Efectividad en la valoración de la propuesta

Punitive or criminal justice theories are used to discover theories concerning punishment and criminal justice (Graves, 2017).

Mohanty (2015) is of the opinion that the controversy surrounding the juvenile justice system focusing on restorative justice, even in serious crimes, calls upon the need to look into several punishment policies. Mohanty (2015) states that the dispute around the punishment of offenders has been debated for centuries. He refers to the work of Flew, Benn and Hart (in Mohanty, 2015) who defined punishment as to be something administered by society and imposed by a legal authority, which should be unpleasant for the offender that transgressed against legal rules. According to Mohanty (2015) the broad theories of punishment are divided into consequentalist (concerned with the practice of punishment if it brings out better consequences) and retributivist theories (punishment is important because it punishes the criminals in proportion to their crime, thereby restoring a proper balance). Mohanty (2015) refers to the most classic form of retributivism as deriving in the Code of Hammurabi’s lex talionis, which stands for ‘an eye for an eye and a tooth for a tooth’. Most supporters of the retributivist theories believe that if a person is guilty of a crime, the person should suffer pain (the pain has to be proportional to the crime committed).

A crucial idea in the retributivist theory is that a criminal must not be punished for what the person might do, but punishment may only be given for the crimes committed and in the amount deserved. The consequences of the acts are not a focal point but the only focal point is the damage which was done. In other words, the punishment is a form of ‘payback’ for the crimes one has committed (Mohanty, 2015). Because retributivism disregards the offender’s future conduct or effects punishment can have on crime rates, it is important to note that in the cases of juvenile offenders one should

take into account the effect punishment has on the accused. Therefore, a lenient and reformative system of punishment should be reflected in such cases (Mohanty, 2015).

In contrast to retributivism, punishment as deterrence, can be explained as punishment imposed in order to deter people from committing a crime and to discourage a person from committing a crime, as well as to make an example out of him. This theory has been criticized because it punishes offenders before they have even committed a crime according to Mohanty (2015).

The objective of traditional punishment is retribution, but according to Holmgren (2012), forgiveness is an important factor. Punishment should, therefore, be accompanied by both a deterrent and a rehabilitative value.

Compared to traditional punishment, on the other side of the scale, lies restorative justice that offers rehabilitative value. Applied within the school context, there must be a reaction to offensive behaviour of learners, of which punishment is one element. Although the researcher is of the opinion that the school which is the subject of this study, has a fairly good discipline structure in place as far as the handling of social problems of learners is concerned, traditional discipline is of no or little value. For example, as a sanction, detention is given for a specific number of hours per week. The offending learner attends the specified hours but is allowed to complete homework during the time (saving time that was supposed to be used at home), read magazines or even sleep. No form of rehabilitative behaviour takes place during the detention time. In certain cases offenders are given a sanction where they have to go and re- write the school rules and/or policies and when handed in, it is placed on a file and no one checks to see if it was properly done or by the offending learner self. It is the opinion of the researcher that getting the offending learner actively involved in the process by for example showing a video on bullying/ alcohol use and abuse/ drug use/ sexting, or whatever offence took place and getting the offending learner to complete questions on the video, the process would be more restorative.

The following table show the differences between traditional school discipline and restorative discipline (see Nieman, 2002).

Table 2.1: A Comparison between Traditional School Discipline (currently used) and Restorative Discipline (New Approach)

CURRENTLY

SCHOOL DISCIPLINE

NEW APPROACH

RESTORATIVE DISCIPLINE

Transgression is seen against school rules

Transgression is seen against school rules and individual/s (person/s)

The focus is on establishing if offender is guilty or innocent and punishment (suspension/expulsion)

The focus is on solving the problem. How to change the behaviour of the offender and reintegrate into school environment Adversarial relationship and process Relationship and process of dialogue

and negotiation Deterrence or prevention by imposing

“pain”

Restitution: restoring of BOTH offender and victim

One social injury is replaced by another Focus on the repair of the social injury Victim has no role in process. Passive

role

Victim plays a part in the process. The needs and rights of the victim is recognized

The accountability of the offender is defined as taking his punishment

The offender is made aware and made to understand the impact of his actions and also involved in the decision making of “how to fix” what is wrong

While schools need to impose punishment in reaction to offending behaviour, they need to move to a more restorative approach, in other words from a punitive to an approach where offending behaviour is modified and relations restored. Table 2.1 clearly illustrates the “new” approach or processes to discipline that restorative justice enables. It involves the school community as a whole in a more nurturing, healing environment.