Commentary: Restorative justice: A farfetched idea for the Caribbean?
By Abiola Inniss LLB, LLM
Caribbean NetNews | Tuesday, October 27, 2009
[Abiola Inniss LLB, LLM (Business Law), mediator, and arbitrator, is a legal consultant in business law, and law teacher, who resides in Georgetown, Guyana, with an established practice in Alternative Dispute Resolution]
Recent years have found the Caribbean embroiled in the challenges of drug trafficking, money laundering, murder, rape, robbery and crimes of all sorts. Gang warfare in Jamaica and Trinidad have resulted in appalling loss of lives, damage to property and devastated the communities involved.
Guyana also experienced the murder of a large number of persons in the wasting by gunmen of the Kaieteur News press men, the Lusignan and Bartica massacres and numerous other murders that have remained unsolved.
Some of these crimes have been clearly linked to the drug trade while others seem to have been committed in what has become the ordinary run of criminal activities; since as in the words of Guyana’s poet laureate Martin Carter “Men murder men as men must murder men”.
Across the Caribbean there have been significant increases in violent and petty crimes and a concurrent bewilderment on what to do about it.
Crime and the punishment of it has had a standard form regionally with some variations in the form of the application of the death penalty or life imprisonment for serious and heinous crimes, but within the usual schemata of imprisonment or fining (determinate sentencing) for wrongdoing. World trends today suggest that some developed countries as well as developing ones are pressed by the necessity to find alternatives to the traditional scheme of justice dispensation.
This is not simply the result of the musings of well paid researchers whose sociological theories, however abstract, manage to find favour with the aspiring intellectual elite in governments and so are visited upon the unsuspecting populace who have little means of extricating themselves. The fact is that criminal law has always struggled to balance the issuance of punishment with the offence, as can be seen throughout the development of the common law as it has sought to adjust with the changing times.
A simple example of this would be the constant complaints that we hear about the sentences given in the courts both at the superior and magisterial levels; someone may be found guilty of causing death by dangerous driving and is made to pay a sizeable fine with a short term of imprisonment or no imprisonment at all, while another is found guilty of manslaughter for carelessly or recklessly operating a piece of heavy machinery which causes the death of another and is given a custodial sentence.
The reader may well be challenged to a round of the “spot the difference” game and lengthy arguments may be made on the technical differences engendered in the wrongs on the basis of judicial precedent, but the lack of uniformity in the dispensation of justice remains comfortably seated in its corner minding its own business in the company of aging ineffectual law and order.
One reason for this is that the punishment is subjective in nature and based on retribution and not correction, it therefore means that it will be interpreted and administered according to the consideration of several factors including the personal perspective of the individual judge, though he or she follows and interprets the law. This discretion is so wide ranging that the anomaly is experienced across the sentencing stratum.
Additionally, the public opinion as to appropriateness of a punishment, while it ought theoretically and practically to be taken into account by the judge , would seem to be quite often ignored or subordinated to other considerations in recent times. This in no way suggests that judges are ignorant of or unconcerned with popular opinion, but that the expectations of the public are often not met in the delivery of what they see as justice.
The issue of alternative forms of justice is also based on the practical needs of law enforcement and of the changing values in society; for example, will bigger better jails solve the problems of youth delinquency, or will the promotion of life imprisonment over the death penalty or vice versa, have a deterrent effect on serial or would be murderers, would gangs and drugs melt into thin air if we simply catch and lock up the leaders?
The answers are complex but the empirical evidence from across the world seems to indicate that these methods are not as effective as in the past because of enhanced technological skills, access to information, the continuum of poverty and greed and the vast networking abilities of the criminal minded.(see Harriot – Crime Trends in the Caribbean and Responses, 2002 , Forum on Crime and Society Vol 1&32 Dec 2003 and D Layton McKenzie ‘Sentencing and corrections in the 21st century.)
The proposal of restorative justice as a means of dealing with some of our problems is premised on the evidence that determinate sentencing and the currents means of keeping law and order are failing in the Caribbean at the same time as we grapple with the growing disorder in societies which result in crime and vice-versa. This form of justice holds the promise of aiding in the reversal of these factors and correcting some root causes. So then the question what is restorative justice?
Restorative justice carries several definitions but is aptly described thus: Restorative justice is a theory of justice which emphasises repairing the harm caused by criminal behaviour. It is best accomplished when the parties themselves meet cooperatively to decide how to do this. This can lead to transformation of people, relationships and communities.
Restorative justice is a new movement in the fields of victimology and criminology which acknowledges that crime causes injury to people and communities. It insists that justice repair those injuries and that the parties be permitted to participate in that process. Restorative justice programmes, therefore, enable the victim, the offender and affected members of the community to be directly involved in responding to the crime. They become central to the criminal justice process, with governmental and legal professionals serving as facilitators of a system that aims at offender accountability, reparation to the victim and full participation by the victim, offender and community. The restorative system of involving all parties – often in face-to-face meetings (mediation) – is a powerful way of addressing not only the material and physical injuries caused by crime, but the social, psychological and relational injuries as well.
When a party is not able, or does not want, to participate in such a meeting, other approaches can be taken to achieve the restorative outcome of repairing the harm. In addressing offender accountability these approaches can include restitution, community service and other reparative sentences and in addressing victim and offender reintegration they can include material, emotional and spiritual support and assistance.
This may seem quite a bit to digest as an aid to the system of justice or as an alternative form of justice, given our regional ensconcement in the system of retributive justice. The question must be asked whether we should continue to complain about our ailing systems while seeking refuge in the developed countries, or to use our human resource capacity innovatively to make our lives a bit more comfortable. The reader may now determine whether the Caribbean is ready for restorative justice.
Any thoughts?