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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.

The criminalization of black youth and the rise of restorative justice
from the article by Max Eternity in Truthout: Among extrajudicial deaths at the hands of police and white vigilantes, the tragic stories of Travon Martin and Oscar Grant have garnered media attention, but are also highly contested narratives. Less talked about is the institutionalized climate of fear that has been normalized for brown-skinned youth - the daily domestic terror by police. ....[This] insidious institutional problem continues to unfold. We examine it in... an on-site interview with Chief Allen Nance - the chief probation officer of San Francisco's Juvenile Hall - on June 13, 2014.
Creating a non-violent juvenile justice system: Report 2013
from the report Patrick Geary: Countries have a legal obligation to create and invest in non-violent juvenile justice systems. While these systems will inevitably reflect national contexts and ideas around the rule of law, there are certain identifiable elements that should be present across all jurisdictions. As set out below, these represent the building blocks of non-violent juvenile justice. Fundamentally, the rights and unique rehabilitative potential of children in conflict with the law demand special consideration, and justice systems must offer every child suspected or accused of an offence the full protections to which they are entitled.
Consistency and proportionality in victim-offender mediation agreements
from the article by Caryn Saxon on Mediate.com: As restorative victim offender mediation programs continue to gain ground within the criminal justice system, more community organizations committed to restorative justice values and initiatives are collaborating with traditional justice agencies and offices. While these collaborations are mutually beneficial and socially transformative, inevitable tensions emerge when restorative and traditional models of justice engage one another within a community. In this paper, we will examine one example of this – the question of consistency and proportionality in our response to offenders and crime – and explore ways in which bilateral (restorative) and unilateral (traditional) methods of resolution can amend this apparent conflict and remain collaborative partners in effectively bringing justice to their communities and its members responsibly and safely.
Women challenge men in Pakistan's first female jirga
From the article from the Express Tribune: When 16-year-old Tahira was murdered in a horrific acid attack last year, her poverty-stricken parents got no justice. Pakistan officials slammed the door in their faces and the police refused to listen. The prime suspect – the girl’s abusive husband – lived in freedom until the case was taken up by Pakistan’s first female jirga, a community assembly set up to win justice for women in the face of immense discrimination.
For restorative justice, the devil is in the details
from the column by J. Douglas Allen-Taylor in Oakland Local: ....The ordinance makes provision for existing agencies or non-profits to run the restorative justice component on a case-by-case referral basis, with instructions that the contracted program “may seek to involve the victim as well as the offender” in the restorative justice process. In addition the contracted program both makes the decision as to what will it take to bring restoration as well as to ultimately sign off on whether or not restoration was done. Since that is one of the basic tenets or restorative justice—to bring victim and offender together to restore the whole—it would seem that the programs would almost always bring in the victims, as well as let the victims take the lead in deciding the restorative action.
justice and understanding
Dear Anne, Thank you for your comments. Your questions are good ones and point to why restorative processes are useful. The context of the dialogue [...]
"woman must wear idot sign"
Thank you for your article. In my opinion without understanding, there can be no true justice. Ms. Parker, I would add some further questions to [...]
Justice? What about understanding?
by Lynette Parker Scrolling through RSS feeds I saw a link for, “After driving on sidewalk to pass school bus, woman must wear ‘idiot’ sign.” I admit clicking the link to see what it was about. The first line quotes someone as declaring, “Justice has been served!” before going into how a woman had driven on a sidewalk to get around a parked school bus with children on it. The penalty was to stand near the scene of the incident wearing a sign that says, “Only an idiot would drive on the sidewalk to avoid the school bus.” She will also pay a $250 fine.
First restorative justice Human Rights Board of Inquiry
from the press release by the Nova Scotia Human Rights Commission The Nova Scotia Human Rights Commission will be holding its first restorative board of inquiry Monday, Sept. 17. The commission has significantly restructured its investigation and adjudicative processes over the past year. This includes approaching the resolution of human rights disputes from a restorative justice perspective.
Restorative justice is the law
by Dan Van Ness Heartspeak Productions is a remarkable Canadian group that describes itself as "on a continual quest to learn about & share the principles and best practices of restorative justice." It does this by creating excellent videos exploring dimensions of restoration. Fraser Community Justice Initiatives Association is a community NGO also in Canada that for 25 years has developed programs and training that help people in conflict find good resolutions.
Activists berate Traditional Courts Bill in South Africa
from sipho Khumalo's article in The Mercury The controversial Traditional Courts Bill, which its critics say will take the country back to the era of bantustans, is set to come under scrutiny at a series of public hearings in KwaZulu-Natal. The sponsor of the bill, the Department of Justice and Constitutional Development, argues that the legislation seeks to affirm the recognition of traditional justice and its values based on restorative justice and reconciliation.
The Jirga in modern day Afghanistan
from the article by Ali Gohar in OPen Democracy: ....The working principals of the Jirga are community based and fact finding; it acts like a modern jury system. The Jirga intervenes to halt violence, identify the issues in order to resolve them through mediation or arbitration, and work towards reconciliation and rehabilitation. The Jirga system could also be described in terms of the three aspects of peacekeeping, peacemaking, and peacebuilding, through the use of Tega (ceasefire), Nagha (ban on arms show), Community Policing (Arbakai) and volunteer force (Lakhkar).
The Jirga in modern day Afghanistan
from the article by Ali Gohar in OPen Democracy: ....The working principals of the Jirga are community based and fact finding; it acts like a modern jury system. The Jirga intervenes to halt violence, identify the issues in order to resolve them through mediation or arbitration, and work towards reconciliation and rehabilitation. The Jirga system could also be described in terms of the three aspects of peacekeeping, peacemaking, and peacebuilding, through the use of Tega (ceasefire), Nagha (ban on arms show), Community Policing (Arbakai) and volunteer force (Lakhkar).
Afghan women trapped in tribal court system
from the article by Jean MacKenzi in Huffington Post: ....Sakina’s imprisonment stems from her attempts to evade a uniquely medieval form of restitution practiced in tribal courts and known as ba’ad. It is Afghanistan’s version of restorative justice in which women and girls are bartered from one family to another as a way to settle a dispute.
Nova Scotia Human Rights Commission adopts a restorative justice approach to human rights disputes
from the article by Michael Darcy for Canadian Civil Libertise Association Rights Watch: The Nova Scotia Human Rights Commission has changed its procedure for resolving human rights disputes. As of January 1, 2012, the NS HRC has adopted a restorative justice approach that emphasizes the need to reconcile the relationship between complainants and respondents,while reducing the time it takes to resolve a dispute (which the commission notes could have taken up to two years before the recent amendments).
Review: Child victims and restorative justice: A needs-rights model
from the article by Bill Lyons in Law & Politics Review: ....Combining the right to participate from the Convention on the Rights of the Child with an empirical analysis of a child's need to regain control, participation emerges as a critically important need and right for at least three reasons. First, for immediate instrumental reasons, participation is both an immediate coping mechanism and is expected to improve criminal justice outcomes. Second, for longer term developmental reasons, meaningful participation in experiential learning opportunities is a developmental step toward empowering young adults to master the problem solving skills necessary to make democracy both possible and desirable.
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
Prison Rape: It's Not Okay
Great, Dan. Thank you. Good to see it was covered by the National Review. Prison rape is finally being seen by politicians on both sides [...]

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