Application of Restorative Justice to Help with The Societal Control of Crime in The Bahamas

Introduction

A 2016 IDB report entitled the IDB Series on Crime and Violence in the Caribbean, has confirmed what the Bahamian public has long known, that the consistent rise of the crime rate in The Bahamas is alarming and a cause for concern. The abstract states that the objective of the series is to “establish a baseline in the crime prevention arena against which progress can be assessed.” Based on data obtained from a variety of sources including the Royal Bahamas Police Force and public health sources, the upward surge in crime has occurred over a ten year span, with a spike in violent crime in particular (including but not limited to murder, armed robbery, and rape. According to the report, The Bahamas’ murder rate has more than doubled within this 10-year span and is now among the highest in the Caribbean region.

Various methods have been proposed and implemented by the past and present administration to curtail the crime issue that plagues our society. But it is important to assess whether any of these approaches to crime prevention/deterrence have been as successful or promising in application as they have been in theory. A segment of the report entitled Laws, Policies, and Strategies for Reducing Crime and Violence acknowledge two initiatives that commenced in 2011 and 2013 under two different administrations respectively. Within these “anti-crime legislative packages” both administrations proposed that sentences for particularly grievous crimes be increased. In response to this, The IDB made an astonishing observation:

“Given the challenges within the criminal justice system discussed in this report – including unsolved crimes, the significant obstacles to efficiently processing criminal trials, and the overcrowding of the prison system – it is worth asking if longer and more severe sentences is truly the solution to the perceived problem of criminal impunity.”

In the spirit of this statement, I intend to use this paper to explore the ways that restorative justice processes, having proved itself to be an effective deterrent to crime and recidivism in numerous other jurisdictions, could be used in The Bahamas to help with the societal control of crime. I would go so far as to posit that restorative justice may, in fact, be the solution to most of The Bahamas’ crimes. To begin, it must first be explained:

What is restorative justice?

For the implementation of the restorative justice theory to be effective, it is important that Bahamians be educated on what exactly it entails. This is especially true as it relates to individuals who hold a peculiar interest in the eradication of crime. This would include parliamentarians, law enforcement officers, public health officials, legal professionals, perpetrators and their victims. Perhaps most importantly, a successful implementation of restorative justice strategies would require the Bahamian public, as stakeholders in their own right, to buy into the idea and educate themselves.

The United Kingdom’s Restorative Justice Council, on their website, describe restorative justice as follows: “Restorative justice is about victims and offenders communicating within a controlled environment to talk about the harm that has been caused and finding a way to repair that harm.”

Albert Fiadjoe, author of the book ‘Alternative Dispute Resolution: A Developing World Perspective’ summarises at page 122 that “The basic principle of restorative justice is that crime is a violation of people and relationships, and a disruption of community peace. It challenges the conventional view that crime is only an offence against the state.”

Restorative justice proponents purport that its processes remedy the deficiencies of the criminal justice system, particularly: the neglect for the emotional and material needs of victims of crime; the failure to address the harm done to interested parties; the fact that the only available remedies (fines and imprisonment) are inadequate of providing true restitution; and the fact that trials are not only time-consuming but move at a sluggish pace.”

The criminal justice system, as it is, fails to take into account the needs of victims, leaving them feeling side-lined, vulnerable and victimized afresh. It makes the injustice they suffered a matter between the offender and the State, ignoring them altogether. It robs offenders of an experience that may be integral to their rehabilitation: the opportunity to take accountability; to understand and come to terms with the fact that victims are not abstract ideas or simply means to an end. Victims are not only the immediate victims of the crime (who may be deceased) but other interested parties such as family members, and entire communities of other humans who were adversely affected by the consequences of their actions. While such conversations between offenders and victims may at times become contentious, with offenders rationalizing their actions, the overall experience can prove to be of value to both parties.

Fiadjoe posits that the following are key principles which underpin restorative justice:

1. The offence is primarily against the victim and secondarily against the state.
2. Restitution is important in restoring the relationship between victim and offender.
3. Restitution may be achieved by way of reparation, usually in the form of compensation or some form of community service.
4. Reconciliation between victim and offender is also seen as an important objective of restorative justice, but not universally so. Some people feel that victims should not be pressed to forgive and become reconciled with their offender until they are ready to do so.
5. Communication and negotiation between the victim and offender is possible and often desirable to consider how to redress the wrong.
6. Offenders are required to take responsibility for their actions and are given the opportunity to make amends.

It has been found that the reason restorative justice has such a strong effect in reducing recidivism is that when facilitated by trained personnel, such interactions between offenders and their victims can be therapeutic. In effect, it provides closure for both parties by allowing victims to express how they were personally affected and ask questions, and by allowing offenders an opportunity to explain things from their perspective (often humanising them in the eyes of the victims), take responsibility for their actions and make amends for their behaviour. It also creates an opportunity for both offender and victim to collaboratively negotiate a restitution plan that serves their mutual interests.

This allows the parties room to be creative in how restitution is made. For some, restitution may mean restoring losses by physically giving back what was taken or by paying money. For others, it may mean doing manual labour for the victim or engaging in community service. Failing this, victims may also table other forms of restitution that they find satisfactory. The ultimate aim is that whatever is done is done in the spirit of providing closure and re-integrating either the victim or the offender into the community.

What are some of the strategies that The Bahamas can apply to facilitate restorative justice?

There are three modes of restorative justice that are generally used. Namely, (a) family group conferencing (where there is a larger number of participants, inclusive of community representatives); (b) victim-offender mediation (where two parties are facilitated by a trained mediator); and (c) sentencing and healing circles (which hearkens back to earlier forms of alternative dispute resolution in which elders of a community would facilitate the process). It would often take place during sentencing or post imprisonment, allowing the offender to acknowledge responsibility for harm caused and to be re-integrated into society.

The United Kingdom’s Restorative Justice Council, on their aforementioned website, describes one of the strategies of restorative justice employed in the United Kingdom, in particular:

“Restorative justice conferences, where a victim meets their offender, are led by a facilitator who supports and prepares the people taking part and makes sure that the process is safe. Sometimes, when a face to face meeting is not the best way forward, the facilitator will arrange for the victim and offender to communicate via letters, recorded interviews or video…For any kind of communication to take place, the offender must have admitted to the crime, and both victim and offender must be willing to participate.”

As an example of a circumstance in which face to face meetings are not the best way forward, we can look at domestic crimes such as sexual assault. In a 2005 paper entitled ‘The Limits of Restorative Justice.’, Arlène Gaudreault, president and founding member of the Quebec Victims Advocacy Association, posited that restorative justice ought not to be “immediately accepted as an answer to all crimes.” Ultimately, she believes that it is an imperative part of the restorative justice process that victims and their interests have primacy, and that questions of whether a conversation is desired and whether certain relationships ought to be preserved warrant consideration.

This is a sentiment that has been echoed by key stakeholders in even our society, such as Dr. Sandra Dean-Patterson, director of the Bahamas Crisis Centre. She is quoted in a 2005 article from The Bahama Journal as saying: “The psychological element of restorative justice can be helpful for the offender as well as victims where perpetrators take responsibility for the pain and the injury they have inflicted.” She continued, “My only reservation is instances of sexual violence. Officials really want to make sure that the victim would have gone through his or her own healing. We also need to make sure that they are ready for this kind of healing.”

Yet others, are of the belief that the key to forgiveness is the refusal to seek revenge, like columnist Giles Fraser, a priest in London, in his article of the same title. He argues:

It is a similar uneasy feeling one can have with forgiveness itself, that it undermines the basic logic of proportionality that underpins most moral thinking – that the scales of justice require some sort of balance. Crime needs to be offset by a proportionate amount of punishment. An eye for an eye, a tooth for a tooth. Forgiveness ignores all of that, which is why it exists beyond right and wrong.

Yet the problem with the retributive model of justice, constructed as it is upon the moral instinct for proportionality, is that it can easily serve to perpetuate violence and hatred – one act of violence leading to another in response, which can provoke yet another, and so on. The blood feud that can exist between families is the most striking example of how answering violence with violence can be a potentially endless business, with old hatreds forever spawning new ones.

In his article he examines the peculiar restorative justice experience of Brighton bomber Patrick Magee and Jo Berry. Patrick Magee had planted 16 bombs in various cities in the years 1978 and 1984, one of which blew up Brighton's Grand Hotel during the Conservative party conference, killing five people. Berry’s father, Sir Anthony Berry, was killed in the 1984 blast. Patrick Magee planted 16 bombs in various cities in the years 1978 and 1984, one of which blew up Brighton's Grand Hotel during the Conservative party conference, killing five people.

Alternatively, there are also those who believe that restorative justice processes should not be applied where serious crimes are concerned. This is the view held by Tom Whitehead, author of the article ‘Violent offenders avoid courts with soft on the street justice.’ To do so, he opines, would be to flout widely held social conventions about what justice truly is. If offenders aren’t required to appear before a judge and are not given a criminal record, this leaves victims and their communities with no sense of resolution. Further, he is wary of the danger of restorative justice being abused and used as a tool to keep offenders out of jail.

As was mentioned before in the introduction, restorative justice has proven to be an effective deterrent to crime and recidivism in numerous other jurisdictions. In the text, Fiadjoe states that restorative justice has, in fact, proven to be even more effective than the criminal justice systems. In terms of improving satisfaction for both parties and ensuring offender compliance with restitution orders, statistics show that restorative justice processes are more effective.

As an example, Fiadjoe refers to comments made by the Victim-Offender Reconciliation Program Information and Resource Center of Canada, who report that “after facing the victims of their crimes, offenders commit fewer and less serious offenses than similar offenders who are processed by the traditional juvenile or criminal justice system.”

Fiadjoe opines that this can happen only when states such as The Bahamas take an integrated approach to crime control, implementing strategies that “help society devise collective approaches to conflict in every sphere of society.” According to him these include:

1. Community initiatives which engage the public in constructive alternatives to the present model of criminal justice, the development of restorative justice initiatives, training and evaluation schemes.
2. Schools and youth initiatives which must involve children in early learning and practice in conflict resolution, support for teachers and schools which teach and practise the creation of a peaceful learning environment, and improve problem solving opportunities in schools.
3. Environment and public policy initiatives which engage citizens in consensus building processes on important public issues.
4. Organisational and workplace initiatives which encourage approaches to conflict in the workplace that support healthy, respectful relationships.
5. Media and conflict portrayal initiatives which help media personnel develop analytical skills in conflict resolution designed to educate the public rather than sensationalise crime.
6. Teaching and training support initiatives which promote education and skills training in conflict resolution, especially for facilitators who must have ‘good understanding of local cultures and communities’ and excellent interpersonal skills.
7. Legislative framework to embrace those initiatives through the Ministry of Legal Affairs and crime prevention units, and the correctional services.

Guidelines and standards which should have the backing of law may involve the following:

• the conditions for the referral of cases to restorative justice programmes;
• the handling of cases following a restorative process;
• the qualifications, training and assessment of facilitators;
• the administration of restorative justice programmes;
• standards of competence and ethical rules governing operation of restorative justice programmes; and
• procedural safeguards for all the parties.

According to the IDB Series on Crime and Violence in the Caribbean, The Bahamas has made a slow but promising start to implementing the strategies espoused by Fiadjoe. Some of the setbacks we face are:

That most of our programmes had either been in place for under two years, or was undergoing major structural and programmatic changes, which was in some instances attributable to a change in government (e.g., Urban Renewal 2.0) or, with regard to NGOs, to a lack of funding.

No data was supplied by any of the programmes or projects with regard to how much was being invested in the initiatives, how many personnel were devoted to the task. So there were no metrics to assess how much progress had been made, let alone whether there had been any changes at the outcome level.

Taken together with the previous point, the fact that none of the programmes were long-running is indicative of the absence of “long-term sustainable prevention initiatives.” Such programmes would have a greater chance sustainability, they posit, were violence and crime prevention programmes to be insulated from politicisation and the lack of long-term funding.

The IDB referred to several pieces of legislation, namely the 2007 Domestic Violence Act, the 2007 Child Protection Act, and the 2008 amendment to the 1991 Sexual Offences and Domestic Violence Act. These laws, in their estimation were beneficial to the government’s crime initiative as they “helped to better define certain types of violence as crimes, provide tools and protection for victims, and protect children and juveniles within the justice system.”

The report reveals that at that time, the major crime and violence initiatives of the then PLP administration were incorporated into the framework of Project Safe Bahamas, with four direct offshoots: Operation Ceasefire, Urban Renewal 2.0, Swift Justice Initiative, and Safe Bahamas. In addition to that, the report acknowledged and analysed a number of other national plans and strategies including the 2012–2016 National Anti-Drug Strategy, Commissioner’s Policing Plans (2011–2014), the Strategic Plan to Address Gender-based Violence (2014) and the 10-Year Education Plan and Safe Schools Protocol.

Under the subheading Programmes and Projects for Reducing Crime and Violence in The Bahamas, the IDB reports that they were able to identify 33 programmes and/or projects with a mandated objective of crime or violence prevention or reduction:

Using the public health approach to categorize violence prevention based on the continuum of when the intervention takes place, the identified programmes fell into the following categories:

• Nine primary prevention initiatives (five focused on situational and community level prevention, and four focused on changing individual behaviours);
• 12 secondary prevention initiatives (eight focused on services for victims and five targeting early delinquent behaviours of perpetrators);
• Five crime suppression interventions;
• Seven tertiary prevention interventions (many focused on substance abuse, but also on rehabilitating ex-offenders).

Conclusion

In conclusion, it has been demonstrated through the successful implementation of restorative justice processes in other jurisdictions that The Bahamas would stand to benefit by following suit. Reports from international organisations reflect that there are not only members within our society who are enthusiastic about the idea, but also non-governmental organisations that are inclined to the idea of working in tandem with their communities and the criminal justice system to restore goodwill to their communities and make crime prevention and reduction a personal mandate. This, I think is a positive indication that the public has bought into the idea that the criminal justice system is in dire need of alternative methods of dispute resolution and criminal rehabilitation.