Punishment v. restoration: A comparative analysis of juvenile delinquency law in the United States and Mexico
Aug 08, 2012
from the article by Beth Caldwell in the Cardozo Journal of International and Comparative Law:
....Within Mexico, the State of Oaxaca has developed a code that incorporates these human rights principles and sets forth procedures for using restorative justice conferences as an alternative to the adversarial court system.... Oaxaca’s approach exemplifies the restorative model contemplated in Mexico’s national constitutional reforms.
....The vast majority of Oaxaca’s juvenile delinquency cases are resolved through restorative justice conferences that bring together the victim, the offender, and their respective family members in order to develop appropriate sanctions for the offender and reparations for the victim.
Psychologists and attorneys who work at the state’s Center for Restorative Justice do a great deal of preparation with the offenders and victims prior to facilitating a meeting that brings the parties together. They have had quite a bit of success with this model and have resolved serious cases including shootings and homicides through restorative justice conferences.
The law provides that facilitators must keep all information obtained during the restorative justice process confidential; this information may not be used in court.
If an agreement is reached between the parties, it is presented to a judge for approval. The restorative justice process must be resolved within thirty days.
....Oaxaca’s process takes the negotiation process out of the courtroom and into an environment where professionals specifically trained in the art of mediation and restorative justice conferencing spend a substantial amount of time with all of the parties involved.
Procedurally, criminal offenses are divided into two categories: (1) serious offenses; and (2) other offenses. “Serious offenses” are a very limited group of offenses and are the only offenses for which juvenile offenders may be incarcerated. These offenses are not referred to the Center for Restorative Justice. Instead, they proceed directly to court where oral trials are eventually held. In contrast to the American legal system, plea bargains cannot be reached in court with regard to such cases—they must go to trial.
All other offenses are routed through “salidas alternativas” (alternative exits), which include a variety of settlement and diversion options. Restorative justice conferences are the predominant manner of resolving such cases.
If an agreement is reached through the restorative justice conference, the agreement is proposed to the court. Assuming that the judge accepts the agreement—as it typically is—the case is dismissed when the agreements have been completed.
....Oaxaca’s code, for example, vests victims with the decision-making authority regarding whether or not to enter into a restorative agreement with an offender.
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