3.6 - Maori kid arrested for robbery and assault, on remand, youth court sent him to a forestry camp programme, gained skills, got job. FGC changed his life.
4. POSITIVES of FAMILY GROUP CONFERENCING:

a) the centrality of the tribe elders (WHANAU)
b) inclusiveness of the proceedings
c) there is a rootedness in tradition and culture
d) social cohesion and solidarity of the community.

5. NEGATIVES of FGC:
   a) if over 16 years - process might not have been available
   b) FGC’s pose problems for family members that are accused themselves.
6. what FGC’s include:

a) young offender
b) family members
c) victim or their representative
d) support person for victim
e) police
f) mediator

7. Meetings are:
   a) informal
   b) family talk privately with offender after the hearing to propose a plan to make good the harm/damage
   c) if approved - this will involve sanctions such as community work, activity programme, and apology.
8. SUCCESS OF FGC’S;
   a) MORRIS AND MAXWELL (1998) - evaluation found high levels of satisfaction with FGC’s among offenders and families who valued being involved. Families preferred this to courts.
   b) VICTIMS - were less positive, half did not attend, and some doubted the sincerity of the apology so felt worse.
   c) Morris and Maxwell (1998) conclude d that FGC’s are restorative in that they put things right for many victims, but many victims needs remain unmet and promised outcomes are often undelivered.
   d) Also - professionals sometimes dominate the decision making , Maori elder expertise is undervalued. This is an example of selective utilisation of Maori culture for white justice.

Question 23

RESTORATIVE JUSTICE IN THE UK.

Answer 23

1. The UK comprises of three different jurisdictions.
2. These are England and Wales, Scotland, and Northern Ireland.
3. RESTORATIVE JUSTICE through CONFERENCING for juveniles in particular has proved irresistible to western jurisdictions such as the UK.
4. Each has appropriated ‘restorative justice’ principles for young offenders in different ways.
5. A ‘YOUTH CONFERENCE SERVICE’ receives referrals from prosecutors as a DIVERSION from PROSECUTION. It is based on the consent of the offender.
6. NOTE - These versions of RESTORATIVE JUSTICE are informed by the historical context and policy trajectories of each individual jurisdiction in UK, i.e England and Wales, Scotland, and Northern Ireland.

Question 24

RESTORATIVE JUSTICE IN ENGLAND AND WALES

Answer 24

1. Restorative justice is blended into a policy context that is dominated by both concerns for crime control, and locating responsibility with young people and their parents.
2. REFERRAL ORDERS and YOUTH OFFENDER PANELS established through YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999.
3. It is closest that English and welsh legislation has come to institutionalising RESTORATIVE JUSTICE.
4. REFERRAL ORDERS are mandatory in response to a guilty plea on first offence
5. They lead to an appearance before YOUTH OFFENDER PANEL, which is less formal than court.
6. PANEL is made up of YOUTH OFFENDERS TEAM, and volunteer members of the public.
7. Community members can attend
8. Victims and offenders friends and relatives can also attend.
9. ACTION might involve:

a) community service
b) attendance on a course
c) restrictions on activities/movements
d) apology and reparation are expected.

10. EVALUATION OF REFERRAL ORDERS:

POSITIVES - CRAWFORD AND NASH (2003) - Their evaluation revealed that they were well received by professionals responsible for implementing this because of the restorative ideals they promised to deliver

NEGATIVES:

a) working with victims was challenging for the police
b) The standardisation, efficiency, economy of CJS sits uneasily with RESTORATIVE approaches
c) Evaluation revealed tensions between ideals of R.J and their practical implementation
d) GELSTHORPE and MORRIS (2002) - found reparation to be frequently COERCIVE, as professionals are under duress to close the case/process.
e) a sincere apology is also difficult to achieve from the offender (DALY, 2006)
f) COMMUNITY SERVICE - also has no connection to the actual harms inflicted, so there is no capacity tro build empathy for the loss or injury experienced by the victim.
g) CRAWFORD AND NEWBURN (2003) conclude that referral orders are hybrids that attempt to integrate R.J principles and values in an otherwise COERCIVE PENAL SYSTEM.

Question 25

RESTORATIVE JUSTICE IN SCOTLAND: i.e SCOTTISH CHILDREN'S HEARINGS.

Answer 25

1. Restorative Justice principles are interwoven with priority being to the welfare of kids 2. SCOTTISH CHILDREN'S HEARINGS SYSTEM is a welfare oriented approach to juveniles, established in 1968. 3. Children's hearings share characteristics with FAMILY GROUP CONFERENCING (FGC). 4. Those involved in the process include: a) reporter - professional who investigates case and makes determinations/decisions. Reporter has has final powers in determining the outcome/disposal, irrespective of the findings from participation in the R.J (SCOTTISH EXECUTIVE, 2005). b) social worker c) 3 members of the local community (one as a chairperson) 5. Yong people have the right to attend, but parents and carers are obliged to. 6. Both victims and and parents and carers are entitled to bring their own representative. 7. HEARINGS - make compulsory provision for care and supervision, i.e placing offender in secure accommodation. 8. However - children's hearings are differentiated from RESTORATIVE JUSTICE PROCEEDINGS by the ABSENCE OF THE VICTIM. 9. As a result - advocates of R.J suggest that this process is 'UNRESTORATIVE'

Question 26

RESTORATIVE JUSTICE IN NORTHERN IRELAND: NATIONAL YOUTH AGENCY - implements NEW AGENDA based on DIVERSION, HUMAN RIGHTS, and RESTORATION.

Answer 26

1. National Youth agency established in 2001 - implements new agenda for youth justice based on DIVERSION, HUMAN RIGHTS, and RESTORATION. 2. In NI - Criminal Justice review was set up in 1998 3. The review recommended R.J approach should be central to dealing with YOUNG OFFENDERS. 4. CONFERENCING for young offenders was placed on a statutory basis (related to set of laws), unlike other jurisdictions in UK. 5. The courts must refer all young people to a conference, an ACTION PLAN will then be devised taking into account the nature of the offence, victims needs, community considerations etc. 6. Initial evaluation of this scheme is positive with the victim (79%) and offender (71%) being satisfied with the process.

Question 27

RESTORATIVE JUSTICE as 'TRAVELLING POLICIES'

Answer 27

1. RESTORATIVE JUSTICE is now a worldwide policy industry. 2. In the 80's and 90's - most European and anglophone mainstream systems of criminal justice added policies and legislation that claimed to be from restorative principles. 3. Restorative justice is unrivalled as the biggest example of a specific TRAVELLING POLICY 4. Restorative justice provides unequivocal evidence that criminal justice policies travel globally as a result of active intervention 5. This occurs on several levels: a) New policy ideas are developed and formulated by scholars and policy entrepreneurs who supply it, and government agencies of criminal justice demand it. b) Politicians and governments agencies of criminal justice actively seek out policy innovations for restorative justice in other countries. c) POSITIVE EXAMPLE - The influence of NZ restorative justice on youth justice policy in England and Wales, Scotland, and Northern Ireland epitomises this. 6. Many of these processes might be better described as policy learning or policy borrowing. 7. The UN resolutions on restorative justice, and EU's European network of contact points for restorative justice are examples of sources efforts at 'global governance' NEGATIVES: 8. However - the simple deliberate transfer of complete policies, laws, and practices from one jurisdiction to another is close to achievable. 9. This is because the effects and outcomes vary according to jurisdictions, and local circumstances in which they are applied. 10. Also - differences in legislative frameworks, history, tradition, culture, may inhibit direct transplantation of policies or even partial replication 11. This is evident in the degree of departure in referral orders from 'restorative justice' principles in England and Wales (CRAWFORD AND NEWBURN, 2003), and the distinctions between Family group conferencing in NZ and Children's Hearings in Scotland.

Question 28

CRITIQUES of INFORMAL JUSTICE - such as RESTORATIVE JUSTICE and FAMILY GROUP CONFERENCING (FGC's). 2. HOWEVER - There can be no guarantee that emotions raised by shame, remorse, and community disapproval can be considered always to be restorative in outcome, as this could also be damaging to the offender.

Answer 28

1. Forms of informal justice have been critiqued for being replete with contradictions and shortcomings 2. I.E) The subversion of alternative principles in specific projects, and the tendency for these principles to be realised as 'additions' rather than real 'alternatives' to formal criminal justice methods. 3. It is argued that R.J and FGC as alternatives constitute a 'FEMINISATION OF JUSTICE,' as they are modes of conflict resolution that place the person, human need, and harms at the centre. 4. There are some strong correspondences between some theories of RESTORATIVE JUSTICE and some FEMINIST THEORY (GAARDER AND PRESSER, 2006). 5. These include: a) the centrality of the personal b) crucial nature of interpersonal relations c) prioritisation of care and well-being d) so - repairing the damage done by interpersonal harms in individual cases is an essential approach to engendering broader social and criminal justice. 6. EXAMPLE - DOMESTIC VIOLENCE: a) Domestic violence often remains invisible to formal mainstream justice b) and even when cases are brought to court, offenders are protected and insulated from victims so do not fully appreciate the extent of the psychological and physical harms and damage that they have caused. c) Restorative justices involving victims families and friends is viewed as empowering to many feminists, and helps to monitor the victim and prevent repeat offences (MORRIS AND GELSTHORPE, 2000). 7. However - contrasting feminist interpretations say R.J overlooks the differential POWER RELATIONS, masking the KEY AREAS of male power in cases of rape and sexual abuse etc. 8. Indeed the use of FGC's in relation to sexual abuse of girls and young women by fathers, siblings, and uncles has seen feminist theories raise serious concerns. i.e the risks of repeat assault in the absence of effective determinants. 9. As a result -domestic harms could be seen as being exceptional, alongside white collar and corporate crimes, and therefore not warranting punitive sanctions deployed to 'serious offences'.

Question 29

A NEW MODE OF GOVERNANCE through COMMUNITY JUSTICE (informal justice).

Answer 29

POSITIVES: 1. Informal justice and restorative forms of justice are argued to humanise the delivery of justice by involving the 'local community.' 2. The notion of community is evoked as more relevant, participatory, responsive, and cost-effective means of dealing with offenders and their cases. 3. In 1970's - community-based sanctions such as community service were developed in western jurisdictions. 4. DIVERSION - from court and custody was a strategy that reduced numbers of offenders, particularly young offenders who were subject to stigma and labelling of the formal judicial process. 5. Community-based alternatives such as probation and supervision were intended to reduce the use and cost of custody. NEGATIVES: 1. HOWEVER - while these alternatives grew, so did the prison populations, as community-based sentencing seemed to produce the UNINTENDED OUTCOME of increasing numbers that were subject to intervention. 2. This was because coercion was less visible, so state was able to control more behaviour (ABEL, 1982). 3. COHEN, 1979 - described such processes as 'thinning the mesh' and 'widening the net' (The process whereby attempts to prevent crime inadvertently draw more subjects into the criminal justice system). 4. Communities were mobilised to act as voluntary agents, but punitive retribution in the shape of prison remained at the core of the system. 5. These 'ALTERNATIVES' to formal punitive systems were used at the soft-end of the system for petty or potential delinquents, and for rich elites whereby exposure and the threat of loss of employment was considered punishment enough (LEVI, 2002). 6. However - hardcore male working-class youth were dealt with using more punitive policies. 7. For Cohen (1985) - 'community justice' has just increased the reach and intensity of STATE CONTROL.

Question 30

FACTS ABOUT 'INFORMAL JUSTICE'

Answer 30

1. In most jurisdictions 'informal justice' is contained and constrained within formal criminal justice processes. 2. 'Restorative justice' and 'indigenous processes' can contain both retributive and 'reparative' motives. 3. By this - holding the individual accountable could be seen as going against the principles of forgiveness and reconciliation and collective responsibility 4. Also - there can be no guarantee that emotions raised by shame, remorse, community disapproval, can be considered as always restorative. Instead, this could be damaging for the offender (HARRIS and MARUNA, 2006). 5. Informal practices can also involve COERCIVE PRACTICES, such as vigilantism and people meting out their own justice. 6. Informal justice processes - are often reserved for white-collar, corporate crime, and less-serious street offences. Whereas, a strong formal stance is retained towards offences considered most serious.