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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?

Daly, Kathleen and Stubbs, Julie. Feminist engagement with restorative justice
Feminist engagement with the idea of restorative justice (RJ) takes several forms, and this article maps five areas of theory, research, and politics. They are: theories of justice; the role of retribution in criminal justice; studies of gender in RJ processes; the appropriateness of RJ for partner, sexual, or family violence; and the politics of race and gender in making justice claims. There is overlap among the five, and some analysts or arguments may work across them. However, each has a particular set of concerns and a different kind of engagement with the idea of RJ. (excerpt)
Daly, Kathleen. The limits of Restorative Justice
This chapter addresses a selected set of limits of RJ, those concerning its scope and its practices. My discussion is selective and limited. I do not consider the discursive limits of liberal legality as these are viewed through a postmodern lens, not do I consider related problems when nation states or communities cannot imagine particular offences or understand ‘ultra-Others’. My focus instead is on the limits of current RJ practices, when applied to youth justice cases in common law jurisdictions. There are other contexts where RJ can be applied, including adult criminal cases; non-criminal contexts (school disputes and conflicts; workplace disputes and conflicts; and child welfare); and responding to broader political conflict as a form of transitional justice practice, among other potential sites. I focus on RJ in youth justice cases because it currently has a large body of empirical evidence. However, as RJ is increasingly being applied in adult cases and in different contexts (pre- or post-sentence advice, for example, as is now the case in England and New Zealand) we might expect to see different kings of limits emerging. (excerpt)
Dangers of the big tent
In making the case for restorative justice, Erik Luna invokes the familiar narrative of a pathological American criminal justice system—political demagogues pushing ever tougher sentencing policies on an uninformed public, resulting in wildly escalating prisons populations and fiscal burdens—and asserts that restorative justice cannot possibly do any worse. Indeed, he suggests, restorative justice may bring about a change in heart among the demagogues: the theory and principles of restorative justice may force policymakers “to reevaluate their own intellectual commitments and the merits of their chosen sentencing methodologies.
Dhami, Mandeep K. and Fox, Darrell and Mantle, Greg. Restorative justice in prisons
Restorative Justice (RJ) has found significant utility outside the prison setting. For many reasons, it has not received the same level of consideration inside the institution...Although RJ has the potential to have a positive impact on the work of prisons and the experience of imprisonment, it has not found wide acceptance and is currently limited to a relatively small number of prisons and then often only delivered in partial platforms. We believe that RJ has a realistic future in prison settings and that the contradictions that may be identified are not debilitating. (Excerpt)
Dispute Resolution Project. Study of Barriers to the Use of Alternative Methods of Dispute Resolution.
Five papers examine the barriers preventing the widespread use of alternative dispute resolution (ADR). The emergence of disputes is traced. The question of whether bureaucrats will accept environmental mediation is raised, and the need for providing incentives for agencies to use mediation is noted. The problem of enforcing negotiated agreements to environmental disputes is examined, and cost allocations for cleaning up hazardous waste sites are explored. Problems arising in the resolution of family disputes are analyzed, the legal profession's attitudes toward divorce mediation are examined, and statutes that implement the process of mediation are discussed.
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. With respect to discourse, he pays particular attention to community service and victim-offender mediation as two prototypes of restorative justice. Then he asks whether restorative justice in action equals restorative justice as described and touted in the discourse on it. Specific issues related to restorative justice in relation to juvenile justice are addressed in some detail.
Eze, Emmanuel Chukwudi. Transition and the Reasons of Memory
In this essay, Emmanuel Chukwudi Eze delves into questions pertaining to forgiveness in the aftermath of human rights abuses under apartheid in South Africa. For example, what motivates victims of abuses to forgive? What does it mean for victims to forgive the past? What kind of morality should govern questions about processes connected with forgiveness such as offering or not offering forgiveness, accepting or not accepting forgiveness, and so on? In a similar vein, what are the ethics of forgiveness in relation to the necessary requirements of justice and the memory of past acts of state-sanctioned crimes? Eze reflects on these and other questions to shed light on reasons for forgiveness and the ethical and political uses of public memories of gross, systemic, state-sanctioned human rights violations.
Falck, Sturla. Restorative justice - a giant leap or just another tool for the criminal justice system?
I will start by taking a look back at the origins of some of the main ideas of restorative justice, both in Norway and elsewhere. After that I will take a look at developments from an outsider's perspective. Since I am from Norway my main examples will be drawn from that country, although I draw on international trends to some extent. Ultimately the outcome could point in two directions, either towards restorative justice as a new tool for the criminal justice sector, or towards restorative justice as offering the possibility of gradual transition towards a new understanding of conflict resolution. (excerpt)
Fattah, Ezzat A. Is Punishment the Appropriate Response to Gross Human Rights Violations? Is a Non-punitive Justice System Feasible?
Proponents of Restorative Justice in the West often forget that Africa is the cradle of R.J. Social evolution in pre-industrial African societies and saw the move from private vengeance to group retaliation which, in turn, paved the way to a system of composition, the earliest form of R.J. The current punitive system was imposed by the colonial powers and surprisingly remains in place long after independence was achieved. It is baffling that despite the manifest advantages and benefits of R.J. over a punitive, retributive system, whose sole aim is to inflict pain and suffering on the wrong-doer, there is still reluctance to do away with the ideas of expiation and penitence in favour of reconciliation and compensation. The strong support for victims of crime, coupled with the fact that victims are the main losers in a punitive system of justice, have not succeeded in convincing politicians, lawmakers or the general public to abandon this medieval practice. And yet, the destructive and detrimental effects of punishment are too evident to ignore. There are many reasons why punishment can never be an appropriate response to harmful and injurious acts. The unanimous view is that for punishment to be morally acceptable in a democratic just society it has to be proportionate to the injury or the harm done. This noble objective of fairness is utterly impossible to achieve in practice. This is why Transitional Justice is becoming the preferred mode of dealing with atrocities committed by previous regimes in countries in transition to democracy. All this suggests that the time is right for a paradigm shift in society’s response to crime. Many years ago I argued that this can be achieved by moving from a guilt orientation to a consequence orientation thus removing the artificial boundaries arbitrarily erected between civil and criminal law. This goal will hopefully be attained by the implementation and full institutionalisation of Restorative Justice. (author's abstract)
Fromme, Joan. Restorative Justice and Human Rights.
This study will explore how human rights cases can be redressed through the use of restorative justice and will identify the commonalities, differences and obstacles in the use of restorative justice as a redress mechanism. The BC Human Rights Coalition benefits by being able to utilize the research results to consider alternatives to advance the cause of human rights resolution, as well as enhance the organizational effectiveness in terms of their goals concerning advocacy, education and law reform. The research project explores the concept of utilizing restorative justice processes in human rights cases, the circumstances in which its use would be inappropriate, and considers how restorative justice processes might be used in systemic discrimination cases. Currently, restorative justice is not used in human rights cases. The recommendations outline next steps in terms of future research required in this area. (author's abstract)
Gacaca: A successful experiment in restorative justice?
from the article by Charlotte Clapham on e-International Relations: ....The twofold reparative function of restorative justice is, however, crucial and so the extent to which gacaca’s emphasis on ‘truth-telling’ realised its desired outcome is subject to debate. To draw on Johnstone’s conception of restorative justice once again, the fact that gacaca failed to offer something positive, in the form of compensation, to meet the needs of the victims (Johnstone 2004: 9-10) meant part of its reparative function was undermined. For example, whilst ‘truth-telling’ is believed to be cathartic for victims, evidence of ‘traumatization’ through their testimonies did in many cases incite ‘fear, anxiety and sadness’ (Rime et al 2011: 701; Brouneus 2008). Although this may be unavoidable for crimes of such extreme brutality, in order for victims’ engagement in the process of ‘truth-telling’ between victim and perpetrator to hold a healing quality, adequate compensation is needed to empower victims (see, Baines 2007: 104; Waldorf 2006: 430) as well to avoid a ‘re-victimization’ of those involved (Wielenga and Harris 2011: 20; AI 2000: 8). Gacaca’s reparative qualities were therefore hindered, as its lack of compensation for victims (AI 2000: 9) meant that for many the process failed to ameliorate the damage caused by the crime and instead caused further harm.
Garner, Sharon G. and Hafemeister, Thomas L.. Restorative Justice, Therapeutic Jurisprudence, and Mental Health Courts: Finding a Better Means to Respond to Offenders with a Mental Disorder.
An unresolved question is whether restorative justice programs are successful for only a small, select number of offenders or whether they are effective for a wide range of offenders. This article addresses one group of criminal defendants, namely, individuals with a mental disorder, for whom a restorative justice approach at first glance might seem inappropriate. However, this article concludes that this approach should encompass such offenders when their disorder is relatively stable and when they possess sufficient interpersonal skills to engage in a meaningful dialogue with their victims. The restorative justice approach promotes the psychological well-being of such offenders and their victims without undermining the social and legal goals of deterrence and retribution. In addition, this article discusses how restorative justice complements the principles of therapeutic jurisprudence and mental health courts, two related innovative approaches that recognize the need for distinct treatment for this population of offenders. (excerpt)
Gibbs, Meredith. Restoration or reconciliation: Providing contemporary reparation for historical injustices against Maori.
This paper examines some of the complexities of providing contemporary reparation for Maori claims of historical injustice arising from breaches of the Treaty of Waitangi with particular reference to grievances involving land. I explore some of the theoretical and practical difficulties of applying a restorative approach to reparation in New Zealand's Treaty settlement process and argue that a restorative approach is possible in theory but extremely problematic in practice. I question whether New Zealand's attempt to achieve justice in the Treaty settlement process is better described as reparation as reconciliation where the cultural survival of the Maori claimant group is given greater weight than the provision of full reparation for past wrongs. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.
Gibbs, Meredith. Using restorative justice to resolve historical injustices of Indigenous peoples.
This article explores the application of restorative justice to situations of historical injustice. It argues that applying restorative justice practices and principles could maximize justice for Indigenous peoples by, first, refocusing Indigenous land claims on the restoration of tribal respect and dignity rather than on the restoration of property rights, and second, acknowledging the wider social relationships in which such conflicts arise. This article also contends that using restorative justice in situations of historical injustice may impact on the practice of restorative justice itself. First, the roles and relationships of key players will change which may lead ultimately to a reconsideration of the role of the State in restorative justice. Second, applying restorative justice in situations of Indigenous historical grievances underscores the collective nature of such conflicts and the collective, contextual nature of evolving notions of the justice in restorative justice.
Global Peace Index: 2009 Methodology, Results and Findings
The results of the Global Peace Index for 2009 suggest that the world has become slightly less peaceful in the past year, which appears to reflect the intensification of violent conflict in some countries and the effects of both the rapidly rising food and fuel prices early in 2008 and the dramatic global economic downturn in the final quarter of the year. Rapidly rising unemployment, pay freezes and falls in the value of house prices, savings and pensions is causing popular resentment in many countries, with political repercussions that have been registered by the GPI through various indicators measuring safety and security in society.
Graybill, Lyn. Pursuit of Truth and Reconciliation in South Africa
How do governments deal with human rights violations committed by former regimes? South Africa's solution has been the Truth and Reconciliation Commission (TRC), a carrot-and-stick approach that offers amnesty to those who come forward to disclose their deeds and the threat of criminal prosecution to those who do not. On the heels of an exceptional transition of power in which an entrenched ruling group relinquished control without imminent military threat, South Africa embarked on an equally unprecedented process of national reconciliation. Because the African National Congress (ANC) did not win a military battle but instead came to power through a negotiated settlement, compromises had to be made in order to win the National Party's support, to ensure democratic elections, and, above all, to promote peace. In the words of Kader Asmal, one of the key architects of the TRC who argued for a process that would not insist on criminal prosecutions, "We sacrifice justice for truth so as to consolidate democracy, to close the chapter of the past and to avoid confrontation." To acknowledge that the politics of compromise may be at odds with a strict notion of justicexe2x80x94what Reinhold Niebuhr called "perfect justice" is not to deny an ethical basis for the TRC. In assessing the TRC's success, one must ask: If not justice, what does the TRC offer? What follows is an assessment of the political, procedural, and ethical criticisms of the TRC. (excerpt)
Gromet, Dena M. and Darley, John M. Restoration and Retribution: How Including Retributive Components Affects the Acceptability of Restorative Justice Procedures
This study examined whether adding retributive components to restorative justice procedures would impact citizen’s perceptions of the acceptability of restorative justice procedures for handling crimes of differing severity. The findings from study 1 indicated that participants were willing to assign pure restorative procedures for less serious crimes but they overwhelmingly included a retributive component for more serious crimes. Study 2 results indicated that participants did not lower prison sentences for offenders whose conferences failed, nor did they punish these offenders with more severe sentences. Participants consistently lowered prison sentences for offenders who successfully completed restorative procedures. The findings suggest that citizens may be willing to embrace restorative practices for less serious crimes but require more retributive options as the seriousness of the crime increases. The first study focused on whether the seriousness of the crime impacted citizen’s perceptions of the role of punitive measures in restorative justice procedures. Participants were 57 undergraduate psychology students who participated for course credit. Participants were educated on the differences between pure restorative practices and punitive procedures and were asked to judge nine court cases in terms of whether the cases should go through pure restorative procedures, a mixed procedure, or the traditional court process. In Study 2, 43 undergraduate psychology students who were participating for course credit were randomly assigned to 1 of 2 conditions: (1) a no-fault conference outcome in which the victim and the offender from a mixed procedure had failed to reach an agreement, and (2) an offender-fault conference outcome in which a mixed procedure conference failed because of a lack of effort on the offender’s part. Participants were directed to answer questions related to the offender, such as likelihood of recidivism, and to offer their opinion of the sentence the offender should receive. Both studies were administered via Internet-linked computers. Data were analyzed using nominal logistic regression models and repeated measures ANOVA. Future research should attempt to replicate these findings with different populations. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).
Group-Conflict Resolution: Sources of Resistance to Reconciliation
To what extent can insights from apology and forgiveness in dyadic disputes be imported into the group conflict context? How might differences between the two types of disputes necessitate differing dispute resolution techniques? How is disputant resistance to conflict resolution changed or amplified in the group-conflict context? These questions are the focus of the articles published in the spring 2009 issue of the journal Law and Contemporary Problems. The articles grew out of presentations made at a conference organised by the Law and Human Behavior progamme at Vanderbilt University Law School with financial assistance from the Andrus Family Fund.
Gustafson, Dave. Is Restorative Justice Taking Too Few, or Too Many Risks?
The question as to whether restorative justice is taking too few or too many risks is complex and not easily answered. In a sense, remarks David Gustafson, the answer is 'yes' to both-- it is both taking too few and too many risks. Research on restorative justice and practical experience of restorative justice providers indicate many successful processes and outcomes. At that same time, research and practical experience reveal problems and failures as well. In this framework, Gustafson discusses 'risk-taking' in restorative justice in relation to competency of practitioners, types of offenses being handled in restorative justice programs, and the immense needs for restorative responses to crime and those affected by crime.
Hagemann, Otmar. Restorative justice in prison?
According to Ottmar Hagemann, programs that could be classified as forms of restorative justice are currently being implemented in prisons in various countries. In this vein, Belgium has recently introduced what are called restorative justice consultants. One works in every prison in Belgium. Yet, inquires Hagemann, is the concept of restorative justice compatible with imprisonment? Hagemann explores the question by discussing abolitionism (advocacy for the elimination of prisons in favor of alternative forms of conflict resolution), restorative justice and abolitionism, the scope of restorative justice in terms of what crimes are and can be addressed, empirical evidence with respect to an in-prison program focusing on offender empathy for victims, and links between restorative justice theory and actual practice in prison settings.

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