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Restorative Justice

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Title: Restorative Justice


1
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

2
What is Restorative Justice?
  • a new paradigm of criminal justice?
  • a new way of thinking about crime?
  • a new lifestyle?

3
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

4
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

5
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

6
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

7
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

8
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)

9
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

10
Coming together
  • May occur as one event
  • May occur through a series of meetings

11
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

12
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

13
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

14
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

15
RJ Outcomes
  • apology
  • restitution
  • monetary compensation for damage
  • voluntary activities
  • obligation for therapy, etc.

16
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)

17
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

18
Paradigms of Justice (H. Zehr)
Old Paradigm Retributive Justice New Paradigm Restorative 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
19
Paradigms of Justice (H. Zehr)
Old Paradigm Retributive Justice New Paradigm Restorative Justice
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
20
Paradigms of justice (H. Zehr)
Old Paradigm Retributive justice New Paradigm Restorative justice
7 Encouragement of competitive, individualistic values Encouragement of mutuality
8 Action directed from state to offender -victim ignored -offender passive Victims and offenders roles recognized
21
Paradigms of justice (H. Zehr)
Old Paradigm Retributive justice New Paradigm Restorative 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
22
Paradigms of Justice (H. Zehr)
Old Paradigm Retributive Justice New Paradigm Restorative Justice
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
23
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

24
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

25
Other RJ values
  • mutual respect
  • acknowledgment
  • openness
  • empowerment
  • connectedness
  • tolerance
  • integrity
  • encouragement
  • sharing ideas
  • importance of feelings, needs and rights

26
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

27
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.

28
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.

29
Supra-national instruments of RJ (cont.)
  • 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

30
Supra-national instruments of RJ (cont.)
  • Council of Europe
  • Recommendation No. R (99)19 on mediation in
    penal matters
  • Recommendation No (2006)8 on assistance to crime
    victims

31
Supra-national instruments of RJ (cont.)
  • European Union
  • Council Framework Decision of 15 March 2001 on
    the standing of victims in criminal proceedings

32
RJ models
  • Victim-offender mediation
  • Family group conferencing
  • Community conferencing
  • Sentencing circles (sometimes called
    peacemaking circles)
  • Restorative cautioning
  • Restorative conferencing

33
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

34
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.

35
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.

36
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

37
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.

38
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.

39
Clarification
  • Sometimes the terms Restorative practices,
    Restorative process or Restorative programs are
    used instead of RJ or RJ models, with the
    same contents.

40
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.

41
Mediation session
  • 1st stage. Introduction
  • 2nd stage. Story-telling
  • 3rd stage. Problem- solving
  • 4th stage. Agreement
  • 5th stage. Closure
  • monitoring meeting

42
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.

43
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.

44
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.

45
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.

46
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.

47
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.

48
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.

49
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

50
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.

51
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

52
Legal status of RJ models in Europe according to
a recent survey

53
Territorial application of RJ models in Europe

54
Stages of application

55
The most common types of offences referred

56
Types of victims involved

57
Main reasons which led to the emergence of RJ
models

58
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.

59
Evaluation of RJ
  • High participants satisfaction rates
  • High restitution completion rate
  • Reduced fear among victims
  • Reduced criminal behavior by offenders

60
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.

61
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.

62
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

63
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

64
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

65
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

66
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

67
Thank you for your attention!
  • Time for questions
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