Due Process Issues

Criminal defendants -- and victims -- have fundamental human rights that must be respected in any state-sanctioned proceeding. A variety of legal protections have been established over the centuries, but for the most part these anticipate a formal legal process. How can the benefits of informal processes be gained without jeopardizing the human rights of the parties? How can those rights be observed without formalizing the informal restorative processes?

Four particular areas of concern are:

1. The right to equal protection of the law. The informality of restorative processes might hide discrimination on the basis of race, gender, ethnic background or other protected status.

2. The right to freedom from torture and cruel, inhuman and degrading treatment or punishment. This issue was raised in the early days of restorative justice when the concept of reintegrative shaming was linked with restorative programmes.

3. The right to be presumed innocent. Offenders are required to accept responsibility for their conduct as a pre-requisite to a restorative meeting. After all, there is no point meeting with their victim if all they do is deny involvement. So can agreement to participate be used subsequently as evidence of guilt if the meeting fails to result in an agreement.

4. The right to assistance of counsel. In many early restorative programmes, attorneys were not allowed to participate in the meetings between victims and offenders. The concern was that the attorney would either speak for the offender or unduly constrain them. Offenders were allowed to consult with counsel before agreeing to participate, however. More recently, some countries have included the attorney in the process as an observer whose role is to ensure that the rights of their client are protected.

Because restorative programmes involve both victims and offenders, the human rights concerns are not limited to the defendant. Depending on national law, the victim may also be entitled to equal protection of the law, assistance of counsel, and other rights.

In 2002, the United Nations endorsed a Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. These offer guidance to countries incorporating restorative justice in their criminal justice systems on how to avoid human rights violations such as those mentioned above.

For further discussion on these issues in the Tutorial: Introduction to Restorative Justice, see Due Process and Equal Protection/Discrimination.

The following articles discuss the issues surrounding restorative justice and human rights/due process.

Ikpa, Tina S. Balancing Restorative Justice Principles and Due Process Rights in Order to Reform the Criminal Justice System.

Part I of this Note explores the history and underlying principles of restorative justice. Part II will detail the various due process criticisms that have been leveled at restorative justice. Part III discusses New Zealand’s due process system and how it has been able to successfully implement restorative justice in conjunction with due process. Part IV analyzes due process concerns in the United States, and how restorative justice can coexist with the Constitution. Part V contends that the benefits of restorative justice justify the minimal effort required to implement it.(excerpt)
Van Ness, Daniel W. Restorative Justice and International Human Rights.: Restorative justice theory offers a conceptual framework which may reconcile apparently inconsistent criminal justice norms and standards. The apparent inconsistencies may simply reflect a paradigm shift from a legalistic understanding of crime to a model that recognizes the injuries to victims and communities as well. A review of the documents included in the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice finds significant support for restorative justice theory.

Problems with legal aid: from Chris LaHatte's blog Legal Rambling: What is the answer? Encourage more appropriate charges instead of over prosecution-always a problem. Then, if the appropriate charges are laid, encourage more guilty pleas by use of greater allowances for preparation for sentencing, more use of restorative justice and more resources for expert reports such as drug and alcohol abuse, psychologists, and better probation reports.
No Exit: The Expanding Use of Life Sentences in America: While persons serving life sentences include those who present a serious threat to public safety, they also include those for whom the length of sentence is questionable. In particular, life without parole sentences often represent a misuse of limited correctional resources and discount the capacity for personal growth and rehabilitation that comes with the passage of time. This report challenges the supposition that all life sentences are necessary to keep the public safe, compared to a term of fewer years. We conclude with recommendations for changes in law, policy and practice which would, if adopted, address the principal deficiencies in the sentencing of people to life in prison.
More cautionary tales from the US
It's not okay: By Lisa Rea I have worked as an advocate for restorative justice and criminal justice reform working with both offenders, and their families, through Justice Fellowship as its state director in California in the 1990's, and then working with victims of violent of crime through the creation of The Justice & Reconciliation Project (JRP), a national nonprofit seeking to provide a forum for victims to tell their stories. I can tell you I have seen crime from both perspectives. Advocates who represent victims and advocates who represent prisoners would both agree on one thing: prison rape is never okay. That is why the actions of a federal prison rape commission are so important.
Rojas Mendoza, Dionisio. 2006. Design of a Restorative Justice Process: Inter-Sectoral Commission for Life and Human RIghts. Barrancabermeja (Colombia). Eastern Mennonite University. Conflict Transformation Program.: This article discusses the possible design of a restorative response to mass violence in Colombia.
Aisha Pena. Protecting Muslim Civil and Human Rights in America:The Role of Islamic, National, and International Organizations: The focus of this article is on examining the civil and human rights of Muslims in America and the bias and prejudice that they encounter in their local communities. The paper includes a list of Muslim, national, and international civil and human rights organizations, and examines their functions. The significant functions of these organizations include providing educational opportunities for Muslims, as well as for non-Muslims, to foster cooperation and promote understanding through dialogue within and between communities. The importance of Muslim involvement with, and contribution to, these organizations, is emphasized; and Muslims are encouraged to access the services of these organizations more fully and in a proactive manner to help reduce the marginalization they currently face. The significance of political participation on the part of the Muslim communities in the wider American society is noted, and the techniques and methods of restorative justice are examined and recommended for adoption. The paper concludes with the assumption that these organizations and affiliations can help protect the civil liberties of Muslims in the US by developing within the community, a political milieu that is conducive to the protection of human rights and promotion of justice.
Mitchell, Richard C and Moore, Shannon . Rights-based Restorative Justice: Evaluating Compliance with International Standards.: The authors' aim is to promote compliance with international legal standards by articulating intersections between young people's human rights and restorative justice principles — for legal theorists through transdisciplinary thinking and for practitioners by introducing the Rights Based Restorative Practice Evaluation ToolKit developed through this conceptual framework (Moore, 2008). This comprehensive approach was developed within the Canadian legal, social policy and youth justice contexts. Notwithstanding potential bias stemming from cultural or political milieu, the authors argue that rights-based restorative justice could contribute to the advancement of ethical practice in many UN-member states attempting to adopt these common frameworks. (author's abstract)
Fromme, Joan. Restorative Justice and Human Rights.: This study will explore how human rights cases can be redressed through the use of restorative justice and will identify the commonalities, differences and obstacles in the use of restorative justice as a redress mechanism. The BC Human Rights Coalition benefits by being able to utilize the research results to consider alternatives to advance the cause of human rights resolution, as well as enhance the organizational effectiveness in terms of their goals concerning advocacy, education and law reform. The research project explores the concept of utilizing restorative justice processes in human rights cases, the circumstances in which its use would be inappropriate, and considers how restorative justice processes might be used in systemic discrimination cases. Currently, restorative justice is not used in human rights cases. The recommendations outline next steps in terms of future research required in this area. (author's abstract)
Sekhonyane, Makubetse and Skelton, Ann. Human rights and restorative justice: "In Chapter 27, Ann Skelton and Makubetse Sekhonyane explore in detail the fundamental question of how the risks that restorative interventions might pose to human rights can be managed. Simply addressing this issue requires engagement with an idea, still prevalent in the restorative justice movement, that the sorts of procedureal protections of rights found (however imperfectly) in criminal justice systems are not appropriate for restorative justice -- which is voluntary and non-punitive -- and may actually obstruct the sort of engagement which is necessary in order to achieve restorative outcomes. Others, sensitive to this concern but less willing to assume that benevolent intentions of programme sponsors and facilitators are sufficient protection for human rights, have sought to develop official guidelines and standards that are more consistent with the idea of restorative justice and that, if followed, should minimize the dangers of human rights violations in restorative justice. Skelton and Sekhonyane, after reviewing the concerns about rights which have been raised (not only by those hostile or skeptical about restorative justice, but also by many who are quite sympathetic to the idea), examine debates about how standards should be set and what they should contain. Importantly, they also point to the need to incorporate into the debate broader ways of thinking about human rights and their protection." (excerpt)
Llewellyn, Jennifer J.. Truth commissions and restorative justice: "This chapter examines the claim that truth commissions can serve as institutions of restorative justice. This potential application of restorative justice has received surprisingly little attention from restorative justice scholars and advocates, an unfortunate oversight given the significant contribution restorative justice stands able to make in these contexts. ... The chapter first reviews the ways in which restorative justice is associated with truth commissions. What do advocates mean when they claim truth commissions are restorative institutions? The chapter then explores the appropriateness and potential of restorative justice as a response to gross human rights abuse. It concludes with a consideration of the implications a restorative justice approach would have for the design, structure and practice of truth commissions. In doing so attention is paid to the example offered by the South African Truth and Reconciliation Commission." (excerpt)
Blagg, Harry. Restorative Visions and Restorative Justice Practices: Conferencing, Ceremony and Reconciliation in Australia: The data to date suggest that Indigenous families in Australia are reluctant to become involved with family group conferences or are ineligible, and that the introduction conferencing has done little to reduce the overrepresentation of Indigenous youth in the justice system. The main ways of discussing conferencing involve a narrow interpretation of reintegration and a particularly symptomatic reading of Braithwaite's shaming thesis. Dialogue is needed about some basic issues about conferencing, with the aim of bringing the conferencing practice into alignment with the reconciliation process. The concept of restoration refers to the remaking of the status quo; however, the status quo may be an aspect of the problem needing transformation. The New Zealand movement has sought to empower families, whereas that in Australia has tended to empower the police and other powerful agencies such as justice ministries. It is important to respect the traditions and cultural practices underlying other societies' approaches. However, Australia's shift from care and protection to accountability and punishment has resulted in the rise of parent blaming and the separation of issues of offending from structural causes. The Human Rights and Equal Opportunity Commission's recent report provides an alternative scenario of community justice in which governments and government agencies relinquish some controls over decision-making and help Indigenous communities devise solutions acceptable to them. Criminologists should become familiar with the reports important message that atonement, restitution, and reparation are required here as the basis for a reconciled society. Abstract courtesy of National Criminal Justice Reference Service, www.ncjrs.org.
Dumortier, Els and Eliaerts, Christian. Restorative Justice for Children: In Need of Procedural Safeguards and Standards: Eliaerts and Dumortier, citing various developments around the world in the last decade, suggest that restorative justice may be in process of becoming the basic model of juvenile justice. In view of this, they raise certain concerns. For example, the informality and lack of rules in restorative justice could lead to infringement of basic human rights or to non-restorative practices masquerading as restorative justice. The authors therefore argue for tempering the call for informality in restorative justice with the need for clear standards and procedural safeguards, especially with respect to juveniles. To make their argument, they identify several reasons why restorative justice for young people needs procedural safeguards, and they propose certain basic procedural safeguards and standards to guide restorative justice processes.
Dignan, James and Cavadino, Michael. Reparation, Retribution, and Rights: At the outset of this article, Cavadino and Dignan assert their belief that it is possible to imagine a criminal justice system in which reparation plays a large part but which still adheres to a fairly strict system of proportionality. They call this imagined system the 'Strictly Proportional Composite' model. The system they thus describe would fit well with a just deserts approach but would still be a vast improvement on current criminal justice, so they say. Yet, however much of an improvement it would be, it would not be their preferred system. Rather, Cavadino and Dignan propose and describe an 'Integrated Restorative Justice' model as their system of choice. It is an attempt to put human rights theory into practical penal form. They contend that human rights theory provides the basis for a principled compromise between retributivism and reparation or restorative justice. This, they maintain, would make possible the striking of a fairer balance between the interests of victims, offenders, and ordinary law-abiding citizens.
Akester, Kate. Restorative Justice, Victims' Rights and the Future: Noting that restorative justice has become established in juvenile justice in England following the Youth Justice and Criminal Evidence Act 1999, Kate Akester also points out that ambiguity and variability with respect to restorative justice theory and practice remain. In this context, Akester examines whether and how restorative justice can be integrated into the criminal justice system, what it has to offer, and what principles form its foundations. In particular, she discusses the importance of safeguards for both offenders and victims (and human rights in general), issues pertaining to community involvement in restorative justice, and the potential development of restorative responses.
Kiss, Elizabeth. Restorative vs. Retributive Justice as Vehicles for a Human Rights Culture: Can justice be done without punishment? The idea of retributive justice denies this possibility, asserting that punishment is required to correct a moral imbalance created by wrongdoing and to maintain a legitimate moral and legal order. In recent years an intriguing counterpoint to retributive justice has appeared in a number of contexts, most notably in the work of the South African Truth and Reconciliation Commission. Referred to as "restorative justice," it is described as an alternative - perhaps even a morally superior alternative -- to retributive justice. In its Final Report the Commission appeared to make two claims about restorative justice: that it is (1) an alternative conception or dimension of justice and that it is (2) better suited than retributive justice to the task of building a human rights culture, especially in societies undergoing transition from repressive authoritarian rule to democracy. My paper seeks to unpack and analyze these two claims. I compare retributive and restorative justice and examine how each approach seeks to reshape relationships among victims, perpetrators, and the larger community. I conclude that restorative justice is indeed a coherent variant of corrective justice and that it could fruitfully be applied to a variety of contexts, not only to transitional societies. However, this ideal conception of restorative justice is difficult to pursue well, as the struggles of the TRC demonstrate. And because neither forgiveness nor remorse can be compelled (ethically and logically), advocates of restorative justice should affirm the legitimacy of retributive justice even while promoting an alternative approach. Author's abstract.
Parmentier, Stephan. The South African Truth and Reconciliation Commission: Towards restorative justice in the field of human rights: The South African Truth and Reconciliation Commission (TRC) conducted its work from 1995 to 1998. A vast amount of commentary has been generated on the TRC, particularly on its endeavors with respect to the first component of its name – the pursuit of truth. Stephan Parmentier believes that less attention has been paid to its efforts with respect to the second component – reconciliation – though the TRC dealt extensively with this notion in its report. Additionally, in its report the TRC explicitly linked truth and reconciliation with restorative justice. This is noteworthy because restorative justice stems from a very different background, namely, the field of criminology and criminal justice. Hence, in this paper, Parmentier asks whether the work of the TRC, with its focus on the violation of human rights, can be understood as a form of restorative justice. Thus, Parmentier explores the intersection of these distinct perspectives – restorative justice and the field of human rights.
Hudson, Barbara. Restorative Justice and Gendered Violence: Diversion or Effective Justice?: Although the last few years have seen considerable advances in the theoretical clarification of restorative justice as well as proliferation of programmes putting the ideas into practice, there are still some important questions that remain unresolved. These revolve around the issues of the range of cases and offenders for which restorative justice is appropriate, and the extent to which restorative justice needs to incorporate due process safeguards and standards such as proportionality, which are important in formal criminal justice. After reviewing some of the issues that have arisen in established restorative justice usages (juvenile justice; less serious offences) the article looks at more controversial applications—domestic violence, sexual assault—and examines the arguments for and against their suitability for restorative justice processes. It is suggested that arguments against extension to these ‘hard cases’ usually envisage restorative justice as diversion, while arguments for its application to these seriously harmful and antisocial wrongs advocate restorative justice as effective justice. The author concludes that questions of range and questions of standards cannot be dealt with in isolation, and that the wider the range of offences and offenders restorative justice deals with, the more it may merge with formal criminal justice.
Braithwaite, John. Setting Standards for Restorative Justice: Three types of restorative justice standards are articulated: limiting, maximizing, and enabling standards. They are developed as multidimensional criteria for evaluating restorative justice programmes. A way of summarizing the long list of standards is that they define ways of securing the republican freedom (dominion) of citizens through repair, transformation, empowerment with others and limiting the exercise of power over others. A defence of the list is also articulated in terms of values that can be found in consensus UN Human Rights agreements and from what we know empirically about what citizens seek from restorative justice. Ultimately, such top-down lists motivated by UN instruments or the ruminations of intellectuals are only important for supplying a provisional, revisable agenda for bottom-up deliberation on restorative justice standards appropriate to distinctively local anxieties about injustice. A method is outlined for moving bottom-up from standards citizens settle for evaluating their local programme to aggregating these into national and international standards.
Trepanier, Jean. "Restorative justice: A question of legitimacy.": Trepanier examines the question of legitimacy with respect to juvenile justice. Legitimacy refers to the question of whether the measure imposed on a juvenile offender is fair and reasonable. The question of legitimacy pertains both to the process of determining the measure to be imposed and the measure itself. Legitimacy is distinct from the question of legality. Legality refers to whether the process and measure conform to law. Legitimacy includes the question of legality but goes beyond to address the question of whether the process and measure possess a fair and reasonable character. The legitimacy of traditional systems for juvenile justice – pertaining, for example, to issues of due process, and to measures intended to rehabilitate the youthful offender – has been questioned by many over the years. Trepanier argues in this paper that the alternative processes and measures put forth by restorative justice advocates – such as mediation, reparation, and community service – require further reflection and research to determine whether they are fair and reasonable.
Lerman, David.. "Restoring Dignity, Effecting Justice.": Discusses the role of the restorative justice movement in providing human rights. Aims of the restorative justice movement; Example of cases wherein restorative justice movement is at work; What can the Victim-Offender Conferencing provide.

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Navigation Court House Judges Prosecutors Defense Lawyers Probation Officers Victims Restorative Justice and Sentencing Restorative Justice for Diversion Kinds of Crimes Statutes and Case Law Due Process Issues Community Justice Legal Status of Indigenous Courts	Info Due Process Issues Criminal defendants -- and victims -- have fundamental human rights that must be respected in any state-sanctioned proceeding. A variety of legal protections have been established over the centuries, but for the most part these anticipate a formal legal process. How can the benefits of informal processes be gained without jeopardizing the human rights of the parties? How can those rights be observed without formalizing the informal restorative processes? Four particular areas of concern are: 1. The right to equal protection of the law. The informality of restorative processes might hide discrimination on the basis of race, gender, ethnic background or other protected status. 2. The right to freedom from torture and cruel, inhuman and degrading treatment or punishment. This issue was raised in the early days of restorative justice when the concept of reintegrative shaming was linked with restorative programmes. 3. The right to be presumed innocent. Offenders are required to accept responsibility for their conduct as a pre-requisite to a restorative meeting. After all, there is no point meeting with their victim if all they do is deny involvement. So can agreement to participate be used subsequently as evidence of guilt if the meeting fails to result in an agreement. 4. The right to assistance of counsel. In many early restorative programmes, attorneys were not allowed to participate in the meetings between victims and offenders. The concern was that the attorney would either speak for the offender or unduly constrain them. Offenders were allowed to consult with counsel before agreeing to participate, however. More recently, some countries have included the attorney in the process as an observer whose role is to ensure that the rights of their client are protected. Because restorative programmes involve both victims and offenders, the human rights concerns are not limited to the defendant. Depending on national law, the victim may also be entitled to equal protection of the law, assistance of counsel, and other rights. In 2002, the United Nations endorsed a Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. These offer guidance to countries incorporating restorative justice in their criminal justice systems on how to avoid human rights violations such as those mentioned above. For further discussion on these issues in the Tutorial: Introduction to Restorative Justice, see Due Process and Equal Protection/Discrimination. The following articles discuss the issues surrounding restorative justice and human rights/due process. Ikpa, Tina S. Balancing Restorative Justice Principles and Due Process Rights in Order to Reform the Criminal Justice System. Part I of this Note explores the history and underlying principles of restorative justice. Part II will detail the various due process criticisms that have been leveled at restorative justice. Part III discusses New Zealand’s due process system and how it has been able to successfully implement restorative justice in conjunction with due process. Part IV analyzes due process concerns in the United States, and how restorative justice can coexist with the Constitution. Part V contends that the benefits of restorative justice justify the minimal effort required to implement it.(excerpt) Van Ness, Daniel W. Restorative Justice and International Human Rights. Restorative justice theory offers a conceptual framework which may reconcile apparently inconsistent criminal justice norms and standards. The apparent inconsistencies may simply reflect a paradigm shift from a legalistic understanding of crime to a model that recognizes the injuries to victims and communities as well. A review of the documents included in the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice finds significant support for restorative justice theory. Problems with legal aid from Chris LaHatte's blog Legal Rambling: What is the answer? Encourage more appropriate charges instead of over prosecution-always a problem. Then, if the appropriate charges are laid, encourage more guilty pleas by use of greater allowances for preparation for sentencing, more use of restorative justice and more resources for expert reports such as drug and alcohol abuse, psychologists, and better probation reports. No Exit: The Expanding Use of Life Sentences in America While persons serving life sentences include those who present a serious threat to public safety, they also include those for whom the length of sentence is questionable. In particular, life without parole sentences often represent a misuse of limited correctional resources and discount the capacity for personal growth and rehabilitation that comes with the passage of time. This report challenges the supposition that all life sentences are necessary to keep the public safe, compared to a term of fewer years. We conclude with recommendations for changes in law, policy and practice which would, if adopted, address the principal deficiencies in the sentencing of people to life in prison. More cautionary tales from the US It's not okay By Lisa Rea I have worked as an advocate for restorative justice and criminal justice reform working with both offenders, and their families, through Justice Fellowship as its state director in California in the 1990's, and then working with victims of violent of crime through the creation of The Justice & Reconciliation Project (JRP), a national nonprofit seeking to provide a forum for victims to tell their stories. I can tell you I have seen crime from both perspectives. Advocates who represent victims and advocates who represent prisoners would both agree on one thing: prison rape is never okay. That is why the actions of a federal prison rape commission are so important. Rojas Mendoza, Dionisio. 2006. Design of a Restorative Justice Process: Inter-Sectoral Commission for Life and Human RIghts. Barrancabermeja (Colombia). Eastern Mennonite University. Conflict Transformation Program. This article discusses the possible design of a restorative response to mass violence in Colombia. Aisha Pena. Protecting Muslim Civil and Human Rights in America:The Role of Islamic, National, and International Organizations The focus of this article is on examining the civil and human rights of Muslims in America and the bias and prejudice that they encounter in their local communities. The paper includes a list of Muslim, national, and international civil and human rights organizations, and examines their functions. The significant functions of these organizations include providing educational opportunities for Muslims, as well as for non-Muslims, to foster cooperation and promote understanding through dialogue within and between communities. The importance of Muslim involvement with, and contribution to, these organizations, is emphasized; and Muslims are encouraged to access the services of these organizations more fully and in a proactive manner to help reduce the marginalization they currently face. The significance of political participation on the part of the Muslim communities in the wider American society is noted, and the techniques and methods of restorative justice are examined and recommended for adoption. The paper concludes with the assumption that these organizations and affiliations can help protect the civil liberties of Muslims in the US by developing within the community, a political milieu that is conducive to the protection of human rights and promotion of justice. Mitchell, Richard C and Moore, Shannon . Rights-based Restorative Justice: Evaluating Compliance with International Standards. The authors' aim is to promote compliance with international legal standards by articulating intersections between young people's human rights and restorative justice principles — for legal theorists through transdisciplinary thinking and for practitioners by introducing the Rights Based Restorative Practice Evaluation ToolKit developed through this conceptual framework (Moore, 2008). This comprehensive approach was developed within the Canadian legal, social policy and youth justice contexts. Notwithstanding potential bias stemming from cultural or political milieu, the authors argue that rights-based restorative justice could contribute to the advancement of ethical practice in many UN-member states attempting to adopt these common frameworks. (author's abstract) Fromme, Joan. Restorative Justice and Human Rights. This study will explore how human rights cases can be redressed through the use of restorative justice and will identify the commonalities, differences and obstacles in the use of restorative justice as a redress mechanism. The BC Human Rights Coalition benefits by being able to utilize the research results to consider alternatives to advance the cause of human rights resolution, as well as enhance the organizational effectiveness in terms of their goals concerning advocacy, education and law reform. The research project explores the concept of utilizing restorative justice processes in human rights cases, the circumstances in which its use would be inappropriate, and considers how restorative justice processes might be used in systemic discrimination cases. Currently, restorative justice is not used in human rights cases. The recommendations outline next steps in terms of future research required in this area. (author's abstract) Sekhonyane, Makubetse and Skelton, Ann. Human rights and restorative justice "In Chapter 27, Ann Skelton and Makubetse Sekhonyane explore in detail the fundamental question of how the risks that restorative interventions might pose to human rights can be managed. Simply addressing this issue requires engagement with an idea, still prevalent in the restorative justice movement, that the sorts of procedureal protections of rights found (however imperfectly) in criminal justice systems are not appropriate for restorative justice -- which is voluntary and non-punitive -- and may actually obstruct the sort of engagement which is necessary in order to achieve restorative outcomes. Others, sensitive to this concern but less willing to assume that benevolent intentions of programme sponsors and facilitators are sufficient protection for human rights, have sought to develop official guidelines and standards that are more consistent with the idea of restorative justice and that, if followed, should minimize the dangers of human rights violations in restorative justice. Skelton and Sekhonyane, after reviewing the concerns about rights which have been raised (not only by those hostile or skeptical about restorative justice, but also by many who are quite sympathetic to the idea), examine debates about how standards should be set and what they should contain. Importantly, they also point to the need to incorporate into the debate broader ways of thinking about human rights and their protection." (excerpt) Llewellyn, Jennifer J.. Truth commissions and restorative justice "This chapter examines the claim that truth commissions can serve as institutions of restorative justice. This potential application of restorative justice has received surprisingly little attention from restorative justice scholars and advocates, an unfortunate oversight given the significant contribution restorative justice stands able to make in these contexts. ... The chapter first reviews the ways in which restorative justice is associated with truth commissions. What do advocates mean when they claim truth commissions are restorative institutions? The chapter then explores the appropriateness and potential of restorative justice as a response to gross human rights abuse. It concludes with a consideration of the implications a restorative justice approach would have for the design, structure and practice of truth commissions. In doing so attention is paid to the example offered by the South African Truth and Reconciliation Commission." (excerpt) Blagg, Harry. Restorative Visions and Restorative Justice Practices: Conferencing, Ceremony and Reconciliation in Australia The data to date suggest that Indigenous families in Australia are reluctant to become involved with family group conferences or are ineligible, and that the introduction conferencing has done little to reduce the overrepresentation of Indigenous youth in the justice system. The main ways of discussing conferencing involve a narrow interpretation of reintegration and a particularly symptomatic reading of Braithwaite's shaming thesis. Dialogue is needed about some basic issues about conferencing, with the aim of bringing the conferencing practice into alignment with the reconciliation process. The concept of restoration refers to the remaking of the status quo; however, the status quo may be an aspect of the problem needing transformation. The New Zealand movement has sought to empower families, whereas that in Australia has tended to empower the police and other powerful agencies such as justice ministries. It is important to respect the traditions and cultural practices underlying other societies' approaches. However, Australia's shift from care and protection to accountability and punishment has resulted in the rise of parent blaming and the separation of issues of offending from structural causes. The Human Rights and Equal Opportunity Commission's recent report provides an alternative scenario of community justice in which governments and government agencies relinquish some controls over decision-making and help Indigenous communities devise solutions acceptable to them. Criminologists should become familiar with the reports important message that atonement, restitution, and reparation are required here as the basis for a reconciled society. Abstract courtesy of National Criminal Justice Reference Service, www.ncjrs.org. Dumortier, Els and Eliaerts, Christian. Restorative Justice for Children: In Need of Procedural Safeguards and Standards Eliaerts and Dumortier, citing various developments around the world in the last decade, suggest that restorative justice may be in process of becoming the basic model of juvenile justice. In view of this, they raise certain concerns. For example, the informality and lack of rules in restorative justice could lead to infringement of basic human rights or to non-restorative practices masquerading as restorative justice. The authors therefore argue for tempering the call for informality in restorative justice with the need for clear standards and procedural safeguards, especially with respect to juveniles. To make their argument, they identify several reasons why restorative justice for young people needs procedural safeguards, and they propose certain basic procedural safeguards and standards to guide restorative justice processes. Dignan, James and Cavadino, Michael. Reparation, Retribution, and Rights At the outset of this article, Cavadino and Dignan assert their belief that it is possible to imagine a criminal justice system in which reparation plays a large part but which still adheres to a fairly strict system of proportionality. They call this imagined system the 'Strictly Proportional Composite' model. The system they thus describe would fit well with a just deserts approach but would still be a vast improvement on current criminal justice, so they say. Yet, however much of an improvement it would be, it would not be their preferred system. Rather, Cavadino and Dignan propose and describe an 'Integrated Restorative Justice' model as their system of choice. It is an attempt to put human rights theory into practical penal form. They contend that human rights theory provides the basis for a principled compromise between retributivism and reparation or restorative justice. This, they maintain, would make possible the striking of a fairer balance between the interests of victims, offenders, and ordinary law-abiding citizens. Akester, Kate. Restorative Justice, Victims' Rights and the Future Noting that restorative justice has become established in juvenile justice in England following the Youth Justice and Criminal Evidence Act 1999, Kate Akester also points out that ambiguity and variability with respect to restorative justice theory and practice remain. In this context, Akester examines whether and how restorative justice can be integrated into the criminal justice system, what it has to offer, and what principles form its foundations. In particular, she discusses the importance of safeguards for both offenders and victims (and human rights in general), issues pertaining to community involvement in restorative justice, and the potential development of restorative responses. Kiss, Elizabeth. Restorative vs. Retributive Justice as Vehicles for a Human Rights Culture Can justice be done without punishment? The idea of retributive justice denies this possibility, asserting that punishment is required to correct a moral imbalance created by wrongdoing and to maintain a legitimate moral and legal order. In recent years an intriguing counterpoint to retributive justice has appeared in a number of contexts, most notably in the work of the South African Truth and Reconciliation Commission. Referred to as "restorative justice," it is described as an alternative - perhaps even a morally superior alternative -- to retributive justice. In its Final Report the Commission appeared to make two claims about restorative justice: that it is (1) an alternative conception or dimension of justice and that it is (2) better suited than retributive justice to the task of building a human rights culture, especially in societies undergoing transition from repressive authoritarian rule to democracy. My paper seeks to unpack and analyze these two claims. I compare retributive and restorative justice and examine how each approach seeks to reshape relationships among victims, perpetrators, and the larger community. I conclude that restorative justice is indeed a coherent variant of corrective justice and that it could fruitfully be applied to a variety of contexts, not only to transitional societies. However, this ideal conception of restorative justice is difficult to pursue well, as the struggles of the TRC demonstrate. And because neither forgiveness nor remorse can be compelled (ethically and logically), advocates of restorative justice should affirm the legitimacy of retributive justice even while promoting an alternative approach. Author's abstract. Parmentier, Stephan. The South African Truth and Reconciliation Commission: Towards restorative justice in the field of human rights The South African Truth and Reconciliation Commission (TRC) conducted its work from 1995 to 1998. A vast amount of commentary has been generated on the TRC, particularly on its endeavors with respect to the first component of its name – the pursuit of truth. Stephan Parmentier believes that less attention has been paid to its efforts with respect to the second component – reconciliation – though the TRC dealt extensively with this notion in its report. Additionally, in its report the TRC explicitly linked truth and reconciliation with restorative justice. This is noteworthy because restorative justice stems from a very different background, namely, the field of criminology and criminal justice. Hence, in this paper, Parmentier asks whether the work of the TRC, with its focus on the violation of human rights, can be understood as a form of restorative justice. Thus, Parmentier explores the intersection of these distinct perspectives – restorative justice and the field of human rights. Hudson, Barbara. Restorative Justice and Gendered Violence: Diversion or Effective Justice? Although the last few years have seen considerable advances in the theoretical clarification of restorative justice as well as proliferation of programmes putting the ideas into practice, there are still some important questions that remain unresolved. These revolve around the issues of the range of cases and offenders for which restorative justice is appropriate, and the extent to which restorative justice needs to incorporate due process safeguards and standards such as proportionality, which are important in formal criminal justice. After reviewing some of the issues that have arisen in established restorative justice usages (juvenile justice; less serious offences) the article looks at more controversial applications—domestic violence, sexual assault—and examines the arguments for and against their suitability for restorative justice processes. It is suggested that arguments against extension to these ‘hard cases’ usually envisage restorative justice as diversion, while arguments for its application to these seriously harmful and antisocial wrongs advocate restorative justice as effective justice. The author concludes that questions of range and questions of standards cannot be dealt with in isolation, and that the wider the range of offences and offenders restorative justice deals with, the more it may merge with formal criminal justice. Braithwaite, John. Setting Standards for Restorative Justice Three types of restorative justice standards are articulated: limiting, maximizing, and enabling standards. They are developed as multidimensional criteria for evaluating restorative justice programmes. A way of summarizing the long list of standards is that they define ways of securing the republican freedom (dominion) of citizens through repair, transformation, empowerment with others and limiting the exercise of power over others. A defence of the list is also articulated in terms of values that can be found in consensus UN Human Rights agreements and from what we know empirically about what citizens seek from restorative justice. Ultimately, such top-down lists motivated by UN instruments or the ruminations of intellectuals are only important for supplying a provisional, revisable agenda for bottom-up deliberation on restorative justice standards appropriate to distinctively local anxieties about injustice. A method is outlined for moving bottom-up from standards citizens settle for evaluating their local programme to aggregating these into national and international standards. Trepanier, Jean. "Restorative justice: A question of legitimacy." Trepanier examines the question of legitimacy with respect to juvenile justice. Legitimacy refers to the question of whether the measure imposed on a juvenile offender is fair and reasonable. The question of legitimacy pertains both to the process of determining the measure to be imposed and the measure itself. Legitimacy is distinct from the question of legality. Legality refers to whether the process and measure conform to law. Legitimacy includes the question of legality but goes beyond to address the question of whether the process and measure possess a fair and reasonable character. The legitimacy of traditional systems for juvenile justice – pertaining, for example, to issues of due process, and to measures intended to rehabilitate the youthful offender – has been questioned by many over the years. Trepanier argues in this paper that the alternative processes and measures put forth by restorative justice advocates – such as mediation, reparation, and community service – require further reflection and research to determine whether they are fair and reasonable. Lerman, David.. "Restoring Dignity, Effecting Justice." Discusses the role of the restorative justice movement in providing human rights. Aims of the restorative justice movement; Example of cases wherein restorative justice movement is at work; What can the Victim-Offender Conferencing provide. Next 20 items » [1] 2 3 Document Actions RSS feed Send this Print this	Africa Asia Europe Latin America Middle East North America and Caribbean Pacific Search 9932 publications on restorative justice Recent RJOB Comments Oakland as a RJ city? Jul 29, 2010 Trauma Jul 29, 2010 Psych Reports to BPT board Jul 29, 2010 More… Slide Show: What is Restorative Justice Click to view a slideshow discussing the definition of restorative justice. Jul 21, 2010 Promoting Restorative Justice in Panama Jul 28, 2010 Raising Community Awareness in Swaziland Jul 28, 2010 Exploring alternatives in Finland Jul 28, 2010 PF Rwanda Receives Grant for Reconciliation Work Jun 27, 2010 Restorative Justice in the Community.