This lengthy but worthwhile article in The New York Times Magazine examines that question and the practice of restorative justice.
Most modern justice systems focus on a crime, a lawbreaker and a punishment. But a concept called “restorative justice” considers harm done and strives for agreement from all concerned — the victims, the offender and the community — on making amends. And it allows victims, who often feel shut out of the prosecutorial process, a way to be heard and participate. In this country, restorative justice takes a number of forms, but perhaps the most prominent is restorative-justice diversion. There are not many of these programs — a few exist on the margins of the justice system in communities like Baltimore, Minneapolis and Oakland, Calif. — but, according to a University of Pennsylvania study in 2007, they have been effective at reducing recidivism. Typically, a facilitator meets separately with the accused and the victim, and if both are willing to meet face to face without animosity and the offender is deemed willing and able to complete restitution, then the case shifts out of the adversarial legal system and into a parallel restorative-justice process. All parties — the offender, victim, facilitator and law enforcement — come together in a forum sometimes called a restorative-community conference. Each person speaks, one at a time and without interruption, about the crime and its effects, and the participants come to a consensus about how to repair the harm done.
The methods are mostly applied in less serious crimes, like property offenses in which the wrong can be clearly righted — stolen property returned, vandalized material replaced. The processes are designed to be flexible enough to handle violent crime like assault, but they are rarely used in those situations. And no one I spoke to had ever heard of restorative justice applied for anything as serious as murder.The article tells the story of a murder case in which the victim's parents forgive the man who killed their daughter. It's a moving and thought-provoking example of how our justice system can sometimes think outside the box -- even in the worst of the worst cases.
Of particular interest, pay attention to the section that discusses the community-based plea bargaining, at which the victims, offender, prosecutor, and unbiased mediators offer their thoughts on an appropriate sentence. Compare that to a system in which prosecutors make a unilateral, unreviewable plea offer, behind closed doors and (often) with little or no input from victim, offender, and community. Which system is fairer and more accountable to the community? Which system is more likely to produce a sentence that all parties can not just live with, but also respect?
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