Question 2: Would You Say That The Court You Observed Reflected A Crime Control Or Due Process Model Of Justice Or A Combination Of The Two?

I attended two court proceedings, one was on 25^thof August, and the second hearing was on 1^stof September. In my observation and judgment, the court reflected the Due Process Model of justice.This is because of the manner in which the proceedings were carried out, the way in which the offenders were treated, and the way the court was structured, they embodied elements that characterize the Due Process Model of justice.

Question 2: Would You Say That The Court You Observed Reflected A Crime Control Or Due Process Model Of Justice Or A Combination Of The Two?

The Due Process Model is an approach to justice which insists on the innocence of a suspect until he is proven guilty. Its key goal is to check manipulation and misapplication of the legal system by the government against both innocent and allegedly guilty people, through protecting individual rights from government intrusion, and prioritizing civil liberties (Cole, et al., 2015). Some of the hallmarks of the due process model are a presumption of innocence for criminal defendants, a fair trial, and a challenging burden of proof beyond any reasonable doubt for the prosecution (Storm, 2016). Due process presumes that suspected offenders are guiltless of the charges against them. The model further believes that even guilty offenders ought to be subjected to fair treatment. Consequently, the model makes it arduous for the criminal justice system to arrest, prosecute, and convict suspects (Barkan & Bryjak, 2011). The model thus posits that the justice process must afford the defense unobstructed opportunity to demonstrate that the prosecution evidence is not conclusive, and the ruling must be determined by an impartial judge. The model is suspicious of the administrative investigative process and skeptical of its capacity to assess guilty accurately without judicial oversight, and as such according to Gaines & Miller(2012) it is dependent on the judicial process and their role in safeguarding and following legal procedures of determining guilt.

The model believes that fairness, not efficiency, is the ultimate goal of any justice process. It stresses on formal adversarial adjudication, and constitutionally guaranteed rights of defendants (Cole, et al., 2015). The defendant is also given a public hearing and evaluated by an impartial judge and has full opportunity to challenge the prosecution’s case.

Characteristics of the Due Process Model of Justice and why I Regarded the Courts to have applied the Crime Control Model of Justice

It is these characterizations of the Due Process Model of justice that made me come to the conclusion that the court sessions I observed reflected the Due process Model of justice. First, the due process model emphasizes on protecting suspected offenders rights and prioritizing civil liberties. This is guaranteedthrough a judicial process. This was present in the court hearings I attended. Both proceedings reflected an element of due process as the offenders were presented before a court of law and a judicial process had been put in place to determine their innocence or guilt through a formal structure of law. Secondly, due process emphasizes on a justice process that presents the defendant and his attorney opportunity to demonstrate that the prosecutor’s evidence is not conclusive by challenging the prosecutor’s case. This was achieved by the presence of a defense attorney whose role was to poke holes into the prosecutor’s evidence and show that indeed the suspect was innocent. In addition, the defendants in both cases received a fair trial; they had a chance to express themselves, and this was coupled by their defense attorneys being given an opportunity to argue their innocence. Thirdly, due process stresses on the innocence or guilt of a suspect being determined by an impartial judge or tribunal. In the court hearings, this was achieved through the presence of a judge who is perceived to be impartial, and as such, it was expected that the trial would be driven with the goal of fairness as opposed to efficiency. In addition, the court trial I attended followed legally prescribed procedures in attempting to establish the guilt or innocence of the suspect. The charges were read to the suspects, and they were expected to plead upon which a judicial process would follow as prescribed by the law. This is a prescribed legal procedure that is reflective of the due process model. Also, the court proceedings reflected the due process of the model as the hearings were conducted in public court where any person could attend. Further, the prosecutor and the defense attorney were both present, and on opposite sides. This is reflective of the due process model which emphasizes on an adversarial process. Lastly, by virtue of the hearing being conducted in a court of law that guarantees judicial oversight, and driven by the assumption of innocence until proven guilty, points towards the due process model of justice.

These elements reflected in the proceedings of the two trials I attended suggest that the trials were applying the Due process Model of Justice.

Question 3: In 600 words Outline the key elements of therapeutic jurisprudence OR restorative justice, and link your observations to the literature on these elements

Elements of Restorative Justice

Restorative justice has been defined as “a voluntary, community-based response to criminal behavior that attempts to bring together the victim, the offender, and the community in an effort to address the harm caused by the criminal behavior” (Johnstone & Ness, 2013). Shapland et al., (2011), states that the model’s central feature is encouraging cooperative problem-solving process involving various stakeholders including offenders, victims, and their communities in meetings. This allows for them to resolve their problems away from a judicial process that is acceptable to them. The model urges offenders to admit the impact of their actions and presents them with a chance to make reparation. According to Liebmann(2007), the goal of restorative justice is to settle dispute and mend damage, and this involves the offender willingly and autonomously accepting his culpability for an offense and eliminating the corollaries through social-constructive activities.

Restorative justice views crime not as an act against the state, but an act against people and relationships. Fattah & Parmentier (2001) identified four dimensions that characterize restorative justice. These included: being moralizing, healing, empowering and transforming. Additionally, that restorative justice is opposed to punishment, and is about criminal harm rather than criminal law; it gives ownership to the victim and offender. Gal (2011) states that the model holds the view that any reaction to crime does not need to impose pain for the pain afflicted, but on the contrary, heal and restore what was damaged. To make the reaction address the needs of those who have been affected by the crime, the model suggests that direct stakeholders are the ones who ought to sit together and decide on the appropriate ways to “right the wrong.” It perceives justice to have been served when the various stakeholders in crime including the community from which the victim and offender come from coming together and search for solutions which encourage repair, reconciliation, and reassurance. In practice, restorative justice involves diverting cases from the criminal justice system to victim-offender mediation programs, community conferences or peace circles. Because the co-operative empowering process cannot be forced, the restorative justice model is voluntary in that it rejects judicial coercion. However, in some case imposition of minimum force may be necessary. Proponents of the model are reluctant to bring legal professionals and authorities into the restorative justice process and argue that co-operative decision-making cannot be accomplished by other people on behalf of primary stakeholders in crime because authorities cannot compel co-operation, remorse, reconciliation or forgiveness (Gavrielides, 2016).

Linking my observations to the literature on the Elements of Restorative Justice

In general terms, elements of restorative justice have been adopted within the criminal justice system of the states and territories of Australia. This is evidenced by the presence of a justice system that advocates for diverting cases from the criminal justice system to victim-offender mediation program, community conferences, and peace circles, especially in cases where minor are involved or special groups. This is one of the observations that I had when I attended the court proceedings. The suspect was a young offender, and the judge took note of this while advising the parties involved on the way forward.

Secondly, the trials I observed, especially the second one that took place on 1^st of September carried the hallmarks of restorative justice, which involves the participation of the community, the victim, and the suspect. In the proceeding, in view of the facts of the case that the suspect was young, was involved in drugs and had lost his father and his mother was a drug addict, the judge avoided the adversarial approach and decided to grant the grandparents of the suspect custody of the young suspect to help him in quitting drugs.This is characteristic of restorative justice which seeks to restore and heal rather than punish an offender. It emphasizes on moralizing, healing, empowering and transforming and stresses on the empowering cooperative problem-solving process which provides the parties involved with an opportunity to solve their problems in a way acceptable to them (Johnstone & Ness, 2013).

Thirdly, the trial reflected restorative justice as the Community Restorative Board was involved in the trial. This is characteristic of restorative justice, as the presence of the Community Restorative Board was meant to bring together all parties with a stake in the offense and empower cooperative problem-solving process providing an opportunity for the parties involved to solve their problems in a way acceptable to them.

References

Barkan, S. E. & Bryjak, G. J., 2011. Fundamentals of Criminal Justice: A Sociological View. 1st ed. Sudbury, MA: Jones & Bartlett Learning.

Birgden, A., 2004. Therapeutic Jurisprudence and Responsibilty: Finding the Will and the Way in Offender Rehabilitation. Psychology Crime and Law, Volume 10, p. 283.

Cole, G. F., Smith, C. E. & DeJong, C., 2015. Criminal Justice in America. 8th ed. Boston, MA: Cengage Learning.

Edney, R. & Bagaric, M., 2007. Australian Sentencing: Principles and Practice. Melborne: Cambridge University Press.

Fattah, E. A. & Parmentier, S., 2001. Victim Policies and Criminal Justice on the Road to Restorative JusticePeters. Leuven: Leuven University Press.

Gaines, L. K. & Miller, L. R., 2012. Criminal Justice in Action. 7th ed. Belmont, CA: Cengage Learning.

Gal, T., 2011. Child Victims and Restorative Justice: A Needs-Rights Model. New york, NY: Oxford University Press.

Gavrielides, T., 2016. The Psychology of Restorative Justice: Managing the Power Within. New York, NY: Routledge.

Johnstone, G. & Ness, D. V., 2013. Handbook of Restorative Justice. New Yor, NY: Routledge.

Liebmann, M., 2007. Restorative Justice: How It Works. Philadelphia, PA: Jessica Kingsley Publishers.

Madden, R. G., 2003. Essential Law for Social Workers. 1st ed. New York, NY: Columbia University Press.

Shapland, J., Robinson, G. & Sorsby, A., 2011. Restorative Justice in Practice: Evaluating What Works for Victims and Offenders. New York, NY: Taylor & Francis.

Siegel, L. J., 2011. Criminology. 11th ed. Belmont, CA: Cengage Learning.

Slobogin, C., 1996. Therapeutic Jurisprudence: Five Dilemmas to Ponder. In: Law in a Therapeutic Key. Durham: Carolina Academic Press, pp. 763-794.

Storm, L. M., 2016. Criminal Procedure By Storm. Raleigh, North Carolina: Lulu Publishing Services.

Wexler, D. B., 1991. Putting Mental Health Into Mental Health Law: Therapeutic Jurisprudence, in Essays in Therapeutic Jurisprudence. In: s.l.:s.n.

 
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