By Adnan Mouhiddin
In 1789, Gabriel de Mably, a French Philosopher, argued that punishment should strike the soul rather than the body. His statement was quite revolutionary according the standards of his era when criminals were physically tortured under horrifying methods and techniques. The rise of alternatives to punishment is as old as the history: In the face of the ‘eye for an eye’ law, Jesus the Nazareth offered those who were without a sin to cast the first stone. But has anything changed since Mably’s statement?
“There is no glory in punishing”
Minimizing people by treating them in accordance to their behaviour is to ‘misunderstand the essence of what makes us humans’ (Kelly 2014: 52). The following evidence will enable us to shed some light on what Kelly probably meant.
In its 2016 report, the Prison Reform Trust indicated a sharp increase in the prison population in England and Wales since 1993 (a 92% rise). A direct consequence is that prisons have become overcrowded, holding 21,755 people on average in 2014–15. The majority were doubling up in cells designed for one. In such environment, the dignity and the emotional and mental wellbeing of the offenders is questionable and the impact of the traditional retributive methods could be clearly observed. Also, and since the conditions under which they committed their offence are not tackled (something that restorative justice offers) retribution does not seem to have any positive impact on re-offending. The Report states that the proportion of prisons whose performance is “of concern” or “of serious concern” almost doubled from one in eight (13%) in 2012–13, to one in four (24%) in 2014–15.
The Report also states that the rates of self-harm in prisons have reached their highest levels ever (a 40% rise between 2013 and 2015). It also shows that 290 people died in prison between March 2015 and March 2016. Tragically, over a third of these deaths were self-inflicted which sheds light upon the emotional and psychological well-being of the inmates. The bigger picture is even more shocking: 87% of deaths among young inmates aged 15-24 in the last 20 years were self-inflicted and ‘70% of people who died from self-inflicted means whilst in prison had already been identified with mental health needs.’ According to the Report:
Suicide rates are significantly higher in custody than amongst the general population. In 2015 the rate of self-inflicted deaths amongst the prison population was 120 per 100,000 people, amongst the general population it is 10.8 per 100,000 people.
In his book ‘The Crime of Punishment’, Menninger (1963) explains at length how the traditional penal system not only causes frustration and potential deviance among those who are tried before the criminal court (before being convicted), but how also some inmates carry on their criminal behaviour in prison following their convictions. Menninger is probably stating the obvious here. In other words, how do we expect the deviant to abandon his criminal behaviour if the underlying reasons and issues that led to such behaviour were not tackled? The Reform reports mirrors this very point by stating that ‘serious assaults in prison have more than doubled between 2013 and 2016’. There were 2,197 serious prisoner on prisoner assaults have taken place and 625 serious assaults on staff in 2015. Moreover, sexual assaults have more than doubled since 2011, with 300 recorded assaults were recorded in 2015.
The effect of retribution on the community did not pass by unnoticed by the Report. Locking the offender keeps the community safe, as those who are in favour of the retributive methods would argue. The evidence, however, demonstrates the effect of such methods on families whose wellbeing is integral to that of the community. The negative effects upon children whose parents are imprisoned are said to be double that of divorce, and it is estimated that in 2010 more than 17,240 children were separated from their mother by imprisonment (Prison Reform Trust, 2016).
Restorative Justice as an alternative
In 2002, the Home Office reported that ‘the public are sick and tired of a sentencing system that does not make sense.’ This mirrors the general mood which aims for a change and alternatives. The ‘alternative’ should probably tackle all the issues that are absent in the traditional sentencing system; an alternative which involves all the parties of the incident rather than excluding them (Zehr, 2002); an alternative that does not view crime as a mere challenge to the order and the sovereignty of the state, but sees it as a community issue where the latter is involved; an alternative which restores rather than punishes and whose core focus is on the wellbeing of the parties.
While retribution concerns itself with the moral dimension of the wrongdoing and seeks to make right rather than restore (Crawford and Newburn, 2003), restorative justice aims at solutions (Shearing 2001), preferring an ’inclusive and collaborative process’ (Zehr, 2002). The involvement and participation of the victims, the offender and the community is considered by McCold (2000) as an essential criteria of ‘full restorativeness’. The satisfaction of the parties has been identified by Van Ness (1997) as a key element as to why restorative justice excels the traditional methods of justice. The Prison Reform Trust Report (2016) indicated that 85% of victims and 80% of offenders surveyed in 2016 were either ‘very’ or ‘quite’ satisfied with their restorative conference. Such satisfaction is reflected in the re-offending rates. 27% fewer crimes were committed by offenders who had experienced restorative conferencing, compared with those offenders who did not. In fact, out of those convicted adults who do not experience restorative conferencing, 46% are reconvicted within one year of release. Reconviction rates increase to 60% among those serving less than 12 months sentences, which demonstrates less effectiveness than community sentences at reducing reoffending. This probably indicates why the use of community sentences has nearly halved (44%) in the past decade (Prison Reform Trust Report, 2016).
Therefore, restorative justice is progressive in its nature and aims to understand why the crime happened and how to move forward whereas retribution is focused on the past. When both the victim and the offender share a minimum interest in settling the aftermath of the crime, a significant level of engagement of the parties to the crime occurs (Walgrave, 2003). Such engagement, as the evidence demonstrates, impacts the emotional wellbeing of the parties involved. As Kelly puts it:
The emotions and the wellbeing of the parties are central in the restorative approach… Explicitly addressing issues of human emotion, connection and relationships, restorative practive is an amalgam of specifically targeted activities, theoretical and practical constructs to support individual wellbeing and repair harm, through the development of nurturing, robust family’s and communities. (2014:155)
Foucault (1977) argues that those who execute the penalty imposed on the offender relieve the justice of responsibility by the bureaucratic concealment of the penalty. The offender is faced with the consequences with his or her action rather than discussing the reasons behind his or her behaviour which not only will potential alter his or her course of behaviour, but also offers him an opportunity to take responsibility of the past. However, restorative justice associates the past with responsibility and the future with alteration. Subsequently, this will have direct impact on the offender’s behaviour and the process of thinking which will reflect on his mental and emotional wellbeing.
However, we should be cautious while approaching restorative justice as an alternative, as Kelly reminds us that restorative practices can often become ’little more than an alternative means of providing a consequence or penalty’ (2014:154). The debate about the differences and similarities between the restorative justice and other traditional forms of justice has been a long one (Crawford and Newburn 2003). Zehr took a radical view, considering restorative justice to be the opposite of retributive justice (1990). Considering how referral orders, which are available for the young offenders who plead guilty to an offence and in which restorative approaches could be utilised, Zehr’s position might be somewhat problematic. In addition to that, there is an element of coercion as we are not fully certain whether young people participate voluntarily (Haines, 2000).
While Duff adopted the radical opposite of Zehr’s by claiming the restorative justice is an alternative punishment (1992), others such as Morris, adopted a modest position arguing that ’any outcome, including a prison sentence, can be restorative if it is an outcome agreed to and considered appropriate by the key parties‘ (2002:599).
The methods of retribution might have changed from the past, but their extreme emotional and mental damage they cause is evident. It acts in the depth on the heart, the thoughts, the will, the inclinations (Foucault, 1977:16). To punish appears to be the easier option; a traditional mode which had been adopted forever. From the above, we can probably reach Kely’s that punitive methods are destined to fail because they dehumanise the person, creating more shame and harm in people whose behaviours most likely stem from the fact that they have already been harmed (2014:52). Restorative justice remains in its infancy stage (Kelly, 2014), but as Braithwaite anticipates, it will outperform traditional criminal justice, since it leads to crime reduction, offender rehabilitation, victim, offender and community satisfaction. This will consequentially amount to securing justice which will enrich freedom and democracy.
Braithwaite, J. (1998) Restorative Justice, in M. Tonry (ed) Handbook of Crime and Punishment, New York, NY: Oxford University Press
Crawford, Adam & Newburn, Tim (2003) Youth Offending and Restorative Justice: Implementing Reform in Youth Justice, Oxon: Routledge Publishing.
Foucault, Michel. (1977) Discipline and Punish: The Birth of The Prison, London: Penguin Group.
Haines, K. (2000) Referral Orders and Youth Offender Panels: Restorative Approaches and the New Youth Justice, in Goldson, B. (ed.) The New Youth Justice. Lyme Regis, Russell House Publishing
Menninger, Karl. (1963) The Crime of Punishment, New York: The Viking Press.
Prison Reform Trust. (2016) Prison: the facts, available on:http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/summer%202016%20briefing.pdf[accessed on 24 January 2016]
Tonry, Michael. (2011) Retributivism Has a Past: Has it a Future? New York: Oxford University Press.
Tonry, Michael. (ed.) (1998) The Handbook of Crime and Punishment, New York: Oxford University Press.
Van Ness, D. and Strong K. H. (1997) Restoring Justice, Cincinnati, OH: Anderson Publishing Company.
Vernon, C. Kelly & Thorsborne, Margaret. (2014) The Psychology of Emotion in Restorative Practice, London: Jessica Kingsley Publishers.
Zehr, Howard, (2002) Restorative Justice, Intercourse: Good Books.
 The Gospel of John 8:7
 (Foucault, 1977:10)