Towards a Brave New World: Restorative Justice

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)

CORE CONCEPTS

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.

Community Participation

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

sheena@accesstojustice.co.za

Sources:

Van Der Spuy et al, Restorative Justice: Policies, politics and perspectives (In Particular the paper by Koen, The Antimonies of Restorative Justice)

The Broadcast of the Testimony of Cheryl Zondi

THE BROADCAST OF THE TESTIMONY AND CROSS EXAMINATION OF CHERYL ZONDI

By Sheena Jonker

This week I watched most of the cross-examination of Cheryl Zondi in the trial of Tim Omotoso. I wasn’t shocked. I wasn’t shocked at all. We were merely watching the criminal justice system work as it is designed to work.

CRIMINAL JUSTICE AND EVIDENCE IN RAPE CASES

Before I get to the questions of the actual broadcast of a rape complainan’s or witness testimony, it’s important to understand a few things about criminal justice.

If we want the state to be charged with the punishment of its citizens, then if it accuses a citizen of a crime, it must bare the onus of proving guilt and the standard of proof (how much evidence must be brought) must be high. In criminal matters the standard is beyond a reasonable doubt. This means an accused must be given the benefit of the doubt if reasonable doubt exists and, by extension it means that the accused him-or herself or through his or her representatives must have the right to robustly test the version of the state by robustly cross-examining its witness or witnesses. The burden and standard of proof exists, in part, to protect the innocent. Of course none of us would wish to be on the receiving end of a criminal trial where either the onus were on us to prove our own innocence, or even if it weren’t, that the state, our would-be punisher, had a lighter burden of proof.

Because matters of sexual violence usually involve an abuser and a victim with complex power relations at play, evidence is a very difficult matter. The result is that conviction rates are very, very low. This is not as a result of an incompetent legal system. This is as the result of the western adversarial/accusatorial criminal justice system working as it is designed to work.

My own view is that it is a system that is simply not the right place to figure out the problem of sexual violence. As I speak and write extensively about, unless we are open to sentencing reform and alternative sentencing, we are not going to be able to bring about reform in the actual forum that is criminal justice as it relates to sexual violence matters.

I practice restorative justice in matters of sexual violence precisely because it offers more potential for practical protection and restoration of victims of sexual violence. The starting point of my work is a massive “We believe you” over the life of a victim. In criminal justice a massive “How can we possibly believe you” is spoken over the life of a victim of sexual violence. And where there is an acquittal, which more often than not is the case, then he or she has the added burden of having to journey through life having gone through a formal process where he or she was not believed.

SHOULD IT HAVE BEEN BROADCAST?

I absolutely abhor what happens to witnesses who levy an accusation or rape or sexual violence against someone. I’m not a fan of anyone bleeding in public or the public spectacle aspect of it all.  I abhor the cross-examination, the intrusion, the violence of how they are cross-questioned, but I do applaud the bravery of Cheryl Zondi for allowing her testimony to be broadcast. Here is why:

Victims are often lambasted for not reporting and/or for not laying charges. Cheryl Zondi helped us see for ourselves why this is the case. Victims have to endure much hardship in levying an accusation and then in sustaining an accusation against someone they say has sexually assaulted or raped them. Cheryl Zondi stood proxy for and laid bare the reality of what it takes and how potentially damaging and destructive it is.

CHERYL ZONDI AS A WITNESS

Cheryl Zondi is a witness of astounding inner fortitude with an exceptional ability to communicate and stand her ground. Not every victim or witness is like that. Cheryl Zondi has a distinguishing strength about her. We cannot possibly expect that of every victim or every witness. Whilst I think and hope her courage will encourage (literally put courage into) others, we must be careful not to inadvertently expect this of other victims or witnesses.

The broadcast of her testimony may deter some and it may strengthen some. We don’t know. But whatever the case, I do think that there are benefits to a public glance into a rape trial so that we are able to gain insight into the many burdens and obstacles faced by victims of sexual violence and the damaging and oft-and widely held stereotyped ideas we harbour from “how can we believe you if you went back?” to “how can we believe you if you didn’t scream?” or “how can we believe you if it took you so long to speak up?” to “how can we believe you if you looked happy in this photo?”

There is so much for all of us to learn from and reflect on from watching the testimony of Cheryl Zondi. Of course the indignity should enrage us. Of course the vile questions of Daubermann should enrage us. We should be and should remain inconsolable in our grief and rage.

WHAT DO WE DO WITH THIS?

We should be spurred on in our inconsolability to reflect on how much of this surrounds us. Trafficking women and children for sex exists on the extreme end of the spectrum. But the power relations that often subjugate women and children and that most of us partake in to some degree or another and the extent to which we blame the victim and/or implicate him or her in his or her own abuse, is something that we can do something about.

To Cheryl Zondi, you are loved, you are believed and I thank you for your beautiful contribution to this world of ours even in, and perhaps especially in your pain. None of this should ever have happened to you.

Sheena Jonker

Restorative Justice Lawyer

Access to Justice and ADR Network SA

Sheena@accesstojustice.co.za

 

I’m With Them – Restorative Justice in Hate Crimes

By Sheena Jonker

How do we say “I’m with them” and “I’m with us” in a real way that helps to bring about change. A way that helps us to be a part of ending the violence.

And specifically, how do we stand with the LGBTQI+ community with our lives, our skills and our experience?

Let’s take a look at Restorative Justice in hate crimes.

 

‘FIRST THEY CAME FOR THE MUSLIMS

AND I SAID

I’M WITH THEM

EVEN THOUGH I WASN’T A MUSLIM

THEN THEY CAME FOR THE IMMIGRANTS

AND I SAID

I’M WITH THEM

EVEN THOUGH I WASN’T AN IMMIGRANT

THEY CAME FOR THE BLACK LIVES MATTER ACTIVISTS

AND THE LGBTQ FOLK

AND EVEN THOUGH I WAS WHITE

AND STRAIGHT

I SAID

I’M WITH THEM

WHEN THEY CAME FOR THE HUNGRY

AND THOSE WHO HUNGER FOR CHANGE

AND HUNGER FOR RIGHTEOUSNESS

I SAID

I’M WITH THEM

I’M WITH THE THIRSTY

AND THE THIRSTY EARTH GRASPING FOR RAIN

I’M WITH THE STRANGER

THE REFUGEE

ALL THOSE WHO SCALE WALLS FOR FREEDOM

I’M WITH THE NAKED

THOSE STRIPPED OF HUMAN DIGNITY

THOSE WITHOUT DECENT WORK

WITHOUT THE CLOTH OF HUMAN COMPASSION

I’M WITH THE SICK

THE DISABLED

THE ADDICTED

AND ALL THOSE DEPENDENT ON THE KINDNESS OF STRANGERS

I’M WITH THE PRISONERS

THE DETAINED

THE DEPORTED

THE JOURNALISTS

THE DEPLORABLES

WHEN THEY CAME FOR THOSE I SAID

I’M WITH THEM

I AM WITH THEM

I’M WITH US’

(WORDS: ROSE-MARIE BERGER)

Am I with them?

How do we say “I’m with them” and “I’m with us” in a real way that helps to bring about change. A way that helps us to be a part of ending the violence.

And specifically, how do we stand with the LGBTQI+ community with our lives, our skills and our experience?

Restorative Justice in Hate Crimes.

Let’s take a look at Restorative Justice in hate crimes.

As a trained lawyer with expertise and experience in alternative dispute resolution and restorative justice, my aim is to share with you something of how we can use victim centric restorative justice processes to assist in getting victims of hate crimes first to safety and ultimately to healing and wholeness.

Let’s start with where we are at. I won’t delve too much into the Hate Crimes Bill as I am sure you have spent much of the time doing just that. All I will say is that any new legislation is still largely reliant on criminal justice and civil justice. Both systems are, at their core, adversarial.

Civil justice is adversarial and criminal justice is accusatorial.

This means that both are rooted in a form of competition. Disputing parties are pitted against each other in the civil courts with a judicial officer there to preside over the rules of contest and ultimately, to decide who wins.

In criminal justice, where the State is pitted against the accused the, judicial officer ensures that rules are adhered to and ultimately decides who wins.

In both systems, the “win” is largely dependent on who has the best lawyer. And this is often a product of who can afford the best lawyer. So, as we know, it is possible to win, but you were wrong. It is also possible to lose, but you were right.

The jurisprudential philosophy that all are equal before the law, cannot easily work in a deeply unequal society. The majority, living in poverty, do not have the same access to justice as our privileged minority.

We do the work we do in order to bring about transformation in this.

Criminal Justice and Victims of Hate Crime and other forms of Violence

Let’s look at criminal justice which is relevant particularly to victims of hate crimes and violence.

We know that in certain senses the prosecuting authorities are becoming concerned with, even obsessing about convictions and statistics on conviction.

We should never be about the regulation of violence. We should always be about the elimination of violence. A conviction centric system can become another form of violence detrimentally affecting both victims and accused offenders that come into contact with it and collaterally, those they love and who love them, and by extension entire communities and ultimately our whole country.

Regulation of Violence versus Elimination of Violence

When it comes to violence against women and children and hate crimes committed against those who do not conform to whatever and whomever, I believe we are looking for solutions in a system that without progressive reform, simply cannot deliver what we need.

Violence against women and children and those othered by society: we are looking to a system that cannot provide what we need.

Here is what I mean.

In a criminal matter the onus of proof (who must prove) is on the state (the accuser). The burden of proof (how much must be proved or the weight of evidence needed) is beyond a reasonable doubt.

That means the state or the accuser has a much tougher task than the accused. Is that a good thing? Yes it is. If we want wrongdoers to be punished by the state then it is imperative that the onus is on the state and the burden is high. A punitive system with a different onus and a lower burden would not offer protection to the innocent.

We don’t see a lot of convictions in rape or sexual violence matters. In fact statistics I have come across tend to show that less than one in a hundred result in conviction. That is of reported matters that result in prosecution. I’ve seen statistics that of actual rapes and sexual violence matters (across the spectrum of reported and unreported matters) less than 6 in 1000 matters result in conviction.

This is worldwide where Western Adversarial systems prevail. I have no idea how many convictions, in turn result in prison sentences. Remember that even where there is a conviction, there may be mitigating factors influencing punishment such as use of drugs and alcohol, personal circumstances of the accused and other factors. We know that reporting is low and we know that victims are often deterred from reporting for fear of contact with the system which can result in re-traumatization.

Convictions and punishment do not make our world a safer place

Criminal justice is too focused on conviction and punishment. I have long believed that if it was more focused on restoration and reparation we would start seeing different results. Whilst our law reform projects and various mechanisms in our law support restorative justice, we are not seeing the vast development of progressive sentencing. Progressive sentencing means that we would really entertain alternative sentences and that restoration and reparation for victims of crime may become a bigger feature of criminal justice.

I specialize in and practice restorative justice. Far from being a soft approach it is a much tougher approach and has higher potential for accountability for someone who has committed a violent offence. Does it mean wrongdoers escape prison sentences? Yes, at times it does. But 99 out of 100 are escaping prison sentences anyway and I believe that acquittals and non-prosecution of rapists will embolden them to continue.

Lessons from Restorative Justice in Domestic and Sexual Abuse

In a restorative justice process I am primarily focused on child protection and victim protection. We have access to civil remedies (mostly by agreement) which may result in no contact and protection orders, severing of relationships with abusers (a failed criminal justice process often results in continued exposure of the victim to the abuser especially where the abuser is family or part of the same community) and there are many options that can be considered regarding restoration and reparations.

Restorative justice does not exclude prison sentences. We can work in and around a prosecution, often helping to motivate guilty pleas which shields victims from cross examination which is still often a brutality and it may also open up the accused to better options on alternative sentencing.

We Believe You

But by far the most important aspect of a process like this is that the victim goes through a process where he or she is actually believed. Our processes speak a genuine “we believe you over a victims life”. Criminal Justice starts and endures with the question “why should we believe you?”. I can share absolute horror stories of what is put, on cross examination, to victims of violent crime.

The process commences with an admission of harm done. This is not the same as a confession to all the elements of a crime. But an admission is the starting point. I only proceed if I believe the wrongdoer has sufficient insight into their actions or is capable of sufficient insight with some work.

Punishment of those who harm or healing and restoration for the harmed

Ultimately, and I can’t emphasize this enough, a process like this is for the protection and healing of the victim. Criminal Justice simply can’t offer that. Is it a perfect answer? No. There is no such thing as a perfect answer to the question of violence against women and children and other vulnerable groups. Perfection would require that the violence itself did not exist.

The truth will set you free versus the truth will destroy you

While our systems remain punitive and conviction centric this is what we will grapple with. I write about this because it is society, it is us, that must insist on criminal justice reform. We will never see high numbers of guilty pleas in serious offences whilst the only option is prison. We should demonstrate a better value for truth telling. Right now we are telling wrongdoers we want the truth and then their truth is going to send them to prison. There are many progressive sentencing measures that I believe will help to stop the cycle of violence. The only way to stop the violence is to take it out of circulation and criminal justice, in its current format, is one of the things that contributes to the perpetual cycle of violence.

Justice Created versus Justice Served

So how?

To talk about the how in an hour is an absolute impossibility. But a significant part of the how is addressing the way we think. Restorative justice is a way. It’s a philosophy and reform and practical results will follow when we change the way we think.

So we start with what is it?

It’s justice created rather than justice served.

When justice is served, it is something you are brought to, often unwillingly, and then it is imposed on you. When justice is served, it can be ugly justice.

But when justice is created through engaging experiments with truth, something new, something beautiful is given space to merge out of the brokenness of harm (Justpeace ethics)

Let’s contrast justice served with justice co-created:

When justice is served… When justice is co-created…
Participants are passive aggressive adversaries Participants are active collaborative healers and work to redress harm and rebuild relationships
Justice is one size fits all handed out by neutral, third party experts Justice gets created and drawn out by those most involved in the harm, sometimes helped along by a trusted facilitator
Justice is a rules based response focused on facts and punishment Justice is a caring response holding people in respect while supporting them to (re) discover who they are
Justice is a narrow approach focusing on dishing out punishment to offenders Justice is an expansive response that addresses both the specific harms and the root causes that may ripple through generations and whole structures
Justice aims to suppress conflict and defend the current system and status quo The goal is to enter into suffering and conflict and to explore together what needs to change to allow life to flow freely
Justice is about appearing strong and knowing the facts beyond a shadow of a doubt Justice is about being vulnerable and entering into self doubt
Justice is about powerful people controlling other people Justice is about listening and participating together to meet needs
Justice is about hating and harming the enemy Justice is moving toward love in our relationships and our organizing
Participants are silent and excluded by rigid process Participants voices are included and processes remain flexible to allow meaningful embrace of participants identity and needs
The guilt and punishment of justice is something to be avoided, and a culture of non-responsibility is perpetuated Restitution and reintegration of victims and offenders create a new horizon when a culture of taking responsibility is encouraged

 

When Justice is created it becomes a creative, almost sacred act of dancing our way back to humanity.

(Source: JustPeace Ethics)

The formal legal system makes it very difficult for offenders to take responsibility. As I said earlier, it creates the traditional approach of avoiding a guilty plea because of fear of the retributive consequences that follow. These often lead to plea bargain, attempts to escape on technicalities and of course high levels of acquittals.

Criminal Justice asks:

  1. What law was broken?
  2. Who did it?
  3. How shall we punish them?

Restorative Justice asks:

  1. What harm was done?
  2. How do we make things right again?

We think that not punishing means ignoring harmful behaviour.

But often the punishment perpetuates the cycles of violence.

Studies show that “tough on crime” strategies have spawned more crime.

And “zero tolerance in schools” has lead to worse behaviour.

Healing the whole

Restorative Justice is the hard work of finding non-adversarial ways of getting to truth, accountability and behavioural change.

Some first nation societies believe that people offend for one of two reasons:

  • Lack of knowledge or sickness of the soul.
  • One needs teaching, the other needs healing

Restorative justice understands violation to be social and relational affecting the very fabric that holds us all. A much more expansive approach is required. Restorative Justice can also be understood as a whole systems approach.

We take a step back, take a look at the whole and then step forward and go about the difficult, but vital (life-giving) work of healing the whole.

We live with soft and violent. We need tough and healing

We live with soft and violent. We need tough and healing

 

I often say that when we look to raise up restorative justice peacemakers and train mediators we are looking for those with tough minds and soft hearts. Hard heartedness and soft-mindedness facilitates ongoing ills in society.

Let me unpack this further. The Criminal Justice system, which just sent Oscar to prison is a soft, violent system.

That sounds like it makes no sense. No?

Allow me to explain. It’s a soft system in that the artificial system of evidence in court allows for muting of narratives and exclusion of evidence at the behest of brilliant lawyers who know the rules well and how to play the system the best. So it allows for what I call truth massacre. The truth is often the greatest casualty. It is not a process that is tough enough on getting at the truth. But ironically, it is precisely because it is a violent process that makes it soft on getting to truth. This is because it is encapsulated in a high-level fear environment. The outworkings of the criminal justice system our so damaging, that the entire system is set up to motivate and perpetuate a culture of denialism rather than advance a culture of courageous truth-telling. Oscar like everybody else knows that it is a system that wants the truth but it wants to destroy the offender whether he tells the truth or not.

 

So the very first images of Oscar in the dock, even when the presumption of innocence applied, was of a human being with his most horrific actions exposed for all the world to see, and now in his most vulnerable moment, completely exposed with dozens of camera flashes in his face. The last images of him are being paraded through the street put in a caged van with crowds and cameras in his face again. His act of killing Reeva was born in insanity. The barbarism of the criminal justice system that allows for this public display of bloodhound-like pursuit of a human is also born in barbarism. Unless we recognize that we cannot answer barbaric acts with different forms and different levels of barbaric acts, we will never end up dismantling the violent culture that we are all a product of at varying levels.

If you look at the entire process, the dignity of Reeva was not kept in tact. Images of her displayed in her most brutalized moment for all the world to see, precisely to stir up the anger of the public against the person who took her life. This doesn’t protect her. This doesn’t protect thousands of other woman and children potentially in this position. It just continues to advance violent culture. Keeping the fire of the perpetual spiral alive and well.

We need processes that are tougher at getting at the truth. And we need outcomes that facilitate healing and restoration of offenders.

I personally don’t believe we got to the whole truth in the Oscar trial. But I know that for as long as the system continues the way it is, the Oscars of this world will be too petrified to tell the truth and will use brilliant lawyers, as they have every right to, to advance a version that could possibly fit with often compromised forensics

Restorative Justice is not soft. It’s tough. It’s hard work. It’s hard on the truth and it’s hard on the issues. But it is a process that facilitates truth, accountability and ultimately behavioural change. The fact that amongst optional outcomes may be restoration and healing for victims and offenders, makes it’s application way more supportive of getting to the truth, of offenders and societies learning from the process and of ultimately dismantling the violence.

We cannot think we will ever dismantle violent acts apart from all working together to dismantle violent culture and our own violent thinking.

We need to ask ourselves what we want. Do we want those who offend, those who choose badly, to suffer? Or do we want the violence to stop. The former is easy work if we continue to apply violent, retributive, punitive systems. But it will never achieve the latter whilst clinging on to the need for the former.

Peace

Sheena St. Clair Jonker

ADR Network SA and The Access to Justice Association of Southern Africa

sheena@adr-networksa.co.za or sheena@accesstojustice.co.za

0843773340

The sentencing of Oscar Pistorius

Tomorrow Oscar is sentenced. Friday we heard argument in mitigation of sentence and argument in aggravation of sentence. I have views on both.

In the first place the presence of a self-confessed contract killer in court last week, who previously made a deal with Gerrie Nel which bought him immunity from prosecution and the very consequences for killing another human being that Gerrie Nel speaks of, derogates Gerrie Nel’s credibility when he exhorts the judge and her assessors not to allow Oscar get away with the gravity of what he has done. It’s a pretty surreal context which we must process and ask ourselves some tough questions. I leave that to you.

Barry Roux on the other hand raises all the mitigating factors that would support application of restorative justice, but his fleeting and lightweight references to Ubuntu and Restorative Justice (although they may be elaborated on well in his heads of argument) do not demonstrate a profound understanding of or depth of insight into these concepts. I mention this because this was an ideal opportunity to sensitize society to restorative justice and I think it was lost.

I am not well-versed in the concept of Ubuntu philosophy except to the extent that it is supportive of restorative justice.

I am a strong advocate of restorative justice and it is central to what I do. And because of that I feel a responsibility to clear up a few things that have emerged in the societal debate around Oscar’s sentencing.

Number 1 is that restorative justice does not, by implication, only find application in petty crimes. On the contrary, Restorative Justice, and its application saw scores of individuals gaining amnesty for apartheid crimes. Heinous crimes. This process was central to the avoidance of civil war at the time. Why do we forget this so quickly. Allow me to take this opportunity to point out though that Restorative Justice is about Restoration and we are still in that process. This means that if we do not complete the process of restoring the land to those dispossessed of it, the Truth and Reconciliation Commission is not only incomplete, but the amnesty granted for heinous crimes against humans must then be called into question. Further more, if we do not commit to economic transformation generally, the restorative process remains incomplete.

Number 2 is that my view is that the overwhelming desire of society to see Oscar go to prison is born out of societal bloodlust. Oscar is a product of violent society. I’m not talking about South Africa, I’m talking about humanity. Our bloodlust to see those who harm, harmed is a product of violent society. Our thirst for retributive justice over restorative justice is part of what keeps the spiral of violence alive.

Number 3 is that my view is that prison should be an absolute last resort reserved for those who absolutely cannot function in society and would be a danger to society. We kid ourselves when we think that retributive justice corrects, restores or rehabilitates. It is simply not so. We kid ourselves when we think that sending Oscar to prison will save any number of women and children’s lives. It’s not so. The spiralling cycle of perpetual violence born out of the notion that we must injure those who injure simply worsens the problem of violence.

If Oscar goes to prison, society gets what it wants for like five minutes and then what? What is achieved? All his energy is applied to getting his sentence displaced as we see in other matters.

There are other methods of bringing wrongdoers to account. Oscar should pay back his debt to society: but with his talent, with his resources, with the platform he has. Oscar needs to play a part in healing society from this kind of thing. He needs to have a chance to step back and focus on what he has done and how best he can make that up to society. I still don’t believe we have heard exactly what happened that night. I still believe the truth was massacred in court both ways. I still believe a restorative approach from the outset would have minimized fear and maximized potential for truth, accountability and ultimately healing and restoration. In prison, the chance of him reflecting on making good, making up to society are slim. In prison he will be pre-occupied with getting out.

The desire for revenge is a heavy burden to bear. And the collective desire for revenge can literally destroy us all. Redemptive violence has never ever proved itself effective in dismantling violence. Punishment and retribution is quick fix. It’s the easy answer. We have confused what justice really is with notions of punishment and making wrongdoers “pay”. Doing justice is about restoring the template. Making things right. Giving back dignity.  Restoration and healing is much, much harder work. It requires wisdom, resilience and courage. It requires focus and commitment. It’s way easier to resign ourselves to the violent imagery and violent culture we are literally immersed in.  We are immersed in violent imagery in entertainment and we have become really ok with it. The media pummels us with the violent of the world all the time. So obviously it’s our natural impulse to say those who injure, must be injured in return. Retributive yearnings go hand in hand with perpetual violence. It’s not good for any of us.  We don’t know who we are anymore. And our survival, our very humanity depends on us all asking ourselves some tough questions.

The violence must stop. And it will never stop if we keep applying violent answers to the problem of violence. It just won’t.

Peace, by the presence of justice

Sheena St. Clair Jonker

0843773340

ADR Network SA and the Access to Justice Association of Southern Africa

sheena@accesstojustice.co.za or sheena@adr-networksa.co.za