Procedural, Moral & Restorative Justice: A Shift from Punitive
In today’s society it is clear that regardless of the type of punishment given to criminals for their crimes, there seems to be no shortage of offenders to keep the prison populous full. Why is this so? Does this mean that the current methodology regarding justice is ineffective? Perhaps it is not a matter of effectiveness but more a matter of applicability. The current practice of justice has been implemented as a generalized application based on an offense viewed as socially destructive or disruptive. As such, the process by which offenders and victims are handled during these instances inherently limits their involvement and thus their rehabilitation, be it victim or perpetrator (Hill, F. D., 2009). In addition to this the punitive use of “sanctions” against law breakers has been the common practice in an attempt to get the individual breaking the law to be more “self-regulating” in their “future conduct” (Tyler, T. R., 2006). In short, fear of reprisal and forced acceptance of authority are the main methods used to facilitate prevention, justice and reduce recidivism.
Unfortunately this also creates a certain amount of resistance, especially in an individual who has already displayed some level of disregard for authority and the law they have broken. In addition to this Tom Tyler reported in his article titled Restorative Justice & Procedural Justice: Dealing with Rule Breaking that, although many studies support that there is a relationship between punitive justice and reduced recidivism, its significance is consistently small (Tyler, R. T., 2006). By this measure it seems that this type of justice model may represent an archaic form of justice distribution. As humans evolve intellectually, so does the societies in which they reside and thus, so must their policies and procedures regarding societal maintenance.
Current research has suggested that understanding and augmenting human behavior may be a more effective approach to reducing and/or preventing crime. This process is based on a more personal affectation regarding the acting and/or potential law breaker. By understanding the internal and external motivations of an individual there is a greater likelihood that what started as an authoritative experience, may transition to one in which rapport and respect can be fostered for both the law breaker and the authoritative figure/institution. One commonly known precept of successful and effective interpersonal communication is the building of trust, respect and rapport (Alberts, K. J., 2009). Studies have suggested that by building these relational characteristics the individual will be more likely to follow direction and/or law as a result of perceiving the authoritative figure as being “legitimate” and “entitled” to have their edicts followed (Tyler, R. T., 2006). The inclusion of respect and therefore fair treatment is likely to create more frequent perceptions of legitimacy at all levels of the procedures.
Personal morality has also been considered as a “social value” by which a justice system could be created. This basis proposes that there is an internal drive to follow “personal morality” and when this is deviated form there is a subsequent sense of “guilt” regarding the action. This can be a motivator to comply with said morality in future situations. Although morality is generally “learned” in childhood (Feldman, S. R., 2009), the natural desire to seek social acceptance and “belonging” (Cialdini, B. R., Kenrick T. D & Neuberg, L. S., 2007) persists throughout life and may be an effective motivator towards this end.
However, an important component to this is the legitimacy of the laws on a social scale. Moral justice must reflect the perceptions and moral values of its social structure, else face not only resistance to comply but a reduction in the social perception regarding the legitimacy of their authority. For example; many individuals throughout the country have raised their voice so as to force the laws to reflect a changing social morality regarding same sex marriage, discrimination and what now seems to be the legal possession and use of marijuana. Although legitimacy may not necessarily dictate compliance it has however been shown to be a more effective method of receiving it.
Furthering these procedural goals is what is referred to as restorative justice. The main precepts of restorative justice is to provide justice and rehabilitative services for both the victim and offender and community in an attempt to “restore” them (Tyler, R. T., 2006). Involvement of these components throughout the judicial process helps promote “shame and responsibility” as well as empathy in the offender. The underlying motivator being utilized is the individuals “feelings of responsibility” to various aspects of their social environment such as family, friends, co-workers etc. (Tyler, R. T., 2006). Providing opportunities for the perpetrator and victim to emotionally connect through involvement and proximity spacing, has also been shown to be effective as it provides an opportunity for the victim to come to “forgiveness”; an integral part of the healing process (Armstrong, J., 2012).
The major difference between the current justice model and restorative justice models is a shift in focus from satisfying generalized social justice to satisfying micro-justice as well. This has allowed for greater involvement for victims regarding procedure, requirements for restitution and a voice in sentencing as well as opportunities to communicate with the offender in a personal manner. This also provides an opportunity for the perpetrator to become witness to the effects of their act(s) which may help facilitate empathy. As empathy is a key component to an individual’s ability to socialize and form strong and lasting connections with family, friends and within society (Cialdini, B. R., et al., 2007), it seems that this type of justice model may be more effective in reducing the recidivism of certain crimes.
Of concern however its applicability to those more likely to hold disregard for social values as they feel “disenfranchised”, judged and perhaps even oppressed by them. Research suggests that there is not a significant difference between ethnic group reactions to police and other authoritative figures when policies reflective of procedural and/or restorative justice were in place. However, research did suggest a significant difference when these motivational models where not present (Tyler, R. T., 2006). This is likely due to the presence and perception of racial and gender bias regarding the police. Events such as the assault of Rodney King or the pepper spraying of protestors engaged in Occupy Wall Street undermine the legitimacy of authority and thus respect and compliance of its constituents.
Each of these models rely on three theoretical aspects of “self-regulatory motivation” inclusive of social obligation, personal shame and moral guilt as a method by which to augment the future behavior an individual. The combination of these aspects of emotion may reduce recidivism as well as the potential for future offenders, by way of their influence. For example; a father who foregoes his criminal behavior is less likely to promote the same beliefs, perceptions, attitudes and subsequent behavior from their family, offspring, friends and social groups as well as reducing the social population of criminals. This last part can affect society as whole by reducing prison population as well. What would be the financial impact to tax payers in the advent of this? It seems that this would create a push towards social support of this practice as well, thus establishing social morality compliance, a legitimate obligation to society to follow this morality and self-imposed negative emotional responses to deviation from it as well.
Based on theories of inclusive of behavioral, societal and interpersonal psychology, it seems that the most influential to reducing recidivism is that of restorative justice. This is concluded as a result of its primary focus being one in which compliance to law is motivated based on relevant and personal factors to the offender. In addition to this the involvement of the victim and other individuals affected or related to the act helps address and “repair” the damage the crime inflicted on others as well a society. The inclusion of these policies and motivators seems likely to create a greater chance that the individual will not only refrain from re-offending but promote these values in others as well.
However, it seems also that procedural and moral justice are applicable as well. Perhaps rather than a comparison between the effectiveness of one or the other, the value of their combined influence should be considered. Procedures provides fairness, safety, stability and consistency as well as positive behavioral representation by those involved in the judiciary process, which are often a elements lacking in an individual’s life who engages in criminal activity (Dowd, E. N., Singer, G. D. & Wilson F. R., 2006). Thus it seems that this would only further support a rehabilitative process. The inclusion of morality would likely allow for a sustainable change in the perceptions, beliefs and attitudes of the offender thus having a greater chance of having a long-term effect of future behaviors.
Worth consideration regarding the fundamentals of all three of these models is the reliance upon the individual being able to experience these emotions. Not everyone shares the same level of self-awareness, empathy, desire to change, will power, support systems or even intellectual capacity to re-learn thought processes and behavioral responses. This is not to say that it impossible for some yet it is easier for some than others. Simple resistance to any of these motivational intrusions may result in an increase in dissidence toward authority. Consider the individual who chronically refocuses accountability for their actions onto an external and uncontrollable force. How will shame, morality and obligation be facilitated in such a situation? How then could offenders suffering from a sociopathic personality disorder be engaged in such behaviors? It seems as though the inclusion of these types of offenders would increase costs and difficulty as more specialized treatment both pharmaceutical and therapeutic would likely be required. Consideration should also be given to the types of crime that these models would be applicable for, or more specifically one in which it is unlikely to have a beneficial effect based on its goals. Criminal that pose a further threat to the victims and or society as a result of this justice models implementation may be worth considering as inapplicable candidates as this risk would threaten the very goals of the model.
In summation the refocus from punitive justice to a model in which offender, victim and community restoration is facilitated seems to show great promise in reducing recidivism on a social level while expanding the justice model inclusion to be supported on an individual basis as well. However, this model will most certainly encounter policy difficulties as it attempts be more “sensitive” to an ever changing, varying and socially motivated group of offenders, victims and communities. For this reason; the current justice model may have sustained it longevity due to its universal applicability and “black and white” nature. However, this rigidity can be maintained through procedure and boundaries without the inclusion of right or left, right or wrong, good or bad dichotomies. Life and experience is much more complex than that, and a written law is unable to consider whether it is doing more good or more damage when implemented and as well, the current justice model does not afford the practitioners of law much room to consider these factors either. For example; driving while intoxicated is a serious offense because of the risk it possess to others and one’s self. Yet what happens to the individual who has their license suspended for the offense and as a result is unable to maintain his job. Resulting from the reduction in finances the individual is now under the stress and perhaps action of losing their place of residence. All the while knowing that in order to reinstate their ability to drive, thus work, and thus provide for their basic needs, they will have to pay money they can no longer earn.
As a personal note the author has witnessed this happen to several individuals, most of whom never fully recovered from the offense as it is a permanent aspect of their criminal record. This can often be anti-productive to the individual reintegrating in to society because they are forever “branded”. As a closing thought regarding this aspect of the punitive system of justice; what would be the effect on recidivism if all offenders had the opportunity to free themselves of this brand through specific and relative acts?
Alberts, K. J. (2009). Interpersonal Effectiveness. Chicago: Argosy University
Armstrong, J. (2012). Factors Contributing To Victims' Satisfaction with Restorative Justice Practice: A Qualitative Examination. British Journal of Community Justice, 10(2), 39-54
Cialdini, B. R., Kenrick T. D & Neuberg, L. S. (2007). Social Psychology: Goals in Interaction. Boston: Pearson Education Inc.
Dowd, E. N., Singer, G. D. & Wilson F. R. (2006). Handbook of Children, Culture and Violence. London: Sage Publications
Feldman S. R. (2010). Childhood Development. Upper Saddle River N. J.: Pearson Education Inc.
Hill, F. D. (2009). Restorative Justice: Sketching a New Legal Discourse. Contemporary Readings in Law and Social Justice, 1(1), 115-162
Tyler, T. R. (2006). Restorative justice and procedural justice: Dealing with rule breaking. Journal of Social Issues, 62(2), 307–326