Top Issue 1-2024

12 July 2001 Edition

Resize: A A A Print

Building a radical alternative to Punitive Justice

BY ROISIN DE ROSA ([email protected])

Empowering the people


Thirty years of conflict have brought in their wake deep, revolutionary changes in society. Sometimes change has come consciously, deliberately, as a result of long fought-for changes by the combatants who have been the agents of change. Others have come about almost unconsciously, driven by necessity, almost by sleight of hand. Whatever their origin, there are seeds of radical and exciting change, which add up to creating the new dispensation talked about by republicans.

One of these exciting developments is Community Restorative Justice (CRJ). It represents a way forward from punishment beatings and shootings, which, as is widely recognised, are neither a solution to anti-social activity nor an acceptable way of dealing with it.

CRJ in the Six Counties has emerged in the context of a policing vacuum, given the unacceptability of the RUC in nationalist areas, but the concept goes beyond the particular circumstances of a conflict zone.

CRJ comes out of an entirely different theoretical approach to crime, which imports a method of dealing with it and places the community and its empowerment centre stage, both in the manner of dealing with anti-social behaviour' and changing the conditions that have led to it.

The necessity arises


``We had 6,000 logged complaints of anti-social behaviour over a year in West Belfast alone,'' says Tommy Holland from Upper Springfield Road CRJ. ``That means, on the basis that only one in four get reported, that there were at least 24,000 incidents in the community. People were crying out, in outrage and fury, for punishment, for retribution.

``This had to stop. We had to get away from punishment beatings. We had to get away from communities watching and waiting as a child grows up, until he is old enough to beat or imprison. The community itself, like it or not, is involved and had to get involved in dealing with this problem, which is tearing our communities apart.

``There are now 14 CRJ projects across the Six Counties, seven in Belfast, five in Derry and three in the Armagh area. New projects are springing up in Beechmount, the Falls, Craigavon, Lurgan and Newry, and some 700 people are already trained. CRJ exists and is multiplying.''

Colonial formal justice system


CRJ is a deep and revolutionary challenge to that system of justice imposed by colonialism across Ireland. Their formal system of justice is punitive and retributive. It looks for punishment of the `wrongdoer' and seeks retribution in the form of imprisonment, violence and physical punishment. It's called `paying your debt to society'.

The notions that lie behind this formal justice system, which we have enjoyed in this country over the last two or three hundred years, are based on a definition of `crime' as a contravention of socially agreed norms of behaviour. Where individuals do not conform they become `wrongdoers' or `evil doers', who require punishment for deterrence and retribution. The impersonal arm of the law and state courts of justice administer the punishment. Crime is somebody else's problem, done by somebody else's child, on somebody else in the community. But all of these real people could have been us.

The Law and Order Brigade


In the late `70s and the 1980s, a monster reared its head which fed on the horror stories greedily purveyed by gutter press tabloids. That was the `law and order' brigade. Reagan and Thatcher got elected on the strong, media backed ticket of hang `em and flog `em, based on carefully purveyed deepening fears of widespread crime amongst `hoodlum' youth. The government in the 26 Counties has not been far behind, with Justice Minister John O'Donoghue happy to leap on the plank of `zero tolerance' of crime.

Mirroring establishment rhetoric, nationalists and republicans in the Six Counties, under severe pressures from communities suffering growing problems of anti-social activity, found themselves, in a paler image of the same thinking, forced into punishment beatings and shootings, if only for the lack of alternative.

Accompanying these punishments was the notion that these kids were `hoods', or in the South `scumbags', anti-social elements who had to be dealt with severely and repeatedly until they stopped. The trouble is, they don't stop.

Communities cried out for punishment not because, in most cases, anyone liked it, but because the communities demanded that something be done, and that is all people could think of.

Punitive formal justice


The punitive retributive model for dealing with crime is ineffective, unfair and expensive. Research has proven its negative effect on rates of recidivism. Research has also shown that it is the poor, the disadvantaged, the poorly educated, those who have drug or alcohol dependency, low levels of self esteem, who come of abusive and often violent background, the minority groups, who suffer disproportionately the execution of this punitive system. The property owners may get the protection, but the poor get the punishment.

Nor does the system pay great regard to the suffering of the victim. It is a system of naked revenge, which only in the craziest of aberrations of human values could be seen as a palliative or satisfactory outcome for the injustice and harm done to the victim.

And the expense of the punitive system provides a yet stronger argument for the state to look more kindly on alternatives. For EU governments, dedicated as they are to reducing expenditure on state services, prisons represent a heavy drain on both capital and current accounts. The annual cost of incarcerating offenders is between £50,000 and £80,000 per annum. Privatisation of prisons, as has been widespread in England, brings an inevitable loss of legitimacy. Paying a private company to make profit from punshing people is the ultimate in social degradation.

So punishment has a poor return, especially when most tend to return to these institutions. The state is looking for cheaper methods of control. So it is not for exclusively humanitarian motives that the Dublin government has recently introduced special courts and sentencing of offenders with drug dependency to drug recovery programmes. It's the cash argument, which speaks loudly to those wedded to law and order doctrines and strict monetarist policies.

Damage of `Punishment'


The formal justice system has most damaging effects on offenders. Their relationships with partners and children are destroyed. Through prison, offenders are driven further from their community and into a closer dependence on peer groups of other offenders. Worse, they are brutalised by a macho violent, sensorily deprived environment, where control of your own life and self-responsibility is immediately taken away to be replaced by obedience, bullying and dog-eat-dog survival.

From the victim's point of view, the formal justice system rarely pays much attention to the suffering, which is often more emotional than physical. Retribution in the form of imprisonment of an offender is little but a sick response of a sick society to the pain and suffering of those who are the victims of anti-social activity.

Community Restorative Justice


Community Restorative Justice is a viable non-violent system of community-based justice which offers an alternative to punishment beatings and shootings, which empowers a community, and proposes a way forward beyond the philosophy of punishment, retribution and violence against other human beings. It is the stuff of revolution within the community.

Restorative justice is a way of dealing with the harm of anti-social crime, which it sees pre-eminently as a breakdown of relationships between people. CRJ seeks to repair these relationships and `heal' the injuries to the three categories of people involved: the victims of crime, the offenders, and the community in which the victim or offender lives.

And what are the needs of the victim to which the formal justice system pays so little regard? The harms the victim of crime suffer are not simply material; they are social and emotional. Common issues identified by victims as harms caused by crime include loss of control, feelings of helplessness, an inability to understand what has happened to them or why, a feeling of injustice perpetrated without recompense, recognition, or a convincing commitment by anyone to prevent its recurrence.

A discussion document drawn up four years ago when academics and community activists first started to look at methods of Restorative Justice here in Ireland points out that these harms are often at least as damaging as any physical injury or material loss suffered through crime. Victims need vindication that what has happened to them was wrong and undeserved. They need the opportunity to have their anger and pain expressed and validated. They need restored to them a sense of control and a feeling of safety. They may need to feel that the offender understands and acknowledges the injury that has been caused to them, their family and their friends.

Restorative Justice through mediation


Practical ways of doing this are common in many countries, across the USA, Canada, Europe, and New Zealand. They commonly work through victim/offender mediation, where participation is voluntary and resolution is by consent; the offender admits culpability and the community at large supports and legitimises the mediation process.

Restorative Justice in the case of the offender works within an entirely different paradigm. Rather than concentrating on punishment, RJ places the emphasis on the offender being accountable for the crime committed and acknowledging responsibility for the harm caused. The offender should seek to repair the damage and above all, be offered a pathway to return to a meaningful role within the community. Mediated outcomes may involve restitution, community work, participation in a social programme or a support package for the offender and even perhaps his or her family.

Whereas the punitive system leads to further estrangement from the community and tends to focus the offender upon the hurt inflicted upon him or her, CRJ works in a precisely opposite direction. Where punitive justice encourages a state of denial of responsibility for the suffering caused, CRJ works through a process of mediation to get an offender to take responsibility for what he or she has done.

Community Involvement


But the third and key aspect of CRJ is that it aims to give local communities a sense of ownership and responsibility over the process of justice. Under the formal justice system, the process of dealing with offenders is shuffled off onto others, be it the police, the courts and prisons, or even the IRA. Anti-social activity and crime split and divide communities, often filling people with fear and anger.

The community at large, the business sector, Church, schoolteachers, shopkeepers, solicitors, doctors, political parties, residents and tenants associations, but also youth groups, elderly people's groups, women's groups, and statutory agencies all need to be involved, because all are involved.

The first step to setting up a CRJ scheme is for such groups to meet and discuss the notion of CRJ, its standards and values. This stage is followed by the promotion of a Community Charter door to door. Endorsement of the charter, the support and participation of the whole community, is what lends CRJ its legitimacy but it also provides the step of empowering the community to take responsibility for itself.

Above all, the process of discussing and signing up to the charter carries an educational role. In this sense, CRJ proferrs the very alternative that allows people to resist the law and order game that the media and conservative parties love so dearly. Instead, a community can look at the causes of crime and take on ways to end them, be it for the individuals who live within it or for the community as a whole.


Not so new


In fact, of course, CRJ is not a new departure at all. Throughout our history and the history of other countries, there have been alternatives to the colonial justice system which itself only became entrenched in 17th century Ireland, when the Brehon system was suppressed by the coloniser.

The Brehon system relied on the solidarity of the Tuath or Clann, where communities policed themselves, where the individual victim of crime and the offender are both seen in the context of their community. In this model, judgement is about restoring the community rather than retaliation and retribution imposed from outside by superior agents of a centralised state.

Equally, the Sinn Féin arbitration courts of 1919 offer another example of alternative justice systems. They were intended to deal with land disputes with the consent of both parties but soon began taking on `criminal' cases. Subsequently, the Dáil Courts, established in 1920, dealt with a wide range of offences and disputes, from rowdyism, larceny, property damage, to bank and post office robberies and assaults. These courts operated at Parish, District and Supreme Court level. The three justices at the Parish level, who comprised the parish panel, were elected from a parish convention comprising Sinn Féin, Volunteers, Trade Councils and Cumann na mBan.

At parish level, these courts operated on a basis of conciliation, a reflection of the pre-eminent need to build solidarity within communities and neighbourliness. The higher courts required a legitimate means of coercion to enforce sanctions. Inevitably, the IRA was called upon to impose the sentence of the courts. At the lower levels, disposals handed out by judges tended to be the return of stolen property, restitution, making good the damage, fines, banishment.

Exile to England was common in cases dealing with `incorrigibly unsavoury persons'. Deportation to England became sufficiently prevalent to cause objections in the House of Commons to the numbers of undesirable people deported and on ``the use of England as a sort of convict settlement to men deported by Sinn Féin''. So to speak, the boot, for once, was on the other foot.


The Charter that CRJ asks all in a community to sign:


We the Residents of .... commit ourselves to the promotion of a new spirit and infrastructure designed to build a better community. The individual rights and associated responsibilities of all the members of our community is the foundation of freedom, justice and peace for all of us and acknowledging the need to consistently promote and advance supportive social and physical environment.

Commitment

We believe that everyone in our community has the right to:

Shelter, warmth and basic living necessities

Freedom from fear and anxiety

Privacy, rest and leisure

Appropriate care and support

Safety and care of property and the environment

Education and learning opportunities and resources

Open expression or celebration of their religious, cultural and political affiliation

Equal and unconditional protection under the law

Equality of access to public service

To share in the life of the community

We also hold that we each have a responsibility to ensure that we do not create or enhance any condition, relationship or situation which may prevent our neighbours from exercising or enjoying their rights as outlined. Each signatory to this charter pledges to respect the rights of his/her neighbours in the community and appropriately to exercise his/her own responsibilities.

In keeping with this pledge we reject violence as a tool for resolving disagreement between families or individuals and as an alternative we will initiate and cooperate in any agreed community systems or processes involving informal or formal mediation to resolve disputes or respond to crime and to criminal or anti-social behaviour within our community.

An Phoblacht
44 Parnell Sq.
Dublin 1
Ireland