Criminal Justice System Based on Resolution and Restoration - Essay Example

Critically assess whether a criminal justice system based on resolution and restoration would be more effective than the one based on punishment. While the main purpose of the adult criminal justice system is to punish the criminal according to the level of his or crime, the aim of the juvenile justice system is to apply rehabilitation or mentoring to juvenile offenders in order to prevent further crimes and to change their delinquent behavior. The core motivating principle of the juvenile system is rehabilitation. This is because juveniles are not fully mentally or physically developed; they cannot be accountable for their actions in the same way as adults. Additionally, many juvenile offenders come from broken homes or bad neighborhoods and many have been abused. They need a second chance because many have not received even a first chance. Additionally, rehabilitation is by far the best option for them because of the way they would almost certainly be exploited and turned into hardened criminals if sent to prison. This paper will provide further background to the issue of rehabilitating juvenile offenders, and strongly argue that it is the right approach. The justice system fulfills an important symbolic function by establishing standards of conduct. It formally defines right and wrong for citizens and frees them from the responsibility of taking vengeance, thus preventing the escalation of feuds within communities. The system protects the rights of free citizens by honoring the principle that individual freedom should not be denied without good reason. Rehabilitation has as its objective the return of offenders to the community as cured and viable members of society. The rehabilitation efforts of the 1980s and 1990s were to a large extent unsuccessful. No program appeared to be any more effective in changing criminals than any other program, so a sizable portion of the people released from prison continued to return (Murphy 49). This led many to conclude that the best, and possibly only, alternative was simply to remove offenders from the community, precluding any further vexation and exploitation by them. Since criminals are thought to be more likely to commit crimes than those never convicted of a criminal act, it follows that some benefits will be derived from incarcerating convicted criminals. Incapacitation has the greatest potential as a method of crime control if it is a few hardened criminals who commit most crimes. If they can be identified, convicted, and incarcerated for long periods, a significant reduction in crime would be realized. Most advocates of punitive reform have this perspective on the criminal population. Blame for the majority of crimes committed is placed on a relatively few compulsive, predatory individuals thought to commit hundreds if not thousands of crimes each year (Newburn 54). The final goal behind the punitive reform movement is the reestablishment of retribution. Of all penal goals, retribution is the most moralistic. It contains an element of revenge because the victim deserves to be repaid with pain for the harm suffered. Justice is achieved when the punishment given the offender is equivalent to the harm accruing from the criminal act. Consequently, a social balance or equity is reestablished and maintained within society. But the rules are to some extent thrown out the window when it comes to juvenile offenders. These individuals are categorized differently and there is a separate legal system for them. By the federal standards, any juvenile under the age of 18 who committed a crime is a juvenile delinquent. This is a decision we have taken as a society. We believe that there are serious and important differences between adults and juveniles, and that a one-size fits all approach is not desirable and will not make the situation better. Juveniles are more malleable and easy to influence. It is largely believed that the criminal actions of juveniles might be influenced by such external forces as parental neglect, inappropriate living conditions or relations inside the family. Because of these facts, rehabilitation is an attractive option in dealing with juveniles. Many rehabilitation programs ask that young people with behavioral problems meet with adult tutors regularly in order to produce a stable, trustworthy and continuous friendship, which is expected to influence young juveniles and reduce their anti-social behavior (Maruna and Ward 33). Such transformation in behavior is possible due to the trust and friendship between the juvenile and adult—who can listen to and care about the juveniles problems, be a role model, give good advice, etc. In such a way, mentoring programs may have positive results on juvenile crimes reduction. The aim of rehabilitation is to develop law-abiding behavior and to encourage juveniles to understand the consequences of their actions and to become law-abiding citizens. It can be a difficult process to achieve because it requires the use of both the proverbial carrot and the proverbial stick. The utility of coercion and socialization is seen in child-rearing. With very young children, coercion is the only effective control. If the child goes into the street, she or he is disciplined and told that if she does that again she will be punished again. Threats of sanction tend to be effective only when they are generally accepted; otherwise, people simply seek ways to get around compliance, or they may openly defy prohibitions. Coercion, such as sending such juveniles to prison, may not provide a deterrent. Instead, it may be much more effective to understand the juvenile’s socialization process and try to re-hardwire it while the young person is still malleable. Vedder explains: To use sociological lingo: the juvenile acquires the delinquent behavior as he does any other cultural trait of the cultural heritage passed on to him by his group in the process of socialization. I suggest calling this type of delinquent behavior conformist delinquency, stressing the fact that the child becomes delinquent through conforming with the behavior pattern in his group” (9). Positive adult guidance, understanding, support and friendship can divert young offenders and criminals from further involvement in crimes and acts of civil disobedience and help them join in the rules and behaviors of local communities (Murphy 53). To put it more bluntly: what many young offenders need is good adult role models. This can be found in quality rehabilitation programs. Most juveniles have simply started off on the wrong path; they imitate the most abusive and irresponsible members of their social set or family. With new guidelines and role models they can begin to adjust their behavior. It is important to note that instead of seeing rehabilitation programs as a form of punishment, juveniles participating in such programs should understand they are voluntary and should consider the program as a positive opportunity to change their lives for the better. Certainly, such understanding does not come at once; thus the rehabilitation process can be a long one with juveniles provided with specific meetings, instructions, trainings and conferences. In such a way, by providing young people with a positive adult role model, supervision, and continual training sessions, mentoring programs aim to reduce the risk of a further drift into numerous crimes (Deitch 101). Of course, these are not the exclusive means of rehabilitation. It may be appropriate to combine a softer approach with detention in a juvenile center or to take similar action. The carrot and the stick is again a key analogy. Preventive detention applied to young offenders has been debated for many years. Its proponents argue that it would prevent crime by incapacitating those likely to re-offend (Russel 85). Its opponents claim that it is fundamentally unfair because it allows a judge to make a decision about a persons future behavior. Since no one can accurately predict behavior, particularly criminality, the chances of mistakes are high (Maruna and Ward 83). During the rehabilitation period, the form of sentencing most often used is the indeterminate sentence. Legislatures have set wide ranges for sentencing, and judges mete out minimums and maximums that also have a wide range. This allows correctional personnel the discretion of releasing offenders when they are reformed. No one, other than correctional authorities, particularly cared for this system. Inmates did not like it because their release depended on the whims of the parole board, and offenders never knew exactly when they would be released (Russel 61). Judges and the public did not like it because the term served never resembled the actual sentence given and was almost always shorter. Still, juvenile laws stipulate that a young criminal can be “waived” to the adult court for serious crime. On average about 8,000 juveniles are “waived” through each year (Deitch 29). The “waiver” is practiced in all states except Nebraska, New York, and New Mexico. The cases when “waiver” is applied include murders or intentional killing of several people. After careful examination of a case, the judge decides whether the young criminal should be tried as a juvenile or an adult. New laws specifying set lengths of sentences for particular juvenile offenses allow modifications of the time served based on the specific circumstances associated with a given incident (Russel 66). In some cases, if a youth offender gets sentenced to 5 years, but he is 15 at the time, he will not be transferred to the prison with adults. The law states that a young offender should be imprisoned in a special jail with other young offenders under 18 years old (Murphy 88). These are key policies. While most juvenile offenders are worthy of rehabilitation, we as a society also state that some are not. They are criminals of all ages who should be locked up due to the heinous nature of their crimes. To say the best way to deal with juveniles is to rehabilitate them is not to say that this approach is perfect or will work in absolutely every case. It is simply the best choice considering the issues at hand. Indeed, rehabilitation is part of a larger policy for juveniles who have entered the criminal justice system. The programs and policies which help young offenders to escape incarceration are probation and parole. Restriction of the opportunity for probation and parole often accompany new sentencing legislation. Many states have made it more difficult to be placed on probation for certain offenses and impossible for certain serious ones. Parole, which is the conditional early release from prison under supervision in the community, has also been restricted in many states. In theory, a return to determinacy and the abandonment of rehabilitation eliminates the need for parole, which was designed to help the offender prepare to reenter the community (Murphy 71). Yet parole serves another important function of controlling inmates in prison and is one of the few rewards that can be manipulated. For this reason, most states have retained it. Still, the administration of parole has been modified so that the parole date is determined by the sentence rather than by the paroling authority. Good time--receiving extra credit for time served while maintaining good behavior in prison--is another major form of reward used in prison to control inmates. Because it reduces the total amount of time an individual will serve and modifies the original sentence, several states have considered eliminating it. However, heavy lobbying against the legislation by correctional personnel has prevented its elimination (Maruna and Ward 55). The truth is that crime has been an unfortunate aspect of human existence from time immemorial. Every civilization and country has had to come to grips with and takes steps to deal with it within their own value frameworks. Many of the different approaches to dealing with time come from the various assumptions and values. For countries or systems that believe a criminal is a product of his or her environment, it is more likely that money will be spent on rehabilitation and treatment, with much less of an emphasis on jail time. For those who believe people are responsible for their own actions and intend to commit crimes (indeed intention or mens rea is required in all common law systems in order to convict someone of a crime), the emphasis is likely to be on punishment or locking up the criminal. Clearly these concepts require a great deal of unpacking. The key things to examine are the various explanations for why people commit crimes, be they biological, psychological and sociological, and what sorts of criminal systems such explanations occasion. To begin with, in the criminal justice system there are two opposing modes of looking of how to deal with criminals (Deitch 89). The first is the crime control model, which basically involves locking up prisoners and throwing away the key. The second is the due process model. The gist of this model is that an individual can never be deprived of basic human rights no matter how horrible a crime he or she has committed. Even to put someone in prison is to take away the criminal’s inalienable right to liberty and there must be many appeals and a thoroughly scrutinized process to ensure that everything is done by the book. At its heart the due process model would rather see nine guilty people on the street than one innocent person in prison. The end result of this mode requires many hours of painstaking work by humans checking and rechecking evidence and the court case moving very slowly through the system. Part of the assumption underlying this idea is that criminals are not really responsible for their actions. Instead of taking the view that they have intentionally violated the laws of society or a social contract and that they should therefore be punished, the belief is rather that the system in some way failed them. Perhaps they were not treated well enough under the social programs in place, perhaps their neighbours didn’t stop their parents from beating them. The concept is sociological in a way as it holds that society is responsible for each of its members and should never give up on anyone. If someone committed a criminal act they just need more help from everyone. We need to find a way to rehabilitate people, especially young people. Young people are less responsible and more malleable than adults. Many who break the law come from broken homes or abusive families. Many have never received the support they deserve. Because they have so many years ahead of them, society has for the most part chosen to separate them from adult criminals and make an effort to rehabilitate them. This makes sense as the costs of retribution are simply too high in many of their cases and the burden on the system and our moral compass would be insupportable. Work Cited Bowling, B and Phillips, C, 2002, Chapter 3, Criminological theory pp 55- 75 in Racism, Crime and Justice by the same authors. Pearson Education Ltd. Crow, J. 2001, The Treatment and Rehabilitation of Offenders. Sage Publications Ltd. Deitch, Michele, et.al. 2009, From Time Out to Hard Time: Young Children in the Adult Criminal Justice System, Austin, TX: The University of Texas at Austin, LBJ School of Public Affairs. Farrell, S and Calverley, A, 2006, Chapter 1, Getting to grips with Desistance pgs 1-29 in Understanding desistance from crime, by the same authors. Open University Press Mappes, Thomas A, and Jane S Zembaty. 2007, Social Ethics: Morality and Social Policy. 7th ed. New York: McGraw Hill. Maruna, Sh., Ward, T. 2006, Rehabilitation (Key Ideas in Criminology). Routledge; New Ed edition Murphy, J. G. 2007, Punishment and Rehabilitation. Wadsworth Publishing Company, 1999. Newburn, T. Criminology. Willan Publishing. Russel, C. 2006, Alternatives to Prison: Rehabilitation and Other Programs (Incarceration Issues: Punishment, Reform, and Rehabilitation). Mason Crest Publishers; Library Binding edition. Vedder, C. B. 2002, The Juvenile Offender: Perspective and Readings. Random House. Walklate, S 2003, Chapter 4 Understanding Left Realism pgs 48-72 in Understanding Criminology by the same author. Open University Press The Oxford Handbook of Criminology (4th edn) Oxford University Press. 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