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Theory Articles -- Full List

Articles discussing theoretical issues related to restorative justice.

. A reinterpretation of restorative justice through Black and Native feminisms.
This thesis seeks to reorient the ideological foundations of restorative justice through feminist epistemologies in order to explore possibilities of how the movement might more fully actualize its values. The Three Pillars of Restorative Justice, conceptualized by Howard Zehr, offer an alternative process to the punitive recourse of the criminal justice system and serve as the foundation of mainstream restorative practices. However, the praxis and analytical discourse have stalled due to the limited binary of criminal and restorative justice frameworks. My thesis uses methodologies prominent in Black/Native feminisms-- such as critical thinking, contextual intelligence, and imagining futurity-- to complicate assumptions embedded in the criminal/restorative justice relationship. I establish the framework of restorative justice and briefly summarize the essential paradoxes to make clear the parallels and limits of the relationship. I then use feminist methodologies to reinterpret the pillars’ values and introduce how some activists have begun to reimagine justice. (author's abstract)
. Advancing emotionally intelligent justice within public life and popular culture.
Based on the understanding that traditional forms of justice are characterized by ‘affective authoritarianism’, Lawrence W Sherman has argued that a new system of emotionally intelligent justice is needed to nurture the expression of positive, beneficial emotions; and to control negative, detrimental ones. The policy approach advocated to advance this progressive agenda of penal reform involves critical theory, institutional innovation and empirical research focused primarily on the alternative paradigm of restorative justice. Irrespective of the ‘truth’ or ‘fairness’ of emotionally intelligent justice, this article argues that, because emotions are constructed through socio-cultural circumstances and are integral to ethical judgements which legitimize traditional forms of justice in contemporary public life, managing emotions in criminal justice settings requires reform that is not only critical and experimental, but also public and popular. (author's abstract)
. All roads lead to property: Pashukanis, Christie and the theory of restorative justice.
This contribution constitutes a hypothetical engagement of sorts between Pashukanis and Christie. It proceeds from the two-handed premise that Pashukanis is the premier Marxist theoretician of law and that Christie is the doyen of restorative justice theory. The primary objective of the essay is to develop a Pashukanist perspective on the theory of restorative justice, and it seeks to achieve this objective by reading Christie's theoretical insights against the core propositions of the commodity form theory of law. (excerpt)
. Beyond the post-conflict checklist: Linking peacebuilding and transitional justice through the lens of critique.
While historicaly seen as being in competition with the demands of peace, transitional justice is increasingly accepted as an important element of post-conflict peacebuilding. Along with the demobili.zation and disarmament of ex-combatants, securio sector reform, rule of law programs, and elections, it has now joined a virtual checklist of initiatives to be carried out in post-conflict countries. The growing sense of shared space between transitionajlu stice andp ostconflict peacebuilding initiatives has sparked new interest in sounding out potential connections between both fields. Although the pursuit of synergies is a worthwhile goal, I argue that in developing these connections we must also be attentive to mutual shortcomings. Transiional justice and post-conflict peacebuilding have historically proceeded on separate tracks, yet there has been a remarkable similariy in the critiques and concerns that have been leveled against both fields. More integrateda pproaches to peacebuilding and transitionaljusticem ay exacerbate some of the tendencies that have given rise to these parallel critiques rather than alleviate them. Seeking synergies through the optics of these historic concerns and critiques could be one technique of resistance to these tendencies, leading to the development of innovative techniques for building peace with jusice in conflict's wake. (author's abstract)
. Child pirates: Rehabilitation, reintegration, and accountability.
It has been estimated that approximately one-third of captured pirates are minors, that is, persons under the age of eighteen. This article explores issues of accountability, reintegration, deterrence and rehabilitation in the context of child pirates. It recommends modalities of restorative and reintegrative justice for child pirates that avoid the careless superficiality of immediate release and the retributive heavyhandedness of criminal trials. Regrettably, prevailing imagery that cloaks juveniles enmeshed in international crimes, for example child soldiers, does not favor this middle ground. Instead, this narrative imagery facilitates either perfunctory release (the faultless passive victim image) or criminal trials regardless of age (the demon and bandit image). Unlike the case with child soldiers, however, the position of U.N. entities when it comes to child pirates tends toward greater punitiveness assuredly, a concerning development. In response, and after examining why juveniles may end up in pirate gangs, this article proposes a new path, namely one that leads toward restorative justice initiatives. (excerpt)
. Circles of Support and Accountability: How and why they work for sex offenders.
Circles of Support and Accountability (COSA) provide re-integrating sex offenders with a group of trained volunteers who support this rehabilitation process. Effect studies show promising results in reduction of recidivism. This study provides a theoretical underpinning and empirical validation of the COSA intervention model, based on a grounded theory analysis of 38 circle narratives, reflecting the experiences of 21 circles. Four circle functions appear to be essential, with inclusion being most important. Inclusion is serving basic human needs and is motivating the sex offender to allow monitoring and being held accountable. Program integrity and a positive group development are essential preconditions for circle effectiveness. (author's abstract)
. Civilising criminal justice: An international restorative agenda for penal reform.
Restorative justice, while acknowledging the need for sanctions as a response to illegal and harmful behaviour, seeks to reverse these deep-seated attitudes in a constructive manner that encourages pro-social behaviour and an awareness of the harm done to victims and to communities. It requires and facilitates offenders to 'put wrongs right' by accepting responsibility for the harm done, making apology for it, and by making reparation to those harmed. Where there is a willingness on the part of the offenders to undertake such actions, restorative processes become the means by which they become enabled, empowered and encouraged to do so. Such a response is entirely different from that of punitive justice which makes no such demands. This is, we venture, to suggest, the core element of 'civilising justice' although as this volume shows, there are many different approaches evident in attempting to achieve the vision of 'better justice.' (excerpt)
. Community justice concept paper: A project of the Cook County Juvenile Justice Taskforce.
This paper presents a vision for community-based, trauma-informed, restorative solutions to youth crime and conflict in Cook County. It was written for young Chicagoans across the county who deserve a better system, as well as their parents, families, and communities. It was also written for other key stakeholders who wish to support new approaches to neighborhood safety, for the judges, youth workers, executive directors, block club members, police officers and family leaders who dedicate their lives to making our communities more peaceful for all. We have divided the paper into two sections: 1) Reinvesting Our Efforts, and 2) Building a New Paradigm. In the first section we outline some of the main limitations of Cook County’s current juvenile justice system and introduce our guiding thoughts on how the juvenile justice system can better support young people, while making our communities safer places to live. In this section we call for a one-to-one replacement of the dollars that are saved by reducing the population of the Cook County Juvenile Temporary Detention Center (CCJTDC), whereby those funds are reinvested in the communities with the greatest need for supportive services. In the next section, we lay out a concrete proposal for alternatives to our present approach of centralized juvenile detention, an approach that is totally divorced from family and community supports. We propose the creation of ‘Restorative Justice Hubs’ across Cook County, community centers that can holistically address the needs of young people who perpetrate crimes, while also supporting community residents and victims of crime. Crucially, these hubs will serve as catalysts for community healing around the intergenerational cycles of individual and systemic traumas that all too often shape family and community life. (excerpt)
. Customary law and authority in a State under construction: The case of South Sudan.
Customary law in South Sudan is a powerful symbol of emancipation from two centuries of external domination, and paradoxically, also the product of such external domination. Most citizens of the world's newest state rely more on customary laws and local authorities to regulate their conflicts than on other civilian state institutions and statutory law. At the current juncture, influential decision-makers in and outside the government are pushing to develop Sudan's customary laws into a Common Law for South Sudan. However, the legacy of the armed conflict, including patterns of militarization, and the ongoing modernization ofsociety, pose challenges for customary systems. Furthermore, customary systems exhibit certain human rights deficits and, therefore, need to be made compatible with the constitutional framework of South Sudan. The recognition of customary authority and law as an essential part of the governance structure, coupled with targeted engagement and reform, are indispensable elements of state and peace building in South Sudan. The government and its external partners must walk a tightrope to integrate the local capacity offered by the customary system into their wider efforts without inadvertently stifling its potential to reform from within or undermining democratically elected institutions. (excerpt)
. Dangerous liaisons?: A feminist and restorative approach to sexual assault.
The appropriateness of restorative justice (RJ) for gendered violence offences such as domestic violence and sexual assault has always been and still is highly contested. This paper focuses on the appropriateness of RJ measures in addressing sexual assault, primarily with reference to experience of restorative dialogues as practiced at the Centre for Victims of Sexual Assault in Copenhagen, and it takes a feminist approach to the application of RJ measures to sexual assault. Within this framework, the paper tackles two issues in particular: the privacy element of RJ versus the public aspect of the criminal justice system (CJS), and the intersection of the CJS and RJ in cases of sexual assault. In relation to the relationship between CJS and RJ, the authors argue that RJ could be used for victims of sexual assault, not primarily as part of diversion programmes, but when offered apart from and/or parallel to the CJS. In relation to the private/public debate, the authors argue that while RJ encounters, by taking place in highly confidential settings, might have a negative impact on efforts by women’s movements to move violence against women out of the private and into the public realm, creating high standard alternatives for individual women who are in need of support and constantly generating public debate about gendered violence is a good feminist response to this complex issue. (author's abstract)
. Dreaming of a new reality: How restorative practices can reduce crime and violence, improve relationships and strengthen civil society.
While the field of physics still searches for its "unified grand theory of everything" that can explain all physical phenomena, we have come upon a unified grand theory that explains how social entities may function best. This theory rests upon a fundamental hypothesis -- that "people are happier, more cooperative and productive, and more likely to make a positive changes when those in positions of authority do things with them, rather than to them of for them." This book shares true stories and growing evidence that support this premise -- from varied fields of endeavor -- in a growing social movement that is improving human behaviour and strengthening civil society around the world." (Excerpt0
. Effective justice for victims of sexual assault: Taking up the debate on alternative pathways.
The aim of this article is to take the debate forward and propose an alternative pathway for appropriate cases based on principles of restorative justice and therapeutic jurisprudence. Therapeutic jurisprudence focuses attention on ‘the extent to which a legal rule or practice promotes the psychological or physical well-being of the people it affects’.13 Restorative criminal justice aims to provide a ‘restorative’ process for both victims and offenders, through a nonadversarial and relational model of disposition. Therapeutic and restorative approaches are also drawn on here from a framework of feminist concern about the gendered power relations involved in sexual assault and embedded in the criminal justice system. (excerpt)
. Establishing a normative framework for evaluating diverse cases of transitional justice.
...I dwell on these four mechanisms of transitional justice. Section 2 examines transitional criminal trials; section 3 examines vetting processes; section 4 examines reparations; and in section 5 truth commissions are examined. Section 6 concludes these deliberations on the mechanisms of transitional justice by briefly discussing amnesties and the 'doing nothing' option. (excerpt)
. Everything you always wanted know about restorative justice (But were afraid to ask).
Trusting, therefore, that the irony of the title carries through, this thesis obviously does not contain everything the reader would like to know about restorative justice. I have indeed done some weeding out. First and foremost, this thesis is not about restorative justice as a way of life, nor is it about conflict resolution in the schoolyard, at the workplace or elsewhere. My focus is on restorative justice as it is used in relation to crime, primarily in the context of domestic jurisdictions (cf. chapters 2-4 and 7) but also in the context of international crime (cf. chapters 5 and 6). (excerpt)
. Feed me Seymour: The never-ending hunger of the criminal process for procedural rights and removing children from its shop of horrors.
In preparation for participation in Professor Arnold Loewy's Texas Tech University School of Law Annual Criminal Law Symposium, I was tasked with a specific query: Do (should) juveniles have more, less, the same, or different procedural rights than are accorded to adults? This Article briefly addresses the procedural rights of adults-delineating, contrasting, and comparing them to the rights of children within the modern juvenile justice process, primarily within the State of Texas. This histology of juvenile rights highlights the fundamental ongoing criminalization of our children. We must dissect the way we treat children accused of a violation of the criminal law at the very organic or cellular level. It is time to ignore the lies of the correctional monster we have created-a monster that must be continually fed with the lives of our young. (exdcerpt)
. Healing the wounds: An examination of veterans treatment courts in the context of restorative justice.
Controversy exists regarding whether specialized courts, specifically drug courts, adhere to the restorative justice model. Veterans treatment courts (VTCs) are the newest programmatic innovation in the specialized court arena and have not been widely studied to date. This study utilizes data from the first in-depth case study of a VTC and explores whether it embodies the restorative justice ideal. Using both quantitative and qualitative data, we find that the VTC does not fully embody the restorative justice agenda, but it adheres closer to the ideal than drug courts.(author's abstract)
. In the name of Delhi Gang Rape: The proposed tough juvenile justice law reform initiative.
The incident ofDecember 16, 2012 sparked a significant social and legal debate regarding the laws of sexual offences as well as subjectingjuveniles to the criminal justice system. The Cabinet has proposed an amendment to the Juvenile Justice Act that would allowprosecution ofjuveniles between 16 and 18years for heinous crimes. This essay reflects on the history ofjuvenile justice and cautions against hasty reforms that would alienate and punish rather than assimilate and reform juveniles who may offend the law. (author's abstract)
. Interrogating the peripheries: The preoccupations of fourth generation transitional justice.
Some three decades after the surge of democratic transitions that gave birth to the field, transitional justice is increasingly associated not just with narrow transitions to democracy, but with post-conflict peacebuilding more generally,' occasionally even in illiberal states with little pretension to democratic transition." While the shift to peacebuilding might suggest a broadening of transitional justice modalities, thus far the differences have been more superficial than substantive. In many instances, post-conflict transitional justice initiatives appear to have become yet another box to tick on the "post-conflict checklist." Along with initiatives to reform the security sector, strengthen the rule of law, and implement demobilization, disarmament, and reintegration programs, transitional justice is arguably on its way to becoming a core component of liberal international peacebuilding, another paradigm closely associated with transitions to liberal market democracy.' (excerpt)
. Introducing restorative justice: Re-visioning responses to wrongdoing.
Learning about restorative justice involves examining conventional thinking about crime (or wrongdoing generally), values in relation to how people associated with wrongdoing are treated, and best responses when a wrongdoing occurs. In this introductory article, I highlight key developments in the restorative movement and main distinctions between the conventional and restorative justice approaches. I describe what restorative justice interventions involve and consider claims about effectiveness. In the article's conclusion, I note ongoing tensions and recent developments. (excerpt)
. Is the ICC making the most of victim participation?
Fifteen years after the adoption of the Rome Statute, which was the first instrument to recognize victims’ right to participate in international criminal proceedings, the article examines the International Criminal Court’s practice regarding the implementation of that right. The authors investigate the rationale for victim participation in criminal proceedings from the optic of a restorative justice approach and submit that improved participation would benefit both victims and the Court. The article offers a critical assessment of the Court’s practice to determine whether it has lived up to its restorative justice mandate.

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