Research Paper on Restorative Justice: An Alternative to Retributive Justice

Retributive justice seeks punishments and nothing more. It is punitive to the extent that it accommodates children getting the same punishment as adults when they commit serious offenses courts to assume that they can distinguish right from wrong, especially if they are in their late teens. It does not want to rehabilitate an offender. Hence a child in conflict with the law has no clear path back towards societal reintegration.

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A restorative justice process investigates the root cause of committing a crime to heal the offender and the victim. All this is intended to help the offender take personal accountability for the consequences of their crime and learn from their mistakes so that they grow into productive citizens.

In this essay, restorative juvenile justice is presented as a better model compared to retributive juvenile justice. The basis of this hypothesis is that of the two, it is the one compatible with the contemporary view that minors have the human right to dignity. The field of psychology has established that unlike an adult making a rational choice to commit a crime, a minor does not make similar choices. Instead, the psychological impact of child abuse diminishes their capacity to know right from wrong. Since imposing punishments that are not proportional to the guilt of a convict is a violation of their human right to dignity, retributive justice is wrong for subjecting children to the same punishment regime imposed on adults.

Introduction

The law makes a distinction between private and public wrongs. While private wrongs are settled in civil court by private citizens, a public wrong is a crime against the social order. The government has the job of dealing with public wrongs through criminal law. Thus public wrongs are what is commonly referred to as a crime. On the other hand, the term criminal justice refers to the laws and institutions put in place by the state to deal with people convicted of crimes. A child comes into conflict with the law when they commit a crime. There is a difference of opinion on how a nation's criminal justice system should address troubled children. The retribution side of the debate ascribes moral agency to minors. Therefore, if a child is old enough to know right from wrong and they commit a serious offense, they may be subjected to the same punishments imposed on adults for similar crimes. The restorative justice side of the aisle objects to the idea of children as moral agents. They contend that children are incapable of making a rational choice to break the law because they have a diminished mental capacity compared to adults.

To resolve this ideological conflict, this essay approaches the question of how to deal with children who violate criminal law from the human rights perspective. Unlike in the past, children today are seen as holders of human rights just like adults. A disproportional criminal punishment is wrong because its severity does not match the moral guilt of a convicted person. The human right to dignity has been used to prohibit adults from being subjected to disproportional criminal punishments. As this essay will show, the field of psychology has affirmed that it is wrong to ascribe moral agency to child offenders. Instead, children (juveniles) become delinquent as they manifest the psychological trauma that child abuse left on them. Consequently, restorative justice is the right jurisprudential foundation to build a modern juvenile criminal justice system because under no circumstances does it seek to punish minors like it would an adult. In this way, it protects children's human right to dignity.

Human Dignity

According to Donnelly (2012), some academics trace the origins of the right to dignity to the Judeo-Christian doctrine that humans are created in the image of God.Other academics say that the right dignity to dignity is traced back to secular ethics that emerged during the Enlightenment. Donnelly (2012) reports that the secular definition of human dignity by the German philosopher Immanuel Kant has informed the substantive content of the legal right to dignity in contemporary law. In the Metaphysics of Ethics (1797), Kant explained that humans distinguish themselves from animals because people use critical thinking to regulate how they interact with the world around them. Kant concluded that because of this, all human beings have an intrinsic (inner) value. Hence good laws protect and vindicate people's dignity.

According to Donnelly (2012), children have human rights that must be protected by the law because all humans have the absolute right to dignity. The writer reports that in 1989, a United Nations international treaty on children's rights (CRC) was brought into force to become the normative basis for children having international human rights. Donnelly (2012) observes that after it was brought into force, this treaty has become the barometer by which to measure if the laws of a country conform to this idea of children having human rights.

Children have a lower mental capacity compared to adults. It may seem that the idea of giving them human rights conflicts with Kant's presumption that rights belong to rational creatures. Donnelly (2012) concludes that to justify children's rights, they have to be viewed as rules which set standards on how parents, adults, institutions and the government can deal with children's issues without violating their dignity. Thus, in the field of juvenile justice, the CRC promotes restorative justice as the best way of addressing juvenile delinquency without violating an offender's right to dignity using disproportionate punishments.

Retributive Justice

Retributive justice must be the oldest theory which justifies the use of government power to punish criminal offenders (Braithwaite, 1989). It is the cornerstone of criminal justice in all legal systems. In the common law world, the reason why governments can enact laws and put in place a system to punish those who break them is the Lockean theory of how states are created by a social contract. People have natural rights, among which is the right to take matters in your own hands and punish other people who harm you. After a government is created, this natural right to punish is given to the state. It is then up to the government to create a system through which people can seek redress for the wrongs they suffer at the hands of others. The social contract also gave the government to create laws to regulate society by keeping the social order intact. Hence the state can make laws that prohibit specific forms of human conduct. The government can also investigate and punish the people who break them. Hence crimes are a violation of laws enacted by a government to prevent the return to a state of chaos.

Retributive justice is a theoretical justification for punishing convicted criminals (Braithwaite, 1989). It aims to use the punishment of a convicted offender to scare the public into not breaking the law. The severity of punishment is then determined by the seriousness of the crime charged. If they are not criminally insane or too young, their punishments for a felony will be worse than those for misdemeanors. Hence mitigating and aggravating facts surrounding how a person broke the law determines the severity of the punishment they face. The policy underpinning this proportional punishment rule is the belief that if criminal sanctions are too severe for the crimes they want to deter, the public will stop obeying the law. Hence the social attitudes towards criminal punishment ultimately determine the severity of punishment attached to each crime. For instance, it is fine to cut off the hand of a thief in Saudi Arabia, but that is not considered a proportional response to the crime of theft here.

In a retributive juvenile justice system, minors, just like adults, have criminal agency. Hence they can distinguish right from wrong (Braithwaite, 1989). According to Braithwaite (1989), countries with a purely retributive justice system for children in conflict with the law, have courts that do not care about the welfare of minors. Instead, the system has rules which distinguish offenders who deserve to get punished like adults from other juvenile delinquents. A child, in this system, can escape punishment because they are too young, or they did not know what they were doing was wrong. Hence, if they are above the minimum age of criminal liability, and they knew what they were doing, the law attaches criminal sanction to their criminal conduct which would have been imposed on an adult.

Restorative Justice

According to Zehr (2015), restorative justice emerged in the late 20th century in objection to retributive justice and its focus on just punishing an offender. Restorative justice wants to do more than just punishing an offender. A restorative process starts with the government creating an informal setting where the victim, the offender, and other interested parties can dialogue. For instance, parties to a restorative justice process can be made up of a judge, the offender, the victim, and a representative of a community significantly impacted by the offender's crimes. The offender accepts personal responsibility for their crimes and apologizes. The victim may explain to the offender how they have been affected by the crime, and what their views are on the question of restitution for the wrong. The parties to the discussion will then mutually agree upon the steps that the offender can take to make substantive amends for the harm he has done.

Child Welfare

The child welfare theory contends that children must under no circumstances be subjected to retributive justice because they have no moral agency. Instead, it is the corrupt influence of adults and their environment which pushes them into breaking the law. Hence it is immoral to subject them to the same punishments as adults. The child welfare movement, therefore, proposed that since children are incapable of knowing right from wrong, a youth justice system should seek to rehabilitate them instead of just punishing them. When a juvenile justice system incorporates child welfare principles, it is characterized by the following feature:

• A system of juvenile courts and correctional institutions reserved for minors in conflict with the law.
• Juvenile courts not only deal with criminal acts or omissions but, they also address other problematic conduct which falls short of being criminal but damages the welfare of a child.
• The jurisdiction of the juvenile court can be invoked to protect the best interests of a child.
• The procedures in juvenile court are not complicated like those in the adult criminal courts.
• Social workers and mental health experts play an advisory role to a juvenile court judge.
• Decision-makers in juvenile tribunals are given wide-ranging discretion when determining and providing for the best interests of the child.
• A preference for the use of court orders to supervise a child offender after the case ends.

The claim by the child welfare movement that juvenile delinquents deserve less severe criminal punishments because of their diminished mental capacities has been vindicated by modern psychology. The consensus in the field of psychology is that juvenile delinquency is primarily caused by child abuse (Chauhan et al., 2017). Child abuse can be perpetrated by, adults, other children, or the social environment a minor find themselves in. It may take the form of physical, sexual, or emotional abuse. Child abuse harms the emotional and intellectual development of a minor. The trauma causes in a child's psyche manifest itself into behavioral problems which raise the likelihood of them breaking the law, especially during adolescence.