Victim-Centred Approach to Imprisonment: Restorative Justice

Hürriyeti Bağlayıcı Cezaya Mağdur Merkezli Yaklaşım: Onarıcı Adalet

Harun IŞIK

The penal system has been under the influence of particularly three main philosophies: retributive approach, utilitarianism and restorative justice. Retributive rationale having crime-centred outlook defended pure punishment. It grounds on offence and severity of it in the punishment to be given the crime. As a result of the search for solutions to increased crime and number of criminals, retributive approach gave its place to utilitarianism. It focused on criminal centred point of view instead of crime-centred outlook. After utilitarianism, the imprisonment has been adopted to the penal system since 17th century. The rehabilitation of prisoners came into question with this theory and this was introduced in the UK in the last quarter of the 18th century, especially as a religious based. Different rehabilitation activities have been implemented in the course of time as a reflection of this understanding. The constant increase in the number of crimes and criminals brought about the searching of the reduction and prevention of crime, as a result of this, the restorative justice was practiced in the penal system of developed countries such as the United States, the United Kingdom and Canada after 1980. It has a victim-centred structure rather than crime or criminal centred and is focused on correcting the relationship between the offender and the victim with different programmes. Restorative justice has brought new concepts into the justice system such as responsibility, repentance, forgiveness, reconciliation, restitution, restoration and compensation. In this paper has been analysed the philosophy of imprisonment focusing on three central approaches, especially restorative justice.

Penal system, retributive approach, utilitarianism, restorative justice, crime, criminal, victim.

Ceza sistemi özellikle üç ana felsefenin etkisi altında olmuştur: cezalandırıcı yaklaşım, faydacı teori ve onarıcı adalet. Suç merkezli bakış açısına sahip olan cezalandırıcı rasyonalite sırf cezalandırmayı savunmuştur. O, suça verilecek cezada suçu ve suçun şiddetini esas almaktadır. Artan suç ve suçlu sayısına çözüm arayışlarının bir neticesi olarak cezalandırıcı yaklaşım yerini faydacı teoriye bıraktı. O, suç merkezli bakış açısının yerine suçlu merkezli yaklaşıma odaklandı. Faydacı teori ile birlikte 17. yüzyıldan itibaren hürriyeti bağlayıcı ceza infaz sistemine adapte edildi. Bu teori ile birlikte mahkûmların rehabilitasyonu gündeme geldi ve bu, 18. yüzyılın son çeyreğinden itibaren İngiltere’de uygulamaya konuldu, özellikle dini temelli olarak. Bu anlayışın bir yansıması olarak zaman içerisinde farklı iyileştirme faaliyetleri de gerçekleştirilmiştir. Suç ve suçlu sayısındaki sürekli artış suçu azaltma ve önleme arayışlarını da beraberinde getirmiş, bunun sonucunda da onarıcı adalet 1980’den sonra Amerika, İngiltere ve Kanada gibi gelişmiş ülkelerin ceza sisteminde uygulamaya konulmuştur. O, suç veya suçlu merkezli olmaktan ziyade mağdur merkezli bir yapıya sahiptir ve farklı programlarla suçlu ve mağdur arasındaki ilişkiyi düzeltmeye odaklanmıştır. Onarıcı adalet, adalet sistemine bağışlama, uzlaşma, pişmanlık, zararı tazmin etme ve onarma gibi yeni kavramlar getirmiştir. Bu çalışmada üç merkezi yaklaşıma, özellikle onarıcı adalete odaklanılarak ceza felsefesi analiz edilmiştir.

Ceza sistemi, cezalandırıcı yaklaşım, faydacı teori, onarıcı adalet, suç, suçlu, mağdur.

Crime is a fact which has existed in every society during history. It affects relations between people in an unfavourable way by breaking the social system. As a reflection of the increase in crime, the number of criminals is going up all over the world as well as in Turkey.¹ Accordingly, the prisons serve the community with a capacity above. This situation leads many individual, social and economic problems. When we consider prison conditions, we can notice that they give rise to individual and psychological troubles such as restrain, embarrassment, depression, isolation, unknown, fear, danger and stress. As for the social problems, one of them is the divorce because of the long-term conviction and sometimes to give the children to the child protection institution owing to the broken family structure. The second is to provide the necessary support and assistance to the inmate’s family such as money, shelter. The third is to give required support to the inmate and his/her family for a healthy family atmosphere after release. The fourth is to create a home and a job for people who do not have a home and work after their release. The fifth is to try to eliminate the probable problems such as fear, anxiety, insecurity related with victim in particular and all society in general. With reference to economic problems, first of all is the necessity of the construction of new incarceration as a result of the shortage of space caused by rapid increase. Other one is the need for more staff and resources to ensure security and meet the needs of prisoners such as education and rehabilitation activities and vocational courses. When we take into consideration the age and gender, these problems are various and much more. The people, organizations and institutions interested in the penal system and incarceration have been continuously search for solutions to the problems mentioned above. That is why the issue of prisons and prisoners has always an important place on the public agenda. The existence of prisons and their goals have been among the issues which have consistently been discussed and perhaps will continue to be discussed in the future. Why should offenders be punished? It may be said that offenders should be punished because they deserve it. Criminals must be punished to prevent and reduce re-offense and to make people realize that laws must be obeyed and thereby to prevent them from committing a crime. They should be penalized to ensure security and tranquillity, to relieve the mind and life of both victim and society and to protect us from dangerous or harmful people. Why did prisons come into being? What is the purpose of convicting someone? Is prison merely to punish the offenders or to protect the society? Is it also the institution that helps to educate, rehabilitate of prisoners by implanting moral and social values during imprisonment and provide them occupation and thus are the means by which prisoners can reintegrate into society after release.² Maybe prisons are for giving prisoners the opportunity to think about their current positions, to make amends for the harm they have caused.³

When the penal history is analysed, it will be seen that three main approaches have been proposed to the above questions. One of them is retributive rationale; the other is utilitarianism⁴ and the last one is restorative justice⁵. The penal history commenced with retributive rationale, changed its direction to utilitarian philosophy and restorative justice came to the fore at the end of 20th century in developed countries such as UK, USA and Canada.

Retributive theory defended by Kant (d. 1804) and F. Bradley (1924) has a crime-centred approach. It focuses on the offence and its seriousness.⁶ The central point of this approach is that punishment is necessary because the offender has deserved it by infringing the law and harming others.⁷ It is a fact that every human who has free will is responsible for his behaviours and attitudes.⁸ Everybody living in a community has to accept the rules of the community that he/she lives in. If one of the citizens in the society harms another or breaks one of the social rules, this means that he/she should be punished. According to this approach based on rationale of “an eye for eye, a tooth for tooth, and a life for life”, it should be balance between crime and punishment.⁹ As a reflection of this perspective, retributive theory called the courts to abide by the severity of the crime in punishment.¹⁰Likewise, in respect of Kant, the offender would have an unfair advantage against victim and other innocents. Consequently, he should be punished proportionally to establish justice and to eliminate unjust advantage.¹¹