Last month, I wrote about restorative justice as a philosophy for dealing with a broken criminal justice system. Today, I want to talk about the process in more detail.
Restorative justice differs from the traditional retributive justice system because it focuses on the offender, the victim and the community. Other than providing backup support, the criminal justice system is a passive participant. Three elements make up any restorative justice process: mutual, voluntary consent to participate, meeting in a mediated setting and following through with agreements.
The first element is a mutual, voluntary agreement to meet. Both the offender and the victim must be willing to meet without coercion or pressure from anyone. In fact, the only criterion for whether a criminal matter should be considered for restorative justice processes is whether the victim and offender have agreed to the process. The severity of the offense is not a factor. The age of the offender is not a factor. The complicity of the offender is not a factor. Only if both sides agree to mediate will the process occur. Often times, prosecutors are worried that the victim will not be protected or that the crime is so heinous that swift, harsh punishment is the only option. If the victim willingly agrees to participate, these concerns become irrelevant.
The second element is the meetings. Typically, the mediator will meet individually with both the offender and the victim. At these individual meetings, the mediator learns from each party what happened and how the offense has affected families and individuals. The mediator describes the process and the goals of mediation and answers any questions the party might have.
In the offender meeting, the mediator clearly defines the expectations and commitments the offender undertakes when agreeing to the process. This includes an open, honest dialogue about the offense, how it happened and why it happened. It includes consideration of how to make things as right as possible with the victim, which could be restitution, service and apology. Finally, it includes a commitment to discuss and agree on how to prevent a re-occurrence of the offense or other misbehaviors.
The victim meeting is similar to the offender meeting, but focuses on whatever needs the victim or the victim s family might have.
If both sides agree, a joint meeting is arranged. The joint meeting process differs according to the needs of the parties and the referring criminal justice agency. If only restitution is at issue, a standard victim-offender mediation is appropriate. These referrals typically occur after a plea is entered or the offense has been tried to verdict. The object of the meeting is come to agreement on compensation for injuries suffered by the victim before sentencing.
If the referral is made pre-arraignment or post-arraignment, but before a preliminary hearing or trial, a community justice conference is usually appropriate.
The differences between a standard victim offender mediation and a community justice conference are the scope of issues discussed and the number of people -- and who they represent -- present at the joint meeting. Typically, a standard mediation will involve just the victim, the offender and the mediator. A community justice conference will involve extended families on both sides, social workers, counselors, pastors and other people connected to the parties. In addition, community members might be present. Since the community justice conference occurs before a plea or trial, the conference meeting will seek agreement on culpability, restitution and other sanctions, if appropriate. The joint meeting is moderated by the mediator. Each meeting has three phases.
Phase 1 asks the participants to share their perspectives on how they experienced the offense. Typically, the offender will start with his or her story. The victim will summarize what the offender has said and ask questions for clarification. The victim will share his or her perspective and experience and the offender will summarize. When everyone feels that all perspectives and experiences have been shared and acknowledged, the mediator moves to Phase 2.
In Phase 2, the mediator asks the participants to consider how to make things as right as possible. Typically, the victim will start the process by describing injuries, losses and costs. The mediator will start a dialogue between the victim and offender on how these injuries can be taken care of. Sometimes, the offender needs assistance as well and a discussion about sources of support can occur. If the parties reach agreement on how to make things right, the meeting moves to Phase 3.
In Phase 3, the mediator asks the participants to consider future intentions. What assurances can the offender give the group that he or she will not re-offend? What plans does the offender have for education, employment, drug counseling and rehabilitation, military service, or community service? The participants look to the future and make agreements on how the offender can be supported in ways that will not lead to re-offending.
In either a standard mediation or a community justice conference, a written agreement is made and signed by the parties. The agreement is sent back to the criminal justice referring agency. Typically, the agreement is incorporated into the final case disposition.
The final element in restorative justice processes is the follow-up. When offenders have made agreements that they know will be monitored, they tend to live up to the agreements. When agreements are not kept, the offender is invited to a meeting, with or without the victim at the victim s choice, to explain his or her intentions. Sometimes, the original agreement must be modified to deal with changed circumstances. Sometimes, the offender is simply dishonest and is attempting to scam the system. In these relatively rare cases, the case is referred back to the criminal justice system for continued processing. Statistically, more than 65 percent of all agreements are fully performed and more than 85 percent of all agreements are partially performed.
These restorative justice processes have been successful in juvenile and adult offenses. Statutory authority exists for these processes in California Penal Code sections 14150 through 14156. In addition, the courts and the district attorneys have broad discretion to refer cases to restorative justice processes.
These processes are cost-effective and promote public safety. Participant satisfaction uniformly is measured above 90 percent. For the victim, restorative justice provides direct participation in determining how an offense will be handled and gives closure to the crime. For the offender, restorative justice provides an opportunity to take responsibility, be accountable and be re-integrated into the community. For the community, restorative justice processes typically reduce recidivism or re-offending.
Thus, order, safety and security are promoted through restorative justice.
Noll is a lawyer trained as a peacemaker. His practice is devoted to working with conflicts when litigation is not an option. He may be reached at email@example.com.