Crime and Justice Module in Criminal Law - Restorative Justice
Transcript of Crime and Justice Module in Criminal Law - Restorative Justice
Criminal Law LLM 1 Year
Section 5: Crime and Justice
Ms. Bhavana Mahajan 21st April 2016
Email: [email protected]
Topics
n Restorative Justice n Theories of Punishment n Victimology n Plea Bargaining n Sentencing Policy in India n Prison Reforms
First Principles
n What is crime? n Why is it ‘bad’? Who does it affect? n Does it change over space and time? Why? n What is Justice? n What is the relationship between crime and justice?
WHY IS CRIME TRAUMATIC: Victim Lens
n Key Questions: – WHY DID IT HAPPEN TO ME? – WHAT IF IT HAPPENS AGAIN? – WHAT DOES THIS MEAN FOR ME AND FOR MY OUTLOOK? (my faith, my vision of
the world, my future) n Judicial needs of Victims include:
– Safety/prevention concerns – Restitution: Restitution can provide a sense of Restoration on a financial as well as
symbolic level – Answers: Information is important to the Victim – Opportunity to tell their side of the story: Victims need opportunities to express and validate
their emotions; their anger, their fear, their pain – Empowerment: Their sense of Personal autonomy has been stolen from them by an offender
and they need to have this sense of personal power to returned to them – …
MEANING
IDENTITY
RELATIONSHIP
n Disorder: Crime may upset our sense of meaning which is a basic human need
n Dis-empowerment: Crime is in essence a violation of SELF – who we are, what we believe, of our private space
n Disconnection: It is a violation of our trust in our relationship with others
BUT….
Traditional justice mechanisms focus almost exclusively on offenders…..the victim’s voice is silenced out.
WHY IS CRIME TRAUMATIC: Offender Lens
n What does the offender “deserve”? Default Answer: Punishment
n Does Punishment Work? Not always since it: – Takes away any sense of ‘responsibility’ (issue of ‘accountability’ for the
crime): a system of punishment requires elaborate due process that encourages self-defense and self-preoccupation on the part of the offender. As such it encourages the offender to fight conviction rather than take responsibility.
– Destroys self worth (the offender’s self-image as a ‘victim’): Gilligan argues that violence (a wrong or ‘crime’) is motivated by a desire to achieve justice or undo injustice. Punishment, therefore, merely confirms this sense of injustice. (Trauma unaddressed is re-enacted)
– Isolates from the larger community (the offender as a social ‘victim’): Adds to the offender’s sense of victimization at the hands of the system, society.,
– Degrades them (‘shaming’ effect): reinforces shame which may have been the original cause of the offense (Gilligan)
– …..
WHY IS CRIME TRAUMATIC: Community Lens
n What is a ‘community’? n What are the needs of the community? n What is the role of the community as you define it in the process of
responding to harm, building relationships and the process of justice? n What are the risks and benefits of community involvement in
implementing justice mechanisms? n What is the relationship between community and ‘State’?
Can Restorative Justice Itself be traumatic?
n When the victim and the offender are not equal: in some traditional societies, the victim and offender may not be at the same socio-economic plane – even if they were to sit across the table they would not be able to do so as equals bonded only by the crime. In such a context, the offender in is the more powerful entity, socially and/or economically. In such a scenario, a community-based restorative justice model underlined by power inequality could in fact aggravate the context
n The ‘Community’ itself as a source of crime: Zehr envisages the community to be a
homogenous healing whole. However, in most of the developing world, community-based decisions are dominated by the caste- and class-based politics with decisions taken by a few and followed by the rest. Thus while community set-ups such as ‘Panchayats’ in India are envisaged to be empowering justice delivery mechanisms at the grassroots, in practice, these can themselves become offenders or tools for commission of crime
n Issue of on-time recourse to justice: restorative justice mechanisms sometimes may have
very long gestation periods which may even exceed life-times of individual human beings rendering the process of justice meaningless in some cases.
Discuss
TASK: REFLECT ON A JUDICIAL RESPONSE KEEPING IN MIND THE FOLLOWING PARADIGMS
n RETRIBUTIVE n REPARATIVE n RESTORATIVE
THE PROBLEMS OF PUNISHMENT
n Often ineffective or counter-productive n Focuses on symptoms rather than causes n Reinforces ‘street’ justice – an eye for an eye n Encourages isolation rather than integration…
QUESTIONS:THE VICTIM
n WHAT HAPPENED? n WHY DID IT HAPPEN TO ME? n WHY DID I ACT AS I DID AT THE TIME? n WHY HAVE I ACTED AS I HAVE SINCE THAT
TIME? n WHAT IF IT HAPPENS AGAIN? n WHAT DOES THIS MEAN FOR ME AND FOR MY
OUTLOOK? (my faith, my vision of the world, my future)