The aspiration to produce original ideas in the field of Criminal Justice Policy and others is like seeking perfection.

 

However, no matter how difficult the pretension for perfection and originality is in an unequal world where resources are poorly distributed. No matter how many policy makers have attempted to implement new policies but failed because there is a need for new ideas and a need for a new political rhetoric which consecution supposes a dynamic of failure and success where failure makes us closer to perfection.

 

Therefore, a policy maker should be measured not on the basis of outcomes but on the basis of means. We all should be evaluated in that way by being questioned what are we doing not what are we achieving, however the current competitive atmosphere generated by a managerial culture added to the global demand for efficiency is making us slaves of results.                

 

The following are the basis for a new rhetoric with content. The content will be given by academics and researchers (The knowledge component) and policy makers experts on the dynamics of failure and success (The experience component). Both academics and policy makers are the source of ideas, hopefully an infinite source.

 

The new idea of the new rhetoric should respond to the needs of our current society and travel from the “negative, then, black and white photo to the landscape itself” (Stages of the new rhetoric) as follows:

 

1-     Philosophical: Defining objects, and subjects of the discourse and creating new principles and values. In this stage academics and policy makers will start to create self strong believe in the idea.  (The negative of the photo).

 

2-     Historical: Rescuing valuable elements of past ideas and incorporating them in the new idea (The blank and white photo). The historical stage of the discourse is the one that makes it endless because history is written every day, ideas evolve, and when they become the past they are the base for a re - generated rhetoric.  

 

3-     Political:  Once there is strong believe, the new idea should be exposed to the public, persuading citizens to believe in its importance and seeking public consensus. (full colour photo)

 

4-     Practical: Creating projects, pilot programmes and applying policies based on the principles and values of the philosophical stage. The policies have objects and are directed to the subjects of the discourse.   (the landscape itself)

 

All stages have equal importance and they cannot exist without the other. The discourse cannot remain or stop in one stage i.e.: philosophical or historical, it has to move and become practical. Also as a result of the effect of the historical stage (the recycling effect) it will also remain in constant transformation responding to the demands of the society which is also in constant transformation.   

 

The political stage of the rhetoric has an important function: to change public thought and behaviour (educative function). A very well exposed idea by the use of powerful written and oral skills can shape the form of community and can create social cohesion.  However, it has to be pointed out that the process of making public the idea cannot be based on empty words.

 

Empty words are those which lack coherence. A coherent rhetoric is that where the author of the idea or who believes in it gives testimony of life. For example, if one is to talk about Restorative Justice, it will be incoherent in the case of a conflict with a friend, member of the family or colleague, not to accept an apology from him or seek the solution by violent means.   

 

The said pretension for coherence can be a difficult task to achieve but not impossible. Certainly it is the only way that the Political rhetoric and its idea will have value and will generate real impact on the public.

 

 

If the world focuses its attention on means rather than outcomes, there won’t be any risks of positive outcomes hiding illegalities or violations of law. Negative outcomes may make us question deeply the means but the policy maker will be accountable for them only when they have been proved to be illegal but he should always be rewarded when the means used where according to law and also  sought an useful purpose to society independently of success or achievement.       

This document will place Restorative Justice as the core idea of the new Rhetoric because with restorative justice the following can be achieved:

(a) consensus, integration and social cohesion.

(b) A positive change in the traditional roles of the stakeholders of the criminal justice system: namely Victim, Offender, Community and State.

( c )individual and social responsible on crime and conflict resolution.

 

So, why Restorative Justice should by the core idea of the new rhetoric?

 

1. It is an idea in constant transformation. It will help the accomplishment of the historical element of the rhetoric mentioned above.

 

Restorative Justice is a concept that links local purposes and international ideals by seeking tolerance and the settlement of disputes through the most peaceful - less victimising way and as described by Declan Roche, it has applicability in different scenarios: from the criminal justice system of developed countries to political transitions, from victim – offender conferences to truth commissions (Roche 2006:291), helping the resolution of conflicts between individuals and also facilitating transitions between war and peace in international conflicts.

 

Despite that Restorative Justice has not been a new concept; it has remained in a state of constant transformation[1] and dynamism shown through its history as follows:

 

The use of informal justice in its origins was considered by legal anthropologists as a historical phenomenon which relevance has mysteriously been lost (Matthews R 1998). Palmer and Robert (1998:63 as quoted by Roche 2003: 13) pointed out how ‘negotiation represented the primary, universal route to decision and action in the social world[2].

 

Elmar G.M. Weitekamp (1996) for instance, shows how restitution was the must common form of solving conflicts in early human societies when the State did not exist (categorised by Michalowski (1985 as cited by Weitekamp 1996),  as acephalous societies). Furthermore restorative justice was as widely used, that punishment, (in the sense it is understood today), was the exception rather than the norm. 

 

Similarly, John Braithwaite (2001), gives examples of the use of Restorative Justice in different cultures of Europe, Africa, South, Central and North America and also declares that it has been the dominant model (not exclusive) of criminal justice throughout history until the dark ages and the Inquisition when a shift of Christian principles took place, from forgiveness, reconciliation and redemption to prosecution and punishment.

 

However, there is still debate surrounding the use of Restorative Justice in the middle ages[3]. As pointed out by Elmar G.M. Weitekamp (1996), some prise this period for its wise use of Restorative Justice as a human penal sanction perceived as being beneficial to the offender, the victim and the society[4]

 

For the advocates of Restorative Justice, as stated by Weitekamp (ibid), the decline of this way of conflict resolution was the taking over of the criminal justice system by the State at the end of the 12th century, when the victim was left aside and the crime was considered an offence against the state. This created a public system of judicial punishment for crimes of violence against property and suppressed Community based Restorative Justice imposing state punitive control (Pratt 1996 as quoted by Johnstone, 1996). 

 

Despite the said punitive control and monopoly of the conflict by the State one can currently see how countries such as England and Wales are returning to a restorative approach.   As shown by Crawford and Newburn (Crawford, A. and Newburn, T. (2002)), the dynamism and evolution of the idea of Restorative Justice is present within the youth justice system. Acts such as the Crime and Disorder Act 1998 and Youth Justice and Criminal Evidence Act 1999 based on Restorative Justice principles such us Restoration, Reintegration and Responsibility, established Reparation Orders, Youth Justice Boards and Referral Orders in a clear move from the punitive approach.   

 

2- It provides principles (the core principle of Responsibility), which constitutes the framework for the philosophical stage of the rhetoric.

 

Arguably, the idea of Restorative Justice provides two principles: 1- Reintegration and 2- Responsibility.  Integration will produce a collateral principle: Respect and Responsibility will generate social cohesion.

 

Those principles can be used in different contexts: the context of the family as a centre of society, the day to day individual relationships, the criminal justice system and the society as whole. This principles are also the base of the philosophical stage of the political rhetoric and it’s educative function, that of encouraging change of behaviour as follows:   

 

Reintegration: Restorative Justice provides an excellent atmosphere for integration which is well depicted by the United Nations’ definition of Restorative Justice. The United Nations defined Restorative Justice as a process in which the victim the offender and any other individual / individuals or community members affected by a crime participate actively together in the resolution of matters arising from a crime (United Nations 1999b).

 

It is assumed that the Criminal Justice System and the community react to criminality by stigmatisation and labelling, excluding some of its members. In that sense Suchar Page stated that the individual is assigned a master status trait: homosexual, drug addict, prostitute, juvenile delinquent and that the label will dominate all other positive characteristics of the individual (cited by Braithwaite 2003:55). The principle of Reintegration would overcome the negative impact of labelling.

 

In the exercise of conferences for example, the community welcomes the offender by a conditional acceptance of an apology. It also means that the offender is never excluded from the community and the victim therefore acknowledges a degree of responsibility towards the rehabilitation of the offender by forgiveness. The psychological effect of forgiveness is the starting point of rehabilitation.    

 

Therefore, the conceptualisation of the offender, (by the effect of the reintegration principle) will be completely different than the current. Today “offenders are increasingly represented in political rhetoric and popular culture as some kind of external threat as people who are different from ourselves and who do not properly belong in our society and against whom we need to rise physical defence or who ought to be contained in their ghettos or confine in prison (D.Faulkner, cited in Calayley 1998:23, as cited by Johnsotone 2002).

 

The community needs to understand that the offender is part of the society like in a Family where the Father gives a lesson to the child that has behaved inappropriately but the child is not removed from the family or considered out of it (Braithwaite 2003:56).

 

Also there will be Reintegration from the point of view of the victim who has been, according to many authors, the “forgotten actor of the criminal justice” by giving a prominent role in conflict resolution. 

 

2- Responsibility.

 

Restorative Justice attributes responsibilities to each of the stakeholders of the criminal Justice system.

 

Offender: His responsibility is to understand that he has committed an act against another human and caused harm. It is therefore his duty to repair the harm and also, as pointed out by Johnstone (2002:27) to show compromise and engage in further actions. i.e.: engage in psychological therapy.

 

 

Victim: His main responsibility is to be open to forgiveness prior to make his personal judgement of the situation surrounding the criminal act, except when such exercise is likely to produce re – victimization.  

 

A victim is open to forgiveness when:

 

1-     Analyses structural causes of crime such poverty or education and their impact in the case in particular.

2-     Revises if there where an opportunity left by him for such act to become criminal.

3-     Checks his actions to see if he encouraged the act to become criminal.    

 

 

State: His Responsibility is to elaborate a powerful rhetoric capable of change believe, thought and behaviour by educating citizens on their responsibilities. He also has to enact legislation (incorporating pilot programmes of restorative justice progressively as will be shown below in point 3) based on the new rhetoric which slogan will be: “Let’s all assume our roles on crime and conflict resolution”.

 

The State also is to provide mainly the financial resources to facilitate the encounters and the psychological therapies. The Sate has also to monitor the processes of encounters between victims and offenders and create systems of accountability in Restorative Justice.

 

Community:

 

The community’s first responsibility is to stop labelling and stigmatising. Once that occurs there will be less discrimination, more inclusion and therefore more social cohesion. Also as stated by Jhonston (2002) it should help the State to monitor the process of restorative justice:

 

Kennedy (1990) as quoted by Jhonston (2002:155), set out the following responsibilities for the community:

 

1-     Act immediately to protect victim and offender.

2-     Hold offenders accountable and insist on active involvement of other parties interested in the resolution process.

3-     Provide the local resource for victims and offenders to seek their healing

4-     Provide local education and serve as a model for peaceful resolution process.

 

 

 

3. It produces a change in the relationship between stakeholders (an example of how restorative Justice can be placed in a practical level and in a wider context).

 

As shown by Declan Roche (2006), in the District of Aguablanca city of Cali -Colombia, a group of woman started a programme of community service and restorative justice (based on mediation and adult education which philosophy was: “No body is so ignorant that they have nothing to teach, and no body is so wise that they don’t have nothing to learn”).

 

It cannot be denied that the said programme is one clear example of how despite difficult conditions of violence and poor State presence, restorative justice ideas and values can make a real impact in the community and applied to a wide range of issues helps tackling structural causes of crime.

 

Considering this project that is taking place in Colombia, the following elements should be analyzed when thinking of the practical stage of the rhetoric:

 

1-     Restorative Justice needs a great deal of community networking.

 

2-     The government should design programmes of voluntary work that support victims and offenders and provide education to the members of the community.

 

3-     A map should be created of the areas where more strong community support is required. The map should show from the less integrated and criminal community to the most integrated and less criminal.

 

4-     Start a global campaign in the whole city and through political rhetoric inviting citizens to provide voluntary work in those areas.

 

5-     Consolidate a list of volunteers on the basis of availability a week.

 

6-     Design and provide training.  

 

7-     Distribute the human resources according to the map in point 3 above.

 

 

 

 

 


[1] Restorative Justice, as expressed by Declan Roche (2003:13), is neither a natural response to crime nor an isolated product, it is a social phenomenon, which must be the result of a transformation of institutional, historical, political and cultural factors.

 

[2] A different point of view has been given by other authors like Blagg 1997, 1998; and Cunnen 2000 (as quoted by Roche 2003:33). They argue that to present restorative justice as the Universal form of pre – state justice sacrifices accuracy for simplicity. Indigenous and pre – estate law is much more complex and also has inhuman manifestations.   

[3] The study of Restorative Justice in the middle ages by Weitekamp, regards financial restitution or compensation from the offender, as one form of restorative justice in this period. At the beginning it was on behalf of the victim directly. Then the kings transferred the compensation to the society in general which head was the crown.