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RESTORATIVE CRIMINAL JUSTICE AS AN ALTERNATIVE TO PENAL SENTENCING: AN APPRAISAL
Behind the beautiful forms and theories of criminal justice and human rights lie a debilitating reality which pervades in practice and which makes men and nations seek other systems that will work and one of these other systems being sought is restorative Justice System. The state has a duty to prevent crime in order to maintain peace and order in society, but the achievement of these duties are not maintained only by committing the offender to jail all the time but by behavioural modification of the offender, restoration of harmony between the offender and the victims, healing the victim and locus of the crime and re-integrating the offender to the society. The need to make an offender accountable for his action through confronting the harm he caused the victim, and by providing the offender with an opportunity to offer recompense for that harm the formed based for restorative justice. The advocates of restorative justice are canvassing that the process (restorative justice) owes much to recent movements aimed at addressing the failures of the existing criminal justice system and developing new ways of doing justice. The concept emphasizes that the society’s response to crime must be moralizing but not rejecting or stigmatizing. It also canvases that using the techniques or models of restorative justice such as re-integrative shaming, mediation and reparation are meant to work on the conscience of the offender in a way that the legal proceedings do not. This work examined the definition of terms like crime, criminal justice within the context of the topic, the restorative justice as defined by various authors. The philosophy and historical movements of restorative justice, various arguments in support of restorative justice. This paper also examined the failures of the penal sentencing. It further explains the methods and models of restorative justice that will proffer alternatives to penel sanction in some cases such as murder, manslaughter and other serious offences where restorative justice may be complimentary to the current criminal justice system. The project work also tackled some challenges that may be found with restorative justice model but was able to state that if the model is positively applied in some cases like juvenile offences, family law cases, communal clashes, and even in some international and political cases and other minor cases, its result will be enormous compared to what can be obtained in the formal legal proceedings.
TABLE OF CONTENTS
Title Page i
Table of Contents vi
1.1 Background of the Study 1
1.2 Statement of Research Problems 4
1.3 Objective of the Study 5
1.4 Research Methodology 5
1.5 Justification of the Study 6
1.6 Scope of the Study 6
1.7 Synopsis of chapters 7
2.0 Literature Review 9
2.1 Meaning of Crime and Criminal Justice 9
2.1.1 Crime 9
2.1.2 Criminal Justice 10
2.1.3 Retribution in the Criminal Justice System 11
2.1.4 Meaning of Restorative Justice 13
2.1.5 A historical Survey of Restorative Justice 15
2.2 A historical Survey of Restorative Justice 15
2.2.1 The philosophy of restorative justice system 16
2.3 Historical movement of modern restorative justice system 22
3.0 The Survey of Restorative Justice System 27
3.1. Methods of Restorative Justice 27
3.1.1 Victim-Offender Mediation 28
3.1.2 Family Group Conferencing 31
3.1.3 Circles 33
3.1.4 Panels 34
3.2 Theoretical Arguments in support of Restorative Justice 36
3.2.1 Victims Participation in Criminal Justice Process 36
3.2.2 Failure of the Criminal Justice Process 40
3.2.3 The need for recognition of indigenous law 42
3.2.4 The arbitrary definition of crime 43
3.2.5 The Theory of Re-integrative Shaming 44
3.2.6 Matza’s Theory of Neutralisation 45
3.2.7 Private Sector Participation in Reducing Recidivism 46
3.2.8 The Economic Importance of Restoration to State 47
3.3 Challenges of Modern Restorative Justice System 48
3.4 The Benefits of Restorative Justice over Criminal Justice 50
4.0 Evaluation of Restorative Justice Process 52
4.1 Establishing Guilty Intention in Restorative Justice 52
4.2 The State, Law and Restorative Justice System 54
4.3 Restorative Justice System a Compliment and an Alternative to Penal 55
Recommendations and Conclusion 60
LIST OF STATUTES 66
LIST OF CASES 66
INTERNET SOURCES 67
1.1 BACKGROUND OF THE STUDY
The modern States have incorporated the fundamental human rights in their Legislations and governance to such a level that should guarantee the liberties of man and his hope for social order and justice in life. But behind the beautiful forms and theories of criminal justice and human rights lies a debilitating reality which pervades in practice; and which makes men and nations seek other systems that will work in practice. One of these other systems being sought is Restorative Justice System
The contention of restorative justice is that the criminal justice structure tends to condemn the poor and weak to a perpetual cycle of criminal behavior, imprisonment (punishment) and revenge, hence unable to transform the actors and context of crime, having shutout empathy with offenders, healing for the victims and consideration for relationship.
The advocates of restorative justice are canvassing that the process owes much to recent movements aimed at addressing the failures of the existing criminal justice system and developing new ways of doing justice.
Although the state has a duty to prevent crime in order to maintain peace and order in society, but the realization of this duty are not maintained only by committing the offender to jail all the time but by behavior modification of the offender, restoration of harmony between the offender and the victim, healing the victim and locus of the crime and re-integrating the offender to the society.
The need to make an offender accountable for his action through confronting the harm he caused the victim, and by providing the offender with an opportunity to offer recompense for that harm formed bases for restorative justice.
Restorative justice represents a broad social movement of reforms arguing for change in the way the criminal justice system operates.
The process can be used in juvenile justice, criminal justice and family welfare/child protection cases. The movement according to Braithwaite and Strong has provided resolution and remedy to conflicts and injustices in realms as diverse as child abuse cases, communal violence, work place negotiation, adult criminal behavior such as some road traffic offences, gross violation of human rights and international conflict.
In recent times, the growing recognition globally, that the retributive criminal justice system is not always the most appropriate response to a significant portion of criminal behavior, has resulted to several distinct social changes including an awareness of the needs of victims and a more sophisticated evaluation of the limitation of the criminal justice system. The current reliance on incarceration as a sanction in response to a significant number of offences has not been overtly successful in terms of rehabilitation and reintegration. The first decade of the twenty-first century has witnessed a resurfacing of appeals to traditional non-statist communitarian modes of justice called restorative justice.
The idea of restorative justice is seen primarily as a process of reconciling conflicting interests and healing rifts in communities resulting from harms committed. These harms are viewed as creating obligations and liabilities, which have to be put rightly by the parties concerned themselves, the state and its agencies being only minimally involved. Justice, which is now generally interpreted narrowly as due process, fairness or impartiality in modern Western legalism need to be redefined with conceptions of respect, love, equality and freedom as an attempt to restore the dignity of man and uphold his fundamental human rights.
More so, the penal abolitionists have criticized the workings of the formal criminal justice on the bases that crime is not the object but the product of crime control philosophies and institutions. They also argue that social problems, conflicts and troubles are inevitable part of everyday life and therefore cannot, or rather should not, be relegated to professionals and specialists such as the police, prison and judicial officers that claim to provide solutions to crime committed in the society. The idea being that when professionals and state agencies intervene, the essence of social problems and conflicts are taken away and represented in forms that only perpetuate the problems and conflicts because in adversarial justice system, both the victim and the offender are passive spectators in their own case at formal and legalistic court proceeding.
Advocates of restorative justice further suggest that the abolition of the crime control industry will revitalize the social fabric by allowing other forms of conflict resolution, peacemaking and community safety that will be properly resourced.
It should be noted however that, restorative justice is not a soft option for offenders as the retributivists may have thought, because the stress on personal responsibility of offenders for harm done to the victims from whom offenders cannot hide need to be emphasized. The emphasis on using the techniques or models of restorative justice such as re-integrative shaming, mediation and reparation are meant to work on the conscience of the offender in a way that the legal proceedings do not. The concept emphasizes that the society’s response to crime must be moralizing but not rejecting or stigmatizing.
This work suggests a circumspective restorative justice system which will not abolish penal sentencing altogether; but which will overhaul the whole system with a view to mitigating the pain of penal sanction where it is deserved by the offender, and assisting victims and offenders retain good relationship after an offence. This forms the attempt to bridge the perceived dissimilarity between criminal justice and restorative justice.
1.2 Statement of Research Problems
The more we elect to hide our small social problems behind high walls, the more deeply entrenched will be the problem that led people there. What we have developed after several years of penal policy is a vast and costly delaying mechanism because imprisonment is used to delay confronting the real problems facing the community.
The major challenge that underscore this research study is on how to break the punishment based justice system that currently dominated our criminal justice system through an alternative means whereby the legal institutions/actors especially Judges, Magistrates, Prosecutors, Police, Prison Officials, Politicians, Policy makers and the general public shall be in the helm of affairs to consider the failings of the retributive criminal justice and work towards providing alternative to penal sentencing without breaking the legal system.
1.3 Objective of the Study
The objective of this thesis is to critically appraise the system and process of criminal justice, make an overview of emerging paradigm of restorative justice in order to proffer an alternative to the penal justice system.
This paper intend to urge the State to reconsider the failings of the retributive criminal justice and work towards providing alternative to penal sentencing by establishing a viable justice system that is focused on re-building healthy relationship between crime victims, offenders and society.
To achieve this aim, this work is to explore and examine the breath and depth of philosophical arguments, review the theories and models of this subject area, and take a look at existing historical, theoretical and empirical works with a view to answering the question: “Is restorative justice a better alternative to prison sentencing?”
1.4 Research Methodology
This paper utilizes the following sources of information on research study:
The primary sources relied upon are: The Constitution of the Federal Republic of Nigeria 1999 (as amended); Criminal Code Act, Cap. C28 LFN, 2004; Criminal Procedural Act; Evidence Act; Youth Justice and Criminal Evidence of 1999 of Canada and case laws relevant to the study
These include text books and articles published in the various journals relevant to the study.
Worldwide Web: the study also relied on information retrieved from the internet.
1.5 Justification of the Study
The decision to carry out a research on the restorative justice as an alternative to penal sentencing could not have been made at any better time than this because of the impact and position taken by our criminal courts and the entire justice system in opting to penal sentencing whereas there are alternative ways of doing justice which can encourage a better society building, healing, respect to human dignity as encapsulated in section 34 of the Constitution, bridged the gap of discrimination and separation between the offenders, victims and society.
This research work will help to set a new dimension for our courts when imposing sentences to take note of any other facilities for community service that may be suitable for non-custodian cases.
This paper emphasizes on the informal procedures whereby increasing access to justice is meted by encouraging victim’s right to fully participate in the entire legal process being recognized and enshrined in our justice system.
1.6 Scope of the Study
The scope of this research study is limited to the appraisal of restorative Justice as an alternative to penal sentences, the concept, issues and philosophies behind restorative justice.
1.7 Synopsis of chapters
The thesis is divided into five chapters summarized as follows:
The first chapter gives a background of the study, statement of research problems, objective of the study, research methodology, justification of the study, scope of the study, synopsis of chapters
This chapter covers the literature review, meaning of crime and criminal justice, crime viz a viz, criminal justice, retribution in the criminal justice system, meaning of restorative justice, a historical survey of restorative justice, the philosophy of restorative justice system, historical movement of modern restorative justice system
The third chapter captured the survey of restorative justice system, methods of restorative justice, victim-offender mediation, family group conferencing, circles panels, theoretical arguments in support of restorative justice, victims participation in criminal justice process, failure of the criminal justice process, the need for recognition of indigenous law, the arbitrary definition of crime, the theory of re-integrative shaming, matza’s theory of neutralization, private sector participation in reducing recidivism, the economic importance of restoration to state, challenges of modern restorative justice system, the benefits of restorative and justice over criminal justice
The fourth chapter captured evaluation of restorative justice process, the state, law and restorative justice system, restorative justice system a compliment and an alternative to penal sentencing?
The last chapter include recommendations and conclusion.
 J. Braithwaite, and H. Strong, Restorative Justice and Family Violence, (Melbourne: Cambridge University
Press, 2002) p. 61
 S. Latimer, and S. Kleinknecht, “The Effect of Restorative Justice Programming: A Review of the Empirical”
(Department of Justice, Canada: R & S 2000) p. 12
 N. Christie, “Conflicts as Property”, British Journal of Criminology (2005) vol. 17 pp. 1 – 5; and E. A. Fattah. Criminology: Past, Present and Future: A Critical Overview (Canada: Macmillan, 1968) p. 11.
 F. I. Asogwa and S. N. Anya, “Criminal Justice and Human Rights Law in a Globalized System”. Institute for Development Studies 2011, p.310
 The Constitution of the Federal Republic of Nigeria 1999 (as amended).