Restorative Justice. Prof. Dr. Dobrinka Chankova South-West University, Bulgaria JSPS Fellow at Tokiwa University 9 th Asian Postgraduate Course on Victimology and Victim Assistance, 17-29 August 2009. What is Restorative Justice?. a new paradigm of criminal 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
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
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».
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
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
Supra-national instruments of RJ (cont.) • 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 communicatespersonally 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.