Tuesday, December 17, 2013

Policy Proposal #4: Give victims greater voice in sentencing decisions

Policy Proposal #4 for the Labour 2015 General Election Manifesto:

Criminal justice suffers from a lack of public confidence. It is easy to see why.

The legal system can appear an unwelcome place where the victim – and not the offender – is truly on trial. Many victims unsurprisingly report dissatisfaction with their treatment. Sometimes they feel like bystanders in trials they might have affected them profoundly.

This problem is not an accident. The trial is designed so that justice is impartial, but must this require we silence victims about sentencing decisions?

The issue raises an important anomaly. While victims can provide crucial evidence in favour of an offender’s conviction, victims’ voices are often silenced when we consider sentencing options.

Most criminal cases – over 90 per cent – never go to a full trial. Offenders plead guilty and a sentence is passed. Victims lack their day in court to express openly the wrongs they have endured and their views about moving forward in the name of swift justice.

Our challenge is improving public confidence in criminal justice without alienating victims further. In fact, we can make this system better by giving victims a greater voice in sentencing decisions.

Restorative justice is an approach revolutionising criminal justice. It is many things criminal justice is not. Whereas criminal justice is formal, rule-laden and conducted in court by legal professionals, restorative justice is informal, flexible and conducted by ordinary citizens. The object is to ‘restore’ the law-abiding status of a fellow citizen.

Restorative justice allows victims to tell offenders the real impact of the crime, to get answers to their questions and receive an apology. It also gives offenders a chance to understand the true impact of their actions and do something constructive to repair the harm they have caused. This is often done in a conference-like setting where the victim and offender meet. Restorative justice is a promising way to achieve more effective criminal justice.

Evidence suggests victims and offenders alike report higher satisfaction with restorative meetings. Restorative justice has reduced reoffending by up to 25 per cent in contrast to alternative measures. And there is welcome news for any government interested in making savings as at least one study found £9 could be saved for every £1 spent through restorative justice.

This success is a product of hearing more voices. Victims can express the impact of crimes on them and this communicates an important message to offenders they need to hear. One central way to reduce future reoffending is to make perpetrators more aware about the harm they cause.

But offenders benefit as well because we hear their voice, too. This can help identify not only what steps they might take to address their past crimes, but also how we might help them overcome future criminality. This is because we can better target the needs of victims and offenders through a restorative conversation about the past with a view to the future.

But there remains a serious hurdle for extending the benefits of restorative justice more widely. This hurdle is that the current practice of restorative justice does not include imprisonment as a possible option. This limits its applicability to cases of relatively minor crimes and youth offenders.

Some argue the public simply won’t support their greater use. The worry is restorative justice might be seen as a ‘soft touch’ where offenders might ‘escape prison’.

This rests on two mistakes. The first is thinking what people want is harsher, not better, justice. If restorative justice can effectively reduce reoffending and criminal costs while improving victim satisfaction, then this is an approach that can win public confidence.

The second mistake is failing to include a greater punitive element in restorative justice, or what I call ‘punitive restoration‘. If victims, in line with magistrates, have some power over the offender’s punishment, including suspended prison sentences, restorative conference could be used more widely and could help further reduce reoffending.

Victims have a say on outcomes in restorative meetings and the effects have been highly promising. It is time to expand the range of possible outcomes to include a more punitive element. This can ensure restorative justice is not seen as an easy option without undermining the success this approach might build on further.

We can and should improve public confidence in criminal justice by giving victims a greater voice in sentencing decisions through a restorative justice model. Justice need not require victims are silenced, only that they don’t have the only say. Restorative conferences and punitive restoration offer an important new perspective on how justice can be achieved.

See ProgressOnline piece here and YourBritain website.


enigMan said...

Re: victims [...] feel like bystanders in trials

You mean the trials of those suspected of victimising them, those brought to trial by the (agents of the) Crown (who opens and dissolves the parliament that creates the particular laws against victimisation that are apposite here)? They are not bystanders, as a rule; they might be, e.g. if the victim is especially weak (e.g. mentally handicapped or dead). Of course you know this; but then...

...an important anomaly...

Victims tend to be important witnesses to the crime committed against them; but again, the trial is not primarily about them, but about the criminal. Regarding the victim -- and are we not all victims of something, if only an accident of birth? -- maybe there is a God; but, the Crown is not God (thank God). Incidentally, their day in court is just a popular term for everyone's opportunity to bring a lawsuit; whereas, it is the Crown who brings the suspect to trial.

enigMan said...

I tend to like this idea, but I have worries, perhaps because I know little of theories of justice.

A crime against someone who wants lots of revenge is presumably not a worse crime than the same against someone who does not, but your proposal is that it should be punished more.

Also, is there not a danger of encouraging a populist slide towards an ethos of private prosecutions by victims instead of public prosecutions by the Crown?

Thom Brooks said...

You might argue the trial is about the crime and how best to respond. This means it's a concern of everyone's and not only the victim or offender. This is why I argued for a restorative conference setting where victims are included more substantively, but so too is the offender and community.

Nor do I think this is populist. The idea is not about making punishment popular, but about bringing the public into the criminal justice system more substantively. Restorative justice has proven itself worthy of being incorporated more substantively. My proposal is one idea about how this might happen.

enigMan said...

I think that you are probably right about the justice system; but, is the Judge not better placed to take the feelings of the victims into account than the victims themselves?

enigMan said...

I've changed my mind, because while the Judge is best placed to balance justice and peace-keeping, an eye for an eye is too unfair on the victim: The criminal chooses to take an eye out of the blue. Your proposal would make the criminal subject to a fairer degree of uncertainty in society's reaction, I now think.

Thom Brooks said...

On point 1: No, I don't think the judge is best placed. Virtually all cases never go to trial. The victim is never given an opportunity to communicate to others the impact of a crime on him or her. Judges may never know about any such impact before determining outcomes. My proposal addresses this problem.

Thom Brooks said...

On point 2: I don't think there is greater uncertainty at all. Restorative justice has been practised for a while now and with great success. It isn't a process whereby anything goes, but where the process is managed by a trained facilitator to ensure consistency across similar cases and so that outcomes are just, balanced and target relevant needs. It is therefore unsurprising that RJ has led to greater crime reduction, higher participant satisfaction and lower costs than alternatives. It's time we saw more of it and not less. Unless we want more crime, continued dissatisfaction and rising costs....and who does?