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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.

Butts, Jeffrey A.. Introduction: Problem-Solving Courts.
Problem-solving courts have become a significant feature of the U.S. Justice system, and their popularity appears to be growing internationally with courts under way or in development in countries such as Australia and Great Britain. Drug courts are the most visible type of problem-solving court, but other varieties are beginning to take hold. Mental health courts, domestic violence courts, and community-based courts among others are beginning to handle a considerable portion of the legal workload in many jurisdictions. Criminal law violations as well as neighborhood conflicts and interpersonal disputes are increasingly being referred to problem-solving courts rather than to traditional criminal and civil courts. (author's abstract)
von Holderstein Holtermann, Jakob. Outlining the Shadow of the Axe—On Restorative Justice and the Use of Trial and Punishment.
Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best. (author's abstract)
McElrea, FWM. Partners or Adversaries?
Address at JUST PEACE? Peace Making and Peace Building for the New Millennium an international conference held at Massey University, Albany, New Zealand. 24-28 April 2000.
Dignan, James. Restorative Justice and the Law: the case for an integrated, systemic approach
Dignan advocates the promotion of restorative justice (RJ) principles and outcomes for widely reforming the existing criminal justice system.
Van Ness, Daniel. Legislating for Restorative Justice
In this paper Daniel Van Ness addresses the topic of legislating for restorative justice.
Parker, Lynette. The Use of Restorative Practices in Latin America
Several Latin American countries are looking for alternative methods for dealing with crime and conflict. This opening has spurred both government and civil society to experiment with restorative processes.
Durmortier, Els. Neglecting due process for minors: A possible dark side of the restorative justice implementation?
Expressing skepticism about what he perceives to be the optimistic nature of restorative justice perspectives, Dumortier scrutinizes the language of restorative justice discourse and the issue of due process for minors in the implementation of restorative justice procedures.

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