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Limitations to Restorative Justice

Are there cases or situations in which restorative justice cannot be used, or should be used only with great care?

. 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)
. Restorative justice in schools: The influence of race on restorative discipline.
Schools today are more frequently using punitive discipline practices to control student behavior, despite the greater effectiveness of community-building techniques on compliance that are based on restorative justice principles found in the criminal justice system. Prior research testing the racial threat hypothesis has found that the racial composition of schools is associated with the use of more punitive and less reparative approaches to discipline, just as it has been associated with criminal justice harshness. However, no research to date has assessed the possibility that school-level racial composition may affect the likelihood that specific restorative justice techniques, which are the most commonly used alternative, will be implemented. This study is the first to test the racial threat perspective in relation to use of the restorative practices student conferences, peer mediation, restitution, and community service. Using a national random sample in logistic regression analyses, we find that schools with proportionally more Black students are less likely to use such techniques when responding to student behavior. This finding has several troubling implications for minority students in particular and for education as a whole. (author's abstract)
. The paradox and promise of restorative attorney discipline.
Our contribution to this debate is to envision a specific structure and form for public participation in disciplinary processes. We draw upon theory and practice in the field of Restorative Justice. Developed primarily in the context of criminal and juvenile justice, Restorative Justice animates diversionary programs such as victim offender mediation, conferencing,and sentencing circles and emphasizes two important elements that are currently undervalued in attorney discipline: 1) deliberation and decision making by a diverse group of stakeholders and 2) discussion that focuses on repairing the damage caused by the offender. A restorative approach sees “that ‘justice’ can only be realized when the stakeholders most directly affected by a specific offence—the victim, the offender and the community—have the opportunity to voluntarily work through the consequences of the offence with the emphasis on repairing the harm and damage done.” In our view, the legal profession both constitutes and creates community. By strengthening that community, a more restorative disciplinary process can in turn improve the morale of practicing lawyers, prevent ethical misconduct, and protect the public. (excerpt)
. The truth about truth commissions: Why they do not function optimally in post-conflict societies.
Almost forty years after the first truth commission convened and more than sixty-seven others have been employed, there is little clarity on how they contribute to their stated objectives and in which transitional contexts they succeed or fail. This Article uses data gathered from my field research in Ghana, Sierra Leone, and Liberia to develop a theoretical framework for understanding in which contexts truth commissions may be the most effective. Using insights from the legal transplant literature and applying it to the diffusion of truth commissions, this Article finds that truth commissions face greater challenges carrying out their mandates in postconflict as opposed to post-authoritarians ocieties. In post-confict societies, weak institutions to support a truth-telling process combined with large numbers of victims and perpetrators will tend to overwhelm truth commissions. These factors, along with the lack of moral consensus surrounding mass violence, interact to make truth commissions function less optimally in post-conflict contexts. This Article finds that despite their widespread use in post-conflict and fragile states, truth commissions may have more utility in post-authoritarian or even non-transitional states. In sum, this Article argues that the kind of transition should determine the kind of transitional-justicei nterventions employed. (author's abstract)
10 ways to live restoratively
from Howard Zehr's article on Restorative Justice Blog: 1. Take relationships seriously, envisioning yourself in an interconnected web of people, institutions and the environment. 2. Try to be aware of the impact - potential as well as actual - of your actions on others and the environment. 3. When your actions negatively impact others, take responsibility by acknowledging and seeking to repair the harm - even when you could probably get away with avoiding or denying it. (To craft a letter of apology, see the Apology Letter website developed by Loreen Walker and Ben Furman.) 4. Treat everyone respectfully, even those you don’t expect to encounter again, even those you feel don’t deserve it, even those who have harmed or offended you or others. 5. Involve those affected by a decision, as much as possible, in the decision-making process.
A challenge
from the entry on Restore: I’m listening this morning to the slew of financial statistics–housing starts, unemployment rate, bank closings, those without health care, bankruptcies, houses in foreclosure…. It seems to me that restorative justice needs to come up with an index of its own: one that marks the measure of social justice. Are we moving closer or further away from our goal of less reliance on prisons, improving social relationships in our communities, looking at how well or how poorly alternatives to incarceration are funded? What is the ratio between expenditures on prisons vs. what we spend on schools? What is the ratio of crime to poverty? Number of dispute resolution programs to police officers?
A contradiction and an alliance among restorative justice theories, feminism and Confucianism: From Taiwan's experience
from the paper by Hsiao-Sen Huang: This paper aims to discuss a theoretical contradiction and to explore a possible alliance among restorative justice theories, feminism and Confucianism, with a focus on restorative justice practice in family violence cases. In addition to drawing on literature, this paper will undertake qualitative analyses on the interviews with six facilitators in Taiwan Restorative Justice Pilot.
After a death, a time for restorative justice?
from the article by Sayre Quevedo for Youth Radio: An interview with restorative justice advocate, Sujatha Baliga. Imagine victim and offender sitting across from each other in a small room containing a circle of chairs. There are no bailiffs or guards, just two people, maybe a lawyer and some family members, talking. They discuss ways to right old wrongs that allow both parties to move forward after a crime. It may sounds like a fantasy, but Sujatha Baliga, who heads the Restorative Justice Project at the National Council on Crime and Delinquency, says the practice works, even with the most severe crimes.
Arrigo, Bruce A. Identity, International Terrorism, and Negotiating Peace: Hamas and Ethics-Based Considerations from Critical Restorative Justice.
This paper conceptually examines one specifi c case of international terrorism, including the emergence and maintenance of membership-allegiance in its militant extremist group. This is the case of the Islamic Resistance Movement (or Hamas) and the manifestation of its corresponding Palestinian identity. Although the social person is constituted by symbols and objects, acts and social acts, meanings, and role-taking and role-making, questions persist about how best to promote peaceful coexistence, advance the interests of non-violence and ensure the protection of basic human rights. These practices constitute an ethic grounded in Aristotelian virtue. The delineation of key principles emanating from critical restorative justice helps to specify this brand of moral reasoning. The integration of these principles with the proposed symbolic interactionist framework demonstrates how extremist violence can be mediated. Suggestive examples of the same involving Hamas and those with whom it struggles (Palestine, Israel and the United States) are used to guide the analysis. The proposed conceptual framework is then briefl y assessed for its overall explanatory capabilities, especially in relation to furthering terrorism studies. (author's abstract)
Arrigo, Bruce A.. Postmodernism's challenges to restorative justice
This article explores postmodernism’s assessment of restorative justice (RJ) both in theory and in practice. In particular, the conceptual underpinnings of RJ and its procedural extension, victim offender mediation (VOM), are critically examined. At issue are the limits to justice, humanism, and change that unwittingly are legitimized and reproduced through the VOM dialogical exchange. This is a pivotal interaction involving the offender, victim and mediator. The undoing of a more complete experience of justice is problematic; especially given RJ’s genuine commitment to promoting redemption, mercy, forgiveness and compassion. These are dimensions of a healing process that intend to foster a transformative experience for all parties concerned. (excerpt)
Book Review: The Machinery of Criminal Justice
from the review by Andrew Taslitz on Jotwell: ....Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press....Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.
Building restorative cultures
by Dan Van Ness Yesterday I wrote about the media treatment of a paper delivered by Dr. Hillary Cremin warning that restorative justice programmes alone are not enough to address bullying if there is not also a culture change at the school. One newspaper reported that this meant that "trendy" restorative justice doesn't work to stop bullying. My entry yesterday considered the difficulty of working with media to present a nuanced argument when they are looking for soundbites to sell papers. Today I want to consider another issue, one that Dr. Cremin raised in our correspondence:
Cameron, Angela. Sentencing Circles and Intimate Violence: A Canadian feminist Perspective.
Advocates of restorative justice claim that these models can benefit offenders, victims, and communities and also address historical injustices perpetrated against Aboriginal peoples. These claims extend to cases of intimate violence. In the case of judicially convened sentencing circles in cases of intimate violence in Canada, these claims have not been born out. In fact, by measuring the outcomes in these cases against recent studies of bettered women's needs, these models, as they are currently constituted, have inadequately addressed social injustice and inequality experienced by women within Canadian Aboriginal communities, and in some instances, have revictimized survivors of intimate violence. (author's abstract)
Can restorative processes serve people with limitations?
from Sylvia Clute's entry on Genuine Justice: When those who have a mental illness or a behavioral problem become involved in a dispute, what processes are available to help them resolve the conflict? What about children, ten or eleven years old, who break the law? How can their disputes be effectively addressed and involve them in a meaningful way? In the past, the court system has been the principle process offered when people cannot resolve their disputes. As the legal system is a highly technical environment, it presents obstacles for people with limited ability. In a recent blog, We Must Do Better Justice, I wrote about Daudi Beverly who was sentenced to serve a long sentence, despite years of mental illness and seven hospitalizations for emotional problems prior to his conviction.
Center for Restorative Activism
from the "Principles" page of Scott Brown's website: Here are some basic principles that help to frame what restorative activism is about: The historical moment calls on us to identify and focus on root causes. I believe the historical moment boils down to a choice between continuation with the life-denying worldview based on separateness, and a life affirming worldview based on the direct experience of interrelatedness. The belief in separateness can be singled out as a root cause of the crises we face and this shows us what we are really up against.
Compulsory Mediation within Civil and Criminal Law: Good, Bad, or Just Plain Daft
From the article on ILennon: A Comment on Legal Developments: ...Mediation is a process which carries with it undeniable successes, and which when used in the right circumstances is a altogether good thing, providing access to justice, a speedy and affordable process and a way of resolving disputes in a manner designed to restore and preserve relationships. “In all dispute resolution methods there is always pressure for change”[i], one such change mediation faces is the possibility of being made a compulsory precursor to litigation. This paper takes a short but critical look at the possible outcomes if a statutory requirement meant that mediation become compulsory within Civil and Criminal claims.
Coster, Sarah. The Pitcairn Island criminal trials - How has restorative justice featured?
The amassed circumstances surrounding the trials involving 13 men charged with sexual offending on Pitcairn Island (a British Overseas Territory in the Pacific with a population of 47) make them some of the most extraordinary trials in criminal history. The situation has already raised many fascinating questions of law and justice. Quite apart from the issues within the individual trials themselves, this case has involved pre-trial applications questioning the status of Pitcairn law and challenging the jurisdiction of the Pitcairn courts. Consideration of whether to run the trials on the small, isolated island also raised fundamental issues of justice, while the practical outworking of doing so has highlighted tensions existing within the community. Restorative Justice has featured in the mix of issues to date, having been variously mooted by some Pitcairn Islanders, Restorative Justice advocates, and other observers, as a potential means of dealing with the situation. Some have proposed restorative justice as a substitute for the trials, others as an aspect of sentencing, and others as an adjunct to the existing criminal process. This presentation will note the various forms of restorative justice that have been suggested in relation to the trial, and will identify some issues to be considered surrounding those proposals from a theoretical perspective. Abstract courtesy of the Centre for Justice and Peace Development, Massey University,
Cullen, Francis T and Wozniak, John F and Levrant, Sharon and Fulton, Betsy. Reconsidering Restorative Justice: The Corruption of Benevolence Revisited?
Observing the increasing popularity of restorative justice as a correctional paradigm among both liberals and conservatives, the authors acknowledge value in the restorative justice approach. However, they find the ready embrace of restorative justice problematic in two respects. One, there is a danger that restorative justice programs will be corrupted to serve nonprogressive goals; the authors see this as the possible corruption of benevolence. Two, there is little reason to think that restorative justice programs will meaningfully reduce offender recidivism. This paper examines these two problematic areas in detail. In general, the authors urge caution concerning restorative justice until further scrutiny of these issues can be conducted, including more rigorous research on restorative justice outcomes.
Cunneen, Chris and Hoyle, Carolyn. Debating restorative justice.
In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative jsutice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system. (publisher's description).
Daly, Erin. Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition.
Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may not be effective in promoting the goals attributed to them. The article does not argue that transitional governments should not pursue the truth, but it does urge governments to use caution and careful planning when they do so. (author's abstract)

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