This chapter evaluates the alternative means of responding to offenders and their crimes which have emerged in criminal justice and have been gaining wider recognition. Those who favour innovations of this kind tend to reject conventional assumptions and approaches, proposing new principles for the operation of the justice system. The chapter considers two distinct but similar challenges to conventional models of justice which have developed from this viewpoint: restorative justice and diversion. Restorative justice is based on the presumption that dealing with crime is a process rather than a single act or decision, that it involves collaboration between those with a stake in the offence, and that it emphasises healing as well as ‘putting things right’. Diversionary interventions, which can include community service, restitution, and education, as well as elements of restorative practice, provide an opportunity for the offender to avoid criminal charges or formal judicial processes, albeit sometimes by meeting certain conditional requirements.
Chapter
30. Alternatives to punishment
Chapter
12. Why punish?
The question of how or why or whether convicted offenders should be punished is controversial in most societies.Whether a judge or magistrate fails to penalize a convicted criminal sufficiently harshly or whether a sentence is too severe is a matter of continual public interest and debate. This chapter briefly considers how the exercise of punishment—in pursuit of the enforcement of the criminal law—might be validated and discusses the various justifications for the exercise of the state’s power to deprive individuals especially of their liberty, life, or, property. These include the concepts of retributivism, consequentialism, restorative justice, and communication.
Chapter
6. Instead of punishment?
Restorative justice, child welfare, and medical treatment
This chapter looks at three very different aspects of sentencing and punishment where there are alternatives to a focus on proportional sentencing and punishment. We discuss two sets of offenders where the court does not have to sentence strictly in line with just deserts. So we focus on children and young people under 18 years of age and examine the policies developed over the past century which have taken into account the welfare of the child, such that diversion from prosecution has been justified and strict proportionality of penal response can be modified. We also focus on those offenders who are deemed to be mentally disordered and review those options available to the sentencing court which focus on treatment rather than punishment. However the chapter begins by looking at an alternative rationale and approach for responding to those who commit offences—restorative justice—and reviewing policy and practice developments. Finally, the chapter provides reflective exercises for all three (potential) alternatives to punishment.
Chapter
6. Instead of punishment?
Restorative justice, child welfare, and medical treatment
This chapter looks at three aspects of sentencing and punishment which—though very different—potentially offer alternatives to a focus on punishment. It first discusses an alternative rationale and approach for responding to those who commit offences, restorative justice and then discusses two sets of offenders where the court does not have to sentence strictly in line with just deserts. So it focuses on children and young people under 18 years of age and examines the policies developed to take into account the welfare of the child, such as diversion from prosecution and a modified approach to strict proportionality of penal responses. Next the chapter focuses on those offenders who are deemed to be mentally disordered and reviews those options available to the sentencing court which focus on treatment rather than punishment. Finally, the chapter provides reflective exercises for all three (potential) alternatives to punishment.
Chapter
42. Restorative justice in the twenty-first century: making emotions mainstream
Meredith Rossner
This chapter explores recent developments in restorative justice theory, research, and practice. It examines reasons why it has been challenging to define restorative justice and offers a comprehensive definition that articulates the relationship between values, processes, and outcomes. It then explores the main theoretical traditions that account for the claims of restorative justice: shame theories, procedural justice theories, and ritual theories. Following this, it reviews the empirical evidence on how offenders and victims experience restorative justice compared to court, and whether it can reduce reoffending. This chapter also discusses contemporary debates around restorative justice and punishment. It concludes by offering an assessment of the future of restorative justice.
Chapter
23. Criminal justice principles
This chapter describes the key principles of the criminal justice system. These key principles behind the abstract aims of criminal justice include the rule of law, adversarial justice, and restorative justice. The chapter particularly focuses on the rule of law doctrine to illustrate its status as the ultimate authority for democratic systems of justice around the world, but it also reflects on three of its supplementary concepts: an independent judiciary, due process, and human rights. Meanwhile, the traditional adversarial contest in a courtroom between two opposing sides means such hearings can lack impartiality as the role of the judge is limited to ensuring that the rules are followed. The restorative justice principle offers a different dimension, one that prioritises repairing the harms suffered by the injured parties.
Chapter
18. Court Mediation Schemes and Other Schemes
This chapter examines Court Mediation Schemes and other schemes. Time-limited, fixed-cost mediations can take place through Court Mediation Schemes and the Civil Mediation Online Directory. Some courts also operate judicial mediation schemes. There are many industry- and sector-specific schemes, and mediation is now being employed in some criminal cases to achieve restorative justice. Mediation can be used effectively in multi-party or complex disputes, although modifications may need to be made to the process to take account of the multiplicity of parties and/or issues. It can also be used in public sector and regulatory disputes. There is a move towards mandatory information mediation assessment meetings at which the parties are required to consider but not undertake mediation.
Chapter
33. Restorative justice in the twenty-first century: Making emotions mainstream
Meredith Rossner
This chapter explores recent developments in restorative justice theory, research, and practice. It examines reasons why it has been challenging to define restorative justice and offers a definition that articulates the relationship between values, processes, and outcomes. It then explores the main theoretical traditions that seek to explain how and why restorative justice ‘works’ as a response to crime: shame theories, procedural justice theories, and ritual theories. Following this, it reviews the empirical evidence on how offenders and victims experience restorative justice compared to court, and whether it can reduce reoffending. It concludes by surveying select debates and tensions that arise as the practice continues to evolve.
Book
Susan Easton and Christine Piper
This book reviews the philosophical principles which underpin penal policy, sentencing and punishment, as well as examining the practical consequences of the legal principles enshrined in English law with an analysis of imprisonment and community punishment. The first part of the book covers the way sentencing law and guidelines are structured and discusses in detail retributivist and utilitarian justifications for punishment, as well as the current importance of public protection from risk and danger. It also covers those offenders and victims who can be dealt with differently, notably the mentally ill and children, together with ways of dealing with the offenders and their victims using restorative justice. Finally, Part A focuses on ways in which the impact of offending on victims and offenders can be reduced. Part B of the book covers in detail conditions in prison including the impact of the pandemic and the experience of imprisonment, especially in relation to women, BAME prisoners and other groups, where equal treatment is problematic. It also focuses on punishment and rehabilitation in the community, covering the available orders and the current approaches to rehabilitation. The civil and criminal orders available for use with those under 18 years of age, are also considered, as well as the way in which rights have been used to protect children in prison.
Chapter
14. Sentencing
This chapter explains the aims of sentencing and discusses the types of sentence that may be imposed upon a convicted offender. The main sentencing options available to a court when an adult is convicted of a criminal offence include: absolute and conditional discharges, fines, community orders, and imprisonment. Custodial sentences include extended determinate sentences, the new sentence for offenders of particular concern, and life sentences. A custodial sentence has punishment as its primary purpose, whereas a community order focuses on reform and rehabilitation. The chapter outlines the key types of sentence that can be imposed upon youth offenders and discusses restorative justice initiatives. It explores the factors to which the judge or magistrates must have regard when passing sentence, including maximum/minimum sentences, the nature and seriousness of the offence, sentencing guidelines and pre-sentence reports.
Chapter
14. Sentencing
This chapter explains the aims of sentencing and discusses the types of sentence that may be imposed upon a convicted offender. The main sentencing options available to a court when an adult is convicted of a criminal offence include: absolute and conditional discharges, fines, community orders, and imprisonment. Custodial sentences include extended determinate sentences, the new sentence for offenders of particular concern, and life sentences, including whole life sentences. A custodial sentence has punishment as its primary purpose, whereas a community order focuses on reform and rehabilitation. The chapter outlines the key types of sentence that can be imposed upon youth offenders and discusses restorative justice initiatives. It explores the factors to which the judge or magistrates must have regard when passing sentence, including maximum/minimum sentences, the nature and seriousness of the offence, sentencing guidelines and pre-sentence reports.
