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「Toward a society that can learn from the “phenomenon of crime” – What is Restorative Justice?」

Writer: MORIHISA,Chie(CollegeofLaw,Professor) MORIHISA, Chie (College of Law, Professor)   terms: 2017 2

*What has “punishment” solved up to now? When a crime is committed in society, what comes to mind as a response to it? Most people will probably think of “punishment,” and a “criminal trial” conducted in order to impose it. How much responsibility the person who committed the criminal act bears or should bear is determined and imposed through a criminal proceeding. This existing process of criminal justice is called “retributive justice,” and involves the state imposing a punishment on an individual as a penalty for an act that has been designated as criminal under the law. This approach is based on the idea that criminal responsibility should only be attributed to individuals who had the intention of committing a criminal act – who thought to themselves, “I’m going to do this!” and proceeded to break the law. Through news reports that follow the process from an incident occurring to a determination of guilt, it may seem that the crime in question has been resolved. But for the person who committed the crime, their victim, and the people who have a close relationship to either party, does the imposition of “punishment” really solve all of the problems related to the crime? For example, since the 2000s it has been pointed out that there are many elderly people and people with disabilities in Japanese prisons. It has been shown that a high percentage of people who have been imprisoned are unable to reintegrate into society and are sent back to prison for a new crime committed within six months of being released. Most of these people had been unable to lead a normal life in society even before being sent to prison, and these facilities that cannot refuse to accept them end up playing the role of a social safety net, becoming the “last bastion of social welfare” rather than the “last bastion of law and order.” In other words, harshly punishing people who are unable to live normally in society will not lead to a reduction in crime. “Punishment” is of no use in solving the social problems that underlie crime and ensuring that new victims and offenders are not created. *Looking at “crime” as a “phenomenon” in society – Acquiring the lens of Restorative Justice What does the current state of “punishment” teach us? The “faith in punishment” which holds that “punishment” will lead to a reduction in crime concentrates on the atrociousness of the act in question, and does not require any examination of the situation in which the person who committed the crime had been placed before doing so or the social circumstances of their background. When it comes to interest in offenders themselves, attention is sometimes paid to their internal “darkness of mind.” But the individual in question reaching the point of the “phenomenon” of crime is the result not only of their own characteristics but also by the coming together by chance (misfortune) of various external factors, such as the circumstances in which they are placed, their “context,” and their relationship with other people. This also means it cannot be taken for granted that someone who has never committed a crime in the past will not reach the point of doing so in the future. Here attention has been focused on “Restorative Justice” as an approach that truly addresses the social problem of “crime.” “Restorative Justice” is a “judicial process” or “justice” that seeks to restore or repair the “harms” that are created by crime and conflict in society. In Japan, this way of thinking was introduced at the end of the 1990s, and although the expression used to translate it into Japanese includes a term that normally refers narrowly to judicial processes and the legal system, in its essence this approach involves “justice” in a broader sense and is not limited to these institutions. The idea of RJ was first conceived by a psychologist named Albert Eglash in 1975. Through his involvement in educational programs for people who have committed a crime, he came to believe that in order to truly reduce crime repairing the psychological damage the person in question was suffering from in their lives before committing a crime and having them make amends to the victim or those around them is more meaningful than “punishment” or compulsory education. Two decades later, in the 1990s sociologist Howard Zehr began holding meetings to facilitate dialogue between the person who committed a crime and their victim concerning the criminal act and the damage it caused. These experiences are collected in a book entitled Changing Lenses: A New Focus for Crime and Justice. When the RJ approach is put into practice, instead of determining responsibility for a criminal act and imposing “punishment” at a criminal trial conducted mainly by judges, prosecutors, and defense lawyers, the person who committed the act and their victim, with the involvement of the community around them, discus the criminal act itself, the damage it caused, the circumstances underlying it and what is to be done going forward. *Learning about how society is and should be from “crime” – Restorative Justice as a philosophy of social change Practice (programs) based on RJ initially attracted attention as an “antithesis” of punitive justice focused on “punishment.” But RJ has a larger significance. This broader meaning is a philosophy of social change that seeks a society capable of constructively dealing with not only crimes but all kinds of “wrongdoing” that occur within the community. The process of RJ creates an environment that contributes to everyone affected by an event learning and growing. The following values are emphasized in the RJ process. An approach to talking and sharing itself that includes everyone involved without looking for a quick resolution and without take each person’s role as fixed (for example, addressing the victimhood of someone who had been abused before committing a crime) and empowers all parties so that they can “voluntarily” and “autonomously” participate is required. In other words, this process does not only demand change from the person who committed the crime but aims at the growth of everyone involved, and is premised on respecting all parties. Taking the “phenomenon of a crime” as an opportunity, we learn about social issues underlying this phenomenon and tasks to be undertaken in the future, and demand a “good society” in which everyone can live without enduring “hardship” – this is the positive effect of RJ. To this end, in various foreign countries processes based on the idea of RJ are employed, not only in the judicial system but also in society as a whole; programs addressing problems such as bullying, acts of harassment, abuse and domestic violence are implemented, and in Australia there are even courts called “Neighbourhood Justice Centres” that embody the philosophy of RJ. In Japan, too, I think the time has come to move the debate forward from formal resolution through a criminal trial toward a substantial approach in which we as citizens of this society resolve these problems by ourselves.

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