Restorative Justice

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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

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What is Restorative Justice?

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

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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

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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

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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

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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

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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

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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)

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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

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Coming together

• May occur as one event
• May occur through a series of meetings

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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

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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

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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

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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

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RJ Outcomes

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

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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)

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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

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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
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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
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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
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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
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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
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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

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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

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Other RJ values

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

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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

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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.

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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.

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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

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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

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Supra-national instruments of RJ (cont.)

• European Union
• Council Framework Decision of 15 March 2001 on
  the standing of victims in criminal proceedings

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RJ models

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

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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

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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.

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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.

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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

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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.

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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.

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Clarification

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

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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.

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Mediation session

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

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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.

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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.

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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.

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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.

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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.

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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.

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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.
  

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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

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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.

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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

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

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Territorial application of RJ models in Europe

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Stages of application

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The most common types of offences referred

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Types of victims involved

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Main reasons which led to the emergence of RJ
models

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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.

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Evaluation of RJ

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

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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.

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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.

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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

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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

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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

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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

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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

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Thank you for your attention!

• Time for questions