TOWARDS A BRAVE NEW WORLD: RESTORATIVE JUSTICE
By Sheena Jonker
The public look into the trial of Timothy Omotoso and especially the cross examination of Cheryl Zondi has drawn strong reaction. I wrote about her cross examination last week from a Restorative Justice Perspective. http://sheenastclairjonker.com/towards-a-brave-new-world-restorative-justice/
A HUMANIZED CRIMINAL JUSTICE?
There are calls to humanize criminal justice. I am for a kinder, braver world. I am for more humane. But I don’t think we can humanize criminal justice. I don’t think we can make it an effectively better place for victims. Here is why:
Crime lives in a category of law called Public Law. This means that it has to do with relations between the state and its citizens. Understood via social contract theory, we, the citizens or the people, mandate the state to accuse, convict and then punish convicted criminals on our behalf.
If we want a system where our state can punish its citizens then we must surely want a system where the state has to work hard to convict before it can punish. We’ve just seen that very system functioning as it is designed to work. The victim is a mere witness for the state in the whole process. And the defence’s main priority is to show that the victim simply cannot and should not be believed. The presumption of innocence and corresponding onus on the state to prove (all elements of the crime as charged) beyond a reasonable doubt means that if the defence raises a reasonable doubt then he or she must be granted the benefit of the doubt and must be acquitted.
This means that in a criminal justice system working as it is designed to work, and if the onus of proof and burden of proof are properly applied, conviction rates should be low. Unfortunately this means those who are privileged and/or economically are empowered have a better chance of acquittal than their less privileged and/or impoverished or less resourced fellow citizens.
A JUSTICE THAT RESTORES
The contemporary concept of restorative justice was elaborated as a response in the worldwide crisis of criminality. (Koen, “Antimonies of Restorative Justice”). It’s important to understand this as a contemporary concept since Restorative Justice has existed within first nation society philosophies for centuries and beyond. Incidentally, it is thought that pre-capitalist societies did not experience the universal problem of criminality that seems to characterize capitalism. So the modern concept is a specific response to the problem of widespread criminality.
WEAK RESTORATIVE JUSTICE VERSUS STRONG RESTORATIVE JUSTICE
Koen distinguishes “weak restorative justice” from “strong restorative justice”.
A weak version of restorative justice or partial restorative justice exists as, and is content to be, an adjunct to the criminal justice system. This is where I practice and operate in a practical sense. This is the case because whilst our department of justice, law reform projects and various legal mechanisms support a shift towards restorative justice, we do not have, as a whole, a system that is primarily restorative in nature. Our criminal justice is adversarial/accusitorial with strong penal, retiributive and punitive aspects.
The weak version of restorative justice exists as little more than a pragmatic adaptation to the contradictions that exist between criminal justice or comprehensive restorative justice. So I am largely consulted where it is obvious that evidence in a rape case is so complex that there simply is not a winnable case, or where a rape victim simply does not see there way clear to report and/or testify (for obvious reasons) or sadly, in many cases, where victims have made attempts on their own lives. My work is a victim-centric approach largely to set up practical victim and/or child protection mechanisms and to create suitable conditions for restoration and healing. Where offenders are willing participants there are any number of possibilities from guilty pleas (which may be used in mitigation of sentence) to agreed conditions such as managed therapy, enrolment on the sexual offence register, no contact orders relating to the victim and the like. None of our processes bind the prosecution which still has a discretion to proceed. But as mentioned previously, I am mainly consulted where evidence would be too complicated to run a trial or where a trial is regarded as being potentially and unduly a danger to the life of the victim. Our approach is integrative so there may be medical/psychiatric/psychological expertise and/or input in a decision to pursue a restorative justice process.
Strong Restorative Justice (both terms borrowed from Koen, supra) is a wholly comprehensive system exists as an alternative to Criminal Justice. This is where my heart, my ideal and my commitment lie. I see a new world coming. A brave new world. And its being created in the old.
I don’t want a criminal justice system where we mandate the state to punish and then even start questioning where the onus falls or how heavy the burden is. In other words I am not for a situation where we leave the criminal justice system in place but start to amend the presumption of innocence, onus of proof and burden of proof. This could happen directly or indirectly if we were not careful. If we think through this carefully none of us would want this. I don’t think it’s possible to humanize a state-centric criminal justice system and I don’t think it’s that possible to make the system a friendly place for victims without inadvertantly disturbing the presumption of innocence or interfering with the onus or burden of proof. Think of cases where we have seen existing legislation create a reverse onus in violation of the presumption of innocence.
If the state has the power to punish then the defence simply must have the right to ask of the victim “how can we believe you?”. (And oftentimes there is no other way to ask that but in a way that would re-traumatize victims.) Anything else would transfer too much power to the state which is already the gatekeeper of meting out punishment.
REJECTING WHAT IS
Strong restorative justice or comprehensive restorative justice entails a radical rejection of what is.
In order to reform our law in this way we will have to start reflecting on transforming crime as a public concept into crime as a private concept in law. (See Koen supra) So instead of being a function of public law, it may become a function of private law-the law that regulates the relations between citizens (horizontal application) as opposed to law that regulates the relationship between the state and its citizens.
Restorative Justice is constituted in opposition to retribution and punishment. In a sense, it is the antithesis of criminal justice. It is a deliberative, discursive way of doing justice that circumvents the penal harm inflicted by criminal justice. A restorationist outlook is not confined to a non-penal justice system. Restorationism aspires to the higher concepts of healing, peacemaking and social reconstruction for a more just society. Not only is it a better way of doing justice, but it entails a better way of living. (see Koen supra)
There are six core aspects to take into account in building an alternative restorative justice system:
Privatization of crime
The criminal episode is seen through the lens of who was harmed, who committed the harm and who else was affected. Moving away from the state-centric definition of crime, power and agency is transferred to the individuals and communities directly affected by crime.
I know what you may be thinking-outlaw action or vigilante justice. That is a real concern but it would be mitigated against by comprehensive restorative justice being part of our actual private law. The state, rather than being a party to the process, is now a facilitator and resourcer of the process. The essential task of a restorative justice process is to mend relations. Restoring relationship between individuals, families, communities and even nations is at the heart of justice or making things right again. This doesn’t mean we promote or facilitate ongoing relations between victims and abusers. A properly managed discourse can prevent that if that is what is required. The aim is to mend relations where possible without the intrusion of the ultimately violent resources of the state.
In criminal justice a well-resourced accused is far more likely not to spend time in prison awaiting trial, not to be handcuffed or shackled and ultimately has a better chance of winning an acquittal if he or she has a legitimate defence to a crime committed.
Restorationists envisage de-statisation of criminal justice and a corresponding progression beyond the punitive society into the brave new world of Restorative Justice. Are we ready? That is the big question. Unless we are willing to reflect on our ideas of punishment, then we are not yet ready. But it doesn’t mean we can’t lead our world to become ready.
The Restorative Sanction
The Restorative Sanction is expressly non-punitive and thus encapsulates all that is radical about Restorative Justice. This is meant to be a collaborative outcome between victim and offender. It is intended to restore and heal, not punish. The primary objective is to restore the status quo ante for the victim. This means that as far as possible, we look to finding ways to restore him or her to the life he or she would have lead had the crime not happened. In commercial crimes this may be as easy as “pay back the money”. In crimes of murder and rape restoration must take a more deliberative discourse. Overwhelmingly, I have found that one of the most important needs of a victim is acknowledgment of the harm done, that he or she is believed and genuine remorse on the part of the person that caused the harm.
A restorative sanction must encompass two components: restoration for the victim and a mechanism for prevention against recidivism on the part of the offender. All my work in Restorative Justice is victim-centric. This means its primarily to protect and ensure the well-being of the victim. In strong restorative justice, the emphasis would also be on restoration of the offender and the community affected. My work is limited as an adjunct to criminal justice. I do and have had matters where the offender has been “re-storied” , to borrow a word from Koen, and restored in wonderful ways. And that is obviously part of what we need.
The Restorative Process
Process is at the heart of a justice that restores. It is a justice borne out of process which involves a series of steps or acts to achieve a particular end: restoration for victim, offender and community. This process should be discursive, engaging, thoughtful and problem-solving. Criminal justice merely regulates conflict between adversaries, the victim and offender, who are incidental to the process. the fall out of this is that the victim often experiences secondary trauma as we have seen. The regulation is largely a product of the surrogacy of lawyers. And the emergent “winner” is often based on those with access to resources for effective lawyers.
Because parties incidental to the process are “there” through surrogates, there is little to no potential for restorative solutioning. Restorationism eschews surrogacy in process. Those directly affected by crime are directly empowered in the process. In criminal justice those most affected by crime are often most dis-empowered and even re-traumatized and/or re-violated by a defence who has the right to test the state case and collaterally robustly question the credibility of its witnesses.
Empowerment of the victim
The primary function of restorationism is re-empowerment of the victim.
Criminal Justice starts with “how can we possibly believe you?”
Restorative Justice starts with “we believe you”. Now let’s figure out what we can do to get you to safety, keep you safe, provide a platform for your healing and position you to live a whole, healed, vibrant and abundant life.
Reconstruction of the offender
Of course it is in all our interests to re-construct offenders and to “deliver them from the clutches of criminal existence” as Koen writes. Criminal Justice has a negative construction of the offender and state punishment always involves a negation of certain rights. This negation of rights often comprises collateral damage to innocent victims of an offender’s family. Restorationism in its radical form proposes a “death of the offender” via a liberating and creative death or a re-biographing of the offender as one who is free of the criminal impulse and whose self-worth is derived from an awareness of the value of his or her fellow human beings.
In restorationist lore, then, the offender is re-storied as part of his or her restoration. (See Koen, supra). This may be made up of multiple and long-term actions and practical steps thoughtfully invoked and held in place by those who love him or her as well as the broader community.
The community, defined through the process, are an integral part of the process and not only help to devise solutions but also assist in holding those solutions in place for enduring restoration.
Turning back to the Omotoso trial, the defence have sought leave to appeal on the question of the recusal of the magistrate as well as the charge sheet.
They argue that their client has a right to know details of the charges: when, where, how, the alleged incidents happened.
That’s how the system works. We have mandated our state to punish its citizens if proved to have committed crimes. Those accused have a constitutional right to sufficient particularity of charge. They must know the when, where and how of what they are charged of so that they can defend themselves. Unfortunately in rape cases which may have happened several years before, over several years and in truamatic conditions the when, where and how may not be an easy matter for evidence.
It’s the system and we saw publically in past weeks how it works and how it commonly entails the brutal cross-questioning of complainants in such matters.
WE WILL NOT FIND WHAT WE NEED HERE
I stand by my assertion that we will never get what we want or need in this system because what we really need (and want) is justice. We need things to be made right again. We often confuse our desire for justice for the need for revenge and punishment. And we are never going to get where we need to go with this.
We can’t “fix” this system in a way that would give us and the world around us what we need. We must replace it with a whole system intent on restoration and healing.
Until we get there I will continue to practice “weak” Restorative Justice or Partial Restorative Justice as an adjunct to a system that spawns violence rather than ending it committed to the idea that each time a weak muscle is exercised, it gets stronger and it will grow to the point that I can practice strong, comprehensive restorative justice where I witness many, many more victims encounter a process that says:
We believe you. Now let’s figure out how we get you to safety, how we keep you safe and how we ensure that you can look forward to living a whole, healed and vibrant life.
By Sheena Jonker
Restorative Justice Lawyer
Van Der Spuy et al, Restorative Justice: Policies, politics and perspectives (In Particular the paper by Koen, The Antimonies of Restorative Justice)