news
The Palau Restorative Justice Program
Document Actions
Note: Michael J. Rosenthal is the Minister of Justice for the Republic of Palau, an archipelago of more than 300 islands in the Pacific. The following is an excerpt from a paper he presented to the International Association of Youth and Family Judges and Magistrates XVI World Congress 2002 with a link to the full-text of the speech.
As a former prosecutor with more than ten years of experience in the United
States Federal Government and the Republic of Palau National Government, it
is evident to me that Court systems and prison facilities do not necessarily
address the fundamental needs of society. Incarceration usually does
not cure the root of the problem which has caused criminal activity and
rehabilitation is usually the exception, thus leaving high rates of
recidivism. Additionally, studies throughout the World have shown that
the Court process results in satisfaction to victims of crimes in only about
20% of all cases.
In May 2001 UNICEF Pacific invited me to attend a regional Child Justice conference in Nadi, Fiji, at which the concept of Restorative Justice was presented. By June of 2001, the Ministry of Justice had established the Palau Restorative Justice Program (“PRJP”) and began sending cases to the office as an alternative to criminal court prosecution. The goal is to settle disputes, restore victims and society generally, reduce recidivism and to save time and money by reducing the number of cases that go to trial. The PRJP presently has one Restorative Justice Coordinator (“RJ Coordinator”), who is in charge of the overall program, two part-time Restorative Justice Mediators, who assist in running conferences, and three support staff.
Some general parameters have been set for the types of cases which are referred to the PRJP. The program is not available when the actions involve illegal drugs, prostitution, child abuse or homicide. The PRJP is usually not available when: (1) actions involve a sex offense or substantial violence; (2) the offender has a felony conviction within the past three years; (3) the offender has pending felony charges; or (4) the crime is without a victim. However, a case-by-case determination is made in each matter and special consideration is given to youthful offenders.
If a case appears appropriate for PRJP, the victim and the offender are contacted independently to determine if they want to participate, and more than ninety-five percent agree. Some cases which are initially determined not to be appropriate for PRJP, and sent to the Attorney General for prosecution, are later referred to PRJP. This may happen, for instance, when a victim, who has been the subject of abuse by a spouse expressly states that she or he is unwilling to go to court. With PRJP, an abuse case that would otherwise have gone unrecognized by the justice system, gets processed in a positive way. The PRJP allows an opportunity for the accused and the victim to identify and acknowledge the abusive behavior, work to restore the relationship and address the problems associated with the abuse.
After the parties agree to participate in the program, a conference is held at the Ministry of Justice with traditional leaders, family and community members. The conference proceeds under the leadership of the RJ Coordinator or one of the Mediators. At the conference the offender must acknowledge the improper actions, accept responsibility, and the victim must have the opportunity to tell the offender about the consequences of the criminal act. All participants at the conference, including the offender and the victim, determine the appropriate terms to restore the victim and society. A list of those terms are set forth on an information sheet (Attachment 1). The terms are placed in a written agreement (Attachment 2) which all participants sign and which the offender must complete within one year or sooner. When an offender performs community service, the person supervising the offender is requested to advise when the offender completes performance, or has failed to perform. To date, there have been few cases in which the offender has failed to perform the terms of the agreement.
If the offender fulfills the terms of the agreement no criminal case is filed and the offender has no criminal record. If the offender fails to fulfill the terms of the agreement, or commits another crime during the term of the agreement, the case may be referred to the Office of the Attorney General for prosecution. No statements or evidence obtained in the Restorative Justice process, is used against the accused in a subsequent prosecution.
Each PRJP agreement requires that the offender complete several terms. When there has been a loss to the victim, the offender will be required to make the victim whole through payment of restitution or replacement of a damaged or stolen item. The offender is often required to give something back to the community. Instead of imposing a fine, however, which would be sent to the National Treasury, offenders make a contribution of a certain dollar amount of food or supplies to a group such as the Senior Citizens or the Belau National Hospital. The majority of agreements also include a religious and behavioral health component. The PRJP is not intended to be a free ride and sentences imposed by the Court are considered for comparison. However, it is important that the members of the conference have the latitude to decide the correct restoration.
As Palau is a small Country, and many victims and offenders are related through family and clan, healing wounds and resolving issues is critical. In the Court system the accused may never speak and instead has a hired or appointed advocate act on his or her behalf. A basic precept of the PRJP is that the offender and the victim meet face to face with members of the community to begin a healing process. In the large majority of cases victims appear to genuinely forgive the offenders and let go of their anger.
One of the advantages of the PRJP is its flexibility which the Court and prosecutors often do not have due to various rules of procedure and laws. In some cases referred to PRJP, for instance, the victim has some culpability, and the offender may also have been victimized. The Restorative Justice process allows for both parties to be treated as victim and offender, requiring some type of restoration from both. Other cases, such as assault and battery or trespass cases have originated from a land dispute. The PRJP allows the parties to get to the root cause, deal with that issue, reach a resolution, and prevent the situation from recurring in the future. In some instances, victims do not participate because they have left the island or do not want to participate. Cases have proceeded in the PRJP without victims and had successful outcomes, which is far better than taking no action at all.
FULL REPORT
Michael J. Rosenthal
April 2003
In May 2001 UNICEF Pacific invited me to attend a regional Child Justice conference in Nadi, Fiji, at which the concept of Restorative Justice was presented. By June of 2001, the Ministry of Justice had established the Palau Restorative Justice Program (“PRJP”) and began sending cases to the office as an alternative to criminal court prosecution. The goal is to settle disputes, restore victims and society generally, reduce recidivism and to save time and money by reducing the number of cases that go to trial. The PRJP presently has one Restorative Justice Coordinator (“RJ Coordinator”), who is in charge of the overall program, two part-time Restorative Justice Mediators, who assist in running conferences, and three support staff.
Some general parameters have been set for the types of cases which are referred to the PRJP. The program is not available when the actions involve illegal drugs, prostitution, child abuse or homicide. The PRJP is usually not available when: (1) actions involve a sex offense or substantial violence; (2) the offender has a felony conviction within the past three years; (3) the offender has pending felony charges; or (4) the crime is without a victim. However, a case-by-case determination is made in each matter and special consideration is given to youthful offenders.
If a case appears appropriate for PRJP, the victim and the offender are contacted independently to determine if they want to participate, and more than ninety-five percent agree. Some cases which are initially determined not to be appropriate for PRJP, and sent to the Attorney General for prosecution, are later referred to PRJP. This may happen, for instance, when a victim, who has been the subject of abuse by a spouse expressly states that she or he is unwilling to go to court. With PRJP, an abuse case that would otherwise have gone unrecognized by the justice system, gets processed in a positive way. The PRJP allows an opportunity for the accused and the victim to identify and acknowledge the abusive behavior, work to restore the relationship and address the problems associated with the abuse.
After the parties agree to participate in the program, a conference is held at the Ministry of Justice with traditional leaders, family and community members. The conference proceeds under the leadership of the RJ Coordinator or one of the Mediators. At the conference the offender must acknowledge the improper actions, accept responsibility, and the victim must have the opportunity to tell the offender about the consequences of the criminal act. All participants at the conference, including the offender and the victim, determine the appropriate terms to restore the victim and society. A list of those terms are set forth on an information sheet (Attachment 1). The terms are placed in a written agreement (Attachment 2) which all participants sign and which the offender must complete within one year or sooner. When an offender performs community service, the person supervising the offender is requested to advise when the offender completes performance, or has failed to perform. To date, there have been few cases in which the offender has failed to perform the terms of the agreement.
If the offender fulfills the terms of the agreement no criminal case is filed and the offender has no criminal record. If the offender fails to fulfill the terms of the agreement, or commits another crime during the term of the agreement, the case may be referred to the Office of the Attorney General for prosecution. No statements or evidence obtained in the Restorative Justice process, is used against the accused in a subsequent prosecution.
Each PRJP agreement requires that the offender complete several terms. When there has been a loss to the victim, the offender will be required to make the victim whole through payment of restitution or replacement of a damaged or stolen item. The offender is often required to give something back to the community. Instead of imposing a fine, however, which would be sent to the National Treasury, offenders make a contribution of a certain dollar amount of food or supplies to a group such as the Senior Citizens or the Belau National Hospital. The majority of agreements also include a religious and behavioral health component. The PRJP is not intended to be a free ride and sentences imposed by the Court are considered for comparison. However, it is important that the members of the conference have the latitude to decide the correct restoration.
As Palau is a small Country, and many victims and offenders are related through family and clan, healing wounds and resolving issues is critical. In the Court system the accused may never speak and instead has a hired or appointed advocate act on his or her behalf. A basic precept of the PRJP is that the offender and the victim meet face to face with members of the community to begin a healing process. In the large majority of cases victims appear to genuinely forgive the offenders and let go of their anger.
One of the advantages of the PRJP is its flexibility which the Court and prosecutors often do not have due to various rules of procedure and laws. In some cases referred to PRJP, for instance, the victim has some culpability, and the offender may also have been victimized. The Restorative Justice process allows for both parties to be treated as victim and offender, requiring some type of restoration from both. Other cases, such as assault and battery or trespass cases have originated from a land dispute. The PRJP allows the parties to get to the root cause, deal with that issue, reach a resolution, and prevent the situation from recurring in the future. In some instances, victims do not participate because they have left the island or do not want to participate. Cases have proceeded in the PRJP without victims and had successful outcomes, which is far better than taking no action at all.
FULL REPORT
Michael J. Rosenthal
April 2003
Last modified 2005-05-24 14:42
