Last month, I wrote about restorative justice as a philosophy for dealing
with a broken criminal justice system. In this column, I will explain
restorative justice processes 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 back up 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 of restorative justice 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 of restorative justice 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 perform 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.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation
of difficult and intractable conflicts throughout California. His firm,
Douglas E. Noll and Associates is based in Central California. He may
be reached through his website
and email at doug@nollassociates.com