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Equal Protection / Discrimination

Some question the ability of a restorative justice system, based on informal processes as it is, to equitably administer justice among different participants. Critics of restorative processes warn that they may perpetuate existing social inequities where one party has more economic, intellectual, political or physical power (Wright, 1991 at 68). Disparate outcomes for similar offences based on some non-offence variable (e.g., race, social-standing, etc.) would reflect discriminatory operation.

Often there will be an unequal distribution of power between the parties participating in a restorative process. Examples of coupled parties having an inequitable distribution of power include rich corporations and individual employees, spousal relationships involving physical and/or verbal abuse, and the parent/child relationship (Merry, 1989 at 239-246). It must be remembered, however, that much crime is committed by disadvantaged persons against others who are also disadvantaged (Wright, 1991 at 130).

A party with less power may accept an agreement that gives him/her much less than he/she could have obtained if the power imbalance did not exist. Given the expectation that the mediator remain neutral, a more compliant party will give up more in negotiations. The problems of inequality challenge the mediator's ability to remain neutral as the mediator may be tempted to support the position of the weaker party (Merry, 1989 at 240-241). When the mediator is of the same or higher social-standing than the participants, this could lead to a form of control based on social standing (Merry, 1989 at 239-246).

Research suggests that restorative justice processes have similar variance rates in severity of sanctions to adult courts based on racial and gender factors (Van Ness, 1997 at 7-8). Restorative justice, then, may be no more prone to institutionalized discrimination than is the traditional criminal justice system. Nevertheless, restorative processes must be evaluated regularly to make sure that programme selection and operation are non-discriminatory (Maxwell and Morris, 1996 at 88).

According to Wright, three means of compensating for inequities could be implemented (Wright, 1991 at 72-73). First, the mediator could support the weaker of the parties in the process. For example, the mediator could help a less articulate participant express feelings, thoughts and emotions. Second, attorneys could advise parties with less bargaining power not to accept an agreement that is inequitable or was unfairly obtained. Finally, certain cases may be rejected. For example, cases involving landlords who seek to settle with some tenants in order to avoid the aggregate bargaining power of a block of tenants may not be appropriate for informal processes if the landlord is wielding his power to increase his bargaining position.

One must acknowledge, however, that some inconsistency may result from respecting plural forms of subculturalism. As Braithwaite notes, a certain amount of inconsistency is probably healthy, given society's diversity of values and cultures. Inconsistent outcomes may result from accommodating diverse subcultures. In fact, given restorative justice's application of universal law to particular situations within a subcultural context, allowing the participants to work out their own resolution to the conflict, may even have the potential to reduce institutionalized discrimination as we know it today. Maxwell and Morrison point out that FGCs, and other restorative processes for that matter, have the potential to be more responsive to cultural diversity in the administration of justice than is the traditional system of criminal justice (Maxwell and Morris, 1996 at 95-96). At the very least, restorative processes may challenge misconceptions in cases involving racial strife, increasing understanding among different subcultures (Wright, 1991 at 73).

Restorative justice also has the potential to provide equal protection on an international scale. Restorative justice may provide "a framework that gives conceptual consistency to international standards and norms in criminal justice" (Van Ness, 1996 at 29-31). The focus upon balance by U.N.-generated documents places a premium in balancing the interests of all parties. Further, these documents highlight the necessity of the provision of procedural rights for the accused, as well as the victim.

Social injustices in society are bound to influence any system of justice. It stands to reason that inequities will exist within a restorative system. However, as Braithwaite posits, restorative justice has the potential to engage these problems as communities become involved (Braithwaite, 1994 at 201).

This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.   

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