Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context


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In Israel , the Pentateuch specified restitution for property crimes. In Sumer , the Code of Ur-Nammu c. In Babylon , the Code of Hammurabi c. In Rome , the Twelve Tables BC ordered convicted thieves to pay double the value of stolen goods. In Ireland , under the Brehon Laws first recorded in the Old Irish period compensation was the means of restitution for most crimes. In Germany , tribal laws promulgated by King Clovis I AD called for restitutional sanctions for both violent and nonviolent offenses.

In England , the Laws of Ethelbert of Kent c. Retributive justice began to replace this system following the Norman invasion of Britain in A. William the Conqueror 's son, Henry I , issued laws detailing offenses against the? By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state[ citation needed ]. Restorative justice takes many different forms, but all systems have some aspects in common.

In criminal cases, victims have an opportunity to express the full impact of the crime upon their lives, to receive answers to any lingering questions about the incident, and to participate in holding the offender accountable for his or her actions. Offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to make things right with the victim? In social justice cases, impoverished people such as foster children are given the opportunity to describe what they hope for their futures and make concrete plans for transitioning out of state custody in a group process with their supporters [6].

In social justice cases, restorative justice is used for problem solving. Restorative justice sometimes happens in the context of a courtroom, and sometimes within a community or nonprofit organization. In the courtroom, the process might look like this: For petty or first-time offenses, a case may be referred to restorative justice as a pretrial diversion, with charges being dismissed after fulfillment of the restitution agreement. In more serious cases, restorative justice may be part of a sentence that includes prison time or other punishments [8].

In the community, concerned individuals meet with all affected parties to determine what the experience and impact of the crime were for all. Those called out for offenses listen to others' experiences first, preferably until they are able to reflect and feel what those experiences were for the others. Then they speak to their experience: how it was for them to do what they did.

A plan is made for prevention of future occurrences, and for the offender to heal the damage to the injured parties. All agree. Community members hold offender accountable for adherence to the plan.

An International Journal of Evidence-based Research, Policy, and Practice

Most academics and government definitions of restorative justice restrict that definition to those programs that involve an encounter between the offender and the victim. Some grassroots organizations, like the Mennonite Central Committee Canada, define restorative justice programs less on who the clientele of the program is, and more on the programs values. This means that programs that only serve victims or offenders for that matter , but have a restorative framework, are considered a restorative justice program.

Many Libertarians support restorative justice because it is a victim-centric rather than state-centric approach to law enforcement. Victim-offender mediation , or VOM also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue , is usually a face-to-face meeting, in the presence of a trained mediator, between the victim of a crime and the person who committed that crime.

This system generally involves a small number of participants, and often is the only option available to incarcerated offenders, due to limits on visitors. VOM originated in Canada where it formed part of an alternative court sanction in a Kitchener, Ontario case involving two accused vandals who met face-to-face with their many victims. In addition to the primary victim and offender, participants may include people connected to the victim, the offender? FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender?

Restorative Conferencing has a much wider circle of participants than VOM. Restorative conferences, which have also been called restorative justice conferences, family group conferences and community accountability conferences, originated as a response to juvenile crime Doolan, ; O'Connell, A conference is a structured meeting between offenders, victims and both parties' family and friends, in which they deal with the consequences of the crime and decide how best to repair the harm.

Neither a counseling nor a mediation process, conferencing is a victim-sensitive, straightforward problem-solving method that demonstrates how citizens can resolve their own problems when provided with a constructive forum to do so O? Conferences provide victims and others with an opportunity to confront the offender, express their feelings, ask questions and have a say in the outcome.

The impact of Restorative Justice

Offenders hear firsthand how their behavior has affected people. They may begin to repair the harm by apologizing, making amends and agreeing to financial restitution or personal or community service work. Conferences hold offenders accountable while providing them with an opportunity to discard the "offender" label and be reintegrated into their community, school or workplace Morris and Maxwell, Participation in conferences is voluntary.

After it is determined that a conference is appropriate and offenders and victims have agreed to attend, the conference facilitator invites others affected by the incident? In some cases, if a victim is unwilling to participate in a face-to-face meeting, he may make a written statement to be used in the conference, or a surrogate victim may take his place. The conference facilitator sticks to a simple script and keeps the conference on focus, but is not an active participant. In the conference the facilitator asks the offenders to tell what they did and what they were thinking about when they did it.

The facilitator then asks victims and their family members and friends to tell about the incident from their perspective and how it affected them. The offenders' family and friends are asked to do the same O? In Brazil, a style of restorative conferencing inspired by Nonviolent Communication has begun to be used in the youth criminal justice system and in the schools. Like other restorative conferencing practices, the Brazilian "restorative circles" minimize the role of the facilitator, in the interest of empowering circle participants to own the process and feel that in the future they can use the process without an outside facilitator.

The approach strives to break free from the retributive model more fully than is in the case in some other restorative practices by emphasizing thinking of participants as human beings, rather than being an "offender," "victim," or other label, and by focusing on each person's choices and the human needs that motivated them.

Each person is encouraged to take responsibility for their part in what happened and co-create what will happen next. The International Institute for Restorative Practices provides training in restorative conferencing and other restorative practices throughout the world. Victims of the offender are invited to participate in the process by meeting with the board and offender, or by submitting a written statement which is shared with the offender and the board.

During a meeting, board members discuss with the offender the nature of the offense, impact of the behavior, and negative consequences. Then board members discuss a set of actions with the offender, until they reach agreement on the specific actions the offender will take within a given time period to make reparation for the crime. Subsequently, the offender must document his or her progress in fulfilling the terms of the agreement. After the stipulated period of time has passed, the board submits a report to the court on the offender? At this point, the board? In Hawaii, Restorative Circles are provided for individual imprisoned people who meet with their families and friends in a group process to address their needs for a successful transition back into the community.

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One of the needs addressed is the need for reconciliation [12] A Modified Restorative Circle has also been developed and used in Hawaii for individual incarcerated people whose loved ones are unable or unwilling to attend full Restorative Circles. This thoroughly Canadian innovation is now an internationally regarded, evidence-based practice with a demonstrable capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. In Canada, some sex offenders are released to the community after serving all of their sentence.

They have been judged too dangerous to be released on any form of conditional release e. Prior to many of these offenders were released without any form of meaningful community-based support or accountability network apart from police surveillance. Since , CoSA has assisted with the integration of well over such offenders by offering them support while holding them accountable. Further, a significant "harm reduction" effect has also been noted in those cases where sexual re-offence has occurred.

Offences were less invasive and less brutal in nature than previous offences. CoSA projects now exist in every Canadian province and every major urban centre. CoSA projects are also operational in several U. Sentencing circles sometimes called peacemaking circles use traditional circle ritual and structure to involve the victim, victim supporters, the offender, offender supporters, judge and court personnel, prosecutor, defense counsel, police, and all interested community members.

Within the circle, people can speak from the heart in a shared search for understanding of the event, and together identify the steps necessary to assist in healing all affected parties and prevent future crimes.

Sentencing circles typically involve a multi-step procedure that includes: 1 application by the offender to participate in the circle process; 2 a healing circle for the victim; 3 a healing circle for the offender; 4 a sentencing circle to develop consensus on the elements of a sentencing plan; and 5 follow-up circles to monitor the progress of the offender. Some judicial systems only support monetary restitution agreements.

To avoid difficulty in collecting the full restitution, some agreements specify a larger monetary amount e. Many jurisdictions place a cap on the restitution a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors. In addition, personal work service usually must be supported by the juvenile's parents.

Restorative Justice Approaches: A Worthy Alternative — Pedagogies of Punishment

According to the Victim Offender Mediation Association, victims are not allowed to make a profit from restitution; only their actual out-of-pocket losses can be recovered. Young offenders are often willing to agree to anything to have the session end. If the restitution is unreasonable, however, the court may throw the agreement out. If the facilitator is not adequately trained in avoiding these pitfalls, a failed restitution agreement may result.

Some restorative justice systems, especially victim-offender mediation and family group conferencing, require participants to sign a confidentiality agreement. These agreements usually state that anything discussed in the conference will not be disclosed to non-participants. The rationale for confidentiality is that it promotes open and honest communication during the process. Offenses without a readily identifiable victim , such as truancy or marijuana possession, are less suitable for restorative justice than other crimes, according to Prince William County, Virginia juvenile probation officer Danielle McCauley [13].

In a criminal context, reduction of recidivism is a secondary goal of restorative justice, [14] achieved incidentally through the primary goal of restoration of offenders. The results of those studies which have compared recidivism rates to those achieved by traditional court procedures have been varied. A report by Department of Justice Canada found that "restorative justice programs, on average, yielded reductions in recidivism compared to non-restorative approaches to criminal behavior".

These findings were supported by a Cambridge University report. On the other hand, some studies have indicated a relative increase in reoffending after restorative procedures, while still others have found no significant difference between the results of either retributive or restorative justice processes. The restorative practices concept has its roots in restorative justice. The International Institute for Restorative Practices IIRP has been developing a comprehensive framework for practice and theory that expands the restorative paradigm beyond its origins in criminal justice McCold and Wachtel, Restorative practices is an emerging field of practice and study devoted to building social capital and achieving social discipline through participatory learning and decision-making.

The field of restorative practices offers a common thread to tie together theory, research and practice in fields such as education, counseling, criminal justice, social work and organizational management.

The Basis of Restorative Justice- Where it comes from?

Individuals and organizations in many fields are developing models and methodology and performing empirical research that shares the same fundamental hypothesis. The fundamental unifying hypothesis of restorative practices is that human beings are happier, more cooperative and productive, and more likely to make positive changes in their behavior when people do things with them, rather than to them or for them. This hypothesis maintains that the punitive and authoritarian to mode and the permissive and paternalistic for mode are not as effective as the restorative, participatory, engaging with mode.

In criminal justice, restorative circles and conferences allow victims, offenders and their respective family members and friends to come together to explore how everyone has been affected by an offense and, when possible, to decide how to repair the harm and meet their own needs McCold, In social work, family group decision-making FGDM or family group conferencing FGC processes empower extended families to meet privately, without professionals in the room, to make a plan to protect children in their own families from further violence and neglect American Humane Association, In education, circles and groups provide opportunities for students to share their feelings, build relationships and problem-solve, and when there is wrongdoing, to play an active role in addressing the wrong and making things right [20].

These various fields employ different terms, all of which fall under the rubric of restorative practices: In the criminal justice field the phrase used is "restorative justice" [21] ; in social work the term employed is "empowerment" Simon, ; in education, talk is of "positive discipline" Nelsen, or "the responsive classroom" [22] ; and in organizational leadership "horizontal management" Denton, is referenced.

Use of restorative practices is spreading worldwide, in education, criminal justice, family and youth and-serving and workplace applications McCold, ; O'Connell, Restorative justice has been applied to property offences, as well as civil and criminal offences. However, it has been deemed as unsuitable for drug offences, sexual assault and domestic violence.

Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context
Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context
Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context
Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context
Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context
Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context

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