Public vs. Private Justice

Why is criminal justice only partially privatized?

Dan Van Ness — 2010-03-08T06:00:00Z

Both private policing and restorative justice emphasize the experience of the crime victim, and both grow out of frustration with the public enforcement system. Just as private couriers respond to shortcomings at the U.S. Postal Service, private policing and restorative justice appear when victims of crime get no satisfaction from public prosecutors, criminal court judges, and public corrections officials. In this economic analysis, private firms spring up to meet a demand.

Simmons then confronts a dilemma: private firms have largely succeeded in the realm of policing, but not so in the arenas of criminal adjudication or criminal punishment. Private police now identify an enormous number of criminal suspects after the fact, but there is nowhere to send them. The victims of the alleged crimes have few satisfying alternatives to public criminal adjudication or public criminal punishment. The capacity of restorative justice programs such as victim-offender mediation is tiny, typically measured in the hundreds.

Private capacity to impose something akin to criminal penalties is expanding when it comes to small crimes. In some of the most interesting and original research presented here, Simmons surveys journalistic sources for evidence that the purchasers of private enforcement impose their own low-level punishments. For instance, many large retailers (including Wal-Mart) only issue warnings to persons they accuse of stealing small amounts of merchandise for the first time. Property owners eject perpetrators from the premises; employers fire their employees accused of theft and other crimes.

What about private adjudication and punishment for more serious crimes? Simmons suggests (pages 962-967) that parties should resort more frequently to victim-offender mediation in a broader range of cases, without waiting for public prosecutors to file charges or for criminal court judges to refer cases to mediation. The article explores the possible uses of mediation in serious property crimes, a few crimes of violence in organizational settings (such as employee assault cases), and even intra-family violence. He envisions public prosecutors as monitors of this private system, standing ready to file charges in the public system if the private outcome does not adequately protect public interests.

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Redefining justice

Dan Van Ness — 2009-11-27T06:00:00Z

At its heart, 'Redefining Justice' asserts that victims are individuals and need joined-up support across health, education, housing and social services, as well as the criminal justice system (CSJ). It observes that "Redefining justice to meet the needs of victims will often go beyond the CJS to areas where no existing code or pledge is in place." The truth is that we would do well to redefine justice in even more radical ways.

For a start, we need to reconnect crime control and criminal justice with broader themes of social justice and social reconstruction. Many of those caught up in the system are people whom the criminal justice process is ill-equipped to deal with: for instance, it is estimated that 47 per cent of male sentenced prisoners ran away from home as a child; 49 per cent were excluded from school; 72 per cent suffer from two or more mental disorders; 66 per cent used drugs in the previous year; and 67 per cent were unemployed prior to their imprisonment. Biblically, these are people who deserve compassion not vengence; for them retribution brings not justice but further injustice.

....The criminal justice process can by itself have only a limited effect on the general level of crime. Justice should be a community responsibility, bringing with it community obligations. If citizens, local communities and courts are to exercise these, then the State needs to devolve responsibility and give us all a greater role in securing justice.

By renewing civic society, we might well expect to find crime being dealt with more effectively. Again, such action is far beyond the scope and capacity of the statutory criminal justice agencies.

As we have noted previously, in contrast with the trend of 64 per cent of prisoners who are reconvicted within two years of being released, another government report into restorative justice schemes last year found that "offenders who participated in restorative justice committed statistically significantly fewer offences (in terms of reconvictions) in the subsequent two years than offenders in the control group".

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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.

Lynette Parker — 2009-08-24T15:08:10Z

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)

Duffy, Aoife. A truth commission for Northern Ireland?

Duffy, Aoife — 2007-03-04T23:41:09Z

A report published by the Consultative Group on the Past (Consultative Group) in January 2009 recommended that a ‘Legacy Commission’ be established for Northern Ireland that would fulfil a reconciliation, truth-recovery and justice mandate. The work of the Consultative Group highlights how international justice norms are interpreted at a local level in a way that takes account of local histories and priorities. This article critically examines the proposed Legacy Commission and finds that the framework outlined by the Consultative Group does not sufficiently challenge discourses of violence that hinder the bedding down of positive peace in Northern Ireland. Universal human rights and justice concepts remain peripheral to this framework, which avoids the type of profound conflict analysis that might advance societal stability and harmony. Instead of challenging the structural and institutional inequalities that underpinned the violence of the conflict in Northern Ireland and opening up new pathways to accessing truth and justice, the Consultative Group's report advocates a truth-recovery process that is not open to public scrutiny and is couched in the language of forgetting, which begs the question whether this is a genuine attempt to explore sidelined or dissenting narratives of conflict, or merely another forum in which to contain them. (author's abstract)

Pemberton, Antony. Private Versus Public Features of Restorative Justice: The Cases of Terrorism and Intimate Partner Violence

Pemberton, Antony — 2007-03-04T23:41:09Z

This paper makes three points. First of all it will discuss some main issues whereby the private and public functions of victim-offender encounters may be at odds with each other and will question the wisdom of striving to meet both these functions at the same time, in particular in the case of more serious and violent offences. Like Van Stokkom’s paper the effects of apologies will be discussed. That will in the second place lead the presenter to assert that in these cases it may be preferable to view restorative justice as a complement to criminal justice rather than an alternative. Thirdly the discussion of the public and private features of restorative justice may be furthered by examining different crime contexts that have inherently public or private features. In the final section of the presentation the presenter will reflect first on terrorist acts, which have a highly public dimension, due to the fact that the act was committed to scare, frighten or threaten a wider audience rather than the direct victim. Second it will discuss the issue of intimate partner violence, which by contrast has more private features. The presenter will contend that these differences in crime contexts should also affect the positioning and structuring of restorative justice procedures in general, but in particular their relationship to its public and private features. (excerpt)

Delattre, Gerd. Dialogue with the Public - A Neglected Element of Restorative Justice?

Delattre, Gerd — 2007-03-04T23:41:09Z

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)

Ameh, Robert Kwame. Uncovering Truth: Ghana's National Reconciliation Commission Excavation of Past Human Rights Abuses

Ameh, Robert Kwame — 2007-03-04T23:41:09Z

A key mandate of all truth and reconciliation commissions (TRCs) is to ascertain the truth about past injustices and to establish accurate records of violations and abuses. But truth has different connotations to diverse people and is often applied variously. So, how do TRCs uncover the truth surrounding a case of past human rights abuse? But what is truth? More specifically, how did Ghana's National Reconciliation Commission (NRC) ascertain the truth in the cases that came before it? These are the key questions addressed in this paper, which is based on interviews with members and key staff of NRC, analysis of parliamentary debates and media coverage of the reconciliation exercise, and a two-month observation of the NRC. The paper concludes that the specific yet flexible mandate of the NRC, the standard of proof adopted, the elaborate information management process, and the internal control mechanisms put in place favorably positioned the NRC to ascertain truth regarding the cases it deliberated. (author's abstract)

Amnesty International. Commissioning justice: Truth commissions and criminal justice.

Amnesty International — 2007-03-04T23:41:09Z

States should recognize that “retributive” justice and “restorative” justice (i.e. criminal justice and truth-seeking mechanisms) do not exclude, but supplement each other. In recent years, a debate has flourished on the possibility to “deal with” crimes under international law using non-judicial mechanisms of accountability, such as truth commissions. Based on the distinction between “retributive” justice and “restorative” justice, some have contended that countries have a choice in deciding “what kind of justice” they may pursue: that they may decide not to conduct criminal investigations and prosecutions of crimes such as genocide, crimes against humanity and war crimes and rather concentrate on truth-seeking and community reconciliation processes. The establishment of truth commissions (commissions of inquiry tasked with the investigation of patterns of past crimes) has often been considered as an alternative to the investigation and prosecution of crimes under international law before national courts. The paper analyses the practice with respect to criminal prosecutions and amnesty of the 40 truth commissions established around the world between 1974 and 2010. (excerpt)

Kashyap, Rina. Narrative and truth: a feminist critique of the South African Truth and Reconciliation Commission.

Kashyap, Rina — 2007-03-04T23:41:09Z

Prior to the establishment of the South African Truth and Reconciliation Commission (TRC), 'gender was seldom explicitly invoked as a lens into human rights abuse or an organizing principle for the commission's work' (Nesiah et al., 2006, p. 3). In this respect the TRC is a trailblazer, as subsequent truth commissions in other countries have been inspired to incorporate the gender component. The study of the TRC, however, is relatively under-theorized from the feminist perspective. This article argues that the feminist perspective offers a nuanced scrutiny of narrative and truth, two major themes of the TRC. The feminist inquiry helps resurrect 'listening', as a crucial component of narratives. In addition, the value of the feminist perspective lies in its ability to throw light on the experience of both women and men and to create an argument and language for the articulation of the needs of the powerless and dispossessed in society. A feminist critique of truth and reconciliation commissions has the potential to make the transitional justice mechanism more inclusive and democratic. (excerpt)

Isaacs, Anita. At War with the Past? The Politics of Truth Seeking in Guatemala.

Isaacs, Anita — 2007-03-04T23:41:09Z

Truth seeking in postwar Guatemala is a political battleground in which perpetrators intent on guarding against accountability confront victims’ associations equally intent on exposing abuses endured during the country's 36-year armed conflict. Having stage-managed the peace negotiations that established the restrictive parameters of Guatemala's Commission for Historical Clarification (CEH), army officers and guerilla leaders ceded control of truth seeking to Commission staff and their civil society partners, even as the latter mobilized to push the CEH to its investigative limits. The CEH final report's finding that the army had committed genocide galvanized both sides. Victims’ associations insist on more truth alongside justice and reparations, while army perpetrators reject incriminating Commission findings. The Guatemalan case reveals how truth initiatives are at once politicized and polarizing and how politics interfere with a truth commission's effort to produce a consensus history, end violence or afford reconciliation. While it confirms that confronting the past risks undermining the labor of transition architects, it also suggests that these may be necessary evils that could eventually contribute to transforming and strengthening democracy. (author's abstract)

Dukes, E. Franklin. Truth, Understanding and Repair.

Dukes, E. Franklin — 2007-03-04T23:41:09Z

Based primarily upon what I have found through the course of my work with damaged communities, I have developed the following conceptual framework, which allows conflict interveners as well as the parties themselves to think clearly about the path that leads to addressing these unrightable wrongs. This framework represents both the goals of this work and the path to those goals. The framework includes truth, understanding, repair, and relationship, in that order. (excerpt)

Braithwaite, John and Dunn, Leah and Cookson, Michael and Braithwaite, Valerie. Anomie and violence:Non-truth and reconciliation in Indonesian peacebuilding.

Braithwaite, John and Dunn, Leah and Cookson, Michael and Braithwaite, Valerie — 2007-03-04T23:41:09Z

This book argues that between 1997 and 2004, theoretically, Indonesia experienced a period of anomie (Durkheim 1897): a breakdown of the regulatory order that secured the institutional order (the rules of the game). A security sector that pursued its own interests by taking sides instead of preventing violence from all sides was one important part of that wider problem of anomie. This will recur as a problem in the next three volumes of Peacebuilding Compared—on Bougainville, Solomon Islands and Timor-Leste. Abuses by the security forces escalated communal defiance before finally helping to bring violence under control. A Mertonian reading of anomie theory that dissects legitimate and illegitimate opportunity structures in a micro–macro way is found to be fertile for understanding the onset of these conflicts. Emulation (modelling) of strategies for seizing illegitimate opportunities contributed to the diffusion of violence. Remarkable accomplishments of the reintegration of combatants from organisations such as Laskar Jihad, in which religious leaders showed great leadership for peace, was a feature of Indonesian peacebuilding. So was reconciliation through sharing power combined with the sharing of work (gotong royong) for reconstruction. The chapter then moves on to consider the complex multidimensionality of the factors that make for both war and peace. This evidence is used to argue for locally attuned multidimensionality and redundancy in peacebuilding strategy. This is the key to managing the inherent risks of violence in the gaming of transitions to democracy. (excerpt)

Editor. A Truth and Reconciliation Commission for Canada.

Editor — 2007-03-04T23:41:09Z

In June 2008, the Canadian government undertook an effort to understand the history, abuses and intergenerational impact of the Indian Residential School (IRS) system that operated in Canada for over 100 years. The Truth and Reconciliation Commission (TRC) seeks to provide survivors and others affected by the IRS system a safe and culturally relevant opportunity to share their stories. By educating the entire country on the realities of this little understood period of its history, it hopes to build common understanding and better relations among Aboriginal and non-Aboriginal Canadians.

Wing, Adrien Katherine . A truth and reconciliation commission for Palestine/Israel: Healing spirit injuries?

Wing, Adrien Katherine — 2007-03-04T23:41:09Z

The Palestinians may want to consider the possibility of using a device that has been used by many other countries for societal healing - a Truth and Reconciliation Commission (TRC) - to deal with the spirit injuries that have affected them over the decades. ... Margaret Popkin and Naomi Roht-Arriaza have identified four main goals of commissions: 1) contributing to transitional peace by creating an authoritative record; 2) providing a platform for victims; 3) recom-mending changes to avoid a repetition; and 4) establishing who was responsible and should be held accountable for vio-lations of human rights. ... According to South African TRC Chair Archbishop Desmond Tutu, "it was enormously therapeutic and cleansing for victims to tell their stories and the perpetrators had to confess in order to get amnesty... . ... If the commissioners include a wide variety of individuals such as young women, who do not have status within cus-tomary norms, it is not likely that more conservative Palestinians would embrace the commissioners' authority. ... The issues involving Israelis described above in the first scenario could definitely be part of the third, or binational, cham-ber. ... Some societies have created TRCs via a presidential decree and others passed a parliamentary statute. ... Israel has long felt that the United Nations is biased as anti-Israeli and pro-Palestinian, while many Palestinians have felt the United Nations has failed to protect their rights from Israeli aggressions. (Author's Abstract)

Foster, Don. Evaluating the Truth and Reconciliation Commission of South Africa.

Foster, Don — 2007-03-04T23:41:09Z

"Here is a book rather far away from the frivolities of postmodernism, which sets out to test hypotheses, make contributions to political science (against the tide of the ‘‘perestroika’’ movement) and which argues that good science should inform policy. The topic is important; a serious assessment of the Truth and Reconciliation Commission (TRC) in South Africa. Overcoming Apartheid poses a range of theoretically informed questions, but ultimately one big one: did the truth of the TRC contribute to reconciliation? The answer is as large: yes, ‘‘those who are more accepting of the TRC’s version of the truth are more likely to be reconciled’ (Excerpt).