Posted by Matt McAvoy on Sunday, June 22, 2014 Under: Observations on Society
I recently watched "Can criminals say sorry?" on BBC 3 with Brooke Kinsella, about the pros and cons of restorative justice when dealing with criminals and offering reparation to victims. The general gist of the show is exactly as the title suggests - is restorative justice genuine and should it be more widely used to appease victims and their families?
The programme, for those who haven't seen it, included a woman facing her rapist in prison, and the sister of a murder victim coming face-to-face with her brother's killer. It also televised a more run-of-the-mill panel involving aggressive behaviour. A recurring theme in restorative justice seems to be understanding and forgiveness on the part of the victim and, one would assume, empathy by the offender to prevent recidivism. This left me asking the question: is this really appropriate?
The programme's agenda (because this is the BBC - they always have one) appeared to be an attempt to steer poor Brooke to facing her brother Ben's murderer for the benefit of the t.v. cameras (the money shot!). Happily, for Brooke and for us, she resisted and decided restorative justice was not appropriate for her or her brother at the moment. And rightly so, I feel. Much, one would imagine, to the disappointment of the producers.
I myself have worked directly as a mediator in restorative justice panels; I have also worked with dangerous violent and sexual offenders, including murderers and stranger-rapists. The panels I worked on typically involved violence, scuffles, affrays, theft and robbery - the usual teenage bad elements; fortunately they never elevated, in my case, to anything more serious than this.
I say fortunately because I believe very strongly it is not suitable for severe crimes such as murder. Restorative justice should be reserved as standard for lower level crimes, and if applied to violence or sexual violence, only as a supplement to appease the victim and educate the offender, certainly not as a replacement punishment.
I don't think anybody in the show was suggesting that restorative justice replaces more punitive methods, certainly not for serious offences. But, I believe it already has, and the growing rhetoric suggests that its utilization will only increase. I believe the reasons for this are many and are related more to political necessity and empirical corruption than any positive factor. But, that vitriol is not the purpose of this particular blog post, so I will move on.
Let's get something clear - no judge can force restorative justice on the victim because of its initiation by the offender, and let us pray that it stays that way. But, of course, nobody can force it on the offender either. You may feel that in some cases it should be forced upon the offender - they should have to see the pain they have caused to the victim.
But deeper scrutiny explains the logic of the law relating to this, primarily, one would assume, what is the benefit in trying to force empathy from an offender who isn't interested? Some may argue, whether they are interested or not doesn't matter - they should still hear the victim's pain, and one day in the future they may start to digest it. Perhaps, but unfortunately, sickeningly, there are those which will consider restorative justice conferencing an opportunity to inflict further pain on their victim - and believe me, these people do exist. Very few of the sex offenders I have met have considered anybody but themselves the victim in the whole situation - many consider the victim to be the villain, and themselves the protagonist. Clearly, in this case, it would be inappropriate to bring these two parties face-to-face.
Or would it? Some would argue this may be the only way to get through to the offender and prevent him/her from re-offending.
One thing I do believe very strongly is that the reaction of the offender to restorative justice should be professionally analyzed, because I feel that far too many offenders agree to restorative justice for favouritism with the parole board. If restorative justice were forced on the offender there would have to be no sentence incentive involved, and the offender would therefore be an unwilling participant, possibly antagonistic, maybe even spiteful or aggressive - for the sake of the well-being of the victim, I therefore believe it would be highly unsuitable to force restorative justice on offenders. This further suggests that THE PURPOSE OF RESTORATIVE JUSTICE SHOULD NOT BE VICTIM APPEASEMENT AND PROFESSIONAL CRIMINAL JUSTICE DISCOURSE SHOULD STOP ATTEMPTING TO SUGGEST THAT IT IS.
I have always been a firm believer that public safety is the number one priority of the criminal justice system, and have based my whole career on this ethos. Public protection must supersede punishment and victim justice, as unsatisfying as that must sound - THE PREVENTION OF FURTHER VICTIMS MUST BE THE CONTINUOUS PURPOSE OF THE CRIMINAL JUSTICE SYSTEM. Sadly, appeasement for your victimization cannot come before this. Punishment must revolve around the prevention of further victims - put simply, in an ideal world, this model would require that a violent offender is locked away from the public and rehabilitated until he/she no longer poses a public threat. Of course, punishment and justice can be added on as enhancements to the sentence, but in my opinion should not form the foundation of it.
Restorative justice is little more than an enhancement in this context and should not be used to form the foundation of sentencing, and certainly should not be requested with inducements of shorter prison time. But, by definition, based on the model above, if a rapist responds empathetically (as did the lady's in the programme) then he will be safe to be released sooner than had he not taken part in the conferencing. Therefore, qualified professionals alone should have the power to advise on the offender's reaction to restorative justice - their impartial prognosis must be motivated by no agenda whatsoever.
Which brings us, finally, to murderers. To recap, the producers of "Can criminals say sorry?" appeared to be attempting to lure Brooke into a face-to-face meeting with her brother's murderer for the sake of television. It is my firm opinion that restorative justice is not a suitable application in the context of murder; I base this belief on two factors:
1. Murder recidivism is incredibly rare. The likelihood of a murderer killing again is less than half a %. This is likely because the severity of the punishment acts as a deterrent, even though it didn't the first time round. However, more likely the reason is this:
2. Every killer I have ever met has shown remorse - every single one of them. However, this takes time. Time for the guilt, the impact and the consequences to the killer and the victim's family to manifest. They may not express it, but it is not uncommon to hear a killer state, when time has passed, that not a single day goes by without regret for the crime they committed - I have heard this many times. Cynical observers may say it is the punishment which causes regret, but the eyes do not lie; I have looked into the eyes of convicted killers, and have seen remorse, remorse, remorse.
I therefore see little benefit in subjecting either party to restorative justice. It is my belief that this remorse should be permitted to settle in the killer. On every parole condition I have seen, for murderers, contact with the victim's family is strictly forbidden and considered a serious breach, even if the intention is apology, which it usually is. Killers should face the consequences of their crime; they should live with the knowledge of the damage they caused for the rest of their lives, because this is no less than the impact they have inflicted upon the victims.
The lady who met her brother's killer in the programme said the very same thing. The lady's response, I believe, was counter-productive - she forgave him. I do not believe it is appropriate to forgive a murderer - guilt for taking a life is part of the natural order, and is what prevents the vast majority of us from committing the most devastating of human offences. By forgiving, we are effectively absolving the killer's remorse, which equates to perhaps his only remaining perceived remnant of humanity.
If, therefore, we are not to forgive the murderer, what purpose of restorative justice?
Closure for the victim's loved one is often a crucial part of the grieving process, and restorative justice can provide this, but victims need to be strong and prevent themselves from forgiving the murderer, for the sake of society and the natural order.