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Retribution and deterrence Tom Ellis 2011 / 2012 Punishing suitably and appropriately. "The key aim of the justice system is to apply punishment on behalf of society" "the urge for revenge is natural and functional for evolution" "retribution works! 3 Strikes WAS victim-centred, started by father of murdered young woman.
Retribution and deterrence Tom Ellis 2011 / 2012 Punishing suitably and appropriately. "The key aim of the justice system is to apply punishment on behalf of society" "the urge for revenge is natural and functional for evolution" "retribution works! 3 Strikes WAS victim-centred, started by father of murdered young woman.
Retribution and deterrence Tom Ellis 2011 / 2012 Punishing suitably and appropriately. "The key aim of the justice system is to apply punishment on behalf of society" "the urge for revenge is natural and functional for evolution" "retribution works! 3 Strikes WAS victim-centred, started by father of murdered young woman.
Punishing suitably and appropriately Retribution vs Restorative Justice: You Choose!
Statement A : The key aim of the justice system is to apply punishment on behalf of society
Statement B: The key aim of the justice system is to repair the harm caused to victims and communities RETRIBUTION: Principles
part01_full.wmv http://www.youtube.com/watch?v=p1ZNjgvzLNo Offenders should forfeit what the victim has lost (Victims satisfaction) Blame for wrongdoing Protecting the public Equivalence/lex talionis Life for a life Just deserts/Proportionality/commensurate seriousness (Doing Justice 1976, 1991 CJA) Tariffs (based on past action, not future risk) Presumptive sentence range Based on Typical offences The urge for revenge is natural and functional for evolution Michael McCullough in Beyond Revenge: The Evolution of the Forgiveness Instinct
Individuals in small groups contain members who will stand up and be counted to punish: cheaters liars those that do not do their share of the work RETRIBUTION: Fairness Offenders prefer it Attica riots in 70s about unfairness because sentence not linked to offence Sentencing the crime instead of offender is fairer and avoids bias Women minorities
James Q Wilson paradigm Non-custodial penalties are soft Get tough Deters more offenders Incapacitates those who arent deterred Avoids inequality of judicial discretion/discrimination Mens rea/culpability increases with repetition 3 strikes good & sensible Round up of video evidence 1: Retribution works! 3 Strikes WAS victim-centred, started by father of murdered young woman Violent offenders and recidivists deserve heavy penalty Fathers want retribution and incapacitation They dont want restorative justice, they want their daughters back It works crime is down, criminals are leaving It is cost effective Prisoners views show retribution/deterrence work Retribution works! Limestone Prisons, Alabama, Chain gang part04_full.wmv http://www.youtube.com/watch?v=kmTO5K8gMDw Prison should be FOR extra punishment Harsh conditions for recidivist parasites Deterrence, retribution and incapacitation all in one Rehabilitation effect = reconvictions went down and offenders inside prison went down part06_full.wmv http://www.youtube.com/watch?v=6eSqfFDdL3M
A common sense approach! THERE IS A WAY TO BEAT CRIME-FEWER HUMAN RIGHTS,TOUGHER PRISONS AND ADMITTING THAT NOTHING DETERS KILLERS LIKE THE DEATH PENALTY | Mail Online There is an amazingly easy way to restore peace and order to this country. It would also be popular and not specially expensive- And it would be a first step towards the restoration of morals, manners, self-restraint and national pride that we so badly need. So why will nobody do what is necessary? Very simply, we have to rediscover the basic idea that crime is wrong and must be prevented. Where it cannot be prevented, it must be punished.
We must stop being ashamed to punish people. It is good for them, because it forces them to reconsider lives gone wrong.
It is good for their victims (nowadays almost all of us).
It makes us less likely to want to take personal revenge on those who have wronged us and it makes us feel as if justice has been done.
And it is good for potential lawbreakers who, seeing what happens to those who are caught, think hard before embarking on crime.
The restoration of hanging would deter armed crime, reduce violence and protect the police from danger. Then we have to bring back the idea that prisons are for punishment.At the moment they are warehouses-where the loss of liberty is seen as punishment enough, and the authorities have little control over the prisoners' lives. These simple changes, implemented firmly, would be popular and effective. Within a few months, they would change the atmosphere of our country and greatly strengthen the forces of good against the forces of wickedness and disorder. They would not threaten any innocent person. They would prevent many young people from falling into the fumbling hands of the criminal justice system because they would not risk getting into trouble in the first place.
Restorative justice going forwards not backwards Steve Savage 2011/2012 Restorative Justice The problem with retribution
Restorative justice principles
Restorative justice how it works in practice
Conclusion a constructive approach to the business of justice The problem with retribution NEGATIVE, not positive, perspective on human nature Focuses on discouraging BAD behaviour rather than encouraging GOOD behaviour PUNISHMENT the motivator not REWARDS It produces EMBITTERED OFFENDERS who see the authority as the enemy
BACKWARD not FORWARD looking PAST behaviour more important than FUTURE behaviour
About inflicting MORE PAIN/damage rather than CURING pain REPAIRING damage
The problem with retribution Only small percentage of offenders CAUGHT those that get their just deserts are the UNLUCKY ones
Difficulties of measuring PROPORTIONALITY an eye for an eye?
Assumes blame can only be attached to INDIVIDUAL OFFENDER not to SOCIAL CIRCUMSTANCES
Leaves VICTIM on outside of justice
COST Retribution typically associated with custodial regimes
Overall treats offenders as little more than animals to be taught a lesson part07_full.wmv http://www.youtube.com/watch?v=9uSeYeNxijQ
Restorative Justice: Principles Definition: A problem-solving approach to crime which involves the parties themselves, and the community, in an active relationship with state agencies (Marshall) part08_full.wmv http://www.youtube.com/watch?v=ywrQ9ker0pY BUT about more than crime RJ can be used in range of areas: RJ can be used to tackle bullying in schools RJ can be used in dealing with complaints (mediation) eg student complaints system RJ can be used to tackle social damage in transitional societies (South African Truth and Reconciliation hearings) RJ a means of resolving conflicts where grievances exist but in a POSITIVE and constructive way why? Restorative Justice: Principles Puts VICTIMS at centre stage: RJ holds the promise of restoring victims material and emotional loss, safety, damaged relationships, dignity and self-respect (Hoyle) RJ more attuned to victims preferences needs and concerns breaks assumption that speaking up for victims = retribution Evidence is that actual victims value repair of harm over punishment of offender for their offence part09_full.wmv http://www.youtube.com/watch?v=VYYqNfug6oc
Case study: victims of miscarriages of justice
Victims of miscarriages of justice what victims want ICJS research on campaigns against miscarriages of justice 37 campaigners interviewed, including victims of MoJ Research showed that what victims wanted was not revenge but: An explanation: Justice is not revenge. I would hold no grudge and I dont want those people [who killed her son] punished as this means another mother loses her son. I just want someone to tell me why they did this..why he was killed An apology: It came out that [a senior police officer] had lied to us and one of the things we wanted was an apology from himself Victims of miscarriages of justice Guildford Four miscarriage of justice Blair apologises in 2005 Gerry Conlon: This hasnt ended for us. But today is the start of the endIf you damage people and you can repair them, it is your duty to do that..The good thing is that he has acknowledged it, and he accepts we are in pain.. Restorative justice - principles RJ also about lay involvement/participation in justice (victims and communities) Value of informal means of tackling problems rather than formal/professional processes Ownership of justice by victims and communities Means that decisions on justice informed by feelings and emotions not just technical considerations - rich decisions RJ concerned with causes of crime the why? of crime not just the how or what? as in retribution RJ future oriented repairing harm, reintegration of offender into the community
Restorative Justice: How Does it Work?
Main dimensions of RJ: A MEETING of parties COMMUNICATION between parties dialogue, mutual understanding its good to talk MEDIATION between victim and offender RESTITUTION to victim and/or community Material restitution (eg repairing damaged property) Emotional restitution (eg allowing victim to talk through the harm caused by the offender) A HEALING PROCESS APOLOGY usually part of the solution RJ also about CHANGE in offenders behaviour - CURING OFFENDING (forward-looking not backward- looking)
Restorative Justice Examples in practice Reparation orders (Crime and Disorder Act 1998) The reparation might involve writing a letter of apology, apologising to the victim in person, cleaning graffiti or repairing criminal damage. (White Paper No More Excuses - 1998) Family group conferencing Sentencing circles
Sherman and Strang (2007): Victims who were assigned to and completed RJ reported greater ability to return to work, to resume normal daily activities, to sleep better at night Such strong and consistent positive findings about victim benefits in the great majority of cases lead us to conclude that victims will generally benefit from participation whenever they have the opportunity to do so [after RJ conferences] victims reported large differences in: fear of the offender (especially for violence victims] perceived likelihood of revictimisation sense of security anger towards the offender sympathy for the offender feelings of trust in others feelings of self-confidence
Case: Carol for seven months after Natalie had robbed her, Carol had been unable to return to her job, carry a handbag and rarely left her home[after RJ conference] Carol went out the next day to buy a handbag. Then she went back to work. The RJ conference had restored and transformed Carols life Conclusion: RJ a constructive approach to justice RJ: A CONSTRUCTIVE approach to justice (FUTURE more important than the PAST) Seeks to tackle causes in a way that retribution does not About repairing harm and damage rather than inflicting MORE PAIN About inclusion of offender rather than exclusion Its just more CIVILISED Restorative Justice: doesnt work! Tom Ellis 2011/2012 THINK ABOUT THE VIDEO CLIPS! Sentencing circles are discredited in Canada women often left within community where male abusers are key part of the healing process and request formal justice/retribution IRA offers to shoot McCartney killers Community is collusive (coerced) www.guardian.co.uk/Northern_Ireland/Story/0,2763,1433478,00.html She was gang-raped on the orders of village elders Community is divided www.guardian.co.uk/international/story/0,,1430203,00.html
Rwandan Gacaca system crticised: apologies not genuine just convenient http://www1.voanews.com/english/news/a-13-2009-04-09-voa32- 68733712.html?moddate=2009-04-09 Gacaca is not justice The Rwandan court system was overwhelmed As a result, from 2001 some cases tried through a traditional justice system: gacaca (RESTORATIVE JUSTICE OR BUREAUCRATIC EFFICIENCY?) But many have criticized gacaca, saying genocide is too big a crime to go before the village courts Georgette Gagnon, Africa director for Human Rights Watch: we've been concerned about whether the person facing gacaca is receiving a fair trial. [ and there is no] legal representation. Under international fair trial standards, the proceeding is not fair. It's not following...... due process...
Witnesses receive no protection from anybody, certainly not from the state
They are often intimidated or prosecuted by police, by security agents, by government officials. (Human Rights Watch documented)
Witnesses accused of genocide ideology. "The person comes forward to perhaps say this person did not participate in this way in the genocide and that person often finds themselves ending upas an accused person before the gacaca proceeding"
Restorative Justice: doesnt work! VIDEO
part12_full.wmv http://www.youtube.com/watch?v=wK1foFsY-OY Sociologist/ex-prisoner says it is only because there was a year in prison first. That is key deterrent, not tea with the vicar afterwards! part13_full.wmv http://www.youtube.com/watch?v=OScXxzx4zkA Secondary victimisation: State has to enforce outcome and done poorly needs retributive threat Victim @ centre? I dont know what she did about it RJ: Completely miscued liberal nonsense part14_full.wmv http://www.youtube.com/watch?v=Pq0iZa8_rec
Writing a letter of apology was so impressive, he was allowed to murder afterwards.
A few issues to resolve???
Someones life!
What a comfort to victims family!
Restorative Justice: doesnt work! Provision is uneven Practice often far removed from underlying theory Evidence base is rudimentary Power relations ignored, especially police led conferencing, by narrow offence resolution focus: economic, personal and social context? Problems with defining the boundaries to communities and clashing of lifestyles Focus on participants perspectives, not reducing re-offending
Restorative Justice needs to answer following What are they trying to achieve? Who should be targeted and @ which CJ process points? Culturally appropriate? Victims, offender, community interests balanced and with what safeguards? How formalised and/or integrated with traditional CJ , inc. agreement enforcement? If offender reintegration fails, how to prevent secondary victimisation? Resources maximised effectively? Needs more effectiveness evaluation
Zehrs contrast you decide! RETRIBUTION Violation of state Based on guilt/blame for past Adversarial & process normative Pain to punish, deter, prevent Right rules, justice by intent Interpersonal obscured by state vs offender Social injury matched by another State = abstract sidelined community Encourages competitive individual values Victim ignored, offender passive Offender accountability = suffer retribution Legal NOT moral, social, political, economic Abstract debt to state Focus on past behaviour Stigma permanent No repentance/forgiveness required Depends on proxy professionals RESTORATIVE JUSTICE Violation of victim by offender Problem solving for future obligations/liabilities Dialogue & negotiation normative Reconciliation of victim/offender Justice = right relationship = outcome Value of interpersonal conflict recognised Repair of social injury Community facilitates restoration Encourages mutuality Victim rights recognised, offender responsibility Understanding impact and helping to put right Context IS moral, social, political, economic Concrete debt to victim & community Focus on harm caused by offender Stigma removable Facilitates repentance/forgiveness Direct involvement of participants Retribution vs Restorative Justice: You Choose! Statement A : The key aim of the justice system is to apply punishment on behalf of society
Statement B: The key aim of the justice system is to repair the harm caused to victims and communities Thinking about your assessments, esp. the exam Tom Ellis 2011/2012 Can you have a pure retributive system? Horses for courses are RJ and Retribution intended to compete for all cases? Assessments for appropriateness, Pre-sentence reports, victim willingness, etc. Does it have to be one or the other what about combinations (including sequential), including with other sorts of justice? ( Eg:Sycamore Tree project) Remember models of CJ and how they fit with philosophies of punishment Is RJ a challenge to traditional CJ practice, or simply an additional resource for case disposal? (Goodey 2005:183). The urge to forgive is also natural to evolution McCullough also argues (and the title of the book is a clue)
There is a strong countervailing psychological force the instinct to forgive and cooperate Punishments are balanced by peace offerings a ratio can be calculated Urge for personal revenge erodes sharply in first weeks, but slowly thereafter PHILOSOPHIES OF PUNISHIMENT Future-orientated (prevention) Reductivist (Reduces crime) Utilitarian Rational choice Consequentialist Future consequences Deterrence through fear, shame, pain, restriction of liberty, rehabilitation/COMMUNITY PENALTIES (Death penalty), torture, (prison), tracking
(Relational) AIM OF PUNISHMENT IS TO ADDRESS HARM TO VICTIM & RESTORE BALANCE OF RELATIONS BETWEEN OFFENDER, VICTIM & SOCIETY (A TRIANGLE) (Schulter, M. 1995)
Past-orientated Retributivist Moral blame Proportionate (just deserts) Least necessary pain should be inflicted on offender by the state Denunciation & degradation (Death Penalty), (prison) Chain gangs
Principles of Punishment/CJ Justifying principle (Future-orientated)
Reductivism Reduce crime
RELATIONAL JUSTICE (RJ)?
Principles of distribution (Past-orientated)
Retribution What types of punishment? How much for types of offending? (see Hudson 1996;1-74) Victims views on sentencing
See Mattinson and Mirrlees-Black (2000) Attitudes to Crime and Criminal Justice: Findings from the 1998 British Crime Survey. Home Office Research Study 200. London: Home Office: 35-44.
http://rds.homeoffice.gov.uk/rds/pdfs/hors200.pdf
Victims are no more punitive (retributive) than the general public 1984 BCS shows about 1/3 rd of victims willing to consider RJ ONLY disposal 1998 BCS shows 2/3rds would consider EITHER mediation OR reparative compensation But 47% of these also wanted prosecution and punishment Crimmigration a case where RJ voice is not heard? Blackburn death crash driver will not be deported
An asylum-seeker who left a girl dying under the wheels of his car when he fled the scene in 2003 can stay in the UK, two immigration judges have ruled. http://www.bbc.co.uk/news/uk-england-lancashire-12007100 A fight between defence & prosecution with focus on immigration and crime only Any chance in process to discuss apology, compensation, restoration ? Aso Mohammed Ibrahim vs Amy Houston Pro-RJ but also critical, and opposes the simplistic retributive/RJ opposition. M. Zernova, Restorative Justice: Ideals and Realities (2007, Ashgate).
Key sources used here McIvor, G. (2004) Reparative and restorative approaches. In A. Bottoms, S. Rex, and G. Robinson (Eds) Alternatives to Prison: Options for an insecure society. Cullompton:Willan: 162-194
Goodey, J. (2005) Victims and Victimology: Research, Policy and Practice. Harlow: Longman Criminology Series/Pearson: 152-217
Hudson, B. A. (1996) Understanding Justice: An introduction to ideas, perspectives and controversies in modern penal theory. Buckingham: Open University Press: 38-75
Marshall, T. (1984) Reparation, Conciliation and Mediation: Current Projects in England and Wales. Home Office Research and Planning Unit Paper 27. London: HMSO
Mayhew, P. and van Kesteren, J. (2002) Cross-national attitudes to punishment. In J.V. Roberts and M. Hough (Eds) Changing Attitudes to Punishment. Cullompton: Willan
Savage, S. (2007) Restoring justice: Campaigns against miscarriages of justice and the restorative justice process European J ournal of Criminology Vol 4 No 2 195-216
Zehr, H (2003) Retributive justice, restorative justice. In G. Johnstone (Ed) A Restorative Justice Reader: Texts, sources, context. Cullompton:Willan: 69-82
Restorative justice useful materials with some case studies Sherman & Strang (2007) Restorative Justice: The Evidence