Civilising Criminal Justice: An International Restorative Agenda for Penal Reform

Co-edited with  David Cornwell and John Blad

Civilising Criminal Justice: An International Restorative Agenda for Penal Reform

This wide-ranging book by contributing authors from 12 countries, published in August 2013, examines and questions some fundamental assumptions of criminal justice. When someone commits an act which could fit the definition of a crime, it is not always best to deal with it by criminal prosecution. A historical perspective suggests that restorative processes may be preferable. Judicial and prosecutorial attitudes are explored. Some types of case could be better handled by restorative justice than by a criminal process. For some sexual offences, for example, responsibility could be determined to a civil standard of proof before proceeding to prosecution. Punishment has many drawbacks, including the difficulty in making it proportionate and in the attempt to balance deserts against mercy. It is time to question the behaviourist psychology on which it is based. Other ways of denouncing wrongdoing should be considered, if justice itself is to be ethical. It could be said that criminal justice has become increasingly uncivilised. By using civil law wherever possible, punishment could be kept to a minimum; more could be done to repair the harm caused by offences, and to provide feedback to social and educational policy-makers on pressures towards crime that need to be addressed.

From a philosophical point of view, the use of dialogue is an important part of the restorative response to wrongdoing, not least because it brings the victim into the process. A way to make the system more civilised could be to base it entirely on restorative principles, even for the most serious crimes, and a way is suggested of combining this with the need for denunciation and public protection. Victim-offender mediation can be appropriate even (or especially) for violent crimes. Different levels of implementation in different countries such as Germany, France and Australia are discussed; in Norway and Finland mediation is provided at municipal level nationwide, and in the latter country it has been part of a deliberate strategy of reducing the prison population, with no adverse effect on the crime rate. The book suggests practical ways of designing a system based on dialogue, repairing harm, minimum intervention, and not making things worse, as sound principles for a civilised justice system.

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 Editorial preface
Introduction – The Editors
PART I – Civilising Procedure
Chapter One – Justice and Punishment: Myths, Mercy and Anglo-Saxon Attitudes
David Cornwell
Chapter Two – Restorative Justice as a Procedural Revolution: Some Lessons from the Adversary System – F.W.M. (Fred) McElrea
Chapter Three – Retribution and/or Restoration? The Purpose of our Justice System through the Lens of Judges and Prosecutors – Borbála Fellegi
Chapter Four – Crime and Justice: A Shift in Perspective Louis Blom-Cooper
Chapter Five – Civilising Civil Justice  Ann Skelton
Chapter Six – Seriousness: A Disproportionate Construction and Application?
Christine Piper and Susan Easton
PART II – Civilising Theory
Chapter Seven – Restorative Justice Amongst Other Strategies  John Blad
Chapter Eight – Remorse and Facilitating Responsibility: Rationales of Personal Mitigation in Sentencing – Bas Van Stokkom
Chapter Nine – To Punish or to Restore? A False Alternative
Serge Gutwirth and Paul De Hert
Chapter Ten – Dialogical Justice : Philosophical Considerations for Re-thinking the Reaction to Crime in a Restorative Way – Federico Reggio
Chapter Eleven – Making Criminal Justice More Civilised Through Restorative Justice  Lode Walgrave
PART III – Civilising Practice
Chapter Twelve – Could a Restorative System of Justice be more Civilised than a Punitive One? – Martin Wright
Chapter Thirteen – Restorative Justice Beyond: Mediation (not only) in Criminal Conflicts – Thomas Trenczek
Chapter Fourteen – Restorative Justice and Penal Mediation: The French Exception
Jean-Pierre Bonafé-Schmitt
Chapter Fifteen – Positioning the Offender in a Restorative Framework: Potential Dialogues and Forced Conversations – Claire Spivakovsky
Chapter Sixteen – Development of Restorative Justice Practices in Norway
Per Andersen
Chapter Seventeen – Downsizing the Use of Imprisonment in Finland
Tapio Lappi-Seppälä
Chapter Eighteen – Conclusions  David Cornwell, John Blad and Martin Wright