Court Cases

With the growing use of restorative justice, the number of court cases addressing restorative practices is growing.

. A case study of Allegheny County, Pennsylvania's Mental Health Court: Balancing therapeutic jurisprudence and public safety.

When support mechanisms that keep mentally ill offenders from committing crimes break down, many of these special offenders have been incarcerated, contributing to a decline in their welfare and problems for society upon their release. Like drug courts, mental health courts arose in response to a crisis, allowing these offenders to be diverted from jail and instead directed to appropriate treatment and supports, along with intensive probationary controls. Restorative justice and therapeutic jurisprudence underpin the diversion of mentally ill offenders back into the community. This study examined the inception of a specific large mental health court and the inner working of the courtroom workgroup formed to handle the dual duty of treatment and regulation of offenders with serious mental illness. Creation of the mental health court in Allegheny County, Pennsylvania, occurred after a formal program had already been in place to assist mentally ill offenders in treatment while diverting them from jail, and allows for longer periods of probation and monitoring of participants. The research employed in-depth qualitative inquiry of past and present stakeholders in the court process, including semi-structured interviews with court team members and participants, observation of courtroom and workgroup behavior in both public and private settings, and document analysis, and triangulated data with various court and agency records of court characteristics and participant behavior. Primary goals of this case study were to add to the literature on this emerging area of criminal justice research on problem-solving courts, by probing a specific local decision to implement and fund a mental health court, by delving deeply into the formation and functioning of this court's workgroup and the experiences of its participants, and by illustrating possible improvements in the case processing model that might be accomplished for this and other courts. Implications include what might be necessary and appropriate for a mental health court to be founded and to operate successfully, regarding both treatment of mentally ill offenders and regulation of their behavior for community safety. Findings may be useful to assist jurisdictions contemplating a mental health court, respecting court and agency personnel, case processing, community treatment resources, participant pools, sanctions systems, and funding. (author's abstract)

. Asking more of our institutions: The promises and limits of juvenile restorative justice in Clark County, WA.

In this research I seek to better understand two questions, namely how or under what conditions do organisations such as juvenile courts change, and what do people do with restorative justice? I look first at the organizational changes that have taken place at the court in relation to its implementation of restorative justice and the integration of such practices throughout the court. I map the degree to which victims, offenders and community members have been afforded new decision-making capacities within the court's diversion and probation processes. Within this organisational framework, I also consider how the court has navigated constraints and opportunities related to legal and political structures, funding, community support, support from other organisations and internal problems related specifically to the culture of the court itself. (excerpt)

. Process and Outcome Evaluations in Four Tribal Wellness Courts.

The four tribal drug courts are the Blackfeet Alternative Court (Montana), the Fort Peck Community Wellness Court (Montana), the Hualapai Wellness Court (Arizona), and the Poarch Band of Creek Indians Drug Court (Alabama). The evaluations found that each court had many strengths and success stories. Success was documented as a “slowing down” of alcohol and drug use in adult participants; however, graduates were as likely to reoffend as nongraduates, and participants as a whole had a relatively high 3-year recidivism rate that ranged from 50-64 percent in the adult courts and over 90 percent in the juvenile courts. For the adult program, graduates took longer to reoffend than nongraduates, and participants had fewer postprogram charges compared to their preprogram criminal histories. Juvenile graduates as a whole, on the other hand, showed no differences in recidivism patterns between graduates and those who did not complete the court program. Three of the four courts ceased operation when Federal funding ended. Primary reasons for failure to institutionalize the three courts were high staff turnover (especially judges) and lack of commitment to the courts from the community and tribal council. The evaluations’ goals were to obtain input from the tribes; to use a mixed methodology in which qualitative perspectives from interviews provided context to quantitative results; to describe program development and compare it with planned implementation; and to determine the courts’ impact on the behavioral patterns of participants, particularly regarding recidivism. (Abstract courtesy of the National Criminal Justice Service, www.ncjrs.gov).

A visionary judge makes restorative justice come alive in Alabama

from Ken Kimsey's entry on Fairness Works: In a six-part video series, Judge McCooey talks passionately about her believe that justice requires much more than the court system provides, especially in the area of giving crime victims the opportunity to meet the offenders, face-to-face, in a safe place, and to do so on a voluntary basis. (If you walk out of here and find someone has stolen your car radio, chances are you don’t have much interest in meeting the thief, she says in one segment. But the more deeply you have been hurt, the more likely you want to meet the offender and ask questions like “why?”.) As appealing as her speaking style and warmth is her story about the unorthodox path that led her to the bench. Serving as a judge was never in her long-range plans, but when she won her first election against a well-established Montgomery lawyer, surprising herself in the process, she knew there were some new thing she wanted to try. Finding ways of implementing a restorative justice program was among them, and she set about methodically but quietly to make this happen.

American Judicature Society and American Bar Association. Just Solutions: A Program Guide to Innovative Justice System Improvements.

A manual originally prepared for delegates to the 1994 American Bar Association Law Day conference provides some 75 examples of programs that can be replicated around the U.S. by citizens attempting to ensure a fair and effective system of justice. Program categories include: specialized legal assistance programs, promoting equal access, alternative dispute resolution programs, crime prevention, alternative sentencing, and programs for victims, domestic violence and divorce programs, family court improvements, user-friendly courts, telephone hotlines, public outreach and education programs, school outreach and partnership programs, organizations to improve the courts, and citizen advisory committees.

Church arsonist doubts God will forgive him

from Alexandra Zabjek's article in the Edmonton Journal: A man who torched two Wetaskiwin churches in what a judge described as a "totally senseless wanton act of destruction" was sentenced Thursday to four years in prison. But he was offered hope by one of the ministers whose church was destroyed. "We have not been abandoned and we don't want you, Peter Terence Jones, to feel abandoned," Wetaskiwin First United Church minister Ruth Lumax told the 24-year-old arsonist in her victim impact statement, which was read in court.

David Daubney of Canada presented the 2011 International Prize for Restorative Justice

by Dan Van Ness David Daubney has been awarded the 2011 International Prize for Restorative Justice in recognition of the public policy leadership he has provided in support of restorative justice. The presentation was made during the Prison Fellowship World Convocation underway in Toronto, Canada from 28 June – 2 July, 2011. Daubney’s interest in restorative justice began twenty five years ago when he was a Member of Parliament, chairing the House of Commons Standing Committee on Justice. The Committee was engaged in a year-long study of public and professional attitudes about crime and criminal justice. As it conducted hearings across Canada, its members began to hear about a concept that was new to all of them: restorative justice. They heard from grassroots organizations operating victim offender reconciliation programs in Canada and from crime victims who spoke about the personal healing they had received from their involvement in these programs. The Committee was so impressed that it recommended in its 1987 report “Taking Responsibility” – known to many as the Daubney Report – that restorative values and principles be incorporated into the Canadian Criminal Code.

Editor. Interchange: A California judge promotes restorative justice

A judge "falls in love" with restorative justice and victims, youthful offenders and communities in Santa Clara County, California benefit from the results. Author's abstract.

Gottlieb, Karen. Lessons Learned in Implementing the First Four Tribal Wellness Courts.

The "lessons learned" presented in this paper were drawn from the experiences of the first four tribal wellness courts (drug courts): Hualapai (Arizona), the Blackfeet (Montana), Fort Peck reservation (Montana), Poarch Creek (Alabama). Although these tribal drug courts had distinctive experiences in planning and implementing court procedures and programs, they exhibited a similar pattern of strengths and weaknesses. The intent of identifying lessons learned from these court programs is that other tribes learn from their experiences and avoid the same mistakes. The first of 10 lessons discussed is to develop a strong structure for the court team. The responsibility of the team is to integrate the members’ skills and backgrounds in achieving a holistic approach to treating court participants who have substance abuse problems. The team should be composed of representatives from across the reservation, including tribal elders and others who embody traditional tribal values. The second lesson is to use the informed consent model for admittance to the court program, which involves the selection of referral points and the use of legal procedures that protect the individual’s due-process rights. The third lesson is to assess readiness for change in potential participants through legal and clinical screening for eligibility. A fourth lesson is to integrate culture, not religion, into the court, which involves providing access to holistic, structured, and phased substance abuse treatment services that incorporate culture and tradition. Other lessons discussed involve monitoring participants during times when illegal acts are likely to occur; rewarding positive behaviors; choosing a judge who can be both a leader and a team player; collecting automated court information systematically from the beginning of the court; developing a written curriculum for court staff; and emphasizing early outreach within the community. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).

Gottlieb, Karen. Process and Outcome Evaluations of the Poarch Band of Creek Indians Drug Court.

This report presents the methodology, findings, and recommendations of an evaluation of the drug court of the Poarch Band of Creek Indians, located in southwestern Alabama near the Florida border. The outcome component of the evaluation found no statistically significant relationship between completion status and recidivism; graduates were as likely to reoffend as the terminated participants; however, graduates were slower to reoffend than terminated participants. Although the pre-drug court recidivism rate of participants is not known, the recidivism rate of 50 percent after 3 years for those no longer in the program indicates that not all participants reoffended. The positive changes - increases in self-esteem and decreases in substance abuse behavior - seen in many of the participants indicates successful rehabilitation was achieved for some. The drug court’s strengths were determined to outweigh the weaknesses. Strengths included a core team with stability, compassion, and commitment to the program; the integration of a cultural program with the drug court; treatment incorporated as a structure in participants’ lives; intensive monitoring during the first phase; and the combining of the roles of counselor and probation officer. Improvement in the court could be achieved by integrating treatment with a steering committee that would include tribal and community leaders. This would extend the ownership of the court to the community. Some program weaknesses were poor communication between treatment providers and the team; irregular scheduling of staff meetings; the absence of tribal leaders or elders on the team; lack of enforcement of program requirements; and no individualized, is currently a mature drug court. At the time of the evaluation (2005), it had admitted 28 participants with alcohol and drug-related offenses. Fifteen of the participants graduated, 8 were terminated, and 5 were current participants. (abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).

Grim, Judge Arthur . Pennsylvania Juvenile Delinquency Benchbook

The Pennsylvania Juvenile Delinquency Benchbook is intended to serve as a practical tool for working judges throughout this Commonwealth, offering them convenient access to all the information they need to effectuate the underlying purposes of the Juvenile Act: “Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community.”(excerpt)

Lamer, Antonio and Binnie, William Ian Corneil and Bastarache, Michel and Iacobucci, Frank and Major, John C and Binnie, William Ian Corneil and Gonthier, Charles Doherty and Major, John C and McLachlin, Beverley and Binnie, William Ian Corneil and Iacobucci, Frank and Gonthier, Charles Doherty and L'Heureux-Dubé, Claire and Major, John C and McLachlin, Beverley and Binnie, William Ian Corneil and Bastarache, Michel and Iacobucci, Frank and Gonthier, Charles Doherty and L'Heureux-Dubé, Claire. R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5

Criminal law -- Sentencing -- Conditional sentences -- Accused pleading guilty to dangerous driving causing death and dangerous driving causing bodily harm and receiving sentence of 18 months of incarceration -- Whether Court of Appeal erred in substituting conditional custodial sentence for jail term -- Proper interpretation and application of conditional sentencing regime -- Distinction between conditional sentence of imprisonment and suspended sentence with probation -- Meaning of "safety of the community" -- Criminal Code, R.S.C., 1985, c. C-46 , ss. 742.1, 742.3. (excerpt)

Lamer, Antonio and Binnie, William Ian Corneil and Cory, Peter deCarteret and L'Heureux-Dubé, Claire and Bastarache, Michel and Cory, Peter deCarteret and Gonthier, Charles Doherty and L'Heureux-Dubé, Claire and Binnie, William Ian Corneil and Bastarache, Michel and Iacobucci, Frank and Cory, Peter deCarteret and Gonthier, Charles Doherty and L'Heureux-Dubé, Claire. R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 (S.C.C.)

This document consists of the Supreme Court of Canada’s ruling in the case R. v. Gladue [1999], a case on appeal from the Court of Appeal for British Columbia. The ruling was highly significant in seeking to interpret and apply principles governing application Section 718.2(e) of the Criminal Code of Canada with respect to the sentencing of aboriginal offenders. The original case stemmed from a criminal assault by an aboriginal woman against an aboriginal man in British Columbia. The man died from the assault. Following conviction and sentencing, appeal was made to the provincial court, which dismissed the accused woman’s appeal of her sentence. Appeal was then made from the provincial court to the Supreme Court of Canada, which dismissed the appeal. This document contains a summary of the case; the appeal process and ruling; discussion of the aboriginal culture and demographic statistics, especially in relation to the criminal justice and corrections systems in Canada; interpretation of Section 718.2(e); and principles for taking all of this into account in sentencing aboriginal offenders.

Minnesota State Supreme Court Upholds Use of Sentencing Circles

A January 2002 Minnesota Supreme Court decision reinforced the purpose and decision-making authority of sentencing-circles. The case questioned whether a circle could include a stay of adjudication as a part of sentencing recommendations.

More cautionary news from the US

United States public officials are reconsidering sentencing policies, driven by the increasingly high cost implications of current laws and practices. Mandatory sentencing laws, including Three Strikes legislation adopted in a number of states, take discretion away from judges and require prison sentences (often quite lengthy) be served.

Newfoundland Supreme Court - Trial Division.. A Healing Circle in the Innu Community of Sheshashit

This is the report, attached to a sentencing decision, of a healing circle in a Native community in Canada in response to an assault case. The offender was non-Native, and the victim was Native (Innu). The report details the participants (including the offender and the victim), the principles, the process, and the outcomes of the healing circle for the participants.

Nuffield, Joan. Diversion Programs for Adults

This is a review of evaluated programs to divert adult offenders from further involvement with the criminal justice system. It focuses on "programmatic" diversion efforts and is organized according to the stage in the criminal process at which the diversion initiative occurs. Because of the paucity of evaluations of adult diversion, some findings from the juvenile literature are included. In addition, some ideas from other jurisdictions which may not have been evaluated are reviewed for their possible utility in Canada.

Stickle, Wendy Povitsky and Gottfredson, Denise and Connell, Nadine M. and Gottfredson, Denise and Wilson, Denise M. and Connell, Nadine M.. An experimental evaluation of teen courts.

Teen Court (TC) is a juvenile diversion program designed to prevent the formal processing of first-time juvenile offenders within the juvenile justice system. TC instead utilizes informal processing and sanctions in order to prevent future offending. Despite its widespread popularity throughout the United States of America, little rigorous research has been conducted on the effectiveness of the TC model for reducing recidivism. Using an experimental design, this study examined the effectiveness of TC in reducing recidivism and improving the attitudes and opinions of juvenile offenders in comparison with a control group of youth who were formally processed. Self-reported delinquency was higher for those youth who participated in TC. TC youth were also found to have significantly lower scores on a scale of belief in conventional rules than had youth who were processed in the Department of Juveniles Services. Implications of these findings are discussed. (author's abstract)

Stuart, Barry.. R. v. Jacob, 2002 YKTC 15

Marcellus Jacob, 21 years old, raised as a ward of the state until age 18, will spend up to eight years in jail for a horrible crime. His sentence sets a precedent for the next case. There will be a next case. There have been many other similar cases. There are right now, within our communities, within our institutions, children, young boys, young men, with stories similar to Marcel Jacob. Unless we change what we do - we as families, communities, professionals - there will be many more 'next cases'. How many Marcel Jacobs do we need before we appreciate that if we always do what we have always done, we will always face what we always face - the next case to sentence, the next victim to heal. (excerpt)

Supreme Court of Canada.. Application of s.718.2(e) of the Criminal Code: R. v. Gladue

This is an excerpt from the Supreme Court of Canada's decision concerning the meaning and application of a section of the Criminal Code of Canada with respect to alternative sentencing, particularly for Aboriginal offenders, but not limited to such. The decision discusses the goals of sentencing and explicitly examines restorative elements in sentencing - especially accountability and acknowledgment of the harm done, and restitution and reparation for that harm - as codified in this section of the Criminal Code.