Pros and Cons from the Victim’s Point of View
A father is brutally murdered. After 20 years his killer comes up for parole. The victim’s family is consumed by intense feelings of anger, vulnerability, and insecurity. They avail themselves of their right to address the parole board, and the convict is not released. But a daughter, now a young mother, asks to meet the man who killed her father, in order to try to find peace within herself and for her family. The convict feels deep remorse for his terrible crime and agrees. When they are brought together within the prison, she sobs a great deal but eventually is able to tell her story of trauma, loss, and yearning for heal- ing. The inmate explains his actions, how his life was
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ruined, and the enormous shame he endures. After five hours, the daughter looks directly at the convict and declares she forgives him for killing her father because this will free her from the pain that has burdened her for 20 years. (Overland, 2011)
Practitioners who work with victims in restor- ative justice programs believe that forgiveness achieved through victim–offender dialogues can play a crucial role in the recovery process (see Fehr et al., 2010). In the aftermath of serious crimes, victims can tell offenders in their own words exactly how they suffered physically, finan- cially, and emotionally. They can ask troubling questions that only the offender can answer (such as “How did you get in?” or “Were you following me?”), which might finally lead to peace of mind and closure. If they dread the public spectacle of testifying and of being cross-examined in open court, they will be relieved to take part in a low- key proceeding behind closed doors. Informal jus- tice has proven to be speedier, cheaper, and more accessible than formal hearings and trials. Cases are handled sooner, are heard at times and places con- venient to the participants, and cost less in terms of time, money, and stress. People who have been harmed can feel a sense of empowerment by repre- senting themselves rather than accepting the ser- vices of a prosecutor who primarily looks after the state’s interests or, in civil court, a private attorney who is after a share of the judgment awarded to the plaintiff. The settlement can be seen as a vindication if the other party apologizes in writing and under- takes restitution as an admission of responsibility. Such agreements can provide a sound basis for rec- onciliation for people who want to—or have to learn to—get along with each other in the future within their community. Smoldering tensions that might flare up again and result in violence and retaliation can be smothered (see Price, 2002). From the standpoint of survivorology, restorative justice programs might provide the opportunities that are necessary for resilient victims to take advan- tage of so that they can recover from their ordeals.
Civil libertarians have some reservations about the way restorative justice is carried out. They are
concerned that the emphasis on healing and redemption undermines the presumption of inno- cence and other legal practices in adversarial pro- ceedings (such as remaining silent) that protect the accused from the power of the state. Suspects and defendants are being pressured to give up their due process rights and readily admit guilt in order to negotiate restitution arrangements and get out of the grip of the punitive system. Offenders from more privileged backgrounds may be more able to buy their way out of trouble or work off their debts than disadvantaged wrongdoers with few market- able skills. Sentence disparity grows because the consequences for committing the same crime vary substantially, depending entirely upon the input from the particular victim and whatever commu- nity members take part in the unstructured confer- encing process. Whereas court proceedings are generally open to the public to ensure that rules are properly followed, conferencing usually takes place behind closed doors. Also, the willingness of programs to deal with even the most minor infractions stimulates the criminal justice system’s appetite for widening the net—intervening more intrusively into private matters that previously would have been off-limits to outsiders (see Butler, 2004b).
But from the victims’ viewpoints, other draw- backs persist. As with criminal court-ordered restitu- tion, the opportunity for a mediated settlement arises only in cases where a suspect has been apprehended but not necessarily formally convicted. Statistically, that prerequisite excludes most property crime vic- tims. As for violent crimes, the harm inflicted in a moment can last a lifetime. Injuries and losses might be so great that they add up to expenses that far exceed what the offender is able to repay and what a small community can afford to reimburse. The limited capacity of the offender and the community to provide resources might serve as a cap that prevents a seriously wounded person from fully recovering all expenses (Herman, 1998).
For victims of minor offenses who are embroiled in ongoing conflicts for which they admittedly bear some responsibility, alternative dis- pute resolution offers several advantages over adju- dication in criminal or civil court. If the injured
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parties don’t want an arrest to be made or charges to be pressed, they now have the additional option of bringing their problems to a neighborhood jus- tice center. Incidents that otherwise would be too trivial to interest the police or prosecutors can be addressed (see Cooper, 2000).
A completely innocent victim might find infor- mal justice unsatisfactory. If the process consciously abandons the presumptions of guilt and innocence that underlie the labels offender and victim and terms both parties disputants, then the complainant’s con- duct is open to scrutiny, especially in the absence of rules governing evidence and cross-examination. The notion of shared responsibility is frequently invoked by mediators who view disputes as out- growths of misunderstandings and the pursuit of nar- row self-interest by both parties. To reach a compromise, complainants might be pressured to concede more responsibility, fault, or involvement than they feel they should. The entire notion of a compromise solution as a means of achieving recon- ciliation rests on the practice of both parties giving in, to varying degrees, from their original demands. Complainants who insist that they are absolutely blameless can feel cheated. When their case was diverted from the criminal justice system, that reas- signment symbolized a withdrawal of governmental support (prosecutorial backing) from their side. They may feel that they were coerced to give in to a pre- ordained outcome—reconciliation—even if their legitimate feelings of anger and hostility have not dissipated.
For victims intent on revenge, the greatest drawbacks of mediation and restitution are that these processes are not punishment-oriented. Neighborhood justice centers and victim–offender reconciliation programs are not authorized to con- vict offenders, publicly humiliate them with the stigma of the label of criminal, impose stiff fines, or confine them in a penal institution (Garofalo and Connelly, 1980; Butler, 2004b).