Civilising Criminal Justice

J Cornwell David

Description

An inescapable resource for anyone interested in restorative justice: truly international and packed with experience while combining History, theory, developments and practical advice

Sujets

• Droit et juridique

Informations

• Publié par: Waterside Press
• Date de parution: 19 août 2013
• Nombre de lectures: 0
• EAN13: 9781908162526
• Langue: English

Extrait

Civilising Criminal Justice
An International Restorative Agenda for Penal Reform
Edited by David Cornwell, John Blad and Martin Wright
With a Foreword by John Braithwaite
Copyright and Publication Details
Civilising Criminal Justice
An International Restorative Agenda for Penal Reform
Edited by David Cornwell, John Blad and Martin Wright
ISBN 978-1-904380-04-7 (Paperback)
ISBN 978-1-908162–51-9 (Adobe E-book) ISBN 978-1-908162-52-6 (Epub E-book)
Copyright © 2013 This work is the copyright of David Cornwell, John Blad and Martin Wright. All intellectual property and associated rights are hereby asserted and reserved in full compliance with UK, European and international law. No part of this book may be copied, reproduced, stored in any retrieval system or transmitted in any form or by any means without the prior written permission of the publishers to whom all such rights have been assigned worldwide. Chapters are the copyright of individual contributors and the Foreword the copyright of John Braithwaite, subject to the same terms and conditions.
Cover design © 2013 Waterside Press. Design by www.­gibgob.­com
Cataloguing-In-Publication Data A record can be obtained from the British Library.
e-book Civilising Criminal Justice is available as an ebook and also to subscribers of Myilibrary, Dawsonera, Ebrary and Ebscohost.
Printed by CPI Antony Rowe, Chippenham, UK.
Main UK distributor Gardners Books, 1 Whittle Drive, Eastbourne, East Sussex, BN23 6QH . Tel: [phone]; [e-mail] ; www.gardners.com
USA and Canada distributor Ingram Book Company, One Ingram Blvd, La Vergne, TN 37086, USA. (800) 937–8000, o [e-mail] , ipage.ingrambook.com
Australia distributor Ingram Book Company, see ipage.ingramcontent.com
Published 2013 by
Waterside Press Ltd.
Sherfield Gables
Sherfield-on-Loddon
Hook, Hampshire
United Kingdom RG27 0JG
Telephone [phone]
E-mail [e-mail]
Online catalogue WatersidePress.co.uk
Table of Contents
Copyright and Publication Details
Foreword
Contributors
The Author of the Foreword
Editorial Preface
The Journey of this Book
Introduction
Overview of the Chapters
References Civilising Procedure Justice and Punishment: Myths, Mercy and Anglo-Saxon Attitudes
David Cornwell
Setting the Scene
An Historical Overview
Penal Mythology: Fantasy and Folklore
Justice ‘Systems’
Bifurcation
Decarceration
Mercy: Means and Ends Within Civilised Justice
Penal Reform and Anglo-Saxon Attitudes
Conclusion: Does the Restorative Ethic Have a Future?
References Restorative Justice as a Procedural Revolution: Some Lessons from the Adversary System
F. W. M. (Fred) McElrea
Introduction
Restorative Justice as a Procedural Revolution
Historical Overview
An Overview of Adversarial and Restorative Processes
Some Final Thoughts
References
Case Retribution and/or Restoration? The Purpose of our Justice System through the Lens of Judges and Prosecutors
Borbála Fellegi
Introduction
The Methodology and Sample of Research
The Opinions of Legal Practitioners on Mediation
Conclusions
References Crime and Justice: A Shift in Perspective
Louis Blom-Cooper
Preamble
Models of Criminal Trial
Criminal Proceedings
Victims of Crime
An Alternative Strategy
Concluding Observations
References
Cases Civilising Civil Justice
Ann Skelton
Introduction
Legal Pluralism Reveals Other Ways of Doing Justice
A Call for the Recognition of RJ in Defamation Suits is Answered
Conclusion
References
Cases Seriousness: A Disproportionate Construction and Application?
Christine Piper and Susan Easton
Introduction
Calculating Culpability and Harm
Establishing Aggravation
Previous Convictions
Other Justifications?
Conclusion
References
Cases Civilising Theory Civilisation of Criminal Justice: Restorative Justice Amongst other Strategies
John Blad
Introduction
Criminal Justice and Civilisation
Penal Instrumentalism
Conditions and Expressions of Harshness
Restorative Justice and Other Strategies of Civilisation
The Strategic Value of Agreements
References Tempering Justice with Compassion: Rationales of Personal Mitigation in Sentencing
Bas van Stokkom
Introduction
Just Deserts and Personal Mitigation: Theory Versus Practice
Beyond Just Deserts Reductionism: Tasioulas’ Theory
Personal Factors and Leniency: Criticism and Contra-criticism
Facilitating Responsibility
Rationales of Personal Mitigation
Conclusions
References To Punish or to Restore? A False Alternative
Serge Gutwirth and Paul De Hert
Introduction
Restorativism Instead of Law
Restorativism Alongside Law
Conclusion
References Dialogical Justice: Philosophical Considerations for Re-thinking the Reaction to Crime in a Restorative Way
Federico Reggio
Viewing Restorative Justice from a Philosophical Perspective
The ‘Foundations’ of the Paradigm: Restorative Justice and the Challenge of Ethics
Orienting RJ: Beyond Modernity and Postmodernity
The Risk of Undermining Restorative Justice: An Example
Beyond Dogmatism and Scepticism
Is There a ‘Third Way’? Suggestions from the Past
The ‘Indigence of Truth’ and the ‘Dialogical Principle’
Implications of the Dialogical Principle for the Theory and Practice of Criminal Justice
Restorative Justice and the Challenge of Complexity
References From Civilising Punishment to Civilising Criminal Justice: From Punishment to Restoration
Lode Walgrave
Preserving a Criminal Justice System
Making Criminal Justice More Civilised
Restorative Justice
Conclusion
References Civilising Practice Could a Restorative System of Justice be more Civilised than a Punitive One?
Martin Wright
Introduction
Assumptions on Which the System is Based
Punishment and Sentencing
Two Paradigms
Would Restorative Justice be More Civilised?
Discussion
Conclusion and Outlook
References Beyond Restorative Justice to Restorative Practice
Thomas Trenczek
Crime as Conflict
Justice as Fairness — Justice as Participation
Mediation in Criminal Conflicts and in Civil Disputes — A Community Justice Orientation
Restorative Justice Goes Further
References Restorative Justice and Penal Mediation: The French Exception
J-P Bonafé-Schmitt
Introduction
Context of the Development of Restorative Justice in France
Differences in Matters of Restorative Justice
Difficulties in the Development of Restorative Justice in France
Conclusions
References Positioning the Offender in a Restorative Framework: Potential Dialogues and Forced Conversations
Claire Spivakovsky
Introduction
Part 1: The position of the Adult Offender in Contemporary Literature and Practice
Part 2: Adult Offender Populations that are Exceptions and Therefore Have Been Met with Restorative Justice Approaches
Observations and Conclusions
References Development of Restorative Justice Practices in Norway
Per Andersen
Introduction
RJPs are Connected to the Criminal Justice System (in Norway)
Organizing RJP in Norway
A State Service
RJP and CJS
Future Perspectives
Characteristics of the Criminal Justice System
RJ Limitations or Dilemmas
References Downsizing the Use of Imprisonment in Finland
Tapio Lappi-Seppälä
Introduction
The Decline of Imprisonment in Finland
Causes and Consequences: Explaining Penal Liberalisation
The Role of Restorative Justice — Mediation
Conclusion
References Conclusions
David Cornwell, John Blad and Martin Wright
References
Index
Foreword
Many of the authors in this collection are people I have admired for their depth of character for a long time. I like to think they are attracted to this topic because there is also a depth of character, resolve combined with humility about capacity for error, to restorative justice as a movement for the transformation of society. The editors of this volume have done a wonderful job in assembling a distinguished and thoughtful group of writers on the past and future of restorative justice.
Some of the most civilising gems of restorative justice practice and writing do not use the expression restorative justice. A good example is Robert Baruch Bush and Joseph Folger’s 1994 book, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition . I like to read this work as a micro-theory of how to advance the civilisational virtues of what Lode Walgrave in this volume conceives as republican values. Empowerment and recognition are the key micro-foundations for building a democratic civilisation in Bush and Folger. Empowerment gives citizens voice in a democracy; it transforms them from being weak and alienated to becoming strong and contributing. Recognition means acknowledgement and empathy for the struggles of others. A brilliant micro-insight is that it is recognition that helps us move from being self-absorbed to being ‘responsive’. At this micro-level, being responsive means being attentive and open to others so citizens can become part of the project of transforming relationships. Responsiveness means for Bush and Folger being attentive and open to others, prepared to see their point of view and responding to their good faith with trust.
Those who have read Shadd Maruna’s great book, Making Good: How Ex-Convicts Reform and Rebuild their Lives , will see some common threads with all of this, though Bush and Folger contribute their helpful language of empowerment, recognition, responsiveness. Responsiveness born of recognition and strength born of empowerment are mutually reinforcing, enabling ‘ compassionate strength’. Relationships can be transformed on a foundation of compassionate strength from being destructive and demonising to constructive, connecting and humanising. We can conceive of connecting with one another’s humanity as the micro-foundation in civility of a democratic republic. Conversely, alie