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Restorative Justice

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Martin W Vazquez

on 7 November 2013

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Transcript of Restorative Justice

The UN Convention on the Rights of the Child (CROC) is the key international instrument in relation to children and young peoples’ rights. It was adopted by the United Nations General Assembly in 1989 and ratified by Australia in December 1990 although CROC has not been incorporated into Australian law (Cunneen & White, 2011, p. 92).
Juvenile Justice: Restorative Justice
CROC has 4 key principles:

• Non-discrimination (Article 2);
• The best interests of the child (Article 3);
• Survival, development and protection (Article 6); and
• Participation (Article 12) (UNICEF, 2013).

Relevant Articles of CROC
Article 3 sets out:
• The bests interests of the child is paramount in decisions made affecting the child.
Article 37 sets out:
• No one is allowed to punish children in a cruel or harmful way.
• Children who break the law should not be treated cruelly.
• They should not be put in prison with adults.
• Should be able to keep in contact with their families
• Should not be sentenced to death or life imprisonment without possibility of release (United Nations Human Rights, 1990).
Article 40 sets out:
• Children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights.
• Governments are required to set a minimum age below which children cannot be criminally responsible.
• Provide quick resolution of judicial or alternative proceedings.
• Prison sentences should only be used for the most serious offences (United Nations Human Rights, 1990).

NSW Legislation
There are two main bodies of legislation in NSW in relation to juvenile offenders that are guided by the principles of CROC and Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules); Children (Criminal Proceedings) Act 1987 and the Young Offenders Act 1997 (Strang, 2001).
Powers of Australian Human Rights Commission (AHRC)
Due to CROC not directly being a part of Australian law the Australian Human Rights Commission (AHRC) has powers to investigate whether CROC has been violated in relation to treatment of young offenders (Cunneen & White, 2011, p. 93).
The AHRC has published three Human Rights Briefs;
Brief No. 1 – ‘The Best Interests of the Child’
Brief No. 2 – ‘Sentencing Juvenile Offenders’
Brief No. 5 – ‘Best Principles for the Diversion of Juvenile Offenders’ (Cunneen & White, 2011, p. 98 & 267)
Powers of Australian Human Rights Commission (AHRC) cont..
• 11 principles of CROC which govern the sentencing of juvenile offenders;
o Principle of participation (Article 12.1).
o Best interests of the child (Article 3.1).
o Community protection (Article 40.1).
o Rehabilitation (Article 40.1)
o Prohibition on cruel, inhuman, or degrading treatment or punishment (Article 37(a)).
o Availability of a range of options (Article 40.4).
o Requirement of proportionality (Article 40.4).
o Availability of review (Article 40.2(b)).
o Detention as a last resort (Article 37(b)).
o Detention for the shortest period of time (Article 37(b)).
o Freedom from arbitrariness (Article 37(b)).

Powers of Australian Human Rights Commission (AHRC) cont..
Through the Human Rights Committee juveniles have the opportunity to complain if these rights have been violated by the system. E.g. United Nations Human Rights Committee Communication on Behalf of Corey Brough v Australia: Corey Brough an Indigenous youth with a mild intellectual disability was held in isolation for 72 hours in an adult correctional centre in NSW violating his human rights under CROC. http://www.justiceaction.org.au/cms/prisons/prison-issues/indigenous-people/item/319-corey-brough.
Benefits of Incarceration
• Removes the person from the general public which protects other citizens from further harm.
• Can be seen as a form of justice for people who abide the law.
• Could be used as a threat to other members of society. If there is a solid understanding of the consequences of an action a person may act in a different way.
• Provides prisoners with the opportunity to gain skills and qualifications. Prisoners have the opportunity to participate in literacy programs or work on other skills that may be helpful when returning to the community and looking for employment.
• Allows prisoners to participate in counseling or reform programs such as anger management.

Disadvantages of Incarceration
• Through being incarcerated many prisoners will lose connections with their family that may have existed prior. This is problematic as family ties are essential for a reformed prisoner to re assimilate into society with family members commonly the ones to provide the prisoner with housing and support once released (Western and McLanahan, 2000).
• With children having one or more parent in prison it can have a significant negative impact on their behavior and relationships. For many families with a parent/ parents in prison it does not allow for children to have a parental role model. Children may also be excluded from a fathers or mothers influence which will shape their development (Western and McLanahan, 2000).
• Along with changing family connections incarceration may remove the only or main source of income from a family or household. This can lead to further distress within the family unit. (Western and McLanahan, 2000).

Disadvantages of Incarceration cont...
• Prisoners lose work experience and network resource while serving their sentence along with a “negative credential” that will follow them for a lifetime affecting their job possibilities and income. • It is costly to hold people in prison. In 2006 it cost $170 per day to house a prisoner in South Australia. By 2007, that figure had risen over 8% to $185 per day and $67,525 per annum. The percentage increases in 2005, 2006 and 2007 were 1.9%, 5% and 8.82% respectively giving a three year average of 5.24%. Therefore a conservative estimate to house a prisoner in 2018 will be approximately $124,633 per prisoner per year. This means that the dollar amount to house a prisoner annually will almost double over the next ten years.
• Long term imprisonment can be both physically and physiologically harmful and can often lead to institutionalisation with difficulties arising upon release.

Disadvantages of Incarceration cont..
The current prison system fails to acknowledge and address the sociological contributors to criminal behavior. The system ignores critical issues such as the cycle of crime and does not provide sufficient intervention and prevention strategies to reduce the development of criminal behavior.
• Prisons can often become an entrance into a further career in crime. The prison experience can often make inmates more prone to violence and abuse and create connections with gang members.

What is restorative justice
Restorative Justice brings together those who have a stake in a specific offence, in order to:

• collectively identify and address harms, needs and obligations; and
• heal and put things as right as possible.
• Restorative Justice puts the people most affected by crime, the victims, at the centre of the process.

In order to explore the history of restorative justice, we first need to examine what is meant by the term. This type of justice has been described as encompassing various ways in which disputes can be dealt with in various arenas (Daly, 2001, p. 5).
Whenever the term in used, it generally means that the offender has confirmed that they committed the offence of which they were accused (Daly, 2001, p. 5). It has been said that restorative justice is
‘a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.’(Marshall, 1996, p. 37, quoted in Daly, 2001, p. 6).

Purpose and origins of Restorative Justice
Restorative justice has been widely used for the purposes of juvenile justice, and this phrase has come to be used to describe programs which have already been used for a while (Daly, 2001, p. 6).
It has been suggested that the origins of restorative justice come from the ways in which indigenous peoples dealt with these types of issues (Daly, 2001, 4). In the remote past, thousands of years ago, people were using these kinds of methods in order to solve conflicts amongst themselves (Weitekamp, 1999, p. 93). Weitekamp affirms that many communities such as the Aboriginal Australians, as well as Eskimos, used this type of justice to solve conflicts (Weitkekamp, 1999, p. 93).
These views of restorative justice, have however been criticised. It has been argued that these views make it appear as though this type of justice is an ordinary or standard way of dealing with conflict, a way in which all conflicts can be dealt with (Richards, 2004, p. 2).

First use of Restorative justice in Australia
This type of justice was first explored in Australia in 1991, through the police force, in Wagga Wagga, New South Wales. This program was meant to provide a warning for young offenders (Australian Institute of Criminology, 2001, p. 2). Later in the 1990s, there was much discussion as to whether these kinds of programs should be run by the police. There were comparisons made between police run programs in Australia and similar programs in New Zealand which were run by other agencies (Australian Institute of Criminology, 2001, p. 2).
Legislation providing Youth Conferencing
Legislation was introduced in order to provide access to youth conferencing schemes, and this type of legislation was first passed in 1993 in South Australia. In order to participate in these schemes, the offender must have confirmed that they are the offender. All the people affected by the offence then gather, and discuss what consequences the offence has had on all concerned. When this process is complete, a plan is put into place for the offender to undertake some kind of restitution (Australian Institute of Criminology, 2001, p. 2).
Restorative Justice
Pros of Restorative Justice
• Empowers offenders and give them a better opportunity to explain the situation from their perspective (Justice Action, 2012; Justice).
• Is a tertiary crime prevention measure, aiming to prevent recidivism or re-offending (Australian Institute of Criminology , 2004). However, results have been very mixed, although most do indicate a reduction in reoffending compared to incarceration (Australian Institute of Criminology , 2004). More research is necessary to identify specific aspects of restorative justice initiatives that contribute to their success.(Justice Action, 2012).

Family and Support Person of the Offender
• Enables the offender’s family or other support persons to actively participate in the decision-making and planning process (Justice).
• Allows for the impact of the young person’s offending on their family to be taken in to account and more affectively addressed (Justice).

• Allows victims to be express how they were affected by the offense and determine how the damage caused by the offence can be rectified (Justice).
• Can give victims an understanding of the circumstances that led to the perpetrator committing an offense (Justice).
• A healing resolution can be enacted which reduces the costs of follow-up supports necessary to help the victim recover from the damage caused by the offense (Justice).

• Encourages “justice reinvestment” which involves diverting resources from the prison systems into the community (Justice Action, 2012).
• Appears to be a more cost and time effective approach for handling young offenders (Weatherburn & Macadam, 2013) Restorative Justice Initiatives: Public opinion and support in NSW

Cultural Diversity
• Recognizes and responds to cultural diversity (Justice).
• Facilitates an opportunity for restoration and reintegration within the community (Justice).
Cons of Restorative Justice
Restorative justice is a tertiary crime prevention measure. In other words it aims to prevent re-offending, not prevent offending in the first place (i.e. primary prevention). Therefore, if a restorative justice measure is effective, it should produce lower rates of re-offending (recidivism).
However, a recent Australian study by the NSW Bureau of Crime Statistics and Research effectively addressed many of these problems and was able to demonstrate that a large scale across different offence types and regardless of the gender, criminal history, age and Aboriginality of the offenders.
• Is not available in all cases: acceptance by the offender of responsibility for the offence is necessary and these initiatives also seldom involve reoffenders and those who commit dangerous crimes.
• Does not prevent crime (Australian Institute of Criminology , 2004).
• Is met with varying levels of community reluctance, with the community often demanding harsher sentences for crimes than the ones given (Boot Camps and Justice: A Contradiction in Terms?, Restorative Justice Initiatives: Public opinion and support in NSW)
• Can perpetuate power imbalances between the victim and offender in cases of domestic violence or sexual assault and present a risk to the victim’s safety, both physically and psychologically due to the lack of adequate protections and safeguards that arise from the informality of these initiatives (Law Commision Te Aka Matua O Te Ture).

• Could potentially weaken public perceptions of the seriousness of offences as perpetrators are not publically made an example of (Law Commision Te Aka Matua O Te Ture).
• Can coerce victims and offenders into utilising this approach simply by the fact that the only alternative is to go through the costly court process that could result in imprisonment (Law Commision Te Aka Matua O Te Ture).
• Raises issues of equality and consistency as there is far more choice over how offenders can be dealt with even under very similar circumstances (Law Commision Te Aka Matua O Te Ture).

• Is underpinned by strict rules concerning the timing of these initiatives. The lack of flexibility here is problematic as these schemes may be more effective once a treatment programme has been completed by the offender (Law Commision Te Aka Matua O Te Ture).
• Potentially brings those who commit minor crimes in to the criminal justice system, thus attracting additional costs. Offenders might be subjected to more intrusive penalties as a result of restorative processes (Ministry of Justice , 1996).

The term restorative justice process can be applied to man different practices throughout various stages of the criminal justice system. These include:

• Diversion from court prosecution (can apply to a separate process for determining justice).
• Actions taken in parallel with court decisions (e.g. referral to health, education and employment assessment, etc.); and
• Meeting between victims and offenders at any stage of the criminal process (e.g. arrest, pre-sentence and prison release).

Despite the numerous applications of the term, the main emphasis is on the role and experience of victims, the lay and legal actors power to make decisions, and a setting that provides productive interaction and discussion between all parties involved.
Results of studies evaluating the effectiveness of restorative justice initiatives undertaken here and overseas have been very mixed, although a majority of the studies have identified some reduction in re-offending when compared to court-based responses. Many of these studies have suffered from design and other methodological problems (e.g. are groups in conferencing really comparable to those who are not?)
Restorative Justice and the Criminal Justice System
Convention on the Rights of the Child

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