Criminal Law LLM 1 Year

Section 5: Crime and Justice

Ms. Bhavana Mahajan 21st April 2016

Email: bhavana.mahajan@gmail.com

Topics

n  Restorative Justice n  Theories of Punishment n  Victimology n  Plea Bargaining n  Sentencing Policy in India n  Prison Reforms

First Principles

n  What is crime? n  Why is it ‘bad’? Who does it affect? n  Does it change over space and time? Why? n  What is Justice? n  What is the relationship between crime and justice?

I. RESTORATIVE JUSTICE

WHY IS CRIME TRAUMATIC: Victim Lens

n  Key Questions: –  WHY DID IT HAPPEN TO ME? –  WHAT IF IT HAPPENS AGAIN? –  WHAT DOES THIS MEAN FOR ME AND FOR MY OUTLOOK? (my faith, my vision of

the world, my future) n  Judicial needs of Victims include:

–  Safety/prevention concerns –  Restitution: Restitution can provide a sense of Restoration on a financial as well as

symbolic level –  Answers: Information is important to the Victim –  Opportunity to tell their side of the story: Victims need opportunities to express and validate

their emotions; their anger, their fear, their pain –  Empowerment: Their sense of Personal autonomy has been stolen from them by an offender

and they need to have this sense of personal power to returned to them –  …

MEANING

IDENTITY

RELATIONSHIP

n  Disorder: Crime may upset our sense of meaning which is a basic human need

n  Dis-empowerment: Crime is in essence a violation of SELF – who we are, what we believe, of our private space

n  Disconnection: It is a violation of our trust in our relationship with others

BUT….

Traditional justice mechanisms focus almost exclusively on offenders…..the victim’s voice is silenced out.

WHY IS CRIME TRAUMATIC: Offender Lens

n  What does the offender “deserve”? Default Answer: Punishment

n  Does Punishment Work? Not always since it: –  Takes away any sense of ‘responsibility’ (issue of ‘accountability’ for the

crime): a system of punishment requires elaborate due process that encourages self-defense and self-preoccupation on the part of the offender. As such it encourages the offender to fight conviction rather than take responsibility.

–  Destroys self worth (the offender’s self-image as a ‘victim’): Gilligan argues that violence (a wrong or ‘crime’) is motivated by a desire to achieve justice or undo injustice. Punishment, therefore, merely confirms this sense of injustice. (Trauma unaddressed is re-enacted)

–  Isolates from the larger community (the offender as a social ‘victim’): Adds to the offender’s sense of victimization at the hands of the system, society.,

–  Degrades them (‘shaming’ effect): reinforces shame which may have been the original cause of the offense (Gilligan)

–  …..

WHY IS CRIME TRAUMATIC: Community Lens

n  What is a ‘community’? n  What are the needs of the community? n  What is the role of the community as you define it in the process of

responding to harm, building relationships and the process of justice? n  What are the risks and benefits of community involvement in

implementing justice mechanisms? n  What is the relationship between community and ‘State’?

Can Restorative Justice Itself be traumatic?

n  When the victim and the offender are not equal: in some traditional societies, the victim and offender may not be at the same socio-economic plane – even if they were to sit across the table they would not be able to do so as equals bonded only by the crime. In such a context, the offender in is the more powerful entity, socially and/or economically. In such a scenario, a community-based restorative justice model underlined by power inequality could in fact aggravate the context

n  The ‘Community’ itself as a source of crime: Zehr envisages the community to be a

homogenous healing whole. However, in most of the developing world, community-based decisions are dominated by the caste- and class-based politics with decisions taken by a few and followed by the rest. Thus while community set-ups such as ‘Panchayats’ in India are envisaged to be empowering justice delivery mechanisms at the grassroots, in practice, these can themselves become offenders or tools for commission of crime

n  Issue of on-time recourse to justice: restorative justice mechanisms sometimes may have

very long gestation periods which may even exceed life-times of individual human beings rendering the process of justice meaningless in some cases.

Discuss

TASK: REFLECT ON A JUDICIAL RESPONSE KEEPING IN MIND THE FOLLOWING PARADIGMS

n RETRIBUTIVE n REPARATIVE n RESTORATIVE

RECAP

THE PROBLEMS OF PUNISHMENT

n  Often ineffective or counter-productive n  Focuses on symptoms rather than causes n  Reinforces ‘street’ justice – an eye for an eye n  Encourages isolation rather than integration…

QUESTIONS:THE VICTIM

n  WHAT HAPPENED? n  WHY DID IT HAPPEN TO ME? n  WHY DID I ACT AS I DID AT THE TIME? n  WHY HAVE I ACTED AS I HAVE SINCE THAT

TIME? n  WHAT IF IT HAPPENS AGAIN? n  WHAT DOES THIS MEAN FOR ME AND FOR MY

OUTLOOK? (my faith, my vision of the world, my future)

NEEDS OF OFFENDERS

n  ACCOUNTABILTY THAT ü  Addresses harms ü  Encourages empathy and responsibilty ü  Transforms shame into honor §  ENCOURAGEMENT FOR PERSONAL CHANGE ü  Affirmation of worth ü  Competencies enhanced ü  Needs addressed, including contributing harm ü  Opportunities to “RE-story” their lives