Discretion
Someone must make the initial decision to send a particular case to a
restorative process, to traditional criminal justice proceedings, or to
some amalgamation of the two. Restorative processes rely on voluntary
participation by the parties, which means that each person decides
whether or not a case is handled in a restorative programme. The
traditional criminal justice system puts this discretion in the hands
of the prosecutor, except in cases of mandatory prosecution.
Absent some overriding compelling safety justification, then, restorative interventions put a premium on vesting discretion in the victim and the accused. An initial assessment of the security and safety of the parties could be made by a government official (perhaps judge), since the government is in the best position to provide not only physical protection, but protection of the parties' rights (Van Ness, 1997 at 17). Once it is determined that all parties are secure, the victim and the accused could then evaluate the alternative methods of proceeding with the case. If they are willing to pursue a restorative process, then they should be allowed to do so; if otherwise, the case should proceed through the traditional formal processes. In this sense, discretion in a restorative system is vested in all interested parties.
This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.
Absent some overriding compelling safety justification, then, restorative interventions put a premium on vesting discretion in the victim and the accused. An initial assessment of the security and safety of the parties could be made by a government official (perhaps judge), since the government is in the best position to provide not only physical protection, but protection of the parties' rights (Van Ness, 1997 at 17). Once it is determined that all parties are secure, the victim and the accused could then evaluate the alternative methods of proceeding with the case. If they are willing to pursue a restorative process, then they should be allowed to do so; if otherwise, the case should proceed through the traditional formal processes. In this sense, discretion in a restorative system is vested in all interested parties.
This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.
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