Disability in offenders
Research by the Australian Brain Injury Organisation shows that: “issues relating to non-disclosure, non-diagnosis, lack of sensitivity in assessment tools, lack of cultural relevance and cultural safety in both assessments and responses and lack of specialised disability knowledge in the criminal justice system all contribute to the continued over-representation of Aboriginal people with disabilities in prison populations.”159 A lack of training in disability
the same research group identified identification, lack of time and cultural staff in prison.
Sustainable justice
According to Alexander de Savornin Lohman, the jurist and founder of the Centre for Sustainable Justice in the Netherlands, the purpose of justice is “to create, promote and maintain balanced, healthy and righteous interpersonal relationships.” In Australia, the terms “nonadversarial justice” and “solution-focused justice” are used.
The intention is the same: justice with a focus on improving inter-humane relations and resolving social issues; justice as a driving force to bring about improvements in our
communities.
Traditional justice, especially in the lower court, has come under mounting pressure because it is subject to expectations that cannot be realised: to provide just solutions and to ensure that we live in safe communities by putting an end to criminal behaviour, this being done
by handing out punishments. These expectations are based on gut feelings within our communities. There is a substantial gap between what justice can offer and what
our communities demand from justice. Moreover, the mystique and awe that still surround the justice system contribute to the lack of balance between the
demand and supply of justice.
Justice is placed under further pressure because justice is delivered, as the Australian Chief Judge Dr JohnLowndes put it, ‘on the sniff of an oily rag’.
The need to fundamentally rethink the role of justice and the opportunities available to it is becoming increasingly apparent in communities like Alice Springs, where revolving-door justice is observed daily. The past few decades have seen innovations in several countries:
for example, the Dutch Mediation Project that works in parallel with courts; the Drug Courts in the USA; New Zealand Restorative Justice, which is incorporated into criminal law; and intercultural law developed in Australia, where judges cooperated with Elders from Aboriginal
communities; judge-led mediation in Canada; and ‘gerichtliche Mediation’ in Germany. In all these new forms of justice, the judge focuses on the future of the parties and on the community. This variety of examples shows that there is a wide range of options available for
delivering justice.
The concept of sustainable justice places these developments in a common framework, thereby highlighting the potential of justice as an instrument for improving the welfare of our communities. The sustainability concept raises questions such as: to what extent does the law provide constructive contributions to a sustainable society? Is it still suitable in the modern world for courts to reduce conflicts such as youth crime to legal issues? Sustainable justice focuses on the underlying problems, and the needs that are hidden behind negatively charged statements made by litigants or members of the community.
“The general principle of sustainable judging is to turn bad into good, contributing to social harmony and personal and societal development. This asks for reconsideration of some basic principles of law and justice concerning the function of judicial decision-making and
punishment.”
Sustainable forms of justice require a degree of juridical thinking that we have not been taught in law school.
Inmage: Standford Daily
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