adr 1 Flashcards
in ADR, how is crime understood
as a conflict
what has lead to an alternative response to crime and social order
- dissatisfaction and frustration with the formal justice system
- resurging interest in preserving and strengthening customary law and traditional justice practices
what belief are restorative justice programs based on
belief that parties to a conflict ought to be actively involved in resolving it and mitigating its negative consequences
how does RJ view criminal behaviour
as not only violating the law, but also injuring the victims and the community
how can RJ systems be used to reduce the burden on the criminal justice system
by diverting cases out of the system
use of restorative practices helps to:
- reduce crime, violence and bullying
- improve human behavior
- strengthen civil society
- provide effective leadership
- restore relationships
- repair harm
restorative justice is a subset of
restorative practices
restorative practices also include
the use of informal and formal processes that precede wrongdoing, those that proactively build relationships and a sense of community to prevent conflict and wrongdoing
restorative justice definition
reactive, consisting of formal or informal responses to crime and other wrongdoings
what is social capital
connection among individuals, and the trust, mutual understanding, shared values and behaviours that bind us together and make cooperative action possible
when is it easier to respond effectively to wrongdoings and restore social order?
where social capital is already well established
what do restorative circles and restorative conferences allow for
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
what are examples of restorative practices in other fields
- in criminal justice, restorative justice
- in social work, “empowerment”
- in education, “positive discipline” or “responsive classroom”
what do education circles provide
provide opportunities for students to share their feelings, build relationships and solve problems, and when there is wrongdoing, play an active role in addressing the wrong
how does the UN define “restorative process”
any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator
similar terms to restorative process
- communitarian justice
- making amends
- positive justice
- relational justice
- reparative justice
- community justice
main objective of traditional criminal justice system
punish the offender for the damage caused by the offence
what are the victim and offender like in the traditional criminal justice system
- offender is passive subject of punishment
- victim left out of legal consequences of the criminal offence
what does RJ put more emphasis on
repair than punishment
- offender how opportunity to act to directly compensate for the damage caused to the victim
restorative justice looks to…
the future
what does RJ try to minimize
minimize the effects of the offence committed and how to restore a balance broken by the offence
crime, in retributive justice vs restorative justice
- retributive justice: act against the state, violation of law, an abstract idea
- restorative: crime is an act against another person and community
who controls crime? retributive justice vs restorative justice
- retributive: criminal justice system controls crime
- restorative: crime control lies primarily in the community
crime as an individual act? retributive justice vs restorative justice
- retributive: crime is individual act with individual responsibility
- restorative: crime has both individual and social dimensions of responsibility
accountability in retributive justice vs restorative justice
- retributive: accountability as taking punishment
- restorative: accountability as assuming responsibility and taking action to repair harm
thoughts on punishment, retributive justice vs restorative justice
- retributive: punishment is effective. threat of punishment deters crime, and punishment changes behaviour
- restorative: punishment alone not effective in changing behaviour, and is disruptive to community harmony and good relationships
victims in retributive justice vs restorative justice
- retributive: victims peripheral to process
- restorative: victims central to resolving crime
offender defined by.. retributive justice vs restorative justice
- retributive: offender defined by deficits
- restorative: offender defined by capacity to make reparation
focus on … retributive justice vs restorative justice
- retributive: establishing blame or guilt
- restorative: focus on problem solving, liabilities and obligations, on the future
emphasis on …retributive justice vs restorative justice
- retributive: adversarial relationship
- restorative: dialogue and negotiation
community in retributive justice vs restorative justice
- retributive: community on sideline, represented abstractly by state
- restorative: community as facilitatory in process
response focused on …- retributive:
- restorative:
- retributive: offenders past behaviour
- restorative: response focused on harmful consequences of offenders behaviour, emphasis on future
why is restorative justice dubious?
- seems to establish that offence has broken pre-existing balance, and balance must be restored
- pre existing balance is rare
what idea does restorative justice go against?
the issue?
the monopolization of justice by the state
- but this is what has contributed most to peacemaking in western societies
how might restorative justice increase potential for violence?
conflict might be increased if in each case in which a crime is committed the offender and the victim discuss what is right
- primitive society death rates much more than today
why does restorative justice work in native societies? how is it different in western societies?
works well in native societies, or ancient societies, because their members cannot conceive their lives outside their communities
- western societies leave to the individual the possibility to freely choose his own life
underlying assumptions of RJ
- that response to crime should repair harm suffered by victim
- that offenders should be brought to understand that their behaviour is not acceptable
- that offenders should accept responsibility for their action
- that victims should have opportunity to express their needs
- that community has responsibility to contribute
critical ingredients for RJ
- identifiable victim
- voluntary participation by the victim
- offender who accepts responsibility for their criminal behaviour
- non coerced participation of offender
participants in RJ
- crime victims
- offenders
- police
- prosecutors
- defence lawyers
- judiciary
- correctional officials
- community member
- facilitators
families of restorative processes
- indirect dialogue
- facilitated dialogue between victims and offenders
- facilitated dialogue between victims, offenders, supporters, and gov officials
- facilitated dialogue bw victims, offenders, supporters, gov officials, community members
- directed dialogue bw victims, offenders and other parties
- arbitrated dialogue betwen victims, offenders and other parties
indirect dialogue
- victim and offender interact indirectly
- more settlement driven than process driven
eg in crimes of sever violence, situations of severe power imbalances
facilitated dialogue between victims and offenders
- dialogue bw victims and offenders
- facilitator creates environment, prepares parties and writes up agreement
facilitated dialogue between victims, offenders, supporters, and gov officials
dialogue expands to include some supporters of victim and offender. gov officials may also participate
- discussion tends to expand beyond specific incident to underlying issues of victim and offenders
facilitated dialogue bw victims, offenders, supporters, gov officials, community members
dialogue expands to include community member (who may or may not know the other parties)
- discussion can also include community issues
directed dialogue bw victims, offenders and other parties
role of facilitator changes from facilitation to more directive and settlement oriented
arbitrated dialogue betwen victims, offenders and other parties
facilitators organize conversation among parties, but in the end the facilitate the decision
Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters
- right to consult with legal counsel
- right of minors to the assistance of parent or guardian
- right to be fully informed
- right not to participate
- participation is not evidence of guilt
- agreements should be voluntary and be reasonable
- confidentiality of proceedings
- judicial suprevision
- failure to reach an agreement should not be used against the offender in subsequent criminal justice proceedings
- no increased punishment for failure to implement an agreement
Variation in criminal justice
programmes
Existing programmes vary considerably in formality; in how they relate to the criminal justice system; how
they are operated, in the level of involvement they encourage from various
parties, or in the main objectives they pursue
venn diagram, what makes something fully restorative?
- victim reparation
- communities of care reconciliation
- offender responsibility
the first ADRs
- 1974 case elmira, kitchner
- 1978 elkhardt (indiana)
what do reparative boards do
make the decision. looks like a jury. It’s the jury of community members
victim surrogate programmes
takes offender and someone who represents the victim. Idea to make to offender clear what is happening. Mainly for young offenders. Makes it clear what they have done wrong and why its unacceptable
