The problem with restorative justice

Recently, I had the opportunity to speak at a gathering out west. The theme of that gathering was “Exploring the continuum of violence against women and girls.” This was a pretty powerful event and there was a spectacular list of speakers and presenters (I even met the fabulous Beverly Jacobs, who also moderated the panel I spoke on).

The topic I presented on was simple: experiences of Aboriginal women in the criminal justice system. Specifically, I spoke on my own experiences. I have written about those experiences before so I won’t go into detail on them here. What I would like to write about is what I considered a major fundamental flaw of restorative justice. In particular, this type of justice is credited for being closely related to Aboriginal justice and sometimes the two are considered one in the same (which is one of the first problems).

Let begin by premising that while this type of justice may work in some instances, it does not work in all instances especially in my case. Being a survivor of domestic violence and much of my experiences in the criminal justice system linked to domestic violence, the major problem with restorative justice especially in terms of Aboriginal women who experience domestic violence and then are arrested because of those experiences (like fighting back or making the first complaint but not in the instance of the first experience of being victimized). Restorative justice operates on the principle that justice needs to take place within the community (that is a positive). However, it believes that all parties should be involved including offender and victim. In cases of domestic violence, it is not always the offender that is the one who does the victimizing. Rather, the offender may also be the victim, like in my case.

With that statement, I was the one who was arrested and I was the one who was considered the offender, and not the victim. Although very helpful to reducing the harm done to my criminal record, the restorative/Aboriginal justice route forced me to apologize for me fighting back instead of taking a beating. Kind of counter-intuitive to the whole healing process, right? Along with this, I was forced to partake in cultural initiatives in exchange for my freedom post charge rather than pre-charge. This meant that I had already gone through the formal process of laying of charges and being finger printed and having a history on my criminal record. Again, counter-intuitive to the whole healing process. I would have much preferred cultural services BEFORE admitting any guilt which was what my legal-aid lawyer said was my only route.

Now some people might argue and say that restorative justice is a good approach especially when it involves young people. Yet again, I beg to differ. For young people, they are often committing crimes that are situational to their circumstances. For instance, young people may run away from their situation at home because home life, to them, is not safe and nurturing. Often times, young people run away from a home that is filled with abuse and victimizing situations. Young people don’t run away for fun. Also, young people don’t commit crimes for fun. Again, more often than not, young people are criminalized for behaviours that are done out of survival. One might argue that in the case of London, during the infamous St. Patrick’s day fiasco, that young people do commit crime for “fun.” Again, this is situational and not a reoccurring pattern. It just so happens that the media prefers to report on crimes committed by young people as opposed to crimes committed by adults (and what do you know, statistically there is more crime committed by adults than there is by youth). So what does this have to do with restorative justice? Well if we were to put all parties involved in the same room, say for a healing circle or sentencing circle (formally called sentencing conferencing), then that means the young person is often re-victimized again. Young people actually face a higher rate of victimization than any other population in Canada. In fact, the whole idea that young people are growing more violent and scarier is just a fictitious fact created by the media via creating a moral panic. Media are corporations out to make a buck.

So we need to begin to look at how the format of restorative justice actually affects all parties in the long term and not just the short term, and this is a major problem with the criminal justice system (CJS): it is a short term solution, contributing to long term problems.

Also we need to move away from corresponding restorative justice to Aboriginal justice. Aboriginal justice isn’t about revictimizing those who have been previously victimized. I recently just learned about “transformative justice” and I propose that the CJS begin to seriously look at this as an option. Along with this, the government needs to begin refocus for their funds on rehabilitative programs as opposed to building more penitentiaries. What good is a jail if it does not have adequate programming made to carry out the purpose of the Criminal Code of Canada which states:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  1. to denounce unlawful conduct;
  2. to deter the offender and other persons from committing offences;
  3. to separate offenders from society, where necessary;
  4. to assist in rehabilitating offenders;
  5. to provide reparations for harm done to victims or to the community; and
  6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.


Just because something “sounds” nice and works in *some* situations doesn’t mean that it works in all situations and certainly doesn’t mean that it is a pleasant form of justice for all parties involved.


References:


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4 thoughts on “The problem with restorative justice

  1. hmmm lol you like to write a lot i guess ..lol

  2. Fantastic, one of the problems with RJ is that it tends to assume responsibility when actually there are often mitigating circumstances or individual/societal duress taking place. It could be said that mediation is more appropriate when there is conflict but no clear victim/offender. However, mediation doesn’t have the same sort of reconciliation and positive progressive atmosphere as RJ. So what do we do?

  3. Thank you for your input. A new form of justice that I have been recently introduced to is something called transformative justice. I would like to know more about transformative justice. I think there needs to be an entire reconceptionalization around the typology of offenders and victims because most often offenders to society are also victims to society. We need to begin to include various forms of crime and not just conventional forms. Perhaps a reconceptionalization of crime all together? Once again, thank you for your comment!

  4. This affirms my commitment, in our Restorative Justice work, we seek to identify and screen the appropriateness of RJ. In cases of DV, we do check to see if the incident reflects the overall relationship dynamics. Safety for everyone in present and future context is important!

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