Restorative theory of punishment and rehabilitation of an offender

INTRODUCTION

Human society is a cooperative endeavor secured by coercion. By coercion, we mean a state where a recognized authority is compelled to punish the individual who contravenes the rules and regulation of the commonwealth. The practice of punishment is necessary for the maintenance of this social cohesion. Law is one of the important pillars of the state. To administer justice, punishment is needed. One of the most controversial aspects of legal philosophy concerns the justification of specific punishments for particular criminal violations. Punishment is a recognized function of all the states. With the passage of time, the systems of punishment have met with different types of changes and modifications. To administer justice is an essential function of the state and it is the duty of the state to provide a peaceful environment to its people.

Thus, philosophy behind the concept of punishment is not only to provide justice to the aggrieved but besides this to maintain security and safety in the society, to punish a criminal is not only to give torture to him or to humiliate, but there is a higher objective to be achieved and that is to establish a peaceful society. The concept of Punishment under modern jurisprudence is usually associated with the law of crimes.

Society at any stage of its growth has never been free from the problem of crime. It is inevitable since; some violation of the prescribed code of conduct is bound to occur. Crime in society is universal and is inseparable. Lack of punishment creates a society which is incapable of maintaining civil order and citizen’s safety. So punishments must be imposed on law violators.

CONTENT

Restorative justice is an approach to justice in which one of the responses to a crime is to organize a meeting between the victim and the offender, sometimes with representatives of the wider community. The goal is for them to share their experience of what happened, to discuss who was harmed by the crime and how, and to create a consensus for what the offender can do to repair the harm from the offense. This may include a payment of money given from the offender to the victim, apologies and other amends, and other actions to compensate those affected and to prevent the offender from causing future harm.

A restorative justice program aims to get offenders to take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves and to discourage them from causing further harm. For victims, its goal is to give them an active role in the process and to reduce feelings of anxiety and powerlessness. [ Restorative justice is founded on an alternative theory to the traditional methods of justice, which often focus on retribution. However, restorative justice programs can complement traditional methods, and it has been argued that some cases of restorative justice constitute punishment from the perspectives of some positions on what punishment is.

According to John Braithwaite, restorative justice is:

…a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process.

Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime. The process of restorative justice thus shifts the responsibility for addressing crime.

In 2014, Carolyn Boyes – Watson from Suffolk University defined restorative justice as:

…a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. These range from international peacemaking tribunals such as the South Africa Truth and Reconciliation Commission to innovations within the criminal and juvenile justice systems, schools, social services and communities. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the safety and dignity of all.”

THE CONCEPT OF RESTORATIVE JUSTICE

Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions that promote repair, reconciliation, and reassurance.

Those who view crime from a Restorative Justice perspective see crime as a conflict which creates a breach, a “rent” in the fabric of the community. Rather than the state and its laws at center-stage, the focus remains on the disputants and on accountability, responsibility, and negotiating fitting amends and, to the greatest possible degree, the repair of the harm. Since crime involves and affects—even erodes—the community, involving and empowering people to assist in the resolution of criminal conflicts that arise in their communities can reverse that trend, reducing the sense that the community is powerless to do anything about the levels of crime within it. Victim-offender mediation can dramatically change that dynamic.

Victim-offender mediation (often called “victim-offender conferencing”, “victim- offender reconciliation” or “victim-offender dialogue”) is one of the clearest expressions of restorative justice, a movement that is receiving a great deal of attention throughout North America and Europe. Restorative justice, however, provides a very different framework for understanding and responding to crime and victimization. Moving beyond the offender-driven focus, restorative justice identifies three clients: individual victims, victimized communities, and offenders.

Crime is understood primarily as an offense against people within communities, as opposed to the more abstract legal definition of crime as a violation against the State. Those most directly affected by crime are allowed to play an active role in restoring peace between individuals and within communities. Restoration of the emotional and material losses resulting from crime is far more important than imposing ever increasing levels of costly punishment on the offender.

A new approach to crime & punishment through the process of mediation between the offender & the victim of his crime was adopted in U.S.A & Western European countries during the mid 1970s. It was termed as “Victim-Offender Mediation” (VOM). The process involved meetings between victims, offenders & mediators offering the opportunity to the offender to explain his conduct or apologies to the victim.

The family members of the offender and/or the victim and community members could also be present in such mediation meetings. The victim gets a chance to explain how he/she was mentally, materially, or physically affected as a consequence of the crime & the offender gets an opportunity to respond & restore justice to the victim.

Based on a foundation of Restorative Justice values, the Victim Offender Mediation Program (VOMP) focuses, at a post-incarceration stage, on remaining accountability, healing and closure issues for those involved in or affected by traumatic criminal offenses. While the program can and does involve face-to-face mediation in many cases, the ‘mediator’ is not an intervener but rather a supportive facilitator of therapeutic dialogue. The assessment and preparation processes are therapeutic in nature and informed by current theory and clinical practice regarding offender treatment and victim trauma recovery.

The purpose of the Victim Offender Mediation Program is to assist people affected by serious crimes by:

empowering them to address issues and concerns surrounding the crime and its consequences;
providing the parties with a process which can lead to new insight, thereby reducing levels of anxiety, and contributing to therapeutic gains;
addressing questions and concerns regarding the offender’s eventual release into the community;
Providing sensitive staff who are committed to being agents of healing and restoration for those who suffer crime’s effects.

Restorative justice (RJ) is commonly acknowledged to be a grassroots movement that is practice rather than theory driven (Ward & Langlands, 2009). Its primary focus is on transforming the way justice is implemented in communities rather than on formulating a coherent theory and set of norms to guide a response to crime. What this means is that RJ programs constitute a patchwork of loosely connected ideas and practices rather than a tightly knitted set of principles and institutions. A useful way to conceptualize the varieties of RJ models is to view them as having a sort of family resemblance based on an ideal type. Thus, RJ practices share a set of empirical and normative elements although no one instance of implementation will display all of the features contained in the family of RJ approaches. The practices are ‘messy’ although thematically linked in important respects. Consistent with this observation, there are contrasting definitions and formulations evident in the literature, some of them primarily concerned with the process of rolling out RJ initiatives and others more preoccupied with outcomes (Johnstone & Van Ness, 2007).

According to Walgrave, restorative justice is ‘an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational, and social harm caused by that offence’ (Walgrave, 2008: 21).

Zehr and Mika (1998) outline three core principles that underpin restorative justice initiatives that resonate with the core ideas in this definition.

Criminal conduct violates both people and their relationships with one another. Such violation harms all of the key stakeholders in crime—victims, offenders, and communities—whose needs therefore ought to be actively addressed through a restorative process of some kind.
Crime results in both obligations and liabilities for offenders. The offender is obliged to take responsibility for the crime and attempt to repair the harm caused. The intention behind holding offenders accountable is to achieve reparation rather than to punish them, although there is some tension evident between these two conflicting values (see Ward & Salmon, 2009). Additionally, the community is obliged to support both the victim and the offender in dealing with the effects of the crime.
The purpose of restorative justice is to facilitate community healing by repairing the harm that results from crime, more specifically, the fractures within relationships between victims, offenders, and the community that inevitably occur following offending. Restorative values such as participation, respect, honesty, humility, interconnectedness, accountability, empowerment, hope, truth, empathy and mutual understanding form the foundation of, and subsequently guide, practice (Zehr, 2008; Zehr & Toews, 2004).

EXISTING LAWS SUPPORTING THE VIEW OF REFORMATIVE THEORY

In progressive states, provision is made for the prevention of habitual offenders. Borstal schools have been set up. Provision is made for a system of probation for First Offenders. This theory is being growingly adopted in the case of Juvenile Offenders. The oldest legislation on the subject in India is the Reformatory Schools Act, 1890 which aimed at preventing the depraved and delinquent children from becoming confirmed criminals in the coming years. It applied to children under the age of 15 years. The Reformatory Schools Act has been extensively amended in its application to the various States by State legislatures.

The government of India passed in 1960 the Children Act which applies to the Union Territories. This Act was amended in 1978. This amendment broadened the aim of the Children Act, 1960.

The Probation of Offenders Act, 1958 has been passed with a similar object in view. About the Act, the Supreme Court observed in Rattan Lal v. State of Punjab, AIR 1965 SC 444 that the Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.

In Musa Khan v. State of Maharashtra, AIR 1976 SC 2566 the Supreme Court observed that this Act is a piece of social legislation which is meant to reform juvenile offenders with a view to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the government.

Section 27 of the Criminal Procedure Code, 1973 provides that any offence not punishable with death or imprisonment for life committed by any person who, at the date when he appears or is brought before the court, is under the age of 16 years, may be tried by the court of a Chief Judicial Magistrate or by any court especially empowered under the Children Act,196 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

Section 360 of the Code of Criminal Procedure, 1973 empowers the court to order the release on probation of good conduct or after admonition.

REHABILITATION OF OFFENDERS

The integrated goal of corrections today is to protect society by controlling offenders and preventing crimes. Restraining the offender in custody for some time protects society from crimes which he might otherwise commit. To be positive and truly “correctional”, corrections must aim for rehabilitation and reintegration of the offenders to enable them to return to the society as productive, law-abiding citizens and consequently re-establishing the community’s acceptance and faith. Therefore, rehabilitation is the primary objective in any correctional institution but it has necessarily to be accompanied by social acceptance of the offender. Rehabilitation—the idea that the purpose of punishment is to apply treatment and training to the offender so that he is made capable of returning to society and functioning as a law-abiding member of the community.

The principle of allowing people to ‘write off’ their conviction if they stay out of trouble, introduced by legislation in 1974. The period required for rehabilitation varies with the seriousness of the original offence, and some cannot be extinguished. After the time has elapsed, the conviction becomes spent and the offender rehabilitated. The effect is that the conviction need not be revealed in various applications, although there are some exceptions that can be made by order. The spent conviction is not a good ground for dismissal from employment. Special rules apply where a spent conviction is the subject of defamation proceedings.

The ultimate objective of the prison and correctional administration is rehabilitation of offenders in the mainstream of social life. Aftercare can be the harbinger of any rehabilitative process and a vital link in a correctional program to reduce the offender’s social isolation and dependence, to help him to get over his social handicaps and to remove the stigma that darkens his present and future life.

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