Restorative Justice: Summary & UNODC Manual PDF

RESTORATIVE JUSTICE THE LITTLE BOOK ON RESTORATIVE JUSTICE CHAPTER 1 INTRODUCTION How should we as a society respond to wrongdoing? When a crime occurs or an injustice is done, what needs to happen? What does justice require? For North Americans, the urgency of these questions has...

RESTORATIVE JUSTICE THE LITTLE BOOK ON RESTORATIVE JUSTICE CHAPTER 1 INTRODUCTION How should we as a society respond to wrongdoing? When a crime occurs or an injustice is done, what needs to happen? What does justice require? For North Americans, the urgency of these questions has been intensified by the traumatic events of September 11, 2001. The debate is an old one, though, and is truly international in scope. Whether we are concerned with crime or other offenses, the Western legal system has profoundly shaped our thinking about these issues—not only in the Western world, but in much of the rest of the world as well. The Western legal, or criminal justice, system’s approach to justice has some important strengths. Yet there is also a growing acknowledgment of this system’s limits and failures. Victims, offenders, and community members often feel that justice does not adequately meet their needs. Justice professionals—judges, lawyers, prosecutors, probation and parole officers, prison staff— frequently express a sense of frustration as well. Many feel that the process of justice deepens societal wounds and conflicts rather than contributing to healing or peace. Restorative justice is an attempt to address some of these needs and limitations. Since the 1970s, a variety of programs and approaches have emerged in thousands of communities and many countries throughout the world. Often these are offered as choices within or alongside the existing legal system. Starting in 1989, however, New Zealand has made restorative justice the hub of its entire juvenile justice system. In many places today, restorative justice is considered a sign of hope and the direction of the future. Restorative justice began as an effort to deal with burglary and other property crimes that are usually viewed (often incorrectly) as relatively minor offenses. Today, however, restorative approaches are available in some communities for the most severe forms of criminal violence: death from drunken driving, assault, rape, even murder. These approaches and practices are also spreading beyond the criminal justice system to schools, to the workplace, and to religious institutions. Some advocate the use of restorative approaches such as “circles” (a particular practice that emerged from First Nation communities in Canada) as a way to work through, resolve, and transform conflicts in general. Others pursue circles or “conferences” (an effort with roots both in New Zealand and Australia, and in facilitated victim-offender meetings) as a way to build and heal communities. Although the term “restorative justice” encompasses a variety of programs and practices, at its core it is a set of principles, a philosophy, an alternate set of guiding questions. Ultimately, restorative justice provides an alternative framework for thinking about wrongdoing. Restorative justice is not primarily about forgiveness or reconciliation. Some victims and victim advocates react negatively to restorative justice because they imagine that the goal of such programs is to encourage, or even to coerce, them to forgive or reconcile with offenders. As we shall see, forgiveness or reconciliation is not a primary principle or focus of restorative justice. It is true that restorative justice does provide a context where either or both might happen. Indeed, some degree of forgiveness or even reconciliation does occur much more frequently than in the adversarial setting of the criminal justice system. However, this is a choice that is entirely up to the participants. There should be no pressure to choose to forgive or to seek reconciliation. Restorative justice is not mediation. Like mediation programs, many restorative justice programs are designed around the possibility of a facilitated meeting or an encounter between victims, offenders, and perhaps community members. However, an encounter is not always chosen or appropriate. So restorative approaches are not limited to an encounter. Even when an encounter occurs, the term “mediation” is not a fitting description of what could happen. In a mediated conflict or dispute, parties are assumed to be on a level moral playing field, often with responsibilities that may need to be shared on all sides. While this sense of shared blame may be true in some criminal cases, in many cases it is not. Victims of rapes or even burglaries do not want to be known as “disputants.” In fact, they may well be struggling to overcome a tendency to blame themselves. The neutral language of mediation may be misleading and even offensive Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) in many cases. Although the term “mediation” was adopted early on in the restorative justice field, it is increasingly being replaced by terms such as “conferencing” or “dialogue”. Restorative justice is not primarily designed to reduce recidivism or repeating offenses. In an effort to gain acceptance, restorative justice programs are often promoted or evaluated as ways to decrease repeat crimes. There are good reasons to believe that, in fact, such programs will reduce offending. Indeed, the research thus far—centering mainly on juvenile offenders—is quite encouraging on this issue. Nevertheless, reduced recidivism is not the reason for operating restorative justice programs. Reduced recidivism is a byproduct, but restorative justice is done first of all because it is the right thing to do. Victims’ needs should be addressed, offenders should be encouraged to take responsibility, those affected by an offense should be involved in the process, regardless of whether offenders catch on and reduce their offending. Restorative justice is not a particular program or a blueprint. So restorative justice should be built from the bottom up, by communities in dialogue assessing their needs and resources and applying the principles to their own situations. Restorative justice is not a map, but the principles of restorative justice can be seen as a compass pointing a direction. At a minimum, restorative justice is an invitation for dialogue and exploration. Restorative justice is not primarily intended for comparatively minor offenses or for first-time offenders. It may be easier to get community support for programs that address so-called “minor” cases. However, experience has shown that restorative approaches may have the greatest impact in more severe cases. Domestic violence is probably the most problematic area of application, and here great caution is advised. Restorative justice is not a new or North American development. The modern field of restorative justice did develop in the 1970s from case experiments in several communities with a proportionately sizable Mennonite population. Seeking to apply their faith as well as their peace perspective to the harsh world of criminal justice, Mennonites and other practitioners (in Ontario, Canada, and later in Indiana, U.S.A) experimented with victim-offender encounters that led to programs in these communities and later became models for programs throughout the world. Restorative justice theory developed initially from these particular efforts. Restorative justice is neither a panacea nor necessarily a replacement for the legal system. Restorative justice is by no means an answer to all situations. Nor is it clear that it should replace the legal system, even in an ideal world. Many feel that even if restorative justice could be widely implemented, some form of the Western legal system (ideally, a restoratively-oriented one) would still be needed as a backup and guardian of basic human rights. By putting a spotlight on and elevating the private dimensions of crime, restorative justice seeks to provide a better balance in how we experience justice. Restorative justice is not necessarily an alternative to prison. Western society, and especially the United States, greatly overuses prisons. If restorative justice were taken seriously, our reliance on prisons would be reduced and the nature of prisons would change significally, However, restorative justice approaches may also be used in conjunction with, or parallel to, prison sentences. They are not necessarily an alternative to incarceration. Restorative justice is not necessarily the opposite of retribution. Despite my earlier writing, I no longer see restoration as the polar opposite of retribution. RESTORATIVE JUSTICE IS CONCERNED ABOUT NEEDS AND ROLES The restorative justice movement originally began as an effort to rethink the needs which crimes create. Restorative justice advocates were concerned about needs that were not being met in the usual justice process. Restorative justice expands the circle of stakeholders— those with a stake or standing in the event or the case— beyond just the government and the offender to include victims and community members also. Because this view of needs and roles was at the origin of the movement, and because the needs/roles framework is so basic to the concept, it is important to start this review there. As the field has developed, stakeholder analysis has become more complex and encompassing. It is also limited to “judicial” needs—those needs of victims, offenders, and community members that might be met, at least partially, through the justice system. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) Victims à Of special concern to restorative justice are the needs of crime victims that are not being adequately met by the criminal justice system. Victims often feel ignored, neglected, or even abused by the justice process. This results in part from the legal definition of crime, which does not include victims. Crime is defined as against the state, so the state takes the place of the victims. Information. Victims need answers to questions they have about the offense—why it happened and what has happened since. They need real information, not speculation. Truth-telling. An important element in healing or transcending the experience of crime is an opportunity to tell the story of what happened. There are good therapeutic reasons for this. Part of the trauma of crime is the way it upsets our views of ourselves and our world, our life-stories. Empowerment. Victims often feel like control has been taken away from them by the offenses they’ve experienced—control over their properties, their bodies, their emotions, their dreams. Involvement in their own cases as they go through the justice process can be an important way to return a sense of empowerment to them. Restitution or vindication. Restitution by offenders is often important to victims, sometimes because of the actual losses, but just as importantly, because of the symbolic recognition restitution implies. Restitution, in fact, is a symptom or sign of a more basic need, the need for vindication. Apology may also contribute to this need to have one’s harm recognized. Offenders à A second major area of concern that gave rise to restorative justice is offender accountability. The criminal justice system is concerned about holding offenders accountable, but that means making sure offenders get the punishment they deserve. Offenders are discouraged from acknowledging their responsibility and are given little opportunity to act on this responsibility in concrete ways. The neutralizing strategies—the stereotypes and rationalizations that offenders often use to distance themselves from the people they hurt—are never challenged. Unfortunately, then, an offender’s sense of alienation from society is only heightened by the legal process and by the prison experience. For a variety of reasons, the legal process tends to discourage responsibility and empathy on the part of offenders. Restorative justice has brought an awareness of the limits and negative byproducts of punishment. Real accountability involves facing up to what one has done. It means encouraging offenders to understand the impact of their behavior—the harms they have done—and urging them to take steps to put things right as much as possible. This accountability, it is argued, is better for victims, better for society, and better for offenders. Offenders need from justice: 1. Accountability that addresses the resulting harms, encourages empathy and responsibility, and transforms shame. 2. Encouragement to experience personal transformation, including healing for the harms that contributed to their offending behavior, opportunities for treatment for addictions and/or other problems, enhancement of personal competencies. 3. Encouragement and support for integration into the community. 4. For some, at least temporary restraint. Community à Community members have needs arising from crime, and they have roles to play. Restorative justice advocates such as Judge Barry Stuart and Kay Pranis argue that when the state takes over in our name, it undermines our sense of community. Communities are impacted by crime, and in many cases should be considered stakeholders as secondary victims. Community members have important roles to play and may also have responsibilities to victims, to offenders, and to themselves. When a community becomes involved in a case, it can initiate a forum to work at these matters, while strengthening the community itself. Communities need from justice: 1. Attention to their concerns as victims, 2. Opportunities to build a sense of community and mutual accountability, 3. Encouragement to take on their obligations for the welfare of their members, including victims and offenders, and to foster the conditions that promote healthy communities. In short, the legal or criminal justice system centers around offenders and desserts—making sure offenders get what they deserve. Restorative justice is more focused on needs: the victims, the need of communities, the needs of offenders. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) CHAPTER 2 RESTORATIVE PRINCIPLES Restorative justice is based upon an old, commonsense understanding of wrongdoing. Although it would be expressed differently in different cultures, this approach is probably common to most traditional societies. Crime is a violation of people and of interpersonal relationships. Violations create obligations. The central obligation is to put right the wrongs. Underlying this understanding of wrongdoing is an assumption about society: we are all interconnected.. In the Hebrew scriptures, this is embedded in the concept of shalom, the vision of living in a sense of “all-rightness” with each other. Many cultures, have a word that represents this notion of the centrality of relationships: for the Maori, it is communicated by whakapapa. Crime represents damaged relationships. In fact, damaged relationships are both a cause and an effect of crime. Many traditions have a saying that the harm of one is the harm of all. Interrelationships imply mutual obligations and responsibilities. Indeed, making amends for wrongdoing is an obligation. While the initial emphasis may be on the obligations owed by offenders, the focus on interconnectedness opens the possibility that others—especially the larger community—may have obligations as well. Even more fundamentally, this view of wrongdoing implies a concern for healing of those involved—victims, but also offenders and communities. How does this understanding compare or contrast with the “legal” or criminal justice understanding of crime? The differences in these two approaches might be boiled down to three central questions asked in the search for justice. Criminal Justice Crime is a violation of the law and the state. Violations create guilt. Justice requires the state to determine blame (guilt) and impose pain (punishment). Central focus: offenders getting what they deserve. Restorative Justice Crime is a violation of people and relationships. Violations create obligations. Justice involves victims, offenders, and community members in an effort to put things right. Central focus: victim needs and offender responsibility for repairing harm. Criminal Justice What laws have been broken? Who did it? What do they deserve? Restorative Justice Who has been hurt? What are their needs? Whose obligations are these? Three central concepts or pillars deserve a closer look: harms and needs, obligations, and engagement. 1. Restorative justice focuses on harm. Restorative justice understands crime first of all as harm done to people and communities. Our legal system, with its focus on rules and laws, and with its view that the state is the victim, often loses sight of this reality. This victim-oriented approach requires that justice be concerned about victims’ needs even when no offender has been identified or apprehended. While our first concern must be the harm experienced by victims, the focus on harm implies that we also need to be concerned about harm experienced by offenders and communities. This may require us to address the root causes of crime. The goal of restorative justice is to provide an experience of healing for all concerned. 2. Wrongs or harms result in obligations. Therefore, restorative justice emphasizes offender accountability and responsibility. The legal system defines accountability as making sure offenders are punished. 3. Restorative justice promotes engagement or participation. The principle of engagement suggests that the primary parties affected by crime—victims, offenders, members of the community—are given significant roles in the justice process. These “stakeholders” need to be given information about each other and to be involved in deciding what justice requires in this case. So restorative justice is constructed upon three simple elements or pillars: harms and related needs (of victims, first of all, but also of the communities and the offenders); obligations that have resulted from (and given rise to) this harm (the offenders’, but also the communities’); and engagement of those who have a legitimate interest or stake in the offense and its resolution (victims, offenders, and community members). Restorative justice requires, at minimum, that we address victims’ harms and needs, hold offenders accountable to put right those harms, and involve victims, offenders, and communities in this process. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) THE “WHO” AND THE “HOW” ARE IMPORTANT Who is involved in the justice process, and how they are involved, is an important part of restorative justice. WHO AND HOW Our legal system is an adversarial process conducted by professionals who stand in for the offender and the state, refereed by a judge. Outcomes are imposed by an authority—law, judges, juries—who stand outside the essential conflict. Victims, community members, even offenders, rarely participate in this process. Although restorative justice usually recognizes the need for outside authorities and, in some cases, imposed outcomes, it prefers processes that are collaborative and inclusive and, to the extent possible, outcomes that are mutually agreed upon rather than imposed. However, restorative justice emphasizes the importance of participation by those who have a direct stake in the event or offense—that is, those who are involved, impacted by, or who otherwise have a legitimate interest in the offense. A direct, facilitated, face-to-face encounter—with adequate screening, preparation, and safeguards— is often an ideal forum for the participation of the particular stakeholders. A meeting allows a victim and an offender to put a face to each other, to ask questions of each other directly, to negotiate together how to put things right. It provides an opportunity for victims to tell offenders directly the impact of the offense or to ask questions. It allows offenders to hear and to begin to understand the effects of their behavior. It offers possibilities for acceptance of responsibility and apology. Many victims as well as offenders have found such a meeting to be a powerful and positive experience. An indirect encounter, which may be reasonably effective but not offensive, might include a letter, a video exchange, or a person who represents the victim. In all cases, efforts should be made to provide maximum exchange of information between and involvement of the stakeholders. The key stakeholders, of course, are the immediate victims and offenders. Members of the community may be directly affected. It may include family members, friends, or other “secondary victims”; offenders’ families or friends; or other members of the community. Stakeholders include victims, offenders, and communities of care. Who is the community? Sometimes “community” can be too abstract a concept to be useful, and a community can be guilty of abuses. Controversy has arisen within the restorative justice field about the meaning of community and how actually to involve the community in these processes. In practice, restorative justice has tended to focus on “communities of care” or micro-communities. There are communities of place, where people live near and interact with each other, but there are also networks of relationships. 1) who in the community cares about these people or about this offense 2) how can we involve them in the process? It may be helpful to differentiate between “community” and “society.” Restorative justice aims to put things right We have discussed so far the needs and roles of stakeholders. More needs to be said, however, about the goals of justice. Addressing harm Central to restorative justice is the idea of making things right. As already noted, this implies a responsibility on the part of the offender to, as much as possible, take active steps to repair the harm to the victim. In cases such as murder, the harm obviously cannot be repaired; however, symbolic steps, including acknowledgment of responsibility or restitution, can be helpful to victims and are a responsibility of offenders. When a severe wrong has been committed, there is no possibility of repairing the harm or going back to what was before. It is possible that a victim can be helped toward healing when an offender works toward making things right. This journey belongs to victims—no one else can do it for them—but an effort to put right can assist in this process, although it can never fully restore. Addressing causes. Putting right requires that we address the harms but also the causes of crime. Family group conferences in New Zealand, where restorative justice is the norm, are expected to develop a consensually supported Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) plan that includes elements for both reparation and prevention. Putting right requires that we address harms and address causes. Offenders as victims. If we are to address harms and causes, we must explore the harms that offenders themselves have experienced. Studies show that many offenders have indeed been victimized or traumatized in significant ways. Many other offenders perceive themselves to have been victimized. These harms and perceptions of harms may be an important contributing cause of crime. In fact, Harvard professor and former prison psychiatrist James Gilligan has argued that all violence is an effort to achieve justice or to undo injustice. In other words, much crime may be a response to—an effort to undo—a sense of victimization. A perception of oneself as victim does not absolve responsibility for offending behavior. Punishment often reinforces the sense of victimization. Sometimes offenders are satisfied when their sense of being victims is simply acknowledged. Sometimes their perception of being victims must be challenged. Sometimes the damage done must be repaired before offenders can be expected to change their behavior. Moreover, why do some people who are victimized turn to crime and others do not? Nevertheless, I am convinced that any attempt to reduce the causes of offending will require us to explore offenders’ experiences of victimization. In this exploration, instead of using the loaded language of victimization, it may be more helpful to speak of “trauma.”. If it is not adequately dealt with, trauma is reenacted in the lives of those who experience the trauma, in their families, even in future generations. Trauma is a core experience not only of victims, but also of many offenders. Much violence may actually be a reenactment of trauma which was experienced earlier but not responded to adequately. Society tends to respond by delivering more trauma in the form of imprisonment. In summary, an effort to put right the wrongs is the hub or core of restorative justice. Putting right has two dimensions: 1. Addressing the harms that have been done, and 2. Addressing the causes of those harms, including the contributing harms. However, restorative justice is ultimately concerned about the restoration and reintegration of both victims and offenders, in addition to the well-being of the entire community. Restorative justice is about balancing concern for all parties. Restorative justice encourages outcomes that promote responsibility, reparation, and healing for all. Restorative justice seeks to provide an alternate framework or lens for thinking about crime and justice. This restorative lens or philosophy has five key principles: PRINCIPLES 1. To focus on harms and consequent needs of victims, but also of communities and offenders; 2. To address obligations resulting from those harms of offenders, but also of communities and society; 3. To use inclusive, collaborative processes; 4. To involve those with a legitimate stake in the situation, including victims, offenders, community members, and society; 5. To seek to put right the wrongs VALUES The principles of restorative justice are useful only if they are rooted in a number of underlying values. Too often these values are unstated and taken for granted. However, to apply restorative justice principles in a way that is true to their spirit and intent, we must be explicit about these values. We are all connected to each other and to the larger world thorough a web of relationships. When this web is disrupted, we are all affected. The primary elements of restorative justice—harm and need, obligation, and participation—derive from this vision. But this value of interconnectedness must be balanced by an appreciation for particularity. Although we are connected, we are not the same. Particularity appreciates diversity. It respects the individuality and worth of each person. Justice must acknowledge both our interconnections and our individuality. The value of particularity reminds us Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) that context, culture, and personality are all important. Ultimately, however, one basic value is supremely important: respect. If I had to put restorative justice into one word, I would choose respect: respect for all, even those who are different from us, even those who seem to be our enemies. Respect reminds us of our interconnectedness but also of our differences. If we pursue justice as respect, we will do justice restoratively. Defining restorative justice à Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible. The goals of restorative justice: Restorative justice programs aim to: - put key decisions into the hands of those most affected by crime, - make justice more healing and, ideally, more transformative, and - reduce the likelihood of future offenses. Achieving these goals requires that: - victims are involved in the process and come out of it satisfied, - offenders understand how their actions have affected other people and take responsibility for those actions, - outcomes help to repair the harms done and address the reasons for the offense (specific plans are tailored to the victim’s and the offender’s needs), and - victim and offender both gain a sense of “closure,” and both are reintegrated into the community. Guiding Questions of Restorative Justice 1. Who has been hurt? 2. What are their needs? 3. Whose obligations are these? 4. Who has a stake in this situation? 5. What is the appropriate process to involve stakeholders in an effort to put things right? If we think of restorative justice as a particular program, or set of programs, we soon find it difficult to apply those programs to a broad variety of situations. For example, the forms of victim-offender conferencing being used for “ordinary” crimes may have little direct application in cases of mass, societal violence. If we instead employ the guiding questions that shape restorative justice, we find restorative justice to be applicable to a wide range of situations. The guiding questions of restorative justice can help us to reframe issues, to think beyond the confines that legal justice has created for society. - In the case of death penalty in the US: “Defense-based victim outreach” is emerging as an effort to incorporate survivors’ needs and concerns in the trials and their outcomes by giving survivors access to the defense, as well as the prosecution. This approach also seeks to encourage defendants to take appropriate responsibility in these cases. - n another example, victim advocates are deeply concerned about the dangers of victim-offender encounters in situations of domestic violence. These concerns are legitimate; there are profound dangers in an encounter where a pattern of violence continues or where cases are not being carefully monitored by people trained in domestic violence. Some would argue that encounters are never appropriate. Others, including some victims of domestic violence, argue that encounters are important and powerful in the right situations and with appropriate safeguards. But whether or not encounters are appropriate in domestic violence, the guiding questions of restorative justice can help us sort out what needs to be done without getting stuck in—and limited to—the question, What does the offender deserve?. The guiding questions of restorative justice may, in fact, be viewed as restorative justice in a nutshell. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) Signposts of Restorative Justice 1. Focus on the harms of crime rather than the rules that have been broken. 2. Show equal concern and commitment to victims and offenders, involving both in the process of justice. 3. Work toward the restoration of victims, empowering them and responding to their needs as they see them. 4. Support offenders, while encouraging them to understand, accept, and carry out their obligations. 5. Recognize that while obligations may be difficult for offenders, those obligations should not be intended as harms, and they must be achievable. 6. Provide opportunities for dialogue, direct or indirect, between victim and offender as appropriate. 7. Find meaningful ways to involve the community and to respond to the community bases of crime. 8. Encourage collaboration and reintegration of both victims and offenders, rather than coercion and isolation. 9. Give attention to the unintended consequences of your actions and program. 10. Show respect to all parties—victims, offenders, justice colleagues. CHAPTER 3 RESTORATIVE PRACTICES The concept and philosophy of restorative justice emerged during the 1970s and ’80s in the United States and Canada in conjunction with a practice that was then called the Victim Offender Reconciliation Program (VORP). Since then VORP has been modified, new forms of practice have appeared, and older programs have been reshaped and renamed “restorative.” What are the main approaches or practices currently being used within the Western criminal justice field? Schools have become an important place for restorative practices. While there are some similarities to restorative justice programs for criminal cases, the approaches used in an educational setting must necessarily be shaped to fit that context, there are similarities to the models outlined below, but there are also important differences. For those who come from societies closer in time and culture to traditional ways—in Africa, for example, or in North American indigenous communities—restorative justice often serves as a catalyst to reevaluate, resurrect, legitimate, and adapt older, customary approaches. During colonization, the Western legal model often condemned and repressed traditional forms of justice that, although not perfect, were highly functional for those societies. Restorative justice can provide a conceptual framework to affirm and legitimate what was good about those traditions and, in some cases, develop adapted models that can operate within the realities of the modern legal system. In fact, two of the most important forms of restorative justice—family group conferences and peacemaking circles—are adaptations (but not replications) of these traditional ways. Restorative justice is also providing a concrete way to think about justice within the theory and practice of conflict transformation and peacebuilding. Three distinct models have tended to dominate the practice of restorative justice: victim offender conferences, family group conferences, and circle approaches. Family group conferences may utilize a circle, and new forms with elements of each are being developed for certain circumstances. In some cases, several models may be used in a single case or situation. A victim offender encounter may be held prior to and in preparation for a sentencing circle, for example. Because of their similarities, they are sometimes grouped together as different forms of restorative conferences. Each of these models involves an encounter between key stakeholders—victim and offender at minimum, and perhaps other community and justice people as well. Sometimes, if an encounter between a “matched” victim and offender (the particular victim of a particular offender) is impossible or inappropriate, representatives or surrogates may be used. Sometimes letters or videos are used in preparation for, or in place of a direct meeting. These encounters are led by facilitators who oversee and guide the process, balancing concern for all the parties involved. Unlike arbitrators, conference or circle facilitators do not impose settlements. Each model allows an opportunity for participants to explore facts, feelings, and resolutions. They are encouraged to tell their stories, to ask questions, to express their feelings, and to work toward mutually acceptable outcomes. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) To resolve any type of wrongdoing, three things have to happen: 1. The wrong or injustice must be acknowledged. 2. Equity needs to be restored. 3. Future intentions need to be addressed. An encounter provides an opportunity for the wrongdoing to be articulated by victims and acknowledged by the offenders. Questions about the future usually need to be discussed: Will the offender do this again? How do we live together in the same community? How do we move ahead with life? All restorative conferencing models provide for such questions to be addressed through a facilitated encounter. In each of these models, victim participation must be entirely voluntary. In each, there is a prerequisite that the offender acknowledges, at least to some extent, his or her responsibility. Normally, conferences are not held if the offender denies guilt or responsibility. Efforts are made to maximize the offender’s voluntary participation.. In interviews, offenders often suggest that it is difficult and frightening to face the ones they have harmed. Indeed, most of us would try to avoid such obligations if we could. Except for the New Zealand family group conferences, the models described below are usually used on a discretionary, referral basis. For lesser offenses, referrals sometimes come from the community, perhaps from a school or religious institution. Occasionally, referrals are generated by the parties themselves. Cases may be referred by the police, by the prosecutor, by probation, by the court, even by prisons. In the case of a court referral, it may be after adjudication but before sentencing. In such instances the judge takes the outcome of the conference into account in the sentence. In some cases, or jurisdictions, the judge orders restitution and asks that the amount be established through a restorative conference. The agreement then becomes part of the sentence and/or the probation order. Current programs for victim offender encounters in cases of severe violence are often outside the formal justice system and are designed to be initiated by the parties themselves, most commonly by victims. While similar in basic outline, the models for restorative justice practices differ in the number and category of participants and, in some cases, the style of facilitation. Victim Offender Conferences à Victim offender conferences (VOC) primarily involve victims and offenders. Upon referral, victims and offenders are worked with individually. Then, upon their agreement to proceed, they are brought together in a meeting or conference. The meeting is put together and led by a trained facilitator who guides the process in a balanced manner. Family members of victims or offenders may participate, but they are usually seen as having secondary, supporting roles. Persons representing the community may be involved as facilitators and/or program overseers, but they do not usually participate in meetings. Family Group Conferences à Family group conferences (FGC) enlarge the circle of primary participants to include family members or other individuals significant to the parties directly involved. Because this model has tended to focus on supporting offenders in taking responsibility and changing their behavior, the offender’s family and/or other relevant people from the community are especially important. However, the victim’s family is invited as well. In some circumstances, and especially when the FGC is empowered to affect the legal outcome of the case, a justice person such as a police officer may be present. One model that has received considerable attention in North America was initially developed by police in Australia, based in part on ideas from New Zealand. Often this approach has used a standardized, “scripted,” model of facilitation. Facilitators may be authority figures such as specially trained police officers. The older model of FGCs, originated in New Zealand, today provides the norm for juvenile justice in that country. Responding to a crisis in the welfare and justice system for juveniles, and criticized by the indigenous Maori population for utilizing an imposed, alien, colonial system, New Zealand revolutionized its juvenile justice system in 1989. While the court system remains the same the standard response to most serious juvenile crime in New Zealand today is an FGC. Consequently, family group conferences can be seen as both a system of justice and as a mode of encounter in New Zealand. Conferences are put together and facilitated by paid social services personnel called Youth Justice Coordinators. It is their job to help families determine who should be present and to design the process that will be appropriate for them. One of the goals of the process is to be culturally appropriate. An element common to most conferences is a family caucus sometime during the conference. Here the offender and the offender’s family retire to another room to discuss what has happened and to develop a proposal to bring back to the victim and the rest of the conference. Like the Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) mediator in a VOC, the coordinator of a FGC must seek to be impartial, balancing the concerns and interests of both sides. However, he or she is charged with making sure a plan is developed that addresses causes as well as reparation. While the community is not explicitly included, these conferences are more inclusive than VOCs. Family members of the offender are an essential part and play very important roles—indeed, this is seen as a family empowerment model. Victims may bring family members or victim advocates. In addition, since the police play the role of prosecutors in New Zealand, they must be represented. Circles à Circle approaches emerged initially from First Nation communities in Canada. Judge Barry Stuart, in whose court a circle was first acknowledged in a legal ruling, has chosen the term Peacemaking Circles to describe this form. In addition to sentencing circles, in-tended to determine sentences in criminal cases, there are healing circles (sometimes used as preparation for sentencing circles), circles to deal with workplace conflicts, even circles designed as forms of community dialogue. In a circle process, participants arrange themselves in a circle. They pass a “talking piece” around the circle to assure that each person speaks, one at a time, in the order in which each is seated in the circle. A set of values, or even a philosophy, is often articulated as part of the process. One or two “circle keepers” serve as facilitators of the circle. In indigenous communities, elders play an important role in leading the circle or in offering advice and insight. Victims, offenders, family members, sometimes justice officials, are included, but community members are essential participants as well. Sometimes these community members are invited because of their connection to or interest in the specific offense or the victim and/or offender. Because the community is involved, discussions within the circle are often more wide-ranging than in other restorative justice models. Participants may address situations in the community that are giving rise to the offense, the support needs of victims and offenders, the obligations that the community might have, community norms, or other related community issues. Variety of cases and situations. Please note that not all restorative approaches involve a direct encounter, and not all needs can be met through an encounter. While victims have some needs that involve the offender, they also have needs that do not. Similarly, offenders have needs and obligations that have nothing to do with the victim. Thus the following typology includes both encounter and non-encounter programs. Models differ in their goals! Another way to understand the differences between these various approaches is to examine their goals. These can be placed in three categories. Alternative or diversionary programs à These programs usually aim to divert cases from, or provide an alternative to, some part of the criminal justice process or sentencing. A judge may refer a case to a restorative conference to sort out elements of the sentence, such as restitution. In some circle processes, the prosecutor and judge may join the community in a circle designed to develop a sentence tailored to the needs of the victim, offender, and community. In New Zealand, of course, conferences are the norm and courts are the alternative. Healing or therapeutic programs à Increasingly, restorative programs, such as conferences, are being developed for the most severe kinds of crimes—violent assault, even rape and murder. Often the offender in these situations is in prison. In such encounter programs, involvement is not usually designed to impact the outcome of the case. Often, in fact, offenders explicitly agree not to use participation in this process as part of a parole or clemency appeal. With appropriate preparation and structure, such encounters have been found to be powerful, positive experiences for both victims and offenders, regardless of who initiates them. Not all programs in this category involve direct encounters between “matched” victims and offenders. Rather, some programs function as a form of victim-oriented offender rehabilitation. As part of the treatment process, offenders are encouraged to understand and take responsibility for what they have done. Victim-impact panels, where groups of victims are given an opportunity to tell their stories to offenders, may be part of this process. Other programs offer multiple-session, in-prison seminars that bring victims, offenders, and sometimes community members together to explore a variety of topics and issues, for the benefit of all involved. Transitional programs à A relatively new arena of restorative programming has to do with offender transitions after prison. One of the most interesting models is the Circles of Support and Accountability (CSA) developed in Canada to Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) work with released sex offenders. In much of the U.S. and Canada, sex offenders who serve out their sentences are released into communities with little support for the offender and with great fear from the community and victims. These offenders (hopefully, ex-offenders) are often ostracized by the communities that know them best, so they move on to other communities. Given this, their rates of recidivism can be high. Circles of Support and Accountability gather a circle of people—ex-offenders, community members, even victims of similar offenses—not only to support these offenders, but to hold them accountable. Initially the interaction is intense with daily check-ins and strict guidelines for what the person can do and where the person can go. Working with these ex-offenders to take responsibility for their behavior, while putting necessary support in place, these circles have been successful in reintegrating ex-offenders. A restorative continuum But what about other approaches that claim to be restorative? Are there other options within the restorative framework? It is important to view restorative justice models along a continuum, from fully restorative to not restorative, with several points or categories in between. Six key questions help to analyze both the effectiveness and the extent of restorative justice models for particular situations: 1. Does the model address harms, needs, and causes? 2. Is it adequately victim-oriented? 3. Are offenders encouraged to take responsibility? 4. Are all relevant stakeholders involved? 5. Is there an opportunity for dialogue and participatory decision-making? 6. Is the model respectful to all parties? What about victims in cases where offenders are not apprehended, or offenders are unwilling to take responsibility? In a restorative system, services would start immediately after a crime to address victim needs and to involve the victim, regardless of whether an offender is apprehended. Thus victim assistance, while it cannot be seen as fully restorative, is an important component of a restorative system and should be seen at least as partially restorative. Important: allow victims to tell their stories and encourage offenders to understand what they have done. These are an important part of a restorative approach and can be seen as partly or mostly restorative. Similarly, what happens when an offender is willing to take steps to understand and to take responsibility, but the victim is unavailable or unwilling? A few programs for such circumstances have been developed. While perhaps not fully restorative, these programs play an essential role in the overall system of justice. Do offender treatment or rehabilitation programs qualify as restorative justice practices? Offender treatment can be seen as a part of prevention and, along with offender reintegration, has some kinship with restorative justice. They could, however, function restoratively, and some do, by organizing treatment around offenders understanding and taking responsibility for harm Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) and, in addition, giving as much attention as possible to victims’ needs. Depending on how it is done, offender treatment may fall into the “potentially,” or “mostly” categories. Similarly, offender advocacy, prisoner re-entry programs, or religious teaching in prison are in themselves not restorative; however, they may play an important role in a restorative system, especially if they are reshaped to include a restorative framework. In my view, community service falls into the “potentially restorative” category. As currently practiced, community service is at best an alternative form of punishment, not restorative justice. In New Zealand, however, community service often is part of the outcome of a family group conference. Then there is the “pseudo-” or “non-restorative” category. “Restorative” has become such a popular term that many acts and efforts are being labeled “restorative,” but in fact they are not. Some of these might be rescued. Others cannot. The death penalty, which causes additional and irreparable harm, is one of the latter. Retributive justice vs. restorative justice? For example, philosopher of law Conrad Brunk has argued that on the theoretical or philosophical level, retribution and restoration are not the polar opposites that we often assume. In fact, they have much in common. A primary goal of both retributive theory and restorative theory is to vindicate through reciprocity. Both retributive and restorative theories of justice acknowledge a basic moral intuition that a balance has been thrown off by a wrongdoing. Consequently, the victim deserves something, and the offender owes something. Both approaches argue that there must be a proportional relationship between the act and the response. They differ, however, on the currency that will fulfill the obligations and right the balance. Retributive theory believes that pain will vindicate, but in practice that is often counterproductive for both victim and offender. Restorative justice theory, on the other hand, argues that what truly vindicates is acknowledgment of victims’ harms and needs, combined with an active effort to encourage offenders to take responsibility, make right the wrongs, and address the causes of their behavior. By addressing this need for vindication in a positive way, restorative justice has the potential to affirm both victim and offender and to help them transform their lives. Criminal justice vs. restorative justice? Restorative justice advocates dream of a day when justice is fully restorative, but whether this is realistic is debatable, at least in the immediate future. More attainable, perhaps, is a time when restorative justice is the norm, while some form of the legal or criminal justice system provides the backup or alternative. Possible, perhaps, is a time when all our approaches to justice will be restoratively oriented. Society must have a system to sort out the “truth” as best it can when people deny responsibility. Some cases are simply too difficult or horrendous to be worked out by those with a direct stake in the offense. We must have a process that gives attention to those societal needs and obligations that go beyond the ones held by the immediate stakeholders. We also must not lose those qualities which the legal system at its best represents: the rule of law, due process, a deep regard for human rights, the orderly development of law. Real world justice might also best be viewed as a continuum. On the one end is the Western legal or criminal justice system model. Its strengths—such as the encouragement of human rights—are substantial. Yet it has some glaring weaknesses. At the other end is the restorative alternative. It, too, has important strengths. It, too, has limits, at least as it is currently conceived and practiced. A realistic goal, perhaps, is to move as far as we can toward a process that is restorative. In some cases or situations, we may not be able to move very far. In others, we may achieve processes and outcomes that are truly restorative. In between will be many cases and situations where both systems must be utilized, and justice is only partly restorative. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) APPENDIX I FUNDAMENTAL PRINCIPLES OF RESTORATIVE JUSTICE 1. Crime is fundamentally a violation of people and interpersonal relationships. 1.1 Victims and the community have been harmed and are in need of restoration. 1.1.1 The primary victims are those most directly affected by the offense, but others, such as family members of victims and offenders, witnesses, and members of the affected community, are also victims. 1.1.2 The relationships affected (and reflected) by crime must be addressed. 1.1.3 Restoration is a continuum of responses to the range of needs and harms experienced by victims, offenders, and the community. 1.2 Victims, offenders, and the affected communities are the key stakeholders in justice. 1.2.1 A restorative justice process maximizes the input and participation of these parties—but especially primary victims as well as offenders—in the search for restoration, healing, responsibility, and prevention. 1.2.2 The roles of these parties will vary according to the nature of the offense, as well as the capacities and preferences of the parties. 1.2.3 The state has circumscribed roles, such as investigating facts, facilitating processes, and ensuring safety, but the state is not a primary victim. 2. Violations create obligations and liabilities. 2.1 Offenders’ obligations are to make things right as much as possible. 2.1.1 Since the primary obligation is to victims, a restorative justice process empowers victims to effectively participate in defining obligations. 2.1.2 Offenders are provided opportunities and encouragement to understand the harm they have caused to victims and the community and to develop plans for taking appropriate responsibility. 2.1.3 Voluntary participation by offenders is maximized; coercion and exclusion are minimized. However, offenders may be required to accept their obligations if they do not do so voluntarily. 2.1.4 Obligations that follow from the harm inflicted 2.2 The community’s obligations are to victims and to offenders and for the general welfare of its members. 2.2.1 The community has a responsibility to support and help victims of crime to meet their needs. 2.2.2 The community bears a responsibility for the welfare of its members and the social conditions and relationships which promote both crime and community peace. 2.2.3 The community has responsibilities to support efforts to integrate offenders into the community, to be actively involved in the definitions of offender obligations, and to ensure opportunities for offenders to make amends. 3. Restorative justice seeks to heal and put right the wrongs. 3.1 The needs of victims for information, validation, vindication, restitution, testimony, safety, and support are the starting points of justice. 3.1.1 The safety of victims is an immediate priority. 3.1.2 The justice process provides a framework that promotes the work of recovery and healing that is ultimately the domain of the individual victim. 3.1.3 Victims are empowered by maximizing their input and participation in determining needs and outcomes. 3.1.4 Offenders are involved in repair of the harm insofar as possible. 3.2 The process of justice maximizes opportunities for exchange of information, participation, dialogue, and mutual consent between victim and offender. 3.2.1 Face-to-face encounters are appropriate for some instances, while alternative forms of exchange are more appropriate in others. 3.2.2 Victims have the principal role in defining and directing the terms and conditions of the exchange. 3.2.3 Mutual agreement takes precedence over imposed outcomes. 3.2.4 Opportunities are provided for remorse, forgiveness, and reconciliation. 3.3 Offenders’ needs and competencies are addressed. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected]) 3.3.1 Recognizing that offenders themselves have often been harmed, healing and integration of offenders into the community are emphasized. 3.3.2 Offenders are supported and treated respectfully in the justice process. 3.3.3 Removal from the community and severe restriction of offenders is limited to the minimum necessary. 3.3.4 Justice values personal change above compliant behavior. 3.4 The justice process belongs to the community. 3.4.1 Community members are actively involved in doing justice. 3.4.2 The justice process draws from community resources and, in turn, contributes to the building and strengthening of community. 3.4.3 The justice process attempts to promote changes in the community to both prevent similar harms from happening to others, and to foster early intervention to address the needs of victims and the accountability of offenders. 3.5 Justice is mindful of the outcomes, intended and unintended, of its responses to crime and victimization. 3.5.1 Justice monitors and encourages follow-through since healing, recovery, accountability, and change are maximized when agreements are kept. 3.5.2 Fairness is assured, not by uniformity of outcomes, but through provision of necessary support and opportunities to all parties and avoidance of discrimination based on ethnicity, class, and sex. 3.5.3 Outcomes which are predominately deterrent or incapacitative should be implemented as a last resort, involving the least restrictive intervention while seeking restoration of the parties involved. 3.5.4 Unintended consequences such as the co-optation of restorative processes for coercive or punitive ends, undue offender orientation, or the expansion of social control, are resisted. Document shared on https://www.docsity.com/it/little-book-on-restorative-justice/9670393/ Downloaded by: loda70 ([email protected])  lOMoARcPSD|20282625 RESTORATIVE JUSTICE HANDBOOK ON RESTORATIVE JUSTICE PROGRAMMES CRIMINAL JUSTICE HANDBOOK SERIES CHAPTER 1 RESTORATIVE JUSTICE: DEFINITIONS OF KEY CONCEPTS In many countries, dissatisfaction and frustration with the formal justice system has resurged the interest in preventing and strengthening customary law and traditional justice practices to an alternative response to crime and social disorder. Many of these alternatives provide parties involved, the community à opportunity to participate in resolving conflict and addressing its consequences. RJ programmes based on: - Participation to the conflict resolution and mitigate its negative consequences - Return to local decision-making and community building - Encourage the peaceful expression of the conflict - Promote tolerance and inclusiveness - Build respect for diversity - Promote responsible community practices They involve individuals who are not detached from the accident, they are directly involved and affected by it. The participation of the community in the process is direct and concrete. Parties participate voluntarily in a process of dialogue and negotiation. There is a variety of contexts and settings including schools and workplace. In many developing countries, RJ practices are applied through traditional practices and customary law. In doing so, these approaches may serve to strengthen the capacity of the existing justice system. A challenge for participatory justice is to mobilize the involvement of civil society and at the same time protecting the rights and interests of victims and offenders. RJ is an approach to problem solving that, in its various forms, involves the victim, the offender, their social networks, justice agencies and the community. Restorative justice programmes are based on the fundamental principle that criminal behavior not only violates the law, but also injures victims and the community. A RESTORATIVE PROCESS IS ANY PROCESS IN WHICH THE VICTIM AND THE OFFENDER AND, WHERE APPROPRIATE, ANY OTHER INDIVIDUALS OR COMMUNITY MEMBERS AFFECTED BY A CRIME PARTICIPATE TOGETHER ACTIVELY IN THE RESOLUTION OF MATTERS ARISING FROM THE CRIME, GENERALLY WITH THE HELP OF A FACILITATOR. A RESORATIVE JUSTICE PROGRAMME MEANS ANY PROGRAMME THAT USES RESTORATIVE PROCESSES AND SEEK TO ACHIEVE RESTORATIVE OUTCOMES. RJ: different interpretations in different countries à variety of terminologies used There are many terms that are used to describe the RJ movement. These includes: - Communitarian justice - Making amends - Positive justice - Relational justice etc. Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 RJ gives as much importance to the process as to the outcome. The individuals involved in the process are referred as the “parties” and the technique is a MEDIATION. According to the Basic Principles, a restorative outcome is an agreement reached as a result of a restorative justice process. The agreement may include referrals to programmes such as: - Reparation - Restitution - Community services “Aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender”. The following are the features of RJP: - A flexible response to the circumstance of the crime - The victim and the offender are considered individually - A response to a crime that respects the dignity and equality of each person, builds understanding and promotes social harmony through the healing of victims, offenders, and communities - A viable alternative in many cases to the formal criminal justice system and its stigmatizing effects on offenders - An approach that can be used in conjunction with traditional criminal justice processes and sanctions - An approach that incorporates problem solving and addressing the underlying causes of conflict - An approach that addresses the harms and needs of victims - An approach which encourages an offender to gain insight into the causes and effects of his or her behavior and take responsibility in a meaningful way - A flexible and variable approach which can be adapted to the circumstances, legal tradition, principles, and underlying philosophies of established national criminal justice systems - An approach that is suitable for dealing with many kinds of offences and offenders, including many very serious offences - A response to crime which is particularly suitable for situations where juvenile offenders are involved and in which an important objective of the intervention is to teach the offenders some new values and skills - A response that recognizes the role of the community as a prime site of preventing and responding to crime and social disorder. Restorative justice programmes are based on several underlying assumptions: (a) that the response to crime should repair as much as possible the harm suffered by the victim; (b) that offenders should be brought to understand that their behavior is not acceptable and that it had some real consequences for the victim and community; (c) that offenders can and should accept responsibility for their action; (d) that victims should have an opportunity to express their needs and to participate in determining the best way for the offender to make reparation, and (e) that the community has a responsibility to contribute to this process. There are at least four critical ingredients for a fully restorative process to achieve its objectives: (a) an identifiable victim; (b) voluntary participation by the victim; (c) an offender who accepts responsibility for his/her criminal behavior; and (d) non-coerced participation of the offender. Most restorative approaches strive to achieve a specific interactive dynamic among the parties involved. The goal is to create a no adversarial, non-threatening environment in which the interests and needs of the victim, the offender, the community, and society can be addressed. PROCESS VALUES: PARTICIPATION AND EMPOWERMENT OF PARTICIPANTS, RESPECT FOR ALL PARTICIPANTS, PREFERENCE FOR CONSENSUAL OUTCOMES OVER IMPOSED ONES, COMMITMENT OF PARTIES TO AGREEMENT REACHED THROUGH THE PROCESS, FLEXIBILITY AND RESPONSIVENESS OF PROCESS AND OUTCOMES, COMMUNITY EMPOWERMENT. The process is characterized by respectful treatment of all parties. It functions best when it remains clear and predictable, yet flexible and responsive to the individual circumstance of each case. It favors consensual outcomes over imposed ones. Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 Process goals include the following: - Victims who agree to be involved in the process can do so safely and come out of it satisfied. - Offenders understand how their action has affected the victim and other people, assume responsibility for the consequences of their action and commit to making reparation. - Flexible measures are agreed upon by the parties which emphasize repairing the harm done and, wherever possible, also address the reasons for the offence. - Offenders live up to their commitment to repair the harm done and attempt to address the factors that led to their behavior; and, - The victim and the offender both understand the dynamic that led to the specific incident, gain a sense of closure, and are reintegrated into the community. More specifically, restorative justice practitioners tend to agree that what truly makes a particular response to crime a “restorative” one is not so much a specific practice or process, but rather its adherence to a set of broad objectives that provide a common basis for the participation of parties in responding to a criminal incident and its consequences. a. Restore community order and peace and repair damaged relationships b. Denounce criminal behavior as unacceptable and reaffirm community values c. Support victims, give them a voice, enable their participation, and address their needs d. Encouraging all concerned parties to take responsibility, particularly by the offenders Identify restorative, forward-looking outcomes e. Prevent recidivism by encouraging change in individual offenders and facilitating their reintegration into the community ! We know much more about the needs of victims of crime and the ways in which criminal justice system may address these needs (needs for information, participation, expression, empathy etc.). However, there remain frequent complaints that the formal criminal justice process ignores the victims’ needs and wishes. By contrast, a restorative justice process is often uniquely suited to address many of the victims’ most important needs. In particular, the formal justice process is not designed to allow victims to describe the nature and consequences of the crime, let alone to ask questions of the offender. The restorative justice model can support a process where the victims’ views and interests count, where they can participate and be treated fairly and respectfully and receive restoration and redress. By participating in the decision-making, victims have a say in determining what would be an acceptable outcome for the process and are able to take steps toward closure. A key feature of restorative justice is that the response to criminal behavior focuses on more than just the offender and the offence. Peacemaking, dispute resolution and rebuilding relationships are viewed as the primary methods for achieving justice and supporting the victim, the offender and for interests of the community. It can also be helpful for identifying underlying causes of crime and developing crime prevention strategies. Denouncing certain behaviors is an objective of the restorative justice process just as it has been a fundamental objective of criminal law for centuries. However, the way in which the behavior is denounced is different. Denunciation is achieved in a more flexible manner, considering not only the rules, but also the individual circumstances of the offence, the victim, and the offender. It is designed to be a positive denunciation within a larger process, rather than being the sole focus of the intervention. The restorative process is meant to make it easier for offenders to assume responsibility for their behavior and its consequences. Active acknowledgment and acceptance of personal responsibility for the crime and its consequences, rather than a mere passive one imposed by others. The way this responsibility will lead to action, in particular apologies and restoration, is left to be determined through the process itself and not through the automatic application of some general legal rules. At its best, the process may lead the offender not only to assume responsibility but also to experience a cognitive and emotional transformation and improve his or her relationship with the community and, depending upon the circumstance, with the victim and the victim’s family. Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 Rather than emphasizing the rules that have been broken and the punishment that should be imposed, restorative approaches tend to focus primarily on the persons who have been harmed. A restorative justice process does not necessarily rule out all forms of punishment (e.g., fine, incarceration, probation), but its focus remains firmly on restorative, forward-looking outcomes. The restorative outcome that is being pursued is the repair, as far as possible, of the harm caused by the crime by providing the offender with an opportunity to make meaningful reparation. The past behavior of individuals and its consequences are clearly a central preoccupation of the restorative process, but so is the offender’s future behavior. Transforming or “reforming” the offender through the restorative process is a legitimate objective of the process and so is the prevention of recidivism. The insistence that offenders understand and accept responsibility for the consequences of their actions is clearly meant to affect the offenders’ future behavior. Identifying factors that lead to crime and informing authorities responsible for crime reduction strategy. The restorative process is an open one that encourages frank discussion of the background of the offence in a spirit of explanation rather than making excuses. CHAPTER 2 THE USE OF RESTORATIVE APPROACHES: MAIN TYPES OF PROGRAMMES This section of the handbook presents information on the main types of restorative justice programmes, including victim offender mediation programmes, community and family group conferencing, circle sentencing and reparative probation. It also includes a discussion of indigenous and customary justice forums and the main characteristics of existing criminal justice programmes. Restorative justice programmes complement rather than replace the existing criminal justice system. A restorative intervention can be used at any stage of the criminal justice process. There are within a criminal justice system four main points at which a restorative justice process can be successfully initiated: (a) at the police level (pre-charge); (b) prosecution level (post charge but usually before a trial), (c) at the court level (either at the pretrial or sentencing stages; and, (d) corrections (as an alternative to incarceration, as part of or in addition to, a non-custodial sentence, during incarceration, or upon release from prison. In some countries, restorative interventions are possible in parallel to the prosecution. In Belgium, for example, mediation can also be offered when the public prosecutor has already decided to prosecute the suspect. A restorative process can also be initiated in some cases instead of bringing a particular crime or conflict to the attention of the criminal justice system in the first place. This is the case, for instance, in school-based programmes using mediation or other restorative processes to deal with minor behavioral problems that take place within the school community. Finally, police officers can often also informally incorporate restorative justice principles into their decision- making when they are called upon to intervene on the street, in situations of minor disorder or conflict or in specific contexts, such as schools. Existing programmes vary considerably in formality; in how they relate to the criminal justice system; how they are operated, in the level of involvement they encourage from various parties, or in the main objectives they pursue. There is also considerable variation in the extent to which criminal justice professionals participate in restorative processes. For example, the role of justice professionals in circle sentencing (e.g. judge calling the session to order) is limited. While prosecutors make recommendations to the court in indictable offences and judges are asked for legal input on what is required by statute, officials for the most part become members of the circle, expressing their personal views of the offence, offender and victim when it is their turn to speak. A large proportion of restorative justice programmes are operated by public sector organizations. There are court-based programmes, police-based programmes, and programmes that are operated by not-for-profit organizations in the community. While public sector agencies tend to utilize professionals, community-based programmes generally rely on trained volunteers from the community. Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 Crime victims are provided with an opportunity to: - Be directly involved in resolving the situation and addressing the consequences of the offence - Receive answers to their questions about the crime and the offender - Express themselves about the impact of the offence - Receive restitution or reparation - Receive an apology - Restore, when appropriate, a relationship with the offender - Reach closure Offenders are provided with an opportunity to: - Acknowledge responsibility for the offence and understand the effects of the offence on the victim - Express emotions (even remorse) about the offence - Receive support to repair harm caused to the victim or oneself and family - Make amends or restitution/reparation - Apologize to victims - Restore their relationship with the victim, when appropriate - Reach closure VICTIM-OFFENDER MEDIATION Victim-offender mediation programmes (also known as victim-offender reconciliation programmes) were among the earliest restorative justice initiatives. These programmes are designed to address the needs of crime victims while guarantee that offenders feel responsible for their offending. The programmes can be operated by both governmental agencies and not-for-profit organizations and are generally restricted to cases involving less serious offences. Referrals may come from the police, the prosecutors, the courts, and probation offices. The programmes can operate at the precharge, the post-charge/pre-trial and post-charge stages, and involve the free participation of the victim and the offender. The programmes can also offer a pre-sentencing process leading to sentencing recommendations. When the process takes place before sentencing, the outcome of the mediation usually is brought back to the attention of the prosecution or the judge for consideration. The victim-offender mediation process can also be used successfully during the offender’s incarceration and can become part of his or her rehabilitation process even in the case of offenders serving long sentences. Victims and offenders meet face-to-face, can express their feelings directly to each other, and develop a new understanding of the situation. With the help of a trained facilitator, they can reach an agreement that will help them both bring closure to the incident. In fact, the facilitator usually meets with both parties in advance of a face-to-face meeting and can help them prepare for that occasion. This is done to ensure that the victim is not re-victimized by the encounter with the offender and that the offender acknowledges responsibility for the incident and is sincere in wanting to meet the victim. When a direct contact between the victim and offender is possible, it is not uncommon for one or both to be accompanied by a friend or supporter. Sometimes, a direct contact is not possible à Indirect mediation processes where the facilitator meets with the parties successively and separately are therefore also widely used. There are three basic requirements that must be met before victim-offender mediation can be used: - The offender must accept or not deny responsibility for the crime - Both the victim and the offender must be willing to participate - Both the victim and the offender must consider it safe to be involved in the process. Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 In victim-offender mediation, the crime victims are often referred, as needed, for help and assistance and are also allowed to tell the offender how the crime has affected them and to request information about the crime. The mediation process leads to reparation and some form of compensation for the victims’ losses. When there is a direct contact, the victim is often invited to speak first during the mediation as a form of empowerment. The mediator assists the two parties in arriving at an agreement that addresses the needs of both parties and provides a resolution to the conflict, a conciliation agreement mediated between the offender and the victim can be forwarded to the court and may be included in the sentence or in the conditions of a probation order. COMMUNITY AND FAMILY GROUP CONFERENCING This model in its modern form was adopted into national legislation and applied to the youth justice process in New Zealand in 1989, making it at the time the most systemically institutionalized of any existing restorative justice approaches. The majority of cases are handled by the police through “restorative caution” and by police-directed or court family group conferencing. It is based on the centuries old sanctioning and dispute resolution traditions of the Māori, the New Zealand aboriginal group. The focus of the conferencing process is somewhat broader than that of regular mediation programmes. It involves bringing together the family and friends of both the victim and the offender, and sometimes also other members of the community to participate in a professionally facilitated process to identify desirable outcomes for the parties, address the consequences of the crime and explore appropriate ways to prevent the offending behavior from reoccurring. The mandate of family group conferencing is to confront the offender with the consequences of the crime, develop a reparative plan, and in more serious cases (in the New Zealand model), determine the need for more restrictive supervision and/or custody. In Australia and the United States, police officers generally serve as primary gatekeepers, while in South Africa it is the prosecutors. Community conferencing is also used sometimes as alternative measure programme to which an offender can be diverted from the criminal justice system. Such programmes tend to be managed by community groups or agencies, with or without financial support from the government. The circle usually consists of those most concerned about the offender and the victim and any other member of the community with an interest in the process. CIRCLE SENTENCING In circle sentencing all the participants, including the judge, defense counsel, prosecutor, police officer, the victim and the offender and their respective families, and community residents, sit facing one another in a circle. Circle sentencing is generally only available to those offenders who plead guilty. Discussions among those in the circle are designed to reach a consensus about the best way to resolve the conflict and dispose of the case, considering the need to protect the community, the needs of the victims, and the rehabilitation and punishment of the offender. The sentencing circle process is typically conducted within the criminal justice process, includes justice professionals, and supports the sentencing process. Circle sentencing is perhaps the best example of participatory justice in that members of the community can become directly involved in responding to incidents of crime and social disorder. This is done through the formation of a Community Justice Committee (CJC). The common objective of the members of the CJC is to find more constructive ways to respond to conflict in their community There are four stages to the circle process: - Stage 1: Determining whether the specific case is suitable for a circle process - Stage 2: Preparing the parties that will be involved in the circle Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 - Stage 3: Seeking a consensual agreement in the circle - Stage 4: Providing follow-up and ensuring the offender adheres to the agreement The outcome of the circle is generally submitted to the judge, who may or may not have participated directly in the circle and is not binding on the court. The court takes the plan developed through the circle very seriously, but it does not necessarily adopt or ratify it completely. The court may also adopt the plan in addition to another sentence that it may order. Offenders who have their cases heard in a sentencing circle may still be sent for a period of incarceration; however, there are a wide range of other sanctions available, including restitution and compensation, probation, house arrest and community service. A fundamental principle of circle sentencing is that the sentence is less important than the process used to arrive at an outcome or a sentence. Because a consensus around an outcome is desired and valued, members of the circle are all playing an active role in facilitating a healing process. In contrast to the formal and often adversarial approach to justice, circle sentencing can help: reacquaint individuals, families and communities with problem-solving skills; rebuild relationships within communities; promote awareness and respect for values and the lives of others; address the needs and interests of all parties, including the victim; focus action on causes, not just symptoms, of problems; recognize existing healing resources and creates new ones; coordinate the use of local and government resources; generate preventive measures. RESTORATIVE PROGRAMMES FOR JUVENILE OFFENDERS Restorative programmes offer some very real and effective alternatives to more formal and stigmatizing youth justice measures. In particular, because of their educational value, they are particularly useful for promoting diversionary measures and for providing alternatives to measures that would deprive a youth of his or her liberty. In many countries, juvenile justice legislation provides specifically for the creation of diversion programmes for youth. Many of these programmes can be developed in line with restorative and participatory justice principles. many programmes developed completely outside of the criminal justice system, in schools or in the community, can provide an opportunity for the community to provide an appropriate educational response to minor offences and other conflicts without formally criminalizing the behaviour or the individual. A number of programmes already exist in schools that facilitate a response (peer mediation, conflict resolution circles, etc.) to minor youth crime (e.g. fights, violent bullying, minor theft, vandalism of school property, extortion of pocket money) that may otherwise have become the object of a formal criminal justice intervention. INDIGENOUS AND CUSTOMARY JUSTICE FORUMS In Australia and Canada, indigenous informal participation in sentencing procedures has been occurring in remote communities for some time. In Australia, since the late 1990s, this practice has been transposed to urban areas with the advent of indigenous sentencing and circle courts. Indigenous people, organizations, elders, family, and kin group members are encouraged to participate in the sentencing process and to provide officials with insight into the offence, the character of victim-offender relations and an offender’s readiness to change. With these developments, court processes may have become more culturally appropriate and greater trust may have grown between indigenous communities and judicial officers. Community based informal systems, or as they are sometimes called, non-state justice systems can take many forms and produce different outcomes in terms of access to justice as well as equity and fairness. A distinguishing feature of many of them is their informal and deliberative process. The outcome, however, is often decided by arbitration rather than mediation and the offender’s consent to participate is not always a requirement. In many African countries customary law may provide a basis for rebuilding the capacity of the justice system. In these Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 countries, the primary aim of customary law is conciliation and dispute, reconciliation between the wronged and the wrongdoer. In South-Eastern Nigeria and many parts of West Africa, the “age grade” systems encourage reconciliation within communities through peer group interventions. In the Philippines, the Barangay justice system consists of a locally elected Barangay captain and a “peacekeeping committee” hearing cases involving conflicts between residents. There is a mediation session that is facilitated by the captain or another member of the committee. Agreements reached through this process are legally binding and are recognized by the courts. The system has been criticized for failing to adequately inform participants about their rights in it, or for patronage, corruption or gender bias. To alleviate some of these shortcomings of the process, a programme has been initiated to train community leaders, many of them women, as Barangay justice advocates. In Uganda, the local council courts have been institutionalized by statute and have the power to grant remedies such as compensation, restitution, reconciliation or apology, as well as more coercive measures. CHAPTER 3 BASIC PRINCIPLES ON THE USE OF RESTORATIVE JUSTICE PROGRAMMES IN CRIMINAL MATTERS The Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters was adopted in 2002 by the United Nations Economic and Social Council. Their purpose is to inform and encourage Member States to adopt and standardize restorative justice measures in the context of their legal systems, but there was no intention to make them mandatory or prescriptive. Specifically, parts II and III of the document deal respectively with trying to define the appropriate use of restorative justice (e.g. when there is sufficient evidence against the offender to justify an intervention and when the offender and the victim consent) and the nature of the legal safeguards that should be set in place. 1. The right to consult with legal counsel: The victim and the offender should have the right to consult with legal counsel concerning the restorative process and, where necessary, to translation and/or interpretation. 2. The right of minors to the assistance of a parent or guardian: Minors should, in addition, have the right to the assistance of a parent or guardian. 3. The right to be fully informed: Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision. 4. The right not to participate: Neither the victim nor the offender should be coerced, or induced by unfair means, to participate in restorative processes or to accept restorative outcomes. Their consent is required. Children may need special advice and assistance before being able to form a valid and informed consent. 5. Participation is not evidence of guilt: Participation of an offender in a restorative justice process should not be used as evidence of admission of guilt in subsequent legal proceedings 6. Agreements should be voluntary and be reasonable: Agreements arising out of a restorative process should be arrived at voluntarily and should contain only reasonable and proportionate obligations 7. Confidentiality of proceedings: “Discussions in restorative processes that are not conducted in public should be confidential, and should not be disclosed subsequently, except with the agreement of the parties or as required by national law” 8. Judicial supervision: “The results of agreements arising out of restorative justice programmes should, where appropriate, be judicially supervised or incorporated into judicial decisions or judgements”. Whenever that occurs, the outcome should have the same status as any other judicial decision. This means that in most systems the outcome could therefore be appealed by the offender or the prosecution. 9. Failure to reach an agreement: Failure to reach an agreement should not be used against the offender in subsequent criminal justice proceedings. 10. No increased punishment for failure to implement an agreement: Failure to implement an agreement made in the course of a restorative justice process (other than a judicial decision or judgement) should not be used as justification for a more severe sentence in subsequent criminal proceedings. Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 The Basic Principles makes it clear that, in some cases, it may be sufficient to adopt policies and clear guidelines to guide the new programmes and establish the necessary normative framework. In some countries, the law regulating mediation processes prescribes the establishment of an ethical commission. Such a commission can have two functions: providing a complaints procedure for victims, offenders and others involved within the restorative process on the one hand, and elaborating ethical principles and guidelines for restorative justice practitioners on the other hand. CHAPTER 4 FROM PRINCIPLES TO PRACTICE: IMPLEMENTING RESTORATIVE JUSTICE PROGRAMMES Successful implementation of restorative justice programmes requires strategic and innovative initiatives that build on the collaboration of governments, communities, nongovernmental organizations, victims, and offenders. In addition to new programmes, existing justice structures and processes may be adapted to incorporate elements of restorative justice. There are several crucial steps that contribute to the effective implementation and sustainability of restorative justice initiatives. They include : legislation; leadership and organization; securing a buy-in by the criminal justice system; identifying and mobilizing community assets; carefully designing the programme to build on the existing strengths of the community and the justice system and account for existing contingencies; and careful planning and monitoring of the implementation process. In addition, a number of key factors associated with the successful implementation of restorative justice programme include: A strategic approach; Strong leadership from senior criminal justice managers; Effective communication about and support for restorative processes among justice personnel; The integration of restorative processes into the justice system, rather than these processes being, or being viewed as, an “add on”; Effective communication strategies to educate and inform the community, the police, the judiciary, correctional authorities and others involved in the delivery of justice services; Utilizing local resources and experience, including the voluntary sector; Collaborative partnerships between criminal justice agencies and personnel and community-based organizations; Collaborative partnerships between criminal justice personnel and the voluntary sector; A clear operational framework, including protocols that define areas of jurisdiction and responsibility; The development of criteria that guide the referral of cases to restorative processes, including determining which cases/offenders/ crime victims would derive the most benefit from such referral; Effective and comprehensive training for criminal justice and community-based programme staff; Well-developed skill sets and areas of expertise among justice and community- based personnel; The creation of valid performance measures or indicators. 1. Strategic approaches The Basic Principles (para. 20) recommends that Member States “consider the formulation of national strategies and policies aimed at the development of restorative justice and at the promotion of a culture favourable to the use of restorative justice among law enforcement, judicial and social authorities, as well as local communities.”. Clearly, when major organizational changes are being proposed to the criminal justice system, a strategic approach to their implementation is recommended à , it is best to be inspired by the experience of others, to enquire about best practices in the field, and to proceed openly and strategically in order to build a strong support base for the proposed changes. Experience shows that a broad consultation process is usually the best basis for the development of successful programmes. Criminal justice leaders and key stakeholders should be provided with genuine opportunities to have an input in the development of new strategies and to build upon existing processes that have the potential to become restorative in approach and outcome. As well, these professional and community members must be encouraged to develop a personal sense of ownership over the new programmes. “Programmes are be developed on a collaborative basis, involving where appropriate, criminal justice agencies, social service agencies, non-governmental organizations, community associations, and the private sector. In the absence of collaborative arrangements, it is likely that difficulties will be experienced in securing referrals from the police, gaining the support of the prosecutor’s office, and other required supports.” Downloaded by Christian Loda ([email protected])  lOMoARcPSD|20282625 2. Programme design and implementation planning At the programme design stage, proper and extensive consultations are crucial. They can help all stakeholders develop a sense of ownership over the new programmes and will ensure the legitimacy of proposed new approaches in the eyes of the victims, the offenders, and all other imp