Restorative Justice

Restorative Justice

Prof. Dr. Dobrinka Chankova

South-West University, Bulgaria

JSPS Fellow at Tokiwa University

9th Asian Postgraduate Course on Victimology and Victim Assistance, 17-29 August 2009

What is Restorative Justice?

a new paradigm of criminal justice? a new way of thinking about crime? a new lifestyle?

History of Restorative Justice (RJ)

Old traditional practices of Maori, Native Indians of America, Africans and Aboriginals

A new Western wave of RJ began with the first Victim-Offender Reconciliation Programme - an experiment in Kitchener, Ontario,Canada, in the early 1970s’ when a youth probation officer convinced a judge that two youths convicted of vandalism should meet the victims of their crimes

History of Restorative Justice

The Kitchener experiment evolved into an organized Victim-Offender Reconciliation Programme funded by church donations and government grants with the support of various community groups

Following several other Canadian initiatives, Restorative practices have spread throughout the United States and Europe

History of Restorative Justice

At the end of 1980s Family group conferences were developed in New Zealand

Since then there has been a proliferation of new and varied models of RJ

Now RJ is truly on the world map

Basic Assumptions

Shortcomings of criminal justice and its incapacity to assure peace in social life

Nils Christie – “Conflicts as property”- the state and lawyers “have stolen” conflicts from the parties involved and have deprived them of any possibility to independently reach resolution; hence, conflicts should be “returned back“ to their proper “owners”

Basic Assumptions

Crime has its origin in social conditions and relationships in the community

Crime prevention is dependant on communities taking some responsibilities for remedying those conditions that cause crime

Importance of Informal justice and Victim Rights movements

Definition of RJ

a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future (Marshall 1999)

Parties with a stake in an offence

The victim The offender The families of each Any other members of their respective

communities who may be affected, or who may be able to contribute to prevention or recurrence

Coming together

May occur as one event May occur through a series of

meetings

Facilitator

Neutral person with the skills: To prepare people for the restorative

process To ensure that it progresses in a

safe and civilized manner To guide parties through difficult

phases

The aftermath of the offence

Ensuring the material well-being or satisfaction of the victim

Attention to the victims emotional needs Resolution of any conflict between the

victim and the offender Giving the offender a chance to absolve

his/her own feelings of guilt through apology and reparation

The implications for the future

Tackling the reasons for the offending

Producing a plan for rehabilitation and agreement among the family and community members present on a system of support for the offender to ensure that he/ she is able to adhere to the plan

Philosophy of Restorative Justice

RJ provides an expanded role for victims

RJ requires offenders to take responsibility for their actions and for the harm they have caused

RJ gets the community involved Key word - RESTORATION

RJ Outcomes

apology restitution monetary compensation for damage voluntary activities obligation for therapy, etc.

Principles of Restorative Justice

Making room for personal involvement of those mainly concerned (particularly the victim and the offender, but also their families and communities)

Seeing crime problems in their social context A forward looking (or preventative) problem-solving

orientation Flexibility of practice (creativity)

Principles of Restorative Justice

Voluntary participation, based on informed choice

Neutrality and impartiality of RJ practitioners

Respect for rights and dignity of persons

Promotion of community safety and social harmony

Paradigms of Justice (H. Zehr)

Old ParadigmRetributive Justice

New ParadigmRestorative Justice

1 Crime defined as violation of the state

Crime defined as violation of one person by another

2 Focus on establishing blame, on guilt, on past (did he/she do it ?)

Focus on problem-solving, on liabilities and obligations, on future (what should be done?)

3 Adversarial relationships and process normative

Dialog and negotiation normative




4 Imposition of pain to punish and deter / prevent

Restitution as a means of restoring both parties, reconciliation / restoration as goal

5 One social injury replaced by another

Focus on repair of social injury

6 Community on sideline, represented by state

Community as facilitator in restorative process

Paradigms of justice (H. Zehr)

Old ParadigmRetributive justice

New ParadigmRestorative justice

7 Encouragement of competitive, individualistic values

Encouragement of mutuality

8 Action directed from state to offender:-victim ignored-offender passive

Victim’s and offender’s roles recognized

Paradigms of justice (H. Zehr)

Old ParadigmRetributive justice

New ParadigmRestorative justice

9 Offender accountability defined as taking punishment

Offender accountability defined as understanding impact of action and helping decide how to make things right

10 Offence defined in purely legal terms, devoid of moral, social, economic, political dimensions

Offence understood in whole complex: moral, social, economic, political




11 Stigma of crime unremovable Stigma of crime removable through restorative action

12 No encouragement of repentance and forgiveness

Possibilities for repentance and forgiveness

13 Dependence upon proxy professionals

Direct involvement by participants

Key RJ values(D. Van Ness)

Encounter: Create opportunities for victims, offenders and community members who want to do so to meet to discuss the crime and its aftermath

Amends: Expect offenders to take steps to repair the harm they have caused

Key RJ values(D. Van Ness)(cont.)

Reintegration: Seek to restore victims and offenders to whole, contributing members of society

Inclusion: Provide opportunities for parties with a stake in a specific crime to participate in its resolution

Other RJ values

mutual respect acknowledgment openness empowerment connectedness tolerance integrity encouragement sharing ideas importance of feelings, needs and rights

Basic RJ skills needed

remaining impartial and non-judgmental active, empathic, non-judgmental listening respecting the perspective of all involved empowering participants compassion patience sensitivity acute observation of participant body-language warmth

Supra-national instruments of RJ

United Nations : The 1985 Declaration of Basic Principles

on Justice for Victims of Crime and Abuse of Power - «informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress to victims».

Supra-national instruments of RJ (cont.)

1990 Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)

1999 ECOSOC resolution on the «Development and implementation of mediation and restorative justice measures in criminal justice».


2002 ECOSOC resolution on Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters

Restorative justice was on the agenda of the last two UN Crime Congresses (Vienna, 2000; Bangkok, 2005)

2006 UN Handbook on Restorative justice programs


Council of Europe Recommendation No. R (99)19 on

mediation in penal matters Recommendation No (2006)8 on

assistance to crime victims


European Union Council Framework Decision of 15

March 2001 on the standing of victims in criminal proceedings

RJ models

Victim-offender mediation Family group conferencing Community conferencing Sentencing circles (sometimes called

”peacemaking circles”) Restorative cautioning Restorative conferencing

Victim-offender mediation

Universal and “classic” RJ model Any process whereby the victim and

the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator)

Widely applied throughout the world

Family group conferencing

This process brings together the victim, offender, family, friends and key supporters of both, and possibly representatives of agencies, e.g. social services and probation, in deciding how to address the aftermath of the crime.

The meeting is facilitated by an independent facilitator.

The model is designed mainly for juveniles.

Community conferencing

A term mainly used for a process similar to the family group conferencing, for adult offenders.

In some places there are procedural variations, for example the facilitator is a police officer, victims may also be encouraged to bring their extended families and supporters, etc.

Sentencing circles

this is a community directed process designed to develop consensus among community members, victims, victim supporters, offender, offender supporters, judges, prosecutors, defense counsel, police and court workers on an appropriate sentencing plan that addresses the concerns of all interested parties

Restorative cautioning

A process pioneered in the UK by Thames Valley Police.

Uses the family group conference method to caution offenders for a wide variety of criminal offences.

The offender is encouraged to think about the effects of his or her actions on the victim, but the victim is not present.

Restorative conferencing

This normally accompanies a warning similar to a restorative caution, but supporters, as well as victim and offender, meet together in a conference with a trained facilitator.

Outcome agreements set out what the offender will do to address the harm done.

Reparation and also involvement in a rehabilitative programme – to address the underlying causes of offending behaviour – may be agreed.

Clarification

Sometimes the terms Restorative practices, Restorative process or Restorative programs are used instead of RJ or RJ models, with the same contents.

Victim-offender mediation model scheme

Initially preparatory meetings of the mediator with all parties in conflict to get them agree to mediation, considering that mediation is a voluntary process, are to be organized.

If all sides have agreed to meet, a suitable time and safe and comfortable place has to be found.

Mediation session

1st stage. Introduction 2nd stage. Story-telling 3rd stage. Problem- solving 4th stage. Agreement 5th stage. Closure

+ monitoring meeting

1st stage. Introduction

The mediator welcomes parties. Explaining purpose, establishing

guidelines and contracting the rules. Establishing a sense of safety;

conveying respect and belief in the disputants' capacity to find a way forward.

Mediator explains his role.

2nd stage. Story-telling

The mediator gives each person an opportunity to explain what has happen from their perspective, and what led up to it; to share thoughts and feelings he had during the time of the conflict and at the moment and talk about who else may have been affected.

The mediator encourages both sides to listen to and recognise the other's point of view.

Reframing the stories.

3rd stage. Problem-solving

Identifying problems and needs and exploring the opportunities for reaching a mutually acceptable agreement.

Supporting those in conflict to identify the key issues, and to attack the problem, not the person.

Encouraging both sides to find ways forward- a solution how the things can be put right and the harm can be repaired or at least new ways of seeing the situation.

4th stage. Agreement

Selection of solution which both parties can agree to.

Clarification what has been agreed, perhaps committing this to paper.

Ensuring understanding of agreement and securing commitment to agreement.

5th stage. Closure

Acknowledgment of the progress made, even if no resolution has been reached.

Some models include a monitoring meeting some time after mediation session to review the accomplishment of the agreement.

Restorative conferencing

In the center of restorative conferencing is the theory of “re-integrative shaming” (Braithwaite 1989) arguing that the offenders should be confronted with the full consequences of their action, but in a situation of support and care.

A short scenario of restorative conferencing

The facilitator communicates personally with all involved prior to the conference.

During the conference every person tells his story.

After the main actors have spoken the word is usually given to their supporters (parents) and school (society) representatives.

A short scenario of restorative conferencing (cont.)

After everyone has had the opportunity to speak, the facilitator returns to the offender and she/he is given the opportunity to say what she/he could do to repair the harm.

The victim is asked what she/he needs in the first instance.

Signing of an agreement A follow-up meeting

Family group conferencing (FGC)

These practices are useful when a plan is needed to provide support to a young person, or their family in making changes.

FGC draw on the strength and resources of a wide extended family network, and are convened in neutral venues by trained independent co-ordinators.

Family group conferencing (cont.)

3 stages:- professionals share information with family members and provide consultancy on options for the future help - family members have private time of their own - at the end key professionals return with the coordinator to hear and record the family plan and make arrangements for monitoring and review

Legal status of RJ models in Europe according to a recent survey

50%

10%10%

20%

10% 50%-legislationadopted

10%-adoption oflegislation in progress

10%-planning anddrafting of relevant bills

20%-lack of legislativeframework

10%-other

Territorial application of RJ models in Europe

20%

30%

50%

20% - nationwide

30% - regional

50% - local

Stages of application

10%10%

40%

20%

20% 10%-pre-charge

10%-pre-trial

40%-sentencing

20%-post-sentence

20%-other

The most common types of offences referred

0

1

2

3

4

5

6

7

Violent offences

Propertyoffences

All

Types of victims involved

0

1

2

3

4

5

6

7

8

9

10

individuals

community

legal entities orcorporatevictimsstate

Main reasons which led to the emergence of RJ models

0

1

2

3

4

5

6

7

8better serving the interestsof the victim

better serving the interestsof the offender

better serving the interestsof the community

dissatisfaction with thepreviously used models

improving the publicconfidence in the justiceprocess

more adequate answer to newly emerged social problems

improving communitycohesion

developing strong andactive communities

effective crime prevention

reducing courts’ caseload

New developments of RJ

Criminal justice – a “preserved” territory for RJ

Application of restorative practices in schools

Application of RJ in community matters Application of RJ in prison settings Application of restorative practices at work

places etc. However, the “boom” of using RJ

practices is still forthcoming.

Evaluation of RJ

High participants’ satisfaction rates High restitution completion rate Reduced fear among victims Reduced criminal behavior by

offenders

Conclusion

RJ is not a panacea. Not all offences, problems and difficult situations could be successfully solved trough it.

If in a given environment a given model produces good results it should not be taken for granted that it will happen everywhere.

Some risks always exist and the outcomes from the application of the same method in a similar situation in a different context could be controversial.

Conclusion (cont.)

There are many different ways of introducing RJ.

There have been trials and errors. But definitely this approach could

transform the way in which many societies are currently organized, promote the restorative climate and make them safer, happier places.

Further reading

Kirchhoff, G. (2005) “Mediation in Criminal Justice: Theoretical Considerations and Practical Consequences”, in Vetere, E. and Pedro, D. (eds.) Victims of Crime and Abuse of Power: Festschrift in honour of Irene Melup, Bangkok

Weitekamp, E. and Kerner, H.-J. (eds.) (2002) Restorative justice: theoretical foundations, Cullompton Willan Publishing

Further reading

Zehr, H. (1995) Changing lenses: a new focus for crime and justice, 2nd ed., Scottdale, PA, Herald Press

Zehr, H.(2000) Little book on restorative justice, Intercourse, PA, Good Books

Johnstone, G. & Van Ness, D. (eds.) Handbook of Restorative Justice, Cullompton: Willan Publishing

Further reading

Johnstone, G. (2000) Restorative justice. Ideas, values, debates, Cullompton, Willan Publishing

Johnstone, G. (ed.) (2003) A restorative justice reader. Texts, sources, context, Cullompton, Willan Publishing

Van Ness, D. (2002) ‘Creating Restorative Systems’, in L. Walgrave (ed.) Restorative Justice and the Law, Cullompton: Willan Publishing

Van Ness, D. and Strong, K. (2002) Restoring Justice, 2nd ed., Cincinnati, OH: Anderson Publishing

Further reading

Aertsen, I., Mackay, R., Pelikan, C., Willemsens, J. and Wright, M. (2004) Rebuilding community connections-mediation and restorative justice in Europe, Strasbourg: Council of Europe Publishing

Wright, M.(2008) 2nd ed. Restoring respect for justice: a symposium, Winchester: Waterside Press

Wright, M. (2006) ‘Restorative Justice and the Victim: The English Experience’, International Perspectives in Victimology, Vol.2 No 1, July 2006

Web-sites links

Restorative Justice Online www.restorativejustice.org European Forum for Restorative Justice- www.euforumrj.org International Institute of Restorative Practices

www.iirp.org www.realjustice.org Restorative Justice Consortium-

www.restorativejustise.org.uk

Thank you for your attention!

Time for questions

Documents

Restorative Justice