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Can the criminal laws be reformed?

2 Jun 2023

| Author: Professor Leslie Thomas KC

This week we will explore some of the alternative models of justice that have been proposed to address the critiques of criminal law and create a more just and equitable system.

Restorative justice

Restorative justice aims to repair the harm caused by criminal behaviour rather than merely punishing the offender. Unlike criminal law, which tends to be adversarial and punitive, restorative justice is collaborative and focuses on the needs of the victim, the offender and the community.

It recognises that crime is not just a violation of the law but also a violation of the relationships between individuals and the wider community. By bringing together the parties involved in a crime, restorative justice seeks to repair the damage caused by the crime and to restore those relationships.

Restorative justice is based on several principles that differentiate it from criminal law. First, it recognises that crime is a violation of people and relationships, not just of the law.

Second, it is collaborative, with all parties involved in the process. This means victims, offenders and the wider community are all involved in the process of repairing harm and restoring relationships. Third, the process is driven by the needs of those involved, meaning it is flexible and can be adapted to meet the needs of the people involved in each case.

Restorative justice can take many forms. It can involve face-to-face meetings between the victim and the offender, facilitated by a trained mediator or facilitator. It can also involve community meetings, where the wider community is invited to participate in the process of repairing harm and restoring relationships.

One of the key benefits is that it can help to address the root causes of criminal behaviour. Rather than simply punishing offenders for their actions, restorative justice seeks to understand the reasons behind the behaviour and to address those underlying issues. For example, if an offender has committed a crime due to addiction or mental health issues, restorative justice may involve connecting that person with the support and resources he or she needs to overcome those issues.

Restorative justice also has the potential to reduce reoffending. By addressing the root causes of criminal behaviour and providing support to offenders, it can help to prevent them from committing further crimes.

There is evidence for this: according to a 2008 evaluation by academics at the University of Sheffield commissioned by the Ministry of Justice, those offenders who participated in restorative justice committed statistically significantly fewer offences (in terms of reconvictions) than those who did not. In addition, restorative justice can help to build stronger, more resilient communities by fostering a greater sense of connection and understanding among individuals.

Ideas akin to restorative justice have been practised in many cultures and are often deeply rooted in non-Western traditions. For instance, the Navajo tradition of “peacemaking” has a lot in common with restorative justice. The Peacemaker Program in the Navajo Nation coexists with the formal tribal court system and its purpose is to bring parties together to talk through disputes and reach an agreement, with the peacemaker acting as a facilitator.

 

The downside

Despite its potential benefits, restorative justice is not without its challenges. The first is that it is not designed to settle factual disputes. It isn’t an adjudicative process and there is no fact-finding mechanism. So, if the accused denies that he or she behaved wrongly, restorative justice may not be appropriate.

The second is that the restorative justice process may not account for power imbalances in the relationship between the victim and the offender. For instance, in the context of sexual and gender-based violence, Sarah Deer and Abigail Barefoot write, “the lack of a formalized structure may actually allow the offender to re-victimize and re-traumatize a survivor through threats (direct or implied) and intimidation… [and] even where direct safety and well-being are well protected, [restorative justice] models can still marginalize the psychological needs of victim/survivors”.

This can, of course, be mitigated using skilled facilitators who can keep victims safe. But there will be times when restorative justice is not an appropriate or safe option.

The third significant critique is that restorative justice is not always enough. There are times when a person genuinely poses a danger to public safety and some kind of measures need to be taken to protect others from them, which a purely consensual process cannot necessarily achieve.

For example, Deer criticises an anecdotal account of a case handled by a Navajo peacemaker in which it was known that a child was being sexually abused by one of two possible suspects, neither of whom admitted it. The peacemaker’s solution was to isolate the child from both people and make sure the child was never alone with either.

Deer is highly critical of this response, stating, “There is no evidence that the peace-making system acknowledged the psychological harm suffered by the child, and simply isolating suspected sex offenders from a child does not directly address the underlying criminal behaviour… There is no enforcement mechanism in place to prevent future harm. Furthermore, because the offender is not held criminally accountable by the system, [they are] apparently free to commit offences on other children… Some of the problems with applying a ‘peacemaking’ model of justice to rape include safety, coercion, the excusing of criminal behaviour and recidivism.”

A fourth, and closely related, limitation of restorative justice is that although it has been widely adopted worldwide, it has usually been adopted as an adjunct to the traditional, punitive criminal justice system, rather than a complete replacement for it.

Restorative justice is often used either as a diversionary alternative to prosecution or as part of the sentencing process. But in both cases, if the parties do not agree to restorative justice or the process breaks down, the spectre of criminal punishment continues to hang over the offender’s head.

And finally, a fifth limitation is that restorative justice does not address all the harms done to victims or meet all the victim’s needs. As Susan Herman of the National Center for Victims of Crime said in 2000, “Repairing the harm is often far more complicated than apologies and restitution and relationship-building. It can require long-term sophisticated counselling, assistance with safety planning, relocation and any number of services required to rebuild a life… Many of victims’ needs cannot be met by individual offenders or small communities because there is only so much they can do.”

Despite these challenges, restorative justice has the potential to offer a more compassionate, collaborative and effective approach to justice than traditional criminal law. By focusing on repairing harm and restoring relationships, restorative justice has the potential to address the root causes of criminal behaviour and to build stronger, more resilient communities.

 

Community-based justice

Community-based justice is an alternative approach to criminal law that emphasises community involvement in justice processes.

This approach seeks to address the underlying causes of crime by addressing social issues that contribute to criminal behaviour. It aims to shift the focus from punitive measures to preventative measures by engaging communities in addressing the root causes of crime.

This approach recognises that crime is often a symptom of broader social issues, such as poverty, lack of education and social exclusion. Community-based justice is based on the principle that communities are best placed to identify and address these underlying social issues.

One example of community-based justice in action is the Koori Court in Victoria and New South Wales, Australia. The Koori Court is a specialist court that operates within the Victorian court system and is designed to address the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system.

The court is based on principles of restorative justice and community involvement and is staffed by a combination of legal professionals and elders from the local Aboriginal community. A similar Youth Koori Court has been implemented in New South Wales for eligible young people.

There is evidence that the Victorian Koori Court improves experiences within the justice system for the accused through the provision of a culturally appropriate court setting and process, the involvement of elders and community members in the court and the adoption of an inclusive approach by judges and legal representatives.

There is also some evidence that it may reduce recidivism rates. An empirical study of the New South Wales Youth Koori Court showed indigenous young people referred to the court were less likely to be sentenced to detention. They were also less likely to be re-convicted and less likely to be sentenced to detention at re-conviction, although the difference in re-conviction rates was not statistically significant.

Community-based justice has the potential to be a more effective and inclusive approach to justice than traditional criminal law. By involving communities in the justice process, community-based justice can address the root causes of crime and provide support to those who have been affected by it. Community-based justice initiatives can also help to build trust between communities and the justice system, which can lead to better outcomes for everyone involved.

However, like restorative justice, community-based justice mechanisms such as the Koori Courts operate as an adjunct to the mainstream criminal justice system, rather than as a replacement to it. The Koori Court is an integral part of the state-run criminal justice system and although community elders are involved in sentencing decisions, it is the judicial officer who makes the final decision.

So, this is unequivocally a reformist, rather than abolitionist, approach to criminal justice. The state and its courts still have the final say.

 

Transformative justice

Transformative justice is a relatively new concept that seeks to address the root causes of harm, violence and crime through a transformative process that empowers individuals and communities to build relationships and address systemic inequalities.

Unlike criminal law, which focuses on punishing offenders and maintaining the status quo, transformative justice seeks to create a new system of justice that prioritises healing, accountability and community building.

Transformative justice is based on the principles of accountability, empowerment and transformation. It recognises that harm is caused not only by individual actions but also by systemic inequalities and power imbalances. It seeks to address these underlying issues by creating a space for open dialogue, community engagement and personal growth.

An important facet of transformative justice is that, in general, it’s explicitly anti-carceral and abolitionist. Unlike restorative justice, which often functions as an adjunct to the mainstream criminal justice system, transformative justice advocates reject the mainstream criminal justice system and explicitly want to create an alternative to it, which doesn’t rely on the use of coercive state power.

Anthony Nocella explains the differences between restorative and transformative justice as follows:
Restorative justice stresses that the system is flawed, overworked, and retributive, but does not address why it exists, how it is racist, sexist, ableist, and classist, whom it benefits, and how it was developed. Transformative justice, on the other hand, is explicitly opposed to helping someone get arrested, imprisoned, fired from their job, repressed, or oppressed. It is about looking for the good within others, while also being aware of complex systems of domination. If the world is to transform, we need everyone to transform and everyone to be voluntarily involved in critical dialogue together.

One example of transformative justice in action is the Creative Interventions Toolkit, a practical guide to stop interpersonal violence developed by Creative Interventions. This toolkit provides a community-based, transformative justice approach to dealing with situations of interpersonal violence, including domestic violence, sexual harassment, sexual and assault, child abuse and elder abuse.

 

Not enough?

Transformative justice has the potential to create a more just and equitable society by addressing the root causes of harm and violence. It challenges us to rethink our understanding of justice and move beyond the limitations of the criminal justice system. It is absolutely something we should welcome. However, it is not without its challenges and criticisms.

As we have already heard, not everyone is satisfied with restorative justice approaches when it comes to serious violent and sexual harm. The same criticism arguably applies to transformative justice. Many victims of serious violent and sexual harm, and many members of the wider public, expect to see the perpetrator punished and are simply not going to be satisfied with a process that doesn’t involve the infliction of some form of punishment on the perpetrator.

Scott Berkowitz of the Rape, Abuse and Incest National Network articulated the view of many people when he told Buzzfeed News in 2013 that given the seriousness of rape, “a long jail sentence is always appropriate,” and that “Victims are looking for justice. For a crime this serious, justice includes punishment.”

This isn’t a view that we can simply write off as knee-jerk retributivism. It can be argued that any process in which coercive state power is completely absent and there is no prospect of the perpetrator being incarcerated runs the risk of a violent abuser being free to offend again.

Of course, abolitionists are not without answers to this point. Mariame Kaba said in an interview with The Next System Project, shortly after the election of President Trump in 2017, “Has the current approach ended rape and murder? Most rapists never see the inside of a courtroom, let alone get convicted and end up in prison. In fact, they end up becoming President.”

She has a point. The current criminal justice system was created by and for those with power. It isn’t particularly apt for addressing sexual and violent harm, especially when it is perpetrated by the powerful against the powerless.

Nonetheless, in discussing this issue we clearly can’t ignore public sentiment, not least because if the state simply abandoned the business of punishing people and left communities to solve their own problems, some people would take justice into their own hands and mete out violence to rapists and abusers.

In fact, there are some abolitionists who openly acknowledge this. In the anarchist zine What About The Rapists?, an anonymous author describes how they and their friends assaulted a rapist with a baseball bat to punish him. The author writes:
“We are tired of accountability processes that force the survivor to relive, over and over, the trauma of assault; that force the survivor to put their reputation on the line as “proof” of their credibility; that end up being an ineffective recreation of the judicial process that leaves the perpetrator scot-free, while the survivor has to live through this for the rest of their life… we are not sorry, and we will not stop: from now on, we will respond to sexual violence with violence.”

Pausing there, I imagine most of us would be uncomfortable living in a world with no judicial process, no trials and no appeals, where justice was delivered by vigilantes with baseball bats. I certainly would.

Despite these valid criticisms, transformative justice provides a valuable alternative to criminal law that focuses on healing accountability, and community building. It challenges us to think creatively about how we can address harm and violence and create a more just and equitable society.

 

Do we need criminal law?

We now need to confront squarely the question posed by this commentary: do we need criminal law? This requires us to choose between abolitionism and reformism. We’ve seen there are major problems with every aspect of the criminal justice system as it currently exists. It’s classist, ableist and racist and it fails to address the root causes of harm and conflict in society. But that doesn’t answer the question: can it be reformed or should it be abolished?

It’s not controversial to say that restorative justice is a good thing or that it should be more widely used. Restorative justice is used in many countries around the world, including the UK. It has produced good results and received widespread approval from academics, judges and policymakers.

But it generally functions as an adjunct to the formal criminal justice system, not a replacement for it. And as we have heard, restorative justice has limitations. It doesn’t have any kind of fact-finding process and so is unsuitable for adjudicating guilt or innocence.

Not all victims want to engage in it or feel safe doing so. It doesn’t necessarily tackle the structural causes of harm and violence. And as it functions as an add-on to traditional criminal justice rather than a replacement for it, offenders still have the spectre of conviction and punishment hanging over their heads. Similarly, community-based approaches to justice normally function as add-ons to the formal courts, not as a replacement for them.

Transformative justice, on the other hand, is more ambitious. In general, it’s an explicitly anti-carceral and abolitionist alternative to the formal justice system that rejects integration into the formal justice system. It is also a much more radical form of justice, that is rooted in anti-racist and anti-capitalist politics. It seeks to address the root causes of criminal behaviour and to transform the conditions that lead to crime.

This approach recognizes that crime is often a result of structural inequality, oppression and violence and seeks to address these underlying issues through social and political change. Transformative justice emphasises the importance of community-based solutions and a focus on healing and transformation. And it is ambitious.

As we have heard, transformative justice schemes such as the Creative Alternatives toolkit are squarely designed to tackle the very types of harm to which restorative justice is often viewed as ill-suited, such as domestic and sexual violence.

However, we must also engage with criticisms of abolitionist approaches to justice. It must be acknowledged that in the real world, many victims and many members of the public demand to see the perpetrators of serious violent and sexual harm punished. That isn’t necessarily an intractable desire but it’s also not one that we can ignore when making decisions about public policy.

As we’ve seen, in a world with no criminal justice system we could expect to see not just transformative justice, but also vigilante violence. To that end, I’m not convinced that the immediate abolition of criminal courts, police and prisons is a feasible or desirable goal.

However, the exploration of these alternatives offers a valuable perspective on the limitations of our current system and the possibilities for change. We should acknowledge that criminal punishment can’t solve the underlying social problems that cause harm and conflict and often makes them worse.

We should challenge the gross inequality and injustice of our capitalist economy and the structural racism that often accompanies it, and push for all communities to have high-quality education, housing, jobs and health care accessible to all. And we should expand the space for restorative, transformative and community-based approaches to conflict resolution.

If we can take these steps, the role of criminal punishment in our society will steadily diminish. ■

 

Professor Leslie Thomas KC is a lecturer at Gresham College in central London ■

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