Public vs. Private Justice

The criminal justice system addresses the lawbreaking behaviour of the offender. In many countries cases are called Government v. Defendant to reflect that emphasis. Restorative justice expands this focus in two ways. First, it takes the harm that resulted from the lawbreaking into consideration. Second, it acknowledges the interests of victims in both the process and outcome of the justice system. How does restorative justice balance the private and public nature of crime and of a just response to crime?

Why is criminal justice only partially privatized?

from Ron Wright's entry in Criminal Law Jotwell: Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice. He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice. Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades.... The second major component of this article is a review of the far-flung literature on “restorative justice,” a method of responding to crimes that emphasizes the experience of the crime victim, both during the adjudication of the charge and in the selection and execution of the punishment. After summarizing the diverse literature on this topic (drawn from criminology, psychology, and other disciplines) Simmons moves to the heart of his project: he draws out the connections between these two phenomena.

Redefining justice

from John Hayward's article on Christian Today: An independent study published on Thursday by Victims’ Champion Sara Payne calls on the government to "redefine" justice to give greater priority to victims of crime. The mother of Sarah Payne, who was murdered by a paedophile in 2000, writes, "The most compelling theme throughout my time as Victims' Champion has been the need to treat victims and witnesses as individuals, with individual needs." Most people think of criminal justice in terms of offenders being apprehended by the police, convicted by the courts, and sentenced to prison. At a time when the prison population is greater than ever (it presently stands at 84,622), perhaps that is unsurprising. The truth, however, is just three per cent of people who report a crime ever see a courtroom. What does justice mean for these people?

Wright, Martin. 2008. How far can and should restorative justice distance itself from criminal justice?' Workshop for conference of the European Forum for Restorative Justice. Verona, Italy, 17-19 April 2008.

To the extent that restorative justice has been implemented, it has shown very promising results: the great majority of victims are satisfied, offenders feel that the method is fair, and re-offending rates are as good or better in almost all cases. But in countries such as England and Wales restorative justice is being put into effect in a very piecemeal fashion, lacking many of the features that the full-blown philosophy would require. For example, victims are often not involved, or if they are, they are not empowered: that is, they are not given much influence on the outcome. This paper will consider to what extent this is because the delivery of restorative justice is government-controlled, or mainly done in-house by youth offending teams, probation or police. (excerpt)

Hartmann, Ute. Victim-offender reconciliation with adult offenders in Germany

Since the early 1980s there has been vigorous discussion in Germany whether conflict-mediation and restitution should be integrated into the existing criminal justice system, as against relegating them to practices for "private" justice. Despite various opinions, criminologists and politicians in Germany have agreed to permit victim-offender reconciliation as a means of resolving crime and determining sentence. In this paper, Hartmann focuses on the “WAAGE Hannover" program as an example of a victim-offender reconciliation program for adult perpetrators that has been integrated into the criminal justice system.

Henry, S. Justice on the Margin: Can Alternative Justice Be Different?

The way that extreme cases of alternative justice, such as the non-State forms of private justice in co-operatives and how they reproduce capitalist legal control forms, even where co-optation is absent, is examined. Drawing on the constitutive social theory of Giddens and others, the paper points to the inevitability of such reproduction by marginal justice institutions. This inevitability is argued to result from marginal justice practitioners sharing a common repository of control talk which impedes but does not exclude their ability to sustain divergent forms of justice. How genuine alternatives might develop is then considered.

Delattre, Gerd. Dialogue with the public - a neglected element of restorative justice?

The results of the empirical research on success and acceptance of restorative justice are better than expected, but they are not taken into account and are not implemented adequately by the legal practitioners. Due to the internal perspective and the fact that referrals are dependent on legal practitioners, the full potential concerning application and efficiency of restorative justice cannot be tapped satisfactorily. The dialogue with the public is a neglected element in the development of restorative justice and has to be intensified. Those affected by crimes should be informed very early about the possibility of out-of-court conflict settlements and reparation. It is important to take increased efforts to establish agreeable offers of conflict settlements which are at the same time top-quality and within close range. Apart from informing the general public via various media, the extension of a network with new cooperation partners (schools, police, district offices, quarter mangers, church communities, priest, doctors, crisis line, victim support, crime prevention organisations) is of vital importance. (excerpt)