Restorative Justice:
- Restorative Justice is a theory of justice that emphasizes repairing the
harm caused by criminal behavior. It is a process through which
remorseful offenders accept responsibility for their misconduct,
particularly to their victims and to the community.
- Main purposes:
(1) repair: crime causes harm and justice requires repairing that harm;
(2) encounter: the best way to determine how to do that is to have the
parties decide together; and
(3) transformation: this can cause fundamental changes in people,
relationships and communities.
The foundational principles of restorative justice have been
summarized as follows:
- Crime causes harm and justice should focus on repairing that harm.
- The people most affected by the crime should be able to participate in
its resolution.
- The responsibility of the government is to maintain order and of the
community to build peace.
**Theories in Criminal Law:
1. Classical Theory – Man is essentially a moral creature with an
absolute free will to choose between good and evil and therefore more
stress is placed upon the result of the felonious act than upon the
criminal himself.
The purpose of penalty is retribution. The offender is made to suffer for
the wrong he has done. There is scant regard for the human element of
the crime. The law does not look into why the offender committed the
crime. Capital punishment is a product of this kind of this school of
thought. Man is regarded as a moral creature who understands right
from wrong. So that when he commits a wrong, he must be prepared to
accept the punishment therefore.
2. Positivist Theory – Man is subdued occasionally by a strange and
morbid phenomenon which conditions him to do wrong in spite of or
contrary to his volition.
The purpose of penalty is reformation. There is great respect for the
human element because the offender is regarded as socially sick who
needs treatment, not punishment. Crimes are regarded as social
phenomena which constrain a person to do wrong although not of his
own volition.
3. Eclectic or Mixed Philosophy
This combines both positivist and classical thinking. Crimes that are
economic and social and nature should be dealt with in a positivist
manner; thus, the law is more compassionate. Heinous crimes should
be dealt with in a classical manner; thus, capital punishment.
**The utilitarian theory of punishment seeks to punish offenders to
discourage, or "deter," future wrongdoing.
The retributive theory seeks to punish offenders because they deserve
to be punished. Under the utilitarian philosophy, laws should be used to
maximize the happiness of society.
**Theories of Punishment
Deterrent Theory
The retributive theory assumes that the punishment is given only for
the sake of it. Thus, it suggests that evil should be returned for evil
without taking into consideration any consequences. There are two
theories in which this theory can be divided further. They are specific
deterrence and general deterrence.
In specific deterrence, punishment is designed such that it can educate
the criminals. Thus, this can reform the criminals that are subjected to
this theory. Also, it is maintained that the punishment reforms the
criminals. This is done by creating a fear that the punishment will be
repeated.
While a general deterrence is designed to avoid future crime. So, this is
done by making an example of each defendant. Thus, it frightens the
citizens to not do what the defendant did.
Retributive Theory
Retribution is the most ancient justification for punishment. This theory
insists that a person deserves punishment as he has done a wrongful
deed. Also, this theory signifies that no person shall be arrested unless
that person has broken the law. Here are the conditions where a person
is considered as an offender are:
The penalty given will be equivalent to the grievance caused by the
person.
Performed a crime of certain culpability.
That similar persons have been imposed for similar offenses.
That the action performed was by him and he was only responsible for
it. Also, he had full knowledge of the penalty system and possible
consequences.
Preventive Theory
This theory has used a restraint that an offender if repeats the criminal
act is culpable for death, exile or imprisonment. The theory gets its
importance from the notion that society must be protected from
criminals. Thus, the punishment here is for solidarity and defense.
The modern criminologists saw the preventive theory from a different
view. They first realized that the social and economic forces should be
removed from society. Also, one must pay attention to individuals who
show anti-social behavior. This is because of psychological and
biological handicaps.
Reformative Theory
Deterrence and retributive are examples of classical and non-classical
philosophies. The reformative theory was born out of the positive
theory that the focal point of crime is positive thinking. Thus, according
to this theory, the objective of punishment needs to be reformation by
the offender.
So, this is not a punishment virtually but rather a rehabilitative process.
Thus, this process helps in making a criminal a good citizen as much as
possible. Furthermore, it makes the citizen a meaningful citizen and an
upright straight man.
PH Justice System: 5 Pillars
Law enforcement; prosecution; courts; corrections and Community.
Punitive Approach
What is Heinous Crime?
- crimes were considered heinous “for being grievous, odious and hateful
offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to
the common standards and norms of decency and morality in a just,
civilized and ordered society.”
What crimes are punishable by death penalty?
Death Penalty RA 7659
Republic Act 7659, the law signed in 1993 and which imposed the death
penalty, says that heinous crimes include:
- Treason
- Piracy in general and mutiny on the high seas in Philippine waters
- Qualified piracy
- Qualified bribery
- Parricide
- Murder
- Infanticide
- Kidnapping and serious illegal detention
- Robbery with violence against or intimidation of persons
- Destructive arson
- Rape
- Importation, distribution, manufacturing and possession of illegal drugs
Restorative Justice
- Restorative Justice is a principle in juvenile justice that requires a
process of resolving conflicts with the participation of the victim, the
child in conflict with the law, and the community. It seeks to obtain
reparation for the victim; reconciliation to the victim, the child in
conflict with the law, and the community, and the reassurance that the
child in conflict with the law can be reintegrated into society. It also
enhances public safety by involving the victim, the child in conflict with
the law, and the community in prevention strategies.
(A.M. No. 02-1-18-SC November 24, 2009
RULE ON JUVENILES IN CONFLICT WITH THE LAW)
The objective of this Rule is to ensure that the justice system treats
every child in conflict with the law in a manner that recognizes and
upholds human dignity and worth, and instills in the child respect for
the fundamental rights and freedom of others. The Rule considers the
developmental age of the child and the desirability of the child's
reintegration in the assumption of a constructive role in society in
accordance with the principles of balanced and restorative justice.
Features of Restorative Justice:
FUNDAMENTAL PRINCIPLES, VALUES AND CHARACTERISTICS
Restorative justice is a different way for all of us, as victims, offenders, police
and legal authorities and community in general, to respond to crime. It is a
new way of thinking that views crime not merely as a violation of the law, but
as a cause of damage to victims, to the community and, even, to the offenders
themselves. It is focused on the active participation of victims, offenders and
communities, often through meetings, in an effort to identify the injustice that
took place, the resulting harm, and the necessary steps to accomplish
reparation and the future actions that may reduce the possibility of the
occurrence of new crimes.
Restorative justice places the victim and the offender at the centre of the
process as its main characters, seeking their empowerment and satisfaction,
the reparation of the harm caused, the involvement of the community and the
re-establishment of the existing human relationships. It views crime as a
disturbance in the relationships between people that live together in a
community, in a society or in the relationships between offender and his/her
community.
In general there are three fundamental elements in the concept of Restorative
Justice:
» the social element – crime is viewed not as a mere violation of the law but,
above all, as a disturbance, a dysfunction of human relationships. This
perspective implies a change of paradigm: it is the redefinition of the concept
of crime, which is thus viewed as an act of a person against another, violating
a relationship in a community, instead of an act against the State. The onus is
placed in the anti-social behaviour and in the breach caused in the community
relationships;
» the participatory or democratic element – this element is the corner stone of
the concept: one can only talk about restorative justice if there is an active
involvement of victims, offenders, and, even, the community, who become
“main characters” in these type of procedures;
» the reparative element – restorative processes are guided towards the
reparation of the victim: the aims is that the offender repairs the harm he/she
caused, and because offender and victim are both involved in the procedure
this allows meeting the real and concrete needs of the victim.
By promoting the active participation of victims, offenders and the
communities, the main advantages of restorative justice are: to allow victims
to express the feelings they experienced, the consequences of the crime and
the needs to be fulfilled to overcome the effects of the crime; to provide
offenders with the possibility to understand in practice the impact of their
actions in the victim, to take responsibility for their actions, to repair in some
way the harm caused; and to enable communities recover their “social peace”.
The benefits of Restorative Justice mentioned in the legal literature are
described below.
Restorative justice and
» the victims;
» the offenders;
» the communities;
» the traditional justice system.
Victims of crime have an opportunity to:
» confront the offender with the impact the crime them, expressing their
feelings, the way in which their life was affected by the crime, their
emotions and needs;
» find out what the offender is like - “know his/her face”;
» ask questions (through the mediator or directly) that only the offender
can answer: Why did he/she do it? Why to me? Is there anything that I did
to cause the crime? etc.;
» overcome your fear of the offender: Will he/she come back? Am I in
danger?;
» receive an apology and witness their repentance;
» greatly increase the chance of receiving a fair compensation from the
offender for endured material and non material damages;
» participate more actively in a proposal for solving the case;
»avoid the long legal process, as well as frequent visits to Court, with their
consequent revictimization effect;
» obtain closure, which can be helpful to bring peace of mind.
The authors of the crime (the offenders) have an opportunity to:
» take responsibility for their acts;
» explain why they committed the crime;
» become aware of the effects of the crime and understand the real human
consequences of their behaviour, which will more easily lead to their true
repentance;
» offer an apology;
» offer the victim a fair restitution/restoration for the harm caused;
» act in the future following the acquired experience and knowledge;
» increase the level of self-knowledge and self-esteem;
» promote their social reinsertion – rehabilitating the offender in the eyes
of the victim and of society and contributing for the reduction of
recidivism.
The community experiences the following positive effects of restorative
justice:
» increase the citizens’ experience of justice, allowing their participation in
the resolution of the conflicts present in the community;
» reduce the impact of incarceration on the community –offenders who
return to the community have received an education in crime while in
prison;
» promotion of social peace;
» general and special prevention – contribution to the reduction of
recidivism.
Restorative justice benefits the traditional criminal justice system and the
administration of justice as follows:
» contributes to the tailoring of juridical-legal responses and reactions in
accordance with the characteristics of each case;
» increases the citizens’ experience and satisfaction with the justice
system;
» contributes to the improvement of the citizens' image and perception of
justice;
» improves the processing of offences in a quick, flexible and participatory
way;
» contributes to the prevention of litigation;
» can contribute to reducing the number of processes in the traditional
criminal justice system, making it possible to concentrate efforts and
resources in more demanding criminal areas;
» reduces the cost of the judicial machinery;
» reduces the cost of incarceration.
Restorative justice has been practiced using different models that, although
underpinned by the previously described principles, values and
characteristics, are, to some extent, distinct – and these differences emanate
from their cultural origins. The most used model in Europe is the victim-
offender mediation.
Restorative Justice Programs
As a community-based decision model, the Agency Peacemaking Encounter is
being implemented through the following processes:
1. Victim/Offender Mediation – a process that provides an interested
victim an opportunity to meet face-to-face his/her offender in a secured
and structured setting or atmosphere, with the help of a trained
mediator, and engage in a discussion of the past offense and its impact
to his/her life. Its goal is to support the healing process of the victim and
allow the offender to learn the impact of his/her offense on the victim’s
physical, emotional and financial existence, and take direct
responsibility for his/her behavior by mutually developing a
Restorative Justice plan that addresses the harm caused by the said
offense.
2. Conferencing – a process which involves community of people most
affected by the crime – the victim and the offender and their families,
the affected community members and trained facilitators and
community strength – in a restorative discussion of issues and problems
arising from an offense or coincidence which affects community
relationship and tranquillity. Facilitated by a trained facilitator, the
above parties are gathered at their own volition to discuss how they and
others have been harmed by the offense or conflict, and how that harm
may be repaired and broken relationship may be restored.
3. Circle of Support – a community directed process organized by the field
office and participated in by the clients, the Volunteer Probation Aides
(VPAs) and selected members of the community in the discussion of the
offense and its impact. Within the circle, people freely speak from the
heart in a shared search for understanding the incident, and together
identify the steps necessary to assist in the reconciliation and healing of
all affected parties and prevent future crime or conflict.
The reintegrative shaming theory emphasizes the importance
of shame in criminal punishment. The theory holds that punishments should
focus on the offender's behavior rather than characteristics of the offender.
Shaming can be a powerful aspect in the informal process that brings the
victim and the offender together in their search for a just restorative solution
to their conflict. If, however, it is judged that an offence has to give rise to
coercive judicial action, then the role of the justice system must be clearly
defined. As far as we can see, it cannot and should not be expected that the
judiciary will engage in shaming, nor that the reintegration of the offender
should be the principal aim of intervention. Justice should neither shame nor
reintegrate, it should simply establish responsibilities and contribute towards
the conditions that promote restoration.
