Restorative Justice as an “Informal” Alternative to “Formal” Court Processes

Introduction:

The notorious rape case involving Brock Turner highlighted the need to establish a more victim-centered approach to our system of justice. Rather than have both the accused and the victim be on the sidelines throughout the legal process, a system that focuses on restoring the victims, their friends and family and even the offender should be pursued. This chapter will develop a comparative study examining the formal criminal justice court system and the informal restorative justice process using a social psychological framework. The authors will examine the structure of power within the two systems and how both perceived and actualized forms of power impact the various invested parties.

In so doing, the authors aim to identify problems associated with power that have emerged in the formal court system while subsequently highlighting potential possibilities associated with power equity within the restorative approach. Questions of offenders' guilt, remorse, potential rehabilitation and desistance through restorative practices will be contrasted with the relative dismissal and re-victimization of victims in the formal court system. The chapter will also examine key issues surrounding formal and informal processes in contemporary society, as new challenges involving politics, race and gender draw attention to the need for victim-centered approaches and outcomes from the legal sector.

The chapter will also examine the emergence and influence of the restorative justice movement as a bridge between communities, civil society and the state. The analysis will be divided into a number of sections, each reflecting the emergence of a movement dedicated to the promotion of restorative justice as a vehicle for a holistic form of community-based justice. The chapter covers the history, scope, and philosophical-political background of the restorative justice movement, providing specific examples of the interchange between this restorative justice movement and civil society. Through this discussion the wider potential of the restorative justice movement will be highlighted.

This potential is demonstrated in the restorative movement’s challenge to understandings of failed punitive approaches, and through its socially redemptive alternative which emphasises collective responsibility for crime amongst all of the community. The chapter will also explore the international background to restorative justice, and its theoretical understandings, with a focus on key theorists such as Strang and Braithwaite, amongst others. It will examine salient issues that underpin social justice and social control, including the potential impacts of restorative justice policy and practice for the wider community and the state.

Existing literature on the alienating nature of the legal process has produced little analysis of the links between communities and possible alternatives in the area of law and justice. Moreover, the pursuit of forms ‘informal’ alternatives as restorative justice, once at the heart of traditional societies, remains central to a victim-centred, rights-based approach to justice.

One of the key issues at the heart of this debate is the acceptance of ‘justice’ as a salient issue within the rubric of ‘community’, whether it is in the context of development or cultural expression. Furthermore, any debate about justice in the community must first acknowledge the impact of social inequality on all levels of society in recent years. All too often networks of power which underpin levels of privilege and inequality in society pervade all levels of the formal legal system and create a justice dichotomy for many excluded by the elitist nature of the legal process as it exists. This body of criticism has tended to incorporate a critique of such inequalities as a contributory element to societal inequity and injustice. Nonetheless, this section will highlight both the benefits and difficulties which emerge from an ‘informal’ approach to restorative justice policy and practice.