And Justice for All - Restorative Justice is Better for Everyone

Jul 25, 2010
Melissa McAvoy

Restorative Justice Serves Society as Well - Steve.Jackson

A comparison of the liberal democratic system and restorative justice in Australia, indicating restorative justice is in fact fairer for all concerned.

The current criminal justice system used in Australia is the liberal-democratic model. White & Perrone in Crime and Social Control write that the underlying foundation of this principle is the idea of majority rule, a utilitarian approach to criminal justice while aiming to protect individual rights and minorities. Whilst these seem like competing ideals, the rules of due process within criminal justice ensure that all alleged offenders have rights. Anderson in the article Victims rights or human rights? Current issues in criminal justice that there are also rules with respect to protections and rights of the victim, yet very little about victim needs. Wemmers, in Where do they belong? Giving victims a place in the criminal justice process notes that when someone commits a criminal offence under the liberal-democratic system, they are deemed to have committed an offence against the State even if the offence was actually against another person. Thus the State determines the punishment and this punishment rarely meets the victim's or community’s needs.

Liberal Democratic versus Restorative Justice

The most extreme form of punishment in Australia under the liberal-democratic system is imprisonment. Unfortunately, as stated by Mildon in Prison Ineffective in Reducing Crime it is also one of the most ineffective andover-used. The liberal-democratic system is formalised, lengthy, complicated and expensive. Whilst these drawbacks could be justified if the liberal-democratic system was indeed adept at reducing the crime rate, this is unfortunately not the case, also noted by Mildon, with very high recidivism in particular a less than desirable feature.

Restorative justice takes a different approach and is based on the premise of righting a wrong and rehabilitating as opposed to mere punishment. White & Perrone state that it is currently only really used for youth offences as a way of diverting young people away from the liberal-democratic criminal justice system via youth conferencing.

The restorative justice system is far less formal, less lengthy, less complicated and less expensive than the liberal-democratic system. As a result of imprisonment being truly treated as a last resort, offenders can more easily re-assimilate within the community which leads to far lower recidivism rates and thus, an overall reduction in crime. Rather than being passive, almost spectators of the system, victims are highly active within the process which ensures greater chance of their needs being met.

Fairness for the Victim

White & Perrone argue that the most important aspect of any criminal justice system is the notion of fairness; to the victim, offender and society. A criminal justice system cannot be effective unless is it fair, transparent and unbiased.

Fairness for a victim is an often publicised and controversial issue within criminal justice. While the liberal-democratic system ensures victim rights, Anderson argues victim needs are often overlooked. Victims of crime also experience very long waits for resolution in addition to a lack of communication and information in terms of the progress of the case. This can leave a victim feeling more like a spectator than a participant in the criminal justice process.

Restorative justice, on the other hand, emphasises victim needs strongly as noted by Wemmers. There is a much shorter wait for a resolution, very high levels of communication and information and the victim is an active participant in the justice process. Further, the victim actually has some say in the offender's punishment as a measure to restore the situation.

Fairness for the Offender

In terms of fairness to offender, White & Perrone state that the liberal-democratic system does place great emphasis on offender rights, ensuring they are upheld through due process. However, due to the significant amount of discretion allowed within the criminal justice system, there are numerous potentials for abuse despite these rules of due process. Offenders also experience long waiting times before their case is heard because of the many cases going through the criminal justice system every day, during which time some offenders are held in remand rather than being bailed. Further, legal representation can be extremely expensive and can even prevent an accused offender from having a competent defence.

By contrast, the restorative justice system would move much faster than the liberal-democratic, thus shortening waiting times for a resolution and reducing time spent in remand.

Fairness for Society

Finally in considering fairness to the community as a whole, Mildon argues the liberal-democratic model unfortunately fails considerably a vast majority of the time. This is most clearly seen upon an offender’s release from prison, where they have great difficulty obtaining employment, have developed distrust for authority and often re-offend. Providing society with a citizen such as this could hardly be called fair to society. Restorative justice, in aiming to keep offenders out of prison wherever possible, results in offenders who have much less chance of re-offending.