Due Process Issues
Criminal defendants -- and victims -- have fundamental human rights that must be respected in any state-sanctioned proceeding. A variety of legal protections have been established over the centuries, but for the most part these anticipate a formal legal process. How can the benefits of informal processes be gained without jeopardizing the human rights of the parties? How can those rights be observed without formalizing the informal restorative processes?
Four particular areas of concern are:
1. The right to equal protection of the law. The informality of restorative processes might hide discrimination on the basis of race, gender, ethnic background or other protected status.
2. The right to freedom from torture and cruel, inhuman and degrading treatment or punishment. This issue was raised in the early days of restorative justice when the concept of reintegrative shaming was linked with restorative programmes.
3. The right to be presumed innocent. Offenders are required to accept responsibility for their conduct as a pre-requisite to a restorative meeting. After all, there is no point meeting with their victim if all they do is deny involvement. So can agreement to participate be used subsequently as evidence of guilt if the meeting fails to result in an agreement.
4. The right to assistance of counsel. In many early restorative programmes, attorneys were not allowed to participate in the meetings between victims and offenders. The concern was that the attorney would either speak for the offender or unduly constrain them. Offenders were allowed to consult with counsel before agreeing to participate, however. More recently, some countries have included the attorney in the process as an observer whose role is to ensure that the rights of their client are protected.
Because restorative programmes involve both victims and offenders, the human rights concerns are not limited to the defendant. Depending on national law, the victim may also be entitled to equal protection of the law, assistance of counsel, and other rights.
In 2002, the United Nations endorsed a Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. These offer guidance to countries incorporating restorative justice in their criminal justice systems on how to avoid human rights violations such as those mentioned above.
For further discussion on these issues in the Tutorial: Introduction to Restorative Justice, see Due Process and Equal Protection/Discrimination.
The following articles discuss the issues surrounding restorative justice and human rights/due process.
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Part I of this Note explores the history and underlying principles of restorative justice. Part II will detail the various due process criticisms that have been leveled at restorative justice. Part III discusses New Zealand’s due process system and how it has been able to successfully implement restorative justice in conjunction with due process. Part IV analyzes due process concerns in the United States, and how restorative justice can coexist with the Constitution. Part V contends that the benefits of restorative justice justify the minimal effort required to implement it.(excerpt)
- Van Ness, Daniel W.
Restorative Justice and International Human Rights.
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Restorative justice theory offers a conceptual framework which may reconcile apparently inconsistent criminal justice norms and standards. The apparent inconsistencies may simply reflect a paradigm shift from a legalistic understanding of crime to a model that recognizes the injuries to victims and communities as well. A review of the documents included in the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice finds significant support for restorative justice theory.
- For restorative justice, the devil is in the details
- from the column by J. Douglas Allen-Taylor in Oakland Local: ....The ordinance makes provision for existing agencies or non-profits to run the restorative justice component on a case-by-case referral basis, with instructions that the contracted program “may seek to involve the victim as well as the offender” in the restorative justice process. In addition the contracted program both makes the decision as to what will it take to bring restoration as well as to ultimately sign off on whether or not restoration was done. Since that is one of the basic tenets or restorative justice—to bring victim and offender together to restore the whole—it would seem that the programs would almost always bring in the victims, as well as let the victims take the lead in deciding the restorative action.
- justice and understanding
- Dear Anne, Thank you for your comments. Your questions are good ones and point to why restorative processes are useful. The context of the dialogue [...]
- "woman must wear idot sign"
- Thank you for your article. In my opinion without understanding, there can be no true justice. Ms. Parker, I would add some further questions to [...]
- Justice? What about understanding?
- by Lynette Parker Scrolling through RSS feeds I saw a link for, “After driving on sidewalk to pass school bus, woman must wear ‘idiot’ sign.” I admit clicking the link to see what it was about. The first line quotes someone as declaring, “Justice has been served!” before going into how a woman had driven on a sidewalk to get around a parked school bus with children on it. The penalty was to stand near the scene of the incident wearing a sign that says, “Only an idiot would drive on the sidewalk to avoid the school bus.” She will also pay a $250 fine.
- First restorative justice Human Rights Board of Inquiry
- from the press release by the Nova Scotia Human Rights Commission The Nova Scotia Human Rights Commission will be holding its first restorative board of inquiry Monday, Sept. 17. The commission has significantly restructured its investigation and adjudicative processes over the past year. This includes approaching the resolution of human rights disputes from a restorative justice perspective.
- Restorative justice is the law
- by Dan Van Ness Heartspeak Productions is a remarkable Canadian group that describes itself as "on a continual quest to learn about & share the principles and best practices of restorative justice." It does this by creating excellent videos exploring dimensions of restoration. Fraser Community Justice Initiatives Association is a community NGO also in Canada that for 25 years has developed programs and training that help people in conflict find good resolutions.
- Activists berate Traditional Courts Bill in South Africa
- from sipho Khumalo's article in The Mercury The controversial Traditional Courts Bill, which its critics say will take the country back to the era of bantustans, is set to come under scrutiny at a series of public hearings in KwaZulu-Natal. The sponsor of the bill, the Department of Justice and Constitutional Development, argues that the legislation seeks to affirm the recognition of traditional justice and its values based on restorative justice and reconciliation.
- The Jirga in modern day Afghanistan
- from the article by Ali Gohar in OPen Democracy: ....The working principals of the Jirga are community based and fact finding; it acts like a modern jury system. The Jirga intervenes to halt violence, identify the issues in order to resolve them through mediation or arbitration, and work towards reconciliation and rehabilitation. The Jirga system could also be described in terms of the three aspects of peacekeeping, peacemaking, and peacebuilding, through the use of Tega (ceasefire), Nagha (ban on arms show), Community Policing (Arbakai) and volunteer force (Lakhkar).
- The Jirga in modern day Afghanistan
- from the article by Ali Gohar in OPen Democracy: ....The working principals of the Jirga are community based and fact finding; it acts like a modern jury system. The Jirga intervenes to halt violence, identify the issues in order to resolve them through mediation or arbitration, and work towards reconciliation and rehabilitation. The Jirga system could also be described in terms of the three aspects of peacekeeping, peacemaking, and peacebuilding, through the use of Tega (ceasefire), Nagha (ban on arms show), Community Policing (Arbakai) and volunteer force (Lakhkar).
- Afghan women trapped in tribal court system
- from the article by Jean MacKenzi in Huffington Post: ....Sakina’s imprisonment stems from her attempts to evade a uniquely medieval form of restitution practiced in tribal courts and known as ba’ad. It is Afghanistan’s version of restorative justice in which women and girls are bartered from one family to another as a way to settle a dispute.
- Nova Scotia Human Rights Commission adopts a restorative justice approach to human rights disputes
- from the article by Michael Darcy for Canadian Civil Libertise Association Rights Watch: The Nova Scotia Human Rights Commission has changed its procedure for resolving human rights disputes. As of January 1, 2012, the NS HRC has adopted a restorative justice approach that emphasizes the need to reconcile the relationship between complainants and respondents,while reducing the time it takes to resolve a dispute (which the commission notes could have taken up to two years before the recent amendments).
- Review: Child victims and restorative justice: A needs-rights model
- from the article by Bill Lyons in Law & Politics Review: ....Combining the right to participate from the Convention on the Rights of the Child with an empirical analysis of a child's need to regain control, participation emerges as a critically important need and right for at least three reasons. First, for immediate instrumental reasons, participation is both an immediate coping mechanism and is expected to improve criminal justice outcomes. Second, for longer term developmental reasons, meaningful participation in experiential learning opportunities is a developmental step toward empowering young adults to master the problem solving skills necessary to make democracy both possible and desirable.
- Problems with legal aid
- from Chris LaHatte's blog Legal Rambling: What is the answer? Encourage more appropriate charges instead of over prosecution-always a problem. Then, if the appropriate charges are laid, encourage more guilty pleas by use of greater allowances for preparation for sentencing, more use of restorative justice and more resources for expert reports such as drug and alcohol abuse, psychologists, and better probation reports.
- No Exit: The Expanding Use of Life Sentences in America
- While persons serving life sentences include those who present a serious threat to public safety, they also include those for whom the length of sentence is questionable. In particular, life without parole sentences often represent a misuse of limited correctional resources and discount the capacity for personal growth and rehabilitation that comes with the passage of time. This report challenges the supposition that all life sentences are necessary to keep the public safe, compared to a term of fewer years. We conclude with recommendations for changes in law, policy and practice which would, if adopted, address the principal deficiencies in the sentencing of people to life in prison.
- More cautionary tales from the US
- Prison Rape: It's Not Okay
- Great, Dan. Thank you. Good to see it was covered by the National Review. Prison rape is finally being seen by politicians on both sides [...]
- It's Not Okay
- There is a supportive column on this in the conservative magazine National Review ( http://article.nationalrevi[…]MzdiMDE3ZGFkODJiZDQ3NmY4N2E ). One wishes that the breadth of support would lead [...]
- It's not okay
- By Lisa Rea I have worked as an advocate for restorative justice and criminal justice reform working with both offenders, and their families, through Justice Fellowship as its state director in California in the 1990's, and then working with victims of violent of crime through the creation of The Justice & Reconciliation Project (JRP), a national nonprofit seeking to provide a forum for victims to tell their stories. I can tell you I have seen crime from both perspectives. Advocates who represent victims and advocates who represent prisoners would both agree on one thing: prison rape is never okay. That is why the actions of a federal prison rape commission are so important.
- Rojas Mendoza, Dionisio. 2006. Design of a Restorative Justice Process: Inter-Sectoral Commission for Life and Human RIghts. Barrancabermeja (Colombia). Eastern Mennonite University. Conflict Transformation Program.
- This article discusses the possible design of a restorative response to mass violence in Colombia.
- Borland, Rosilyne M. The Gacaca Tribunals and Rwanda after Genocide: Effective Restorative Community Justice or Further Abuse of Human Rights?
- The genocide in Rwanda in the spring of 1994 was one of the world’s most horrific acts of collective violence. National and international attempts to deal with suspected perpetrators of the genocide have not fulfilled expectations, remarks Rosilyne Borland. The national legal system of Rwanda, she also states, has failed to administer justice adequately. In response to all of this, and as pressure increases to address the past and process the thousands still in prison, the Rwandan government has devised an alternative justice mechanism. It is called gacaca. Some claim that gacaca is bringing healing and reconciliation to Rwanda. Others warn that it makes possible further human rights abuses. With all of this in view, Borland analyzes the gacaca law, its early implementation, and relevant justice theories (especially restorative justice and community justice theories). Her aim is to examine whether Rwanda is succeeding in achieving justice after the genocide of 1994.
