Restorative Justice Proposal Essay
After working as a judge in New Zealand and seeing the disconnect between the youth and adult justice system, Fred McElrea (2007) put forth a proposal which takes on many ideas the CYPF Act succeeded in and extends many practices already used. At the heart of the proposal is the idea of restorative justice. Restorative justice is referred to as the process of acknowledging the harm that has been done and how to best rectify the harm and prevent future wrongdoings (McElrea, 2011). It brings together the offender, victim (voluntary) and their supporters in methods of face-to-face interaction, community based actions, group conferencing, and supportive prevention and reintegration strategies (Carruthers, 2012). The proposal if for a justice system
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that aims to be inclusive and understanding while aiding a process of healing and restoration, which is seen in the 1989 CFYP Act (Maxwell et al,. 2002). It has shown significant success in youth justice and could provide the basis for important change in the adult system should some of these values be transitioned into it (McElrea, 2011).
The proposal that judge McElrea put forward has a key focus of introducing community justice centres as an alternative to court.
He details the vision he has for New Zealand that if implemented would allow for victims to initiate justice in ways they are comfortable with (McElrea, 2007). Similarly to the youth justice system this change would move away from the heavy reliance on the court system currently present (Becroft, 2009). McElrea (2007) places strong emphasis on diversion, however it have greater range and more variability than the seemingly one dimensional diversion system we hold today, which offers only first time offenders of minor crimes a diversion (Carruthers, 2012). The proposal would provide community based alternatives to court that could deal with civil and criminal offences of any kind other than those only the high courts may handle, such as murder or manslaughter (McElrea, 2007). The proposed change encourages offenders to stay within their community and build stronger relationships within their families, as alienation is a common and negative impact of the adversarial adult system we currently operate under (Carruthers, 2012). The community justice centres would aim to be noncustodial and find alternative criminal proceedings, such as group conferencing as a positive restorative approach to offending (Lynch, …show more content…
2013).
The community justice centres would hold group conferencing sessions in their central community location and would have many different agencies involved such as police, social workers, specifically trained professionals, for example those skilled in domestic or sexual violence, and a trained restorative justice mediator (McElrea, 2007). Lawyers can also be present however, “lawyers would be entitled to attend, but as advisers rather than as advocates” (McElrea, 2007, p. 177). Police are significant members in the community justice centre proposal. Judge McElrea suggests police to be present at every group conference would obtain the most successful results. The end goal would be for an agreement to be settled on by all parties, including both victims, offenders, their supporters and also the police. As with the youth justice system, a preferred outcome would not involve going on to court proceedings or sentencing the offender to imprisonment (Lynch, 2013). However should all parties agree this is the appropriate or only outcome, it can then be referred to the courts. The agreements settled upon can enforceable by the law, and should one break that agreement, can be held and legally tried before the courts (McElrea, 2007).
As seen in the youth justice system, courts are used as a last resort for most cases and only used immediately when consent for restorative justice practices is not given or it is seen as the most appropriate outcome (Carruthers, 2012).
Consent is an essential part of the community justice centre proposal. It is crucial that both the offender and the victim give consent to attending restorative justice practices, and it is also important to note offender accountability is required for the process to be effective (McElrea, 2007). Group conferencing ensures a comprehensive range of offences can be dealt with through this process and are able to do so on a case-by-case basis, which aims to move away from punishment and toward a sense of community (Maxwell et al,. 2002). As this proposal would significantly reduce the number of offenders going through the court system and being imprisoned, in turn results in fewer staff and respective costs, therefore it would be appropriate for the government to fund a local community and victim based justice programme (McElrea,
2007).
There have been several criticisms made against the proposal by judge McElrea, none more so than ones highlighted by Kathleen Daly (2002). She considers many ideas surrounding restorative justice to be myths. Such myths she believes are that restorative justice is in fact the opposite to retributive justice. That restorative justice was a central system of pre-modern justice, which also draws from indigenous justice practices. Daly (2002) also states a myth being that the ‘feminine’ response to offending is restorative justice in contrast to the current ‘masculine’ response. And finally that it is a myth that restorative justice will generate major changes in people.
In response to some of the criticisms Daly (2002) highlighted, I will look to counter to two of them. Firstly that it’s a myth that restorative justice use indigenous practices. Pre-colonisation Maori had their own system of justice that involved getting victims, offenders and their respective whanau and iwi altogether, similarly to family group conferencing that restorative justice enouarges (Carruthers, 2012). They meet for a hearing on a marae to agree on a reciprocal act to restore the balance that was disturbed by a wrongdoing (Jackson, 1998). It can be seen that Maori practices of justice are actually very closely in line with the values that restorative practices hold, such as taking responsibility, family/whanau involvement and reconciliation (Carruthers, 2012). Secondly, in response to Daly’s (2002) claim that it is a myth that restorative justice is the opposite of retributive justice. McElrea (2011) highlights the motivations behind restorative justice practices, which are to redress, acknowledge, reconcile and prevent the harm that has taken place. It is based on moving towards a better and safer community rather than towards punishment and imprisonment (Becroft, 2009). It is designed to keep people away from the courts and incarceration not designed to be punitive and adversarial (McElrea, 2011). It is not a perfect system but it is a system that embodies change, fairness and rehabilitation, rather than the focus on punishment, retribution, and imprisonment, which is demonstrated in the current adult system (Lynch, 2013).
In New Zealand we have a very recent history in deinstitutionalisation with our youth justice system (Carruthers, 2012). We are ahead of the rest of the world in our youth justice legislation and the restorative practices used have been of significant success (Becroft, 2009). Yet as we encourage decarceration and alternative proceedings for our youth, the adult system has gone the other direction. While youth court and incarceration numbers dropped the adult prison rate have escalated to record highs were we are now at capacity (McElrea, 2011). However judge McElrea’s (2007) proposal for an alternative to court could be the change needed to see those alarmingly high numbers finally reduced. He has incorporated key areas of success seen in the CYPF legislation and extends what the current system already practices (McElrea, 2007). New Zealand’s adversarial system is not working, it needs to steer away from punitiveness and punishment and be guided more towards restoration and rehabilitation (McElrea, 2011).
that aims to be inclusive and understanding while aiding a process of healing and restoration, which is seen in the 1989 CFYP Act (Maxwell et al,. 2002). It has shown significant success in youth justice and could provide the basis for important change in the adult system should some of these values be transitioned into it (McElrea, 2011).
The proposal that judge McElrea put forward has a key focus of introducing community justice centres as an alternative to court.
He details the vision he has for New Zealand that if implemented would allow for victims to initiate justice in ways they are comfortable with (McElrea, 2007). Similarly to the youth justice system this change would move away from the heavy reliance on the court system currently present (Becroft, 2009). McElrea (2007) places strong emphasis on diversion, however it have greater range and more variability than the seemingly one dimensional diversion system we hold today, which offers only first time offenders of minor crimes a diversion (Carruthers, 2012). The proposal would provide community based alternatives to court that could deal with civil and criminal offences of any kind other than those only the high courts may handle, such as murder or manslaughter (McElrea, 2007). The proposed change encourages offenders to stay within their community and build stronger relationships within their families, as alienation is a common and negative impact of the adversarial adult system we currently operate under (Carruthers, 2012). The community justice centres would aim to be noncustodial and find alternative criminal proceedings, such as group conferencing as a positive restorative approach to offending (Lynch, …show more content…
2013).
The community justice centres would hold group conferencing sessions in their central community location and would have many different agencies involved such as police, social workers, specifically trained professionals, for example those skilled in domestic or sexual violence, and a trained restorative justice mediator (McElrea, 2007). Lawyers can also be present however, “lawyers would be entitled to attend, but as advisers rather than as advocates” (McElrea, 2007, p. 177). Police are significant members in the community justice centre proposal. Judge McElrea suggests police to be present at every group conference would obtain the most successful results. The end goal would be for an agreement to be settled on by all parties, including both victims, offenders, their supporters and also the police. As with the youth justice system, a preferred outcome would not involve going on to court proceedings or sentencing the offender to imprisonment (Lynch, 2013). However should all parties agree this is the appropriate or only outcome, it can then be referred to the courts. The agreements settled upon can enforceable by the law, and should one break that agreement, can be held and legally tried before the courts (McElrea, 2007).
As seen in the youth justice system, courts are used as a last resort for most cases and only used immediately when consent for restorative justice practices is not given or it is seen as the most appropriate outcome (Carruthers, 2012).
Consent is an essential part of the community justice centre proposal. It is crucial that both the offender and the victim give consent to attending restorative justice practices, and it is also important to note offender accountability is required for the process to be effective (McElrea, 2007). Group conferencing ensures a comprehensive range of offences can be dealt with through this process and are able to do so on a case-by-case basis, which aims to move away from punishment and toward a sense of community (Maxwell et al,. 2002). As this proposal would significantly reduce the number of offenders going through the court system and being imprisoned, in turn results in fewer staff and respective costs, therefore it would be appropriate for the government to fund a local community and victim based justice programme (McElrea,
2007).
There have been several criticisms made against the proposal by judge McElrea, none more so than ones highlighted by Kathleen Daly (2002). She considers many ideas surrounding restorative justice to be myths. Such myths she believes are that restorative justice is in fact the opposite to retributive justice. That restorative justice was a central system of pre-modern justice, which also draws from indigenous justice practices. Daly (2002) also states a myth being that the ‘feminine’ response to offending is restorative justice in contrast to the current ‘masculine’ response. And finally that it is a myth that restorative justice will generate major changes in people.
In response to some of the criticisms Daly (2002) highlighted, I will look to counter to two of them. Firstly that it’s a myth that restorative justice use indigenous practices. Pre-colonisation Maori had their own system of justice that involved getting victims, offenders and their respective whanau and iwi altogether, similarly to family group conferencing that restorative justice enouarges (Carruthers, 2012). They meet for a hearing on a marae to agree on a reciprocal act to restore the balance that was disturbed by a wrongdoing (Jackson, 1998). It can be seen that Maori practices of justice are actually very closely in line with the values that restorative practices hold, such as taking responsibility, family/whanau involvement and reconciliation (Carruthers, 2012). Secondly, in response to Daly’s (2002) claim that it is a myth that restorative justice is the opposite of retributive justice. McElrea (2011) highlights the motivations behind restorative justice practices, which are to redress, acknowledge, reconcile and prevent the harm that has taken place. It is based on moving towards a better and safer community rather than towards punishment and imprisonment (Becroft, 2009). It is designed to keep people away from the courts and incarceration not designed to be punitive and adversarial (McElrea, 2011). It is not a perfect system but it is a system that embodies change, fairness and rehabilitation, rather than the focus on punishment, retribution, and imprisonment, which is demonstrated in the current adult system (Lynch, 2013).
In New Zealand we have a very recent history in deinstitutionalisation with our youth justice system (Carruthers, 2012). We are ahead of the rest of the world in our youth justice legislation and the restorative practices used have been of significant success (Becroft, 2009). Yet as we encourage decarceration and alternative proceedings for our youth, the adult system has gone the other direction. While youth court and incarceration numbers dropped the adult prison rate have escalated to record highs were we are now at capacity (McElrea, 2011). However judge McElrea’s (2007) proposal for an alternative to court could be the change needed to see those alarmingly high numbers finally reduced. He has incorporated key areas of success seen in the CYPF legislation and extends what the current system already practices (McElrea, 2007). New Zealand’s adversarial system is not working, it needs to steer away from punitiveness and punishment and be guided more towards restoration and rehabilitation (McElrea, 2011).