Developments in the Czech Republic and in Zimbabwe are most
encouraging. Perhaps they will show the way to those countries where alternatives to
prison are the poor relation of the penal system, struggling to fulfil their objectives in
the face of a rapidly rising prison population and a collapse of public faith in any
penalty other than prison. Those leaving the court room without a term of imprisonment are
seen to have "walked free". Justice has not been seen to be done. Alternatives
are still seen as a poor second-best to the only "real" punishment, which is
prison.
Clearly alternatives can never replicate the imagery of prison. But
they have other aspects which should appeal. Restitution and reparation are long-standing
ways of responding to crime, with as rich a history as retribution. John Braithwaite, [3] the Australian criminologist has developed the notion of
"shaming". Shaming evokes images of the stocks and public humiliation. This sort
of shaming is not at all what John Braithwaite has in mind. His shaming he calls
"reintegrative shaming". It is a form of shaming that "reintegrates"
because it makes the convicted person want to be re-admitted to the society that has been
harmed. The shaming process does not involve the hatred of the community but its sorrow
and wish to repair the relationships that have been damaged.
According to Braithwaite, sanctions imposed by people who are
personally relevant to the wrong-doer have more effect than those imposed by " a
remote legal authority". (Braithwaite 1989) [3]
A number of groups are working to find ways of putting such ideas into
a form where they can be part of the criminal justice process and they are being put into
practice in a small way in various parts of the world. In New Zealand for example young
people between the ages of 14 and 17 are dealt with in the youth court. In some ways the
youth court follows the traditional adversarial model but once guilt has been established
the dramatically different model comes into play. The decision on what sentence should be
given emerges from a completely new method called Family Group Conferencing.
The Family Group Conference is brought together by a state official, an
employee of the Social Welfare Department who takes the chair at the conference. It is
attended by a large group of interested parties. First, the young person who has committed
the crime and members of his or her family have to be there. The young person can ask for
a "youth advocate" to be present too and the family can ask for the presence of
anyone else they feel would be helpful. Perhaps someone who works in a drug addiction
agency would be able to help. Also present is the victim, often accompanied by some
supporters, and a police officer usually from the specialist section of the police that
deals with youth. Sometimes a social worker attends but judges are never present. Usually
between 6 and 12 people attend the Conference but numbers can rise to 20.
The object of the conference is to reach unanimous agreement on what
the sentence on the young person should be. A solution has to be found that commands the
support of the wrongdoer, the victim of the wrongdoing and the police officer. If the
conference cannot reach a unanimous decision the matter is referred back to the judge in
the court. The conference sometimes recommends the case back to the court so that a court
sanction can be imposed. Usually however it draws up a plan involving an apology,
restitution to the victim, either money to be paid or work to be done, doing work of
benefit to the wider community, an agreement to perhaps stay indoors at certain times, go
to school regularly or not associate with certain friends deemed to be bad influences. The
plan is put to the court and the court then adjourns the case for a few months whilst the
plan is put into action. If it is successfully completed the proceedings are dropped.
The conferencing system has wider possibilities however. If a young
person admits an offence the police can refer it straight to the conference and if
everyone at the conference agrees that it can be handled out of court, then the conference
goes ahead. More than four out of five cases have been handled this way.
The manager of Youth Services in Auckland described the process as she
saw it.
"The violated person is able to express her or his anger and
resentment directly to the violator; the victim has begun the process of being back in
control, of being empowered something she or he was robbed of by the offence. This is the
first step in the healing process. The offender's reaction to this event is clearly
visible to all present. The most frequent response ...is one of shame and remorse. When
the victim stops speaking there is almost always a powerful silence, a stillness, while
the eyes and thoughts of all those present are focused on the young person... after a time
I will ask the young person how he feels about what has been said. This will elicit an
indication of shame...The majority will then proffer an apology. The victim then has the
opportunity to accept the apology and often doing so begins to display the first signs of
forgiveness and compassion." (quoted in Church Council 1996) [4]
It is greatly to be hoped that the process described here can so catch
the imagination of the designers of the penal systems of the world that at last there can
be a quantum leap from an irrelevant penal system inherited from eighteenth century Europe
into an approach more appropriate to a new millennium.
Vivien Stern, London,
11 February 1997
