Throughout history societies have treated their criminals in a wide variety of ways. From torture chambers to “country-club prisons,” the manner in which criminal offenders are treated can depend on many different factors, including, in some cases, the wishes of offenders’ victims. Victims are often given a chance to address the court before an offender is sentenced, and in some cases, offenders can even be diverted from the justice system, often with the consent or even approval of the victims. Taken a step further, the idea of “restorative justice” seeks to find ways that both victims and offenders can involve themselves in a process that goes beyond that of the typical courtroom proceedings; supporters of restorative justice believe it allows both victims and offenders to better understand themselves and each other in the context of their roles in the criminal offense, and may offer a chance for each party to heal and move forward.
The Restorative Justice Consortium (RJC) offers the following definition:
“Restorative justice works to resolve conflict and repair harm. It encourages those who have caused harm to acknowledge the impact of what they have done and gives them an opportunity to make reparations. It offers those who have suffered harm to have their harm or loss acknowledged and amends made.” (Liebmann, 2007)
There are many different ways that restorative justice can be applicable to a give situation; for the purposes of this discussion, the focus will be on the idea of victims and offenders meeting with each other for the purposes of establishing a potentially healing dialog. Such meetings are typically arranged after the processes of the criminal justice system have taken place, with victims and offenders often meeting where an offender is being incarcerated (Clear, 2005). Such meetings can be organized in a variety of ways; the RJC offers a standard template for such meetings:
- Meeting facilitator meets with each side individually
- At the beginning of the joint meeting, the facilitator discusses ground rules
- Uninterrupted time (each side tells his or her story)
- Exchange (the two sides engage in conversation)
- Building agreement (if appropriate)
- Arranging for follow-up (if appropriate); de-briefing of each party
Supporters of restorative justice say that it is important to note that victims are at the center of the process (Braithwaite, 2007). A restorative-justice meeting allows the victim to express to the offender just how the offender has affected the victim, the victim’s family, and anyone else touched by the offender’s actions. In making it clear to an offender what harm his or her actions have caused, it may be possible for an offender to better understand his or her own actions and accept responsibility for the harm caused by those actions. There are those who may feel that a restorative-justice meeting is intended to alleviate the burden on the offender; while that may be the outcome of some meetings, it is in no way the sole purpose of the meeting Takagi et al, 2004).
Restorative justice is not for everyone, of course. Victims may not be interested in meeting with offenders, and offenders may not be interested in meting with victims. Offenders may not exhibit the kind of behavior that would make them appropriate candidates for restorative justice; conversely, there may be victims who are eager to meet with offenders but cannot necessarily be trusted to behave in an appropriate manner Haith, 2000). While the safety of all parties is paramount, any serious disruptions of a restorative-justice meeting are likely to bring the meeting to an abrupt close (Shriver, 2007).
In some cases, victims may be completely opposed to the idea of meeting with their offenders. They may see any contact by an organization such as the RJC as an invasion of privacy, or simply find the very concept offensive. It is important that victims not feel as if the restorative-justice process victimizes them all over again; supporters of the process have n obligation to respect the wishes of victims and their families should they decline the opportunity to meet with their offenders. Those who do choose to participate must have their privacy closely guarded to ensure that details of their lives do not become public as a result of the process (Braithwaite, 2007).
It can be understandably difficult for some people to decide whether or not to participate in the restorative-justice program. In some cases there may be family members who disagree about participating; in such instances, it is important for those on both sides to respect the feelings and points of view of those with whom they disagree. It may be necessary for the family members to sit down together and discuss the situation to better understand then perspectives of other family members (Braithwaite, 2007). Many restorative-justice meetings are one-on-one affairs that take place between a victim and an offender (Liebmann, 2007). In the case of a murder victim whose surviving family members are interested in meeting with the offender, it may be easiest to nominate one family member to attend the meeting (Braithwaite, 2007). This would allow those family members who did not wish to participate to avoid further discussion of the matter, while those who are interested can involve themselves in the process.
The issues surrounding restorative justice are not cut and dry. There are many who would disagree that restorative justice is an appropriate way to deal with the aftermath of crimes. Those who believe that society has an ethical and moral obligation to punish criminals may see restorative justice processes as counter-intuitive, while those who feel that society has an ethical and moral obligation to rehabilitate those offenders who can be rehabilitated may see restorative justice as a key component of such rehabilitation.
Beyond the larger societal and familial issues, individuals harmed by offenders must decide for themselves whether or not to participate in the restorative-justice process. The concept of forgiveness lies at the heart of many religious and spiritual belief systems, and restorative justice may be a process that fosters such forgiveness. While not all victims and offenders will benefit from the restorative-justice process, those who participate may find some comfort in the possibility of understanding and forgiving those who have brought them harm.
Matters of ethics can be complicated, confusing, and fraught with uncertaintly. While most people likely perceive themselves to be ethical, when faced with scenarios or situations that present ethical dilemmas, deciding how best to deal with such dilemmas is not always easy. In the hypothetical scenario in which a judge’s clerk overhears the judge speaking ill of a defendant prior to overseeing said defendant’s bench trial, the clerk is clearly faced with an ethical dilemma. What, if anything, should the clerk do or say about hat he has overheard?
Bench trials are conducted in the absence of a jury; the presiding judge is the sole arbiter of the defendant’s outcome. There is a fair amount of evidence that bench trials are overall slightly more likely to result in “fair” verdicts –that is, verdicts that are clearly based on the applicable laws that underpin the charges and the relevant precedent cases that inform judge’s decisions (Litan, 1993). Attorneys tend to favor bench trials when their cases are strong, and to favor jury trials when their cases are weak (Litan, 1993). Such preferences are understandable, as attorneys with weak cases are aware that juries are less familiar with the law, and may be swayed in ways that judges would not.
In the real world, everyone has biases and prejudices; this holds true for judges just as it does for everyone else. The notion that any judge can oversee the case of a defendant without having at least some preconceived notions about the nature of the defendant or his or her role in the alleged infraction seems unreasonable. What is important to consider is whether or not the judge is capable of making fair decisions based on the applicable laws in spite of his or her inherent biases (Klein and Mitchell, 2010). Unfortunately the hypothetical scenario presented for consideration does not tell the reader enough about the judge to know if he or she is capable of making such decisions.
If the clerk overhears the judge referring to the defendant in a pejorative manner, it is probably a safe bet that the judge has spoken about other defendants in such a way. The relevant consideration, as I see it, would be to weigh the judge’s comments against his or her record of verdicts; it may well be that the judge is able to think of a defendant as “scum” while being perfectly aware that the “scummy” defendant is also innocent of the charges he or she faces. In the absence of any evidence that the judge is prone to treating some defendants unfairly or to render verdicts that are not in accordance with the law, it may be best for the clerk to view the judge’s comments as “blowing off steam” and leave the issue alone.
Braithwaite, John. Encouraging restorative justice. Criminology & Public Policy. 6(4). 29 November 2007.
Clear, Todd. Restorative justice. Criminology & Public Policy. 4(1). February 2005.
Haith, Andrea. Restorative justice. Probation Journal. 47(64). 2000.
Liebmann, Marian. Restorative justice. Jessica Kingsley Publishers. London, GBR. 2007.
Shriver, Donald. Repairing the past: polarities of restorative justice. Cross Currents. 57(2). Summer 2007.
Takagi, Paul et al. Critique of restorative justice. Social Justice 31(3). 2004.
Klein, David E. and Mitchell, Gregory. The psychology of judicial decision-making. Oxford University Press. New Yok, NY. 2010.
Litan, Robert C. Assessing the civil jury system. The Brookings Institution. Washington D.C. 1993.