Posted on Leave a comment

Contemporary Penology and Restorative Justice

Contemporary Penology and Restorative Justice
Time for Moral Courage and Political Bravery
by David J Cornwell (author of The Penal Crisis and the Clapham Omnibus).
July 2010.

We, in Britain, live in ‘troubled times’ in both our domestic economy and our penology. Unprecedented fiscal debt and the millstone of an excessive and unsustainable penal population compete for urgent remedial action in social policy terms. For too long until very recently, the myth that ‘Prison Works’ has remained un-refuted, due largely to an intellectual paralysis within the political elite: a paralysis fuelled by tabloid intransigence, manipulation of what is euphemistically termed ‘public opinion’ in relation to offenders and offences, and to an obstinate, ‘traditionalist’ refusal within the judiciary to surrender any element of its perceived independence to the dictates of reason. And all at a time when most crime rates across Europe generally, and in Britain specifically, have been falling markedly.

Neither can the academic discipline of criminology escape its share of censure for the present situation. Persistent failure to dismantle the ‘myth of deterrence’, in both its ‘general’ and ‘specific’ forms as one of the principal justifications of penal sanctions has contributed significantly to the emergence of what has been termed “populist punitivism”, and to an escalation in court sentencing practices for the supposed, yet un-measurable, social benefits of public protection. Increasing, and morally indefensible resort to indeterminate incarceration for the purposes of public protection has served only to deepen the penal crisis. Though criminologists may not have condoned this situation, their collective academic and operational objections to its development have not, hitherto, been strident enough to provoke a change of political and governmental direction.

The causative aspects of crime within the social structure of many modern democracies have been manifested in increasing disparities of affluence and relative deprivation between the rich and the poor, the employed and the unemployed, the more educated professional / managerial classes and the less-educated or manual employee classes within societies. In addition to causing some measure of justifiable resentment among the ‘have-nots’, the considerable differentials of access to, and outcomes of social rewards and benefits have contributed towards the creation of ‘under-classes’ within which crime has traditionally flourished as a means of, though not a justification for, illegal activities perceived as appropriate in restoring perceptions of ‘social balance’. Thus criminal justice policies designed to be ‘tough on crime’ without being similarly robust in addressing the underlying causes of crime impact most heavily (and arguably unreasonably) on the already socially disadvantaged. It is, therefore, scarcely a matter of surprise that these already disadvantaged persons are disproportionately represented within penal populations.

Contemporary Penology and Restorative Justice

But, the reader may insist, these are all well-known ‘facts of social life’. Why, then, do they merit re-statement? The answer to this question, it might be contended, depends upon the extent to which our collective social and moral conscience is able to justify and tolerate penal policies that persist in punishing rather than ameliorating social disadvantage and its outcomes manifested in criminal behaviour. And, lest we forget, in the process of pursuing the urge to punish, we visit that punishment not only upon offenders and those immediately dependent upon them, but also upon those offended against as the largely ignored victims of crime, and upon the communities that are affected by the prevalence of offending behaviour. It is in response to the vicarious nature of the prevailing punishment agenda that Restorative Justice (RJ) has emerged, and may assist us in eliminating its effects to a very considerable extent.

Over the past two decades a considerable literature has been assembled on, and in support of, the way in which RJ might enable us to adopt a more understanding and effective way of dealing with offending behaviour in a social context. There is also a justifiable consensus among the proponents of RJ that in addition to dealing more humanely and reasonably with offenders and offences, a considerable reduction in re-offending (or recidivism) might become both a reality and an additional social benefit if it were to be adopted more widely within criminal justice processes.

RJ views offending in a different framework from that of the ‘traditional’ legal approach: it views crime more as a violation of people and relationships than of the law and the state. It insists that these violations create obligations to put matters right rather than merely ascriptions of ‘guilt’. Its focus is a concern for the needs of victims and on the responsibility of offenders to repair the harm done, more than with offenders ‘getting their just deserts’. The primary requirements of RJ are that offenders take responsibility for what they have done wrong, offer genuine apology and understanding for the harm they have caused, and then take some action to make reparation to those offended against. State law makes no such demands upon offenders, and affords victims no specific status in its preoccupation with ensuring that the ‘guilty’ are punished.

RJ provides an appropriate way of diverting many ‘low level’ or less serious offenders who accept its demands from the need to be held in prisons, enabling them to address their wrongdoing (and possibly also their addictions) and make reparation to victims within the communities in which they normally reside. By involving communities and organisations in identifying appropriate work projects in which offenders can participate, means can be made available for reparation to be made from earnings, and the projects completed for the enhancement of community amenities. In the same process, offenders can also learn new skills that improve their long-term employability, and thus their potential to lead law-abiding lives in the future.

Contemporary Penology and Restorative Justice

Of course, more serious forms of criminal offending will inevitably result in custodial sanctions, the duration of which should be strictly proportionate to the seriousness of the offence(s) committed. There is, however, no reason why those serious offenders who express remorse and a willingness to make reparation should not be enabled to do so while held in custody. Such offenders should not be compelled to spend their time in custody with others who show no remorse and/or refuse to accept responsibility for their crimes. Thus it becomes possible to conceive of a ‘two-tier’ custodial penal system with entire establishments being operated on a reparative and restorative basis, and with the final phase of such sentence periods being spent working ‘on probation’ within local communities. In addition to reducing the overall size of the prison population, such a sentence structure would also more meaningfully contribute to what has hitherto been described somewhat confusingly as the ‘rehabilitative process’.

There is an ever-increasing body of research evidence to show that offenders sanctioned within a restorative mode of justice become significantly less likely to re-offend in the future simply because they understand the harm and distress caused to victims. They also recognise the effect of their offending on themselves and upon their own close families and communities, and seek to avoid causing more in the future. Moreover, experience in Finland, Canada and certain other countries in the deliberate reduction of the prison population has conclusively proved that many prison sentences are entirely unnecessary, and that community sanctions served as an alternative do not increase public risk.

As matters currently stand, time spent in prisons is a de-humanising and ultimately damaging experience that serves little purpose other than the ‘warehousing’ of offenders in conditions conducive to re-offending. Restorative Justice provides a means of avoiding returning embittered and unrepentant offenders into communities with a high likelihood of returning to crime. To follow such an agenda requires a new moral courage, honesty and bravery in our politicians and opinion-formers that is long overdue. The legacy of past failure in penal reform remains the inheritance of the future unless and until a determined attempt is made to resolve the penal crisis in a more enlightened and humane manner.

Leave a Reply