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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.

It's Not Okay
There is a supportive column on this in the conservative magazine National Review ( http://article.nationalrevi[…]MzdiMDE3ZGFkODJiZDQ3NmY4N2E ). One wishes that the breadth of support would lead [...]
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.
Borland, Rosilyne M. The Gacaca Tribunals and Rwanda after Genocide: Effective Restorative Community Justice or Further Abuse of Human Rights?
The genocide in Rwanda in the spring of 1994 was one of the world’s most horrific acts of collective violence. National and international attempts to deal with suspected perpetrators of the genocide have not fulfilled expectations, remarks Rosilyne Borland. The national legal system of Rwanda, she also states, has failed to administer justice adequately. In response to all of this, and as pressure increases to address the past and process the thousands still in prison, the Rwandan government has devised an alternative justice mechanism. It is called gacaca. Some claim that gacaca is bringing healing and reconciliation to Rwanda. Others warn that it makes possible further human rights abuses. With all of this in view, Borland analyzes the gacaca law, its early implementation, and relevant justice theories (especially restorative justice and community justice theories). Her aim is to examine whether Rwanda is succeeding in achieving justice after the genocide of 1994.
McEvoy, Kieran and Newburn, Tim. Criminology, Conflict Resolution and Restorative Justice
This book consists of a collection of essays exploring, from different angles, the intersection of criminology, conflict resolution, and restorative justice. The genesis of the collection stemmed from the editors’ perception that criminology has failed to engage in a substantive way with the processes of conflict resolution. Hence, the editors have gathered essays written by a number of people – essays that seek to link criminology with conflict resolution theory and practice. Several essays therefore deal with criminology and conflict resolution at the macro-level; namely, with respect to issues at national and international levels (e.g., transition in South African, conflict in Northern Ireland, and human rights in Africa). Other essays explore criminology and conflict resolution at the micro-level as well; namely, in criminal justice systems within countries as those systems function to address conflict in communities, in villages, and between individuals. Thus, this book brings together not only criminology and conflict resolution, but also restorative justice as an approach to dealing with conflicts and harms between people – with all three of these fields or perspectives being applied at both macro- and micro-levels of conflict and wrongdoing. The list of contributors includes experts in law, criminology, and restorative justice from the United Kingdom and the United States.
Frank, Cheryl and Skelton, Ann. How Does Restorative Justice Address Human Rights and Due Process Issues?
In this chapter, Ann Skelton and Cheryl Frank explore risks to the human rights of victims and offenders in restorative justice processes. In the criminal justice system rights are generally construed in terms of due process rights. Skelton and Frank characterize this as too narrow a construct of rights. The framework of human rights – such as dignity and equality – catches up due process rights but is broader and deeper. Hence, Skelton and Frank locate issues of rights in restorative justice processes in the framework of human rights, with due process rights as part of this larger, more significant perspective. Thus, issuing a challenge to restorative justice theorists and practitioners, they argue that human rights must be part of restorative justice programs and processes.
Penal Reform International. Commonwealth Caribbean Human Rights Seminar
Conference report of the Commonwealth Caribbean Human Rights Seminar, held in September 2000 in Belize City. (excerpt)
Wichert, Tim. A Mennonite Human Rights Paradigm?
Mennonites are uneasy about human rights. We have not ignored them entirely, and sometimes use the language of rights when convenient. But human rights language tends to be a “second language”, after the preferred language of compassion, care and community. Yet human rights have become an integral part of the international legal system, and have been one of the most significant, non-violent, “political” contributions to public peace, justice and order in the past 50 years. They play an important role in moderating conflicts. Human rights institutions have ensured that there is a systematic international response to torture, unlawful detention, violence against women, and refugees. And at a national level, legal instruments like the Canadian Charter of Rights and Freedoms, or the American Bill of Rights, provide the basis for a rule of law which has largely ensured public peace, justice and order. But human rights present a significant challenge to peace theology, which has been the primary tool for developing Mennonite responses to conflict and victimization, especially through the preferred options of forgiveness, mercy and reconciliation. In my view, Mennonites need to move beyond ambivalence and develop a human rights discourse to enhance the viability of peace theology - and restorative justice - as a more universally helpful response to conflict. A Mennonite human rights paradigm could have a significant impact on behalf of those in need. My perspectives on human rights arise from my training in law, some time engaged in the practice of criminal law and refugee law, and the past 13 years working with the Mennonite Central Committee (MCC), which included a three year secondment to the Quaker United Nations Office in Geneva, Switzerland.(excerpt)
Verwoerd, Wilhelm. Toward a Response to Criticisms of the South African Truth and Reconciliation Commission.
In this paper I begin by describing the main criticisms encountered by the South African Truth and Reconciliation Commission. These criticisms highlight the difficulties and tensions surrounding a prominent part of the process of reconciliation in post-apartheid South Africa. Given a tendency by many outsiders to be too positive about the TRC, these criticisms are sobering reminders of the dilemmas of reconciliation. My response consists, first, of a general remark on the unavoidable messiness of any attempt to deal with large-scale human rights violations. Second, I reflect on a problem underlying most criticisms of the TRC, namely the lack of clarity about the ‘genre’ of this particular process. Third, I focus on a prominent justice-based criticism in which concern is expressed about the TRC’s sacrifice of retributive justice. I challenge this criticism from the perspective of restorative justice. Hopefully, I will thus help to make the critics think twice before they throw out the fragile TRC baby with the dirty bathwater of a politicized, imperfect process. (excerpt)
Reimund, Mary Ellen. The Law and Restorative Justice: Friend or Foe? A Systematic Look at the Legal Issues in Restorative Justice.
In this paper, Mary Ellen Reimund discusses the role of lawyers and legal issues in relation to restorative justice in the adult criminal justice system. As she points out, the adversarial nature of the current legal system in the United States and restorative justice differ in certain fundamental ways in their approaches to what crime is and how to respond to crime. Given that most professionals in the current system received training in this adversarial approach, the increase of restorative justice programs in the United States occasions some significant questions about the role of the law and lawyers. Reimund further examines some specific legal issues that have surfaced regarding restorative justice, such as due process and the privilege against self-incrimination. Her aim in exploring all of this is to argue that law and lawyers can work in ways that support restorative values. Or, as she puts it, law can and should be a friend, not a foe, of restorative justice.
Smith, Melodee. Restorative Justice is a Human Right: A Transformative Discourse Within UN Paradigms.
Some justice systems are not broken or flawed, but are rather working precisely the way they were designed to work against marginalized human beings, including the poor, people of color and the mentally impaired. Crime prevention and criminal justice programs are sometimes created by intellectually dishonest civil and political campaigns that falsely promise safety and well being when enacting tough laws and applying severe sentences. Victims of crime and accused offenders, even when provided with guarantees to due process and equal protection, are too often pawns in a highly discretionary legal process. Principles of criminal justice and human rights collide as adversarial systems seek retribution. While the criminal justice system focuses on broken laws, who is guilty and how the guilty should be punished, the UN is in the embryonic stages of embracing a restorative justice paradigm that focuses on broken relationships, who is in need and how well being and social harmony may be restored. Restorative justice practices acknowledge who is hurting, why stakeholders are suffering and what harms must be addressed to restore impaired dignity. With accountability, equity and integrity, restorative justice is a justice that heals relationships ravaged by conflict, violence, hatred and greed. Finally, restorative justice, and not just justice designed to punish, is being recognized as an emerging human right for victims, offenders and the community. The basis of this acknowledgement can be found in the Universal Declaration of Human Rights.(excerpt)
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)
Larsen, Ann-Claire. Mobilising Human Rights to Promote Restorative Justice
Restorative justice has made small in-roads into the legal land-scape in Australia. This paper uses a restorative justice conference to illustrate that developments in restorative justice at the international human rights level have been under-utilised in Western Australia in the bid to amend harms done by offending behaviour. A restorative justice attempt involving the police as offenders is explored to highlight problems in not adhering to a set of principles. Using an example of a restorative justice conference involving 50 offending police officers, an opportunity for closure was lost for all involved. (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.
Lynch, Nessa. The rights of the young person in the New Zealand youth justice family group conference.
The youth justice family group conference (FGC) is a statutory decision making process whereby the young person, their family/whanau, state officials and the victim of the offence come together to decide on a response to offending by that young person. The FGC is an integral part of the youth justice system, involving thousands of young people and their families each year. There is a considerable amount of literature available on the youth justice FGC, most notably in regard to the purported restorative justice nature of the process. However, for a legal process which involves so many young people on a daily basis, there is little information available on the due process rights of young people in the FGC. This thesis seeks to remedy this gap in the research knowledge. Firstly, this thesis establishes the theoretical framework for the rights of the young person in the youth justice system. The historical context and theoretical justification for these rights is considered, and the benchmarks for rights coming from international and national human rights standards are identified. A key theoretical issue is the application of rights to the FGC. It is argued that although the FGC differs in format from the adversarial criminal process, it remains a state process involved in resolving a breach of the criminal law, and thus the young person's rights should be safeguarded. Secondly, this thesis evaluates legislation, policy and practice relating to the rights of the young person in the FGC. Three key areas of rights are considered: legal assistance, how the offence is proved, and outcomes of the FGC. Reference is made to practice examples derived from observation of the FGC in two centres in New Zealand. Finally, as the FGC is certain to remain an integral part of the youth justice system, recommendations are made as to how legislation and practice could be improved to better safeguard the rights of young people in this process. (author's abstract)
Dicklitch, Susan and Malik, Aditi. Justice, human rights, and reconciliation in postconflict Cambodia.
Retribution? Restitution? Reconciliation? “Justice” comes in many forms as witnessed by the spike in war crimes tribunals, Truth & Reconciliation Commissions, hybrid tribunals and genocide trials. Which, if any form is appropriate should be influenced by the culture of the people affected. It took Cambodia over three decades to finally address the ghosts of its Khmer Rouge past with the creation of a hybrid Khmer Rouge Tribunal. But how meaningful is justice to the majority of survivors of the Khmer Rouge auto-genocide when only a handful of top officials are tried? Further, given the persistent abuse of political and economic rights in post-conflict Cambodia, we are skeptical that justice or reconciliation is presently possible. (Author's abstract).
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)

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