Restorative Justice II
Restorative Justice Articles and Information
Fundamental Principles of Western Restorative Justice Theories
June Terpstra, Ph.D.
Simply put, restorative justice (RJ) is about people acting together to resolve conflicts by finding a way to address wrongdoing by repairing harms. A review of the Western literature posits that RJ was brought back onto the criminal justice agenda in the 1970s. However, for many years, reforms of the retributive foundations of criminal justice systems of Europe, the UK, and the US have been proposed, identifying distributive and social justice alternatives. A special emphasis on the manner in which victims are not only ignored but retraumatized by these systems was also examined in direct relation to early feminist critiques. The term “restorative justice” was first coined by Albert Eglash (1977), in which he speaks of a crisis taking place in the criminal justice system and of the need for an alternative paradigm. Eglash claimed that RJ focuses on restoring the harmful effects of these actions, and actively involves all parties in the criminal process. RJ, he said, provides: “a deliberate opportunity for offender and victim to restore their relationship, along with a chance for the offender to come up with a means to repair the harm done to the victim…” (Eglash, 1977).
RJ advocates in England were early to implement programs in educational systems and social programming, primarily through the national healthcare system and the law and judicial systems. RJ’s first development in England and Wales came from communities without any legislative or other support from the government. The introduction of victim-offender mediation programs in 1972 points to the beginning of this paradigm shift in the field of criminal justice in England. Since then, the new practices had to find their way in community-led efforts, as no specific legislation was enacted to regulate it. Today, a host of legislation exists, some victim-led. Presently, RJ movement practitioners in England have put out a call to acculturate a shift in thinking on victims’ rights to be established in a Victims’ Law.
Victimization is unfortunately quite common and has far-reaching consequences. The myths of what a victim "looks like" are often not in line with reality. Christie (1986) conceptualized the earlier preconceived characteristics of what is thought of as the "ideal victim."
1. A person that is considered to be weak when compared to the offender (generally a woman or someone that is sick, young, or elderly).
2. They are simply engaging in everyday activities at the time of victimization (i.e., minding their own business).
3. They share no responsibility for their victimization (they were not engaging in illegal behavior when victimized).
4. The offender is big or considered to be scary.
5. The victim has no prior relationship with the offender (the offender is a complete stranger).
RJ reduced repeat offending for offenders.
The reality, however, is very different from this "ideal". The following are a few of the myths, as well as the realities, of the characteristics of victimization:
|Violent Crime||The attacker is a stranger||Attacker knows victim|
|Weak female||Young male|
|Sexual Crime (Rape)||Most often committed by strangers||80% are committed by acquaintances|
|Only happens to certain types of women||Can happen to anyone|
|Most are interracial||90% are of same race|
|Domestic Violence||Affects a small percentage of the population||31% of women report being abused|
|Abusers are violent in all relationships||Only abusive to a targeted intimate partner|
|Domestic abuse caused by mental illness||Does not cause domestic abuse|
Restorative Justice: The Victim's Need for Justice
The victim's need for justice after a crime and how restorative processes can provide that sense of justice should not be underestmated. First, we will examine the myths and realities of victimization. This discussion includes the earlier preconceived characteristics of what is thought of as an "ideal" victim and how that is in stark contrast to the reality. For example, one popular myth is that the perpetrator of a violent crime is a stranger, when the reality is that often the attacker knows the victim.
Next, we will discuss the many facets of harm resulting from victimization. The effects can be far-reaching and often last for extended periods of time—weeks, months, or even years—after the crime has been committed. The consequences of victimization are also multi-faceted and can manifest beyond the physical harm to include psychological, social, as well as financial consequences.
We will then look at the voice given to victims during the restorative justice process. Providing support to the victim is one of the founding principles of restorative justice and can be given in the form of financial, socio-emotional, or psychological support, among others.
Finally, we will examine the challenges associated with the implementation of restorative justice practices. How can the process maintain the balance of power between the victim and offender? When used in schools, how should criminal behavior be addressed based on the belief that the behavior can be changed? How can various restorative approaches can achieve that change?
- Explain the facets of victimization.
- Evaluate why victimization is harmful.
- Analyze the role of the victim in the restorative justice process.
- Examine the implementation of restorative justice processes.
2. Why is Victimization Harmful? Or Isn't It Obvious?
Physical Consequences: Feelings of safety and security are paramount after being victimized so dealing with security issues may become necessary. Also, some victims may have experienced physical scarring or other physical ailments/manifestations resulting from the incident.
Financial and Material costs: This can include the financial value of the item(s) that were lost or stolen at the time, but also could relate to any medical expenses incurred by the victim.
Emotional and Psychological Consequences: There are a number of psychological or emotional issues that can arise from being victimized by a crime. Any number of issues can manifest—post-traumatic stress disorder (PTSD), depression, anxiety, etc.—and last for an extended period of time. Approximately 15% of those victimized by crime experience PTSD.
Social Consequences: Often with victimization come the reactions of other people to the crime. These reactions can range from judgment to sadness and sympathy. In this, the victim experiences secondary victimization (feeling victimized beyond the crime itself).
The experience of crime can spread into all aspects of a victim's life. Questions regarding the event can begin to overtake the victim. Questions about why the event happened? What could have prevented it? Why me? Getting answers is important as it can help the victim make peace with the crime and provide a vehicle by which they can move forward.
The table below summarizes some of the psychosocial needs of the participants in restorative justice.
|Coping with loss of loved one||Dealing with a member's loss||Realization accountability|
|Managing effects of lost property||Dealing with effects of lost property||Forgiveness from victim(s) or survivor(s)|
|Crime-related trauma recovery||Facing the reality of its losses||Facing a new reality|
|Post-traumatic stress disorder||Regain economic and social stability||Adjusting to prison life after crime|
|Fearing possibility of future victim episodes||Offender re-entry challenges||Dealing with broken connections to the community|
|Needs offender to acknowledge the victim's humanity||Dealing with loss of member closeness||Recognizing the cause of the crime|
|Active participation in deciding offender's sentence||Facing symptoms of society's failure to address crime||Connecting crime to unresolved personal issues|
|Valid closure of incident||Challenges of successful re-entry|
Restorative justice provides the opportunity for victims to get the answers they need to move forward.
The restorative justice movement, similar to the victimological movement, was born out of a need to provide victims with the support that had been missing in the retributive justice process. This is one of the fundamental, or founding, principles of restorative justice.
Support can happen in a variety of ways. Restitution is one aspect of support (financial restitution for financial/material losses brought about by the crime) and rebuilding is another. The rebuilding, as previously discussed in earlier modules, refers to the rebuilding of the relationships between:
- victim and offender,
- victim and community, as well as
- offender and community.
To do this effectively, willing participants of the victim's social network are encouraged to participate in the restorative process. This has an added benefit of reducing or relieving any secondary victimization that may have occurred as a result of the crime or harm committed (Zehr, 2005).
To rebuild relationships is not to imply the harm is forgotten, but that the crime is forgiven and the offender is given the opportunity to repent for their behavior. The restorative process also provides a sense of empowerment to, and for, the victim. Empowerment comes by giving the victim a voice in:
- seeking answers to their questions,
- having a say in what they need to restore their own balance, and
- being an active participant in the justice process.
Victims are empowered because they are in control of their healing and what they need to help in the healing process.
In the following weeks we will discuss different restorative justice practices that provide the opportunity for victims to use their voice, specifically victim-offender mediations and victim-offender conferences.
Despite the merits of the restorative justice process, the implementation of its practices is not without challenges. One particularly difficult challenge is maintaining the balance of power between victim and offender in the restorative practice. There have been criticisms by scholars that implementation of the practices has removed the victim from the center of the process (where the theoretical construct of restorative justice places them). The fact remains that without the offender attending the mediation, conference, or circle there is no restoration for the victim. Unfortunately, the process does not have to include the immediate victim of the crime to move forward. The process then becomes a bit more of an offender-focused process with an implied power imbalance (Zehr, 2005; Tyler, 2006).
Restorative justice practices are being utilized more often in school settings. These practices are replacing the formerly implemented zero-tolerance policies which criminalized even the most minor of infractions. This placed juveniles at an even greater risk of entering into the more formal juvenile justice system. The challenge with implementing restorative programs is having the parents (or general public) on board. Their participation depends in large part on how these groups view criminal behavior and how the various institutions should address, or respond, to criminal behavior. The opinion about how criminal behavior should be addressed is often the result of whether there is a belief that a person, or their behavior, can be changed and how various approaches can achieve that change (Dignan, 2007).
Victimization can be harmful for a variety of reasons and the consequences can be far reaching and multi-faceted. The aftermath of the crime itself can leave victims spiraling into feelings of shame, blame, fear, anger, confusion, helplessness, etc. These feelings can last for weeks, months, or even years after the incident.
There may be some that consider victimization occurring at a single moment in time, but this is not necessarily the case. The act itself may be a one-time event but the victimization can occur for an extended period of time after the fact. Victimization should be seen more as a process that one goes through after an incident. The victimization experience can be very intense for some and can impact every aspect of life.
The Council of Europe and the European Union (EU) have been promoting and implementing RJ programs and research for the past two decades. The European Forum for Restorative Justice (EFRJ) is a non-governmental, not-for-profit organization established in accordance with Belgian law in 2000. Its general aim is to aid the establishment and development of victim-offender mediation and other RJ practices throughout Europe. It makes possible the exchange of information, experience, and expertise in this field and handles policy-oriented work in an independent manner. EFRJ is funded by the EU. Presently the EFRJ facilitates an exchange of practical experience and studies between Austria, Germany, Northern Ireland, Hungary, Albania, Greece, and Poland, providing support for the development of mediation and the training of mediators and judges (Terpstra, 2015).
The main principles articulated in the European Forum for Restorative Justice documents include:
- Crime should be dealt with as harm done to victims, a threat to peace and safety in a community.
- Reactions to crime should contribute towards the decrease of this harm, with emphasis on full accountability of the offender.
- The main function of social reaction to crime should not be to punish but to contribute to conditions that promote restoration caused by the offense.
- The role of public authorities in the reaction to an offense needs to be limited to contributing to the conditions for restorative responses to crime.
- The victim has the right to freely choose whether or not to participate in a restorative justice process.
- If the victim refuses to cooperate, the offender should nevertheless be involved in some form of restorative response.
The research projects at EFRJ are extensive and impressive in their focus to advance joint efforts to maintain and expand RJ into the statute books and policy agenda in Europe.
While RJ is not as popular in the US as it is in England, Europe, Canada, Australia, and New Zealand, there is a growing movement of advocates. The greatest resistance to RJ in the US comes from those profiting from the privatization of prisons, who have through extensive campaign contributions convinced legislators to increase legislation criminalizing many citizens, leading to the incarceration of more US citizens than in any other country in the world. Prior to the privatization of prisons, there were many reform efforts in the US using community policing and endorsing victim-offender mediation. Although victim advocates were skeptical about victim-offender dialogues by 1995, the National Organization for Victim Assistance (NOVA) endorsed the principles of restorative justice by publishing a monograph entitled Restorative Community Justice: A Call to Action. As funding became available for these programs, victim organizations became increasingly supportive as recipients of those funds. An additional reform in the US was the establishment of “accountability” courts for offenders with special problems such as drug addiction or mental illness and RJ community hearing boards for juveniles. However, the private prison-industrial complex fights against these initiatives as often as possible.
Zehr’s Three Pillars and Signposts
In Chapter 1 of The Little Book of Restorative Justice, Zehr & Gohar (200 3) talks about what restorative justice (RJ) is not, and he then goes on to discuss what RJ is. He presents the idea of pillars of restorative practices.
The following video provides further information about the restoration of connection that is central to restorative justice.
What is restored in Restorative Justice?
Summary: The restoration of connection in Restorative Justice.
Macro-Level Harms and Forgiveness.
For over 500 years of colonialism and neo-colonialism, a body of laws was developed to legitimize the exercise of power to dominate people whose countries house many of the earth’s resources. Present-day versions of colonialism often referred to as globalization, have imposed coups, invasions, and occupations, and stirred up civil wars disrupting the cultural, economic, and social life of indigenous people. Whether in the US and Canada of the past, or Venezeula or Mozambique today, cultural obliteration is made possible by exploitation, marginalization of national reality, and new legal relations making the indigenous people powerless. European and US domination through corporate globalization uses civil and juridical standings through the World Bank, the IMF, and international law, placing them above sovereign governments, making old colonialists today’s corporate expropriators displacing indigenous people much as they did in the past. For example, US and French oil companies are using law today to claim ownership of Mozambique's oil while impoverishing the native population.
Healing is generally a painful process that takes courage to attempt. To heal the wounds of whole peoples and cultures means confronting the horrific dehumanizing and supremacist worldviews and behaviors of the offender, colonizer, globalizer, invader, and occupier who inflict the wounds and reopen the wounds of the injured past and present. Reflecting on centuries of supremacist programming taught whites that they are entitled to any land not their own by decree of their religion and their secular laws, be it Judaism or Christianity. The patterns of harm committed in the past are repeated today as police killings, mass incarceration and access to healthcare during the pandemic emphasize. The pain and suffering cannot be minimized. Dismissing the truth, trivializing it, and denying it contributes to cognitive dysfunction and interferes with the practice of being human for the offenders while retraumatizing the victims.
Restorative justice that is transformative demands we move beyond cultural programming and listen until the truths of the injured groups, nations, classes, and creeds of those harmed. Their testimonies of how they are harmed can be understood empathically and cognitively. This entails exposing epic genocides, the holocausts that are not only reserved for European whites, and the false tales of discovery and settlement. As the root causes of harmful behaviors are acknowledged and understood in the context of supremacist ideologies and economic and social systems, we must also examine the part we play to keep them in place or eradicate them. Ultimately, healing cannot wait for the offender, the supremacist, the invader, or the oppressor, and tragically the chance for restoration may be lost. Healing comes with decolonized restoration, reparation, and reconciliation in the form of concrete actions such as articulated in the "Land Back" movement of indigenous people. Healing happens when we live with each other with a respectful humanitarian worldview that nurtures treating each other with a duty of care for people and the planet.
Eglash, A. (1977). Beyond restitution: Creative restitution. In J. Hudson & B. Galaway (Eds.),Restitution in Criminal Justice (pp. 91-100). Lexington, MA: D.C. Heath and Company.
Terpstra, J. (2015). Restorative and transformative justice. Liberations Education Action Research Network/LEARN. Retrieved from http://www.juneemoon.8m.net/photo2.htm
by June Terpstra, Ph.D.
The purpose of a justice system in Aboriginal society is to restore peace and equilibrium within the community and to reconcile the accused with his or her own conscience and with the individual or family who has been wronged. This is a primary difference. It is a difference that significantly challenges the appropriateness of the present legal system for Aboriginal people in the resolution of conflict, reconciliation, and the maintenance of community harmony and good orders. (as cited in McCaslin, 2005, p. 100)
In recent years, many people have become aware of the unique wisdom in the cosmologies and spiritual practices of indigenous societies. While this native wisdom always has been part of human existence, its teachings have remained outside dominant educational, juridical, religious, and media systems. Indigenous restorative justice models have differences and similarities across countries and continents. In order to understand the processes natives used, it is critical to know the history of what happened to the people during European invasions and colonization—especially how their worldviews and languages were consistently denied, demonized, and in some cases, destroyed.
Indigenous knowledge (IK) has enabled and continues to enable, diverse indigenous peoples throughout the world to adapt to and survive environmental change, colonization, and globalization. Indigenous knowledge is the local knowledge—knowledge that is unique to a given culture or society. IK contrasts with the international knowledge system generated by universities, research institutions, and private firms. It is the basis for local-level decision-making in agriculture, health care, food preparation, education, natural resource management, and a host of other activities in rural communities. Indigenous knowledge is the information base of a society, which facilitates communication and decision-making. Indigenous information systems are dynamic and are continually influenced by internal creativity and experimentation as well as by contact with external systems (Terpstra, 2015).
The traditional indigenous healing processes we study in this course focus on healing through being a good relative and a good human. This means rebuilding the ties that will send those who cause harm on a better path in their life, which in turn enriches the lives of the family, community, and the world. Harm is viewed as evidence of imbalances in the community that affect everyone. Harmful acts alert the community that there is a problem to which all must attend to prevent patterns of behaviors culminating in the harm perpetrated while addressing the root causes of harm.
How can Western restorative justice practitioners, legal scholars, law enforcers, or social workers know what is good or right for the indigenous, the occupied, the refugee, or the immigrant? A primary task for restorative justice advocates is to critique reflexively all forms of cultural imperialism, specifically their own. The terms of engagement must be recast for the absolute right of indigenous people to sovereignty. Culture is pivotal to the meaning of self-determination and cannot be distilled into one political right or even the legal discourse of human rights. We must all put ourselves into the global story by understanding our collective history and asking the questions, what happened and how can I help prevent more harm? In this way, we all may have a fighting chance to create new models of justice.
Indigenous Healing and Peacemaking Circles
The Navajo peacemaking process begins by asking the questions, “What happened?,” followed by “Why did it happen?,” “How do we go about finding resolution and a better way?,” and “How do we heal?” The Peacemaker leads the group in developing recommendations and agreements, if possible; however, there is sometimes no “solution” or “resolution.”Sometimes everyone must take some time to smoke sacred tobacco and pray to the Creator and ancestors.
The general purpose of the healing circle is to give those who cause harm an opportunity to acknowledge responsibility for the harm while giving those injured the opportunity to say what is needed to right the wrong, restore balance, recuperate, and recover. Often beginning with a smudging (cleansing ritual or other traditional practice), the four principles of honesty, sharing, respect, and kindness are articulated to guide the process. Each person in the circle has the chance to speak uninterrupted and typically a talking stone or stick is passed to the person who speaks. No one is forced to speak and those who wish not to speak do so by passing the stone to the next person in the circle.
The Hawaiian indigenous healing circle process emphasizes the human connection to all things. Aloha means being one with nature. The traditional practice brings people together in a circle.
In indigenous justice (restorative) community well-being is emphasized—this is a whole community process based in indigenous philosophy. Healing requires that the person be actively involved in the traditional ceremonies prescribed. The Ojibway healing process developed in the Hollow Water community of Lake Winnipeg created a 13-step approach following a disclosure of harm, requiring all involved in the offense or personally touched by it to sign an agreement to make changes in their behaviors in relationships, which often take years. Because the Ojibway are under US federal jurisdiction, they are required to conduct this process in conjunction with the US court system. After the agreement is completed, a cleansing ceremony is held to mark a new beginning for all involved.
The following short video by Heartspeak will expand your understanding of indigenous RJ practices.
RJ Industry, the State & First Nations 1-3
Description: Juan Marcellus Tauri is a Criminologist who specializes in state responses to indigenous offending and critique of neo-colonial justice processes. He has researched and published on these issues, in particular on family group conferencing, evidence-based policy and its impact on Maori policy and the standardization of restorative justice practice. Juan is a member of the Ngati Porou First Nation of the East Coast of New Zealand.
Comparative Indigenous Processes
The Maori were early leaders among indigenous peoples to grasp the importance of the need for change in the colonial-imposed criminal justice system, demanding reforms. Massive increases in the use of imprisonment for addressing criminal behavior affecting growing numbers of troubled Maori youths were unacceptable. Youths were often placed in foster homes when their parents were having difficulties with substance abuse and alcohol problems. The Maori leaders insisted on traditional practices to change the reality of the justice system as it impacted Maori youths from troubled backgrounds. Similar consequences to indigenous people occurred in the US, Canada, Australia, and New Zealand, in the rising trends towards incarceration. It is important to note that in all four countries named above, indigenous populations are considerably over-represented in the prison system.
The literature on restorative justice poses several features of Navajo peacemaking that distinguish it both from Western RJ practices as well as from programs such as family group conferencing (Australia and New Zealand) or sentencing circles (Canada) that operate exclusively or primarily with indigenous persons or within indigenous communities (Terpstra, 2015).
The Navajo judiciary has attempted to “decolonize” federal Indian law through two processes.
The Peacemaking Division, first established by the Navajo judiciary in 1982, was one of several reforms instituted as part of this project (Yazzie & Zion, 1996). In the 1990s the Navajo Supreme Court began a strong effort to promote peacemaking, receiving a federal grant to fund the payment of peacemaking personnel. In 2001, the Navajo Tribal Council passed enabling legislation for the Peacemaking Division (7 NNC§ 409). Thus, unlike processes in some locales, peacemaking was developed from within the Navajo Nation rather than imposed from without (Coker, 2006). The process of using non-indigenous practitioners in sentencing circles or conferencing even when in consultation with indigenous leaders may produce an emphasis more on blaming “offenders” and placating “victims” than healing for the individuals involved and the whole community. Even when indigenous leaders control the process, the criminal justice system is embedded in constructs of retribution and sentencing, which are contradictory to the healing processes the indigenous worldview fosters.
A fundamental difference in indigenous and Western concepts of justice concerns spiritual beliefs. While Western forms of justice are embedded in Judeo-Christian concepts of punishment and retribution, today’s constitutional provisions require the separation of church and state, spiritual beliefs and the positivist philosophical foundation of Western law. Traditional indigenous justice, peacemaking, and healing processes depend on diverse traditional spiritual beliefs. The rituals practiced for centuries are conducted in the original languages of the people. It is common across indigenous groups that the spiritual ancestors, beings, and Creator are called upon to help in addressing conflict. Many of those languages have no word for “offender” or “victim” because all are related, and hence the spiritual ancestors and the living relatives of both are critical to the healing process.
Across indigenous nations there are words for the relationships between those causing harm and the group harmed. The Navajo word is "k’e," the Lakota term is "tiospaye," and the Zulu word is "ubuntu," all of which describe the interdependent relationship of the individual to the group and the group to the individual. These values are nonexistent in Western forms of justice and law. Western law is retributive and indigenous law is based on healing. Attempting to make an integrationist or assimilative restorative justice process for indigenous people is highly problematic. Indigenous people have a right to sovereignty and to officiate their own healing and peacemaking processes.
If we believe in the interconnectedness and uniqueness of all, would the practice of these beliefs lead societies to create processes that ensure everyone’s basic human needs are met? Would that practice lead to the empowerment of self and other as an interconnected whole; recognition and respect for the needs of the “other” because the "other" is "us"; along with caretaking and stewardship of people and the planet? While restorative justice does provide frameworks that are consistent with the values and principles of conflict transformation and peacemaking, they may be incommensurate with the ideologies of retributive approaches to justice.
Colonial, Postcolonial and Decolonizing Concepts of justice
Colonial domination, because it is total and tends to over-simplify, very soon manages to disrupt in spectacular fashion the cultural life of a conquered people. This cultural obliteration is made possible by the negation of national reality, by new legal relations introduced by the occupying power, by the banishment of the natives and their customs to outlying districts by colonial society, by expropriation, and by the systematic enslaving of men and women. (Fanon, 1963, p. 263)
The imposition of colonial legal jurisdiction over sovereign native nations was another manifestation of the European paradigm enforced as the only valid system of knowledge. There are a variety of theories proposed concerning the philosophical underpinning of justice upon which the judicial system of the Western world is based. The development of our modern legal system is a fascinating field of study unto itself. The influences of cultures as diverse as Greek, Roman, and Judeo-Christian can all be felt in its development. Regardless of how exactly the current Western judicial system developed, it is clear that the modern Western legal system, as it is, generally operates on a retributive basis.
European expansionism in its various forms established philosophical constructs using white patriarchal supremacy, Christianity, and capitalism as justification for invasion, expropriation, genocide, slavery, colonialism, and settlement. Those European men with power and land created civil, moral, and juridical systems that lifted them above other races, creeds, and all women as conquerors, colonizers, and slave masters displacing those who were not “the same as” them.
For natives, genocide, dispossession of lands, and removal of surviving nations by Europeans to reserves in the US, Canadian, Australian, and New Zealand legal systems has been and still is a great trauma from which there has been little to no recovery. The truth of the genocides of native people, sometimes referred to as the Indigenous Holocaust, is disguised in elementary school texts as “discovery” and conquest. Physical extermination was and is natives’ consistent reality from Wounded Knee to the 500-plus indigenous women and children missing in Canada today. Hence, the harm continues and the natives live in a chronic traumatized state.
One of the most important concepts in indigenous RJ is that of decolonizing. Decolonizing through national sovereignty. Decolonizing by returning to traditional worldviews, languages, and rituals and most importantly decolonizing the mind and spirit from the lessons which taught them to hate themselves as savages and criminals in their own land. Traditional native belief systems continue in spite of over 500 years of colonialism, postcolonialism and neocolonialism. Their worldview accepts the importance of a spirit in each human, animal, and plant, guided by a Creator and ancestors. Living the traditional life for a native means following the traditional laws and codes of behavior that were set down from the dawn of time.
McCaslin, W. D. (2005). Justice as healing: Indigenous ways. St. Paul, MN: Living Justice Press.
Fanon, F. (1963). The wretched of the Earth. New York, NY: Grove Press.
Terpstra, J. (2015). Restorative and transformative justice. Liberations Education Action Research Network/LEARN. Retrieved from http://www.juneemoon.8m.net/photo2.html
Umbreit, M., & Peterson Armour, M. (2010). Restorative justice dialogue: An essential guide for research and practice. New York, NY: Springer Publishing Co.
Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.
Research Report on Restorative and Transformative Justice
June Terpstra, Ph.D.
This research report is dedicated to my nephew, Eron Redbird Cayedito, who led me to relatives and friends in the Navajo nation and to my friend, Salle Auger, founder of Mother Earth Lodge, in St. Paul Minn., who was my first teacher on Indigenous knowledge and ways.
Beginning in the 1970s, the US expanded its prison system at a phenomenal rate. The number of prisoners grew from 338,000 in 1970 to over 2.3 million today – this is an eightfold increase, three-and-a-half times the rate of increase in our national population. We now have the highest incarceration rate in the developed world: 716 out of every 100,000 Americans are behind bars. By comparison, England and Wales incarcerate just one-fifth that number – 149 per 100,000 people. In Australia – founded as a prison colony – that number is 130; in Canada, just 114. Criminal Justice Reform
Punishment is one of the most dramatic manifestations of state power and state terrorism. Whom a society punishes and how it punishes are key political questions as well as indicators of its character. There are concrete connections between punishment and politics domestically and globally that must be understood in the politicization and racialization of punishment through which the state dispenses its penal power. Punishment as it constitutes itself today expresses the basest desires for power through the rhetoric of vengeance using the pain of the victims of crime.
In my search for alternative systems of justice I was awarded a semester sabbatical from January to May, 2013, in which I studied restorative and transformative justice methodologies through the lens of practitioners and researchers in USA, Canada, England and EU countries. The research focus for this sabbatical generated out of personal, political and intellectual quests for healing social processes in response to the harm humans do to one another. I was seeking to learn more about processes that have to do with social justice more than capitalizing on punishment. I began with the understanding that Indigenous models of restorative justice and peacemaking are embedded in the philosophies and constructs of every-day living prior to colonization and re-established in an effort to decolonize and restore valued cultural traditions. I began my research project interviewing Navajo Peacemakers on the Navajo reservation in Window Rock, AZ.
Over the last two decades social justice scholars, law enforcers and social workers have been gradually shifting their attention toward models of restorative and transformative justice. For some the agenda is to shift societies and individuals away from punishment models towards models of restoration and transformation that emphasizes healing. For others, specifically UK and the EU conservative blocs, the agenda is to reduce prison populations as an economical response in the promotion of austerity measures. For indigenous practitioners a common stated goal is to reclaim traditional methods of responding to harm and restoring relationships with-in communities with pre-colonial models that resist the injustices established throughout the legal, political, and economic structures of colonial models of the past and present.
What is an offender? It is someone who shows little regard for right relationships. That person has little respect for others. Navajos say of such a person, "He acts as if he has no relatives." So, what do you do when someone acts as if they have no relatives? You bring in the relatives! Robert Yazzie, Chief Justice of the Navajo Nation
“In some cases, conflicts between indigenous peoples and researchers arise because the two groups have disparate systems of thought. In other cases, the conflicts arise because the dominant society has different goals than the indigenous peoples do, and there is disagreement over the concepts of “benefit” or “harm.” Rebecca Tsosie, 14th Annual Native Studies Conference, 2013
There are multiple narratives about the origins of restorative justice theory and practices. Some researchers (generally Anglo) claim the Indigenous origins of restorative justice to be a myth. Indigenous practitioners and trainers consistently emphasize origins in Indigenous pre-colonial history while generally, white European, British and US practitioners believed the origins to be found in the history of their theories of justice. In my study I found there was some agreement that although restorative processes almost certainly existed in pre-modern communities both Indigenous and Imperialist; they existed alongside a diverse range of other practices, including retribution. Western scholars, left, center and right along the ideological spectrum inevitably sought to enlist historical evidence in support of their positions of “ownership”. Indigenous scholars voiced a view that this was more of the historical cultural appropriation with which they are too familiar. In either case, Restorative justice scholars across cultures seeking to effect legal change, have increasingly sought to justify that change by expanding the sources of their legitimacy. In the battle for legitimacy in Western academic capitalist hegemony, history is one more tool in the restorative justice arsenal.
Restorative justice is not one thing, but an umbrella concept that refers to diverse practices to resolve disputes in schools and workplaces, to respond to crime, and to make decisions in the care and protection or child welfare areas. For juvenile and criminal cases, it is used primarily when people have admitted to an offence; it therefore focuses on the penalty, not fact finding phase of the adjudication process. Restorative justice can refer to diversion from formal court process, to actions taken in parallel with court decisions, and to meetings between victims and offenders at any stage of the criminal process, including an offender's release from prison. (Kathleen Daly, 2001)
In his book on Restorative Justice Theory and Practice, Theo Gavrielides describes types of criminal justice defined historically: retributive, distributive and restorative.
The first two focus on the criminal act, deny victim participation in the justice process, and require merely passive participation by offenders. The third one, however, focuses on restoring the harmful effects of these actions, and actively involves all parties in the criminal process. RJ, provides: “a deliberate opportunity for offender and victim to restore their relationship, along with a chance for the offender to come up with a means to repair the harm done to the victim...Howard Zehr whose most prominent piece of RJ work is his book Changing Lenses. There, he claimed that the current criminal justice system’s ‘lens’ is the retributive model, which views crime as law breaking and justice as allocating blame and punishment (Zehr 1990). Zehr sees ‘crime’ as a “wound in human relationships”, and an action that “creates an obligation to restore and repair” (Zehr 1990, 181). To make his understanding of RJ clearer, he contrasted it with the retributive way of defining ‘crime’. He argued that retributive justice understands ‘crime’ as “a violation of the State, defined by law-breaking and guilt. Justice determines blame and administers pain in a contest between the offender and the State directed by systematic rules” (Zehr 1990, 181). On the other hand, RJ, he said, sees things differently as “crime is fundamentally a violation of people and interpersonal relationships” (Zehr and Mika 1998,17). RJ sees ‘crime’ as a conflict not between the individual and the State, but between individuals. Accordingly, this understanding encourages the victim and the offender to see one another as persons. In consequence, the focus of the process is on the restoration of human bonds, and the reunion of the two individuals and of the individual with the community. (Gavrielides, 2007)
I found the following principles to be shared by the practitioners and researchers whom I interviewed in England and Belgium.
According to these principles:
(a) Crime is primarily an offence against human relationships but legally, be it under colonial imposition or otherwise, it is an offence against the state.
(b) RJ is a process to repair harm done as much as possible.
(c) RJ processes must be engaged only with the maximum amount of voluntary cooperation.
While restorative justice is about people acting together to resolve their conflicts and to find a way to set wrongdoing right by repairing the harm incurred, the professionals in the field are pitted against each other by funders both public and private. The funding in England, EU and Australia waxes and wanes volleying between strengthening and broadening the base for funding RJ or weakening and dispersing consensus to defund existing research and programs in play for the past 3 decades.
Mixed Methods—Phenomenological Interviews and Seminars
The most fundamental part of cultural sovereignty is to be able to distinguish who we are as a people, the eternal self-image, from all of those images that come from the outside world about who we are. The exercise of sovereignty means defining for our-selves or we will always fall victim to our past patterns of conditioning and victimization and this is antithetical to Indigenous self-determination. The force that will drive us is cultural sustainability. This calls for a contemporary and historical understanding of relationships between peoples as respected equals.
Rebecca Tsosie, 14th Native Studies Association Conference
The first part of my research journey was spent interviewing indigenous and non-indigenous restorative justice practitioners on two reservations and in legal programs in the USA. The Indigenous program in the Navajo nation is called Peacemaking and in Yavapai nation, wellness court. Additionally, I attended two series of workshops: the 14th Native American Studies annual conference in Tempe, AZ., with a focus on Indigenous restorative justice programs in Canada, and the Restorative Justice Online Series on Indigenous models. The second part of my research took me to London and Bedfordshire, England and to the EURJ program in Leuven, Belgium.
Indigenous peoples in US and Canada are ethnic minorities who have been removed to reserves as their historical territories became part of a colonizing state. In international or national legislation they are generally defined as having a set of specific rights based on their historical ties to a particular territory, and to their cultural or historical distinctiveness from politically dominant populations. The concept of indigenous people may define them as particularly vulnerable to exploitation, marginalization and oppression by nations or states that may still be in the process of colonialism, or by politically dominant ethnic groups. As a result, a special set of political rights have been set to protect them by international organizations with documents such as the Declaration on the Rights of Indigenous Peoples.
Indigenous knowledge (IK) is the local knowledge – knowledge that is unique to a given culture or society. IK contrasts with the international knowledge system generated by universities, research institutions and private firms. It is the basis for local-level decision making in agriculture, health care, food preparation, education, natural-resource management, and a host of other activities in rural communities.
Indigenous Knowledge is the information base for a society, which facilitates communication and decision-making. Indigenous information systems are dynamic, and are continually influenced by internal creativity and experimentation as well as by contact with external systems.
The following Interviews were conducted in USA, Britain, and Belgium:
- • Interviewed an RJ community youth panel member in Chicago, Il. USA
- • Interviewed a Navajo Peacemaker, the trainer of Peacemakers, and two commissioners on the Navajo Reservation in Window Rock, AZ. USA
- • Interviewed Yavapai Tribe Wellness Court judge. AZ, USA
- • Interviewed Prosecuting Attorney and co-founder of Restorative courts (Youth, Mental Illness, and Drug) in Yuma AZ. USA
- • Interviewed a London Criminal defense barrister. London, UK
- • Interviewed a UK Community Resolution Officer. London, UK
- • Interviewed a South African RJ and Reparations expert. London, UK
- • Interviewed IARS Restorative Justice researcher, Theo Galverides, London, UK
- • Interviewed 5 European Forum Restorative Justice interviews with researchers from China, Greece, Albania, Hungary, and Belgium in Leuven, Belgium:
The following seminars were attended:
- • Seminar with restorative justice expert Johan Galtung on the Polynesian/Hawaiian model of restorative justice.
- • Seminar with Indigenous Canadian Grandmother Mona Polacca
- • Seminar with Sequoyah Trueblood, Choctaw, "Indigenous Perspectives on Restorative justice”.
- • Native American Studies Annual conference—Seminars on Canadian Indigenous RJ and Sioux Indigenous RJ
- • University community youth research class, UK
This study was chiefly concerned with the implementation of RJ practices from practitioners and researchers viewpoints. I employed a qualitative phenomenological research methodology to identify perspectives about outcomes that are defined as effective or successful. Like RJ processes, phenomenological research is an inductive, descriptive approach developed from phenomenological philosophy; its aim is to describe an experience as it is actually lived by the person. In order to gain access to this type of information, an open-ended interviewing format was used that often took discussions to unexpected subjects and information. Interviewees were selected based on their intimate knowledge of the practices of restorative justice based on their experiences as researchers and practitioners. The interview instrument was designed to unpack the research questions both directly and indirectly. In addition to directly asking the principle research questions, the interview instrument included questions about initial impressions, training, first steps, specific restorative justice practices, current feelings about the program and other strategic considerations.
- Name, Title, length of time in position?
- What do you call your practice and theory—Restorative Justice, PeaceMaking, Conflict Resolution, Victim Offender Mediation?
- How did you come to learn about these practices?
- What kind of training did you receive concerning your practice or research?
- What do you think are the main principles of restorative justice/peacemaking?
- What are the main restorative justice practices that you use or research?
- What are the goals of these practices and do you think they are successful?
- What lessons did you learn in your practice or research that you wish other institutions would know as they seek to implement restorative justice programs?
- What factors contribute to the successful implementation of Restorative justice Practices?
- How would you describe the values inherent in restorative justice?
- Overall how would you assess using this model within a retributive system?
- Is it possible to advocate Indigenous knowledge and values in Western systems?
- How does RJ in Europe, Canada and US Indigenous communities affect non-Indigenous practices?
- Are moral and cultural imperialism a concern in RJ practices and if so, how can that be addressed?
- Can RJ be used by individuals and groups to negotiate reparations from corporations and governments?
- Is RJ transformative-- does it have the potential to change the system structurally?
Initial research findings are grouped into four categories reflecting the regions examined through the literature review, interviews and seminars: Indigenous, US/Canada, England, and the EU. Across regions, ethnicity and gender, interviewees concur that the main elements of restorative processes involve voluntariness, truth telling, and a face-to-face encounter which fosters a reconnection to human relationships. In my interview with Theo Gavreilides at Independent Academic Research Studies in London he emphatically stated that the main ingredients for a restorative meeting involve victims, offenders and their community in direct (face to face) or indirect (go-betweens) meetings and that they, no one else, can determine how best to deal with the offence. Both victims and offenders are equally important in the restoration of the harm, and that is why their equal treatment and voluntary participation is needed throughout the process. He also stated that when the term “Restorative Justice ” is used in a criminal justice context it can refer to any of these four programs:
- • ‘Victim-Offender Mediation’
- • ‘Family Group Conferences’
- • ‘Healing and Sentencing Circles’
- • ‘Community Restorative Boards
(Gavrielides interview, 2013)
Major theoretical differences among interviewees were articulated on the following topics:
- • The origins of RJ
- • The commensurability of indigenous forms of RJ in Western retributive systems
- • The commensurability of Western RJ in indigenous traditional and socialist/capitalist societies
- • The use of RJ in cases of domestic violence and sexual assault
- • The professionalization of RJ
- • The conservative agenda for RJ
- • The question of inherent moral and cultural imperialism in present day practices of RJ
- • The transformative qualities of RJ for structural and systemic change
- • The possibility of RJ use as an international conflict resolution process in cases of corporations and governments causing harm to local populations.
This report will not discuss all the findings above as that will be the topic of essays, articles and chapters in a book.
Deb Cayedito and Francis Lester at Navajo Nation
Indigenous definitions are quite distinct from the capitalist-colonial legal model imposed upon the colonized historically. Within North American Navajo concepts, according to PeaceMaker Trainer, Roger Begaye the main elements of the Navajo Peacemaking/ restorative processes involve an understanding of Navajo philosophy, language and the sacred stories in order to address the harms invoked by colonialism and occupation with an understanding that there is no victim, offender, or facilitator. All have been harmed and all are responsible to address the harm. Indigenous conferencing finds its roots in tradition. Begaye asserts that the foundation of the restorative justice methods now introduced in the US, Canada, Europe, New Zealand and Australia emerged from Indigenous models of responding to harm in ways that emphasize balance, harmony, community restitution, reconciliation, humane responses and social justice. This claim is disputed by some of the white Euro-American interviewees in this study and in the literature on RJ. (Begaye, Interview 2013)
There are some claims to RJ origins in Maori ancient practices. Included in this particular model are not only primary victims and offenders but also secondary victims, the parties’ families and close friends, community representatives and sometimes, the police. All are welcome who are connected to at least one of the primary participants. They are brought together by a third impartial party, who is usually trained for this task (facilitator). However, the facilitator does not play a role in the substantive discussion. The Maori also hold the view that decisions must involve the families, including whanau (all those descended from common grandparents), hapu (clan) and iwi (tribe), and should not be taken by professionals. A common theme in the literature, seminars and interviews concerns colonization and the manner in which indigenous justice practices should be reinstated on reserves and could be embedded in the current system. Both Navajo and Maori Indigenous justice processes use the notion of colonial and ‘collective responsibility’, which they link to the reasons behind causing harm. These are believed to lie not in the individual, but in a lack of balance in the person’s structural social and family environment. In their view, these problems can be addressed only by adopting a traditional collective community response. Through this, the community can achieve restoration of harmony among all those who could have helped prevent the harm.
Indigenous knowledge (IK), alternately called traditional knowledge, is recognized as a dynamic, holistic system of explicit and implicit information, behaviors and practices, norms, values, language and worldview. Indigenous knowledge systems (IKS) have been developed collectively by groups of people living in fixed areas for long periods of time, in some cases millennia. Such knowledge systems have enabled, and continue to enable, diverse indigenous peoples throughout the world to adapt to and survive environmental change and colonization. The main philosophical values include: Wholeness with everything in the universe believed to be part of a single whole. It is therefore possible to understand something only if we understand how it is connected to everything else. A second philosophical value is that of Change. All of creation is in a state of constant change. Nothing stays the same except change ... There are two kinds of change. The coming together of things ... and the coming apart of things. Both of these kinds of change are necessary and are always connected to each other. Third, Changes occur in cycles or patterns. They are not random or accidental. Sometimes it is difficult to see how a particular change is connected to everything else. This usually means that our standpoint is limiting our ability to see clearly. Finally, The seen and the unseen. The physical world is real. The spiritual world is real. These two are aspects of one reality. Yet, there are separate laws, which govern each of them. Violation of spiritual laws can affect the physical world. Violation of physical laws can affect the spiritual world. A balanced life is one that honors the laws of both of these dimensions of reality. (Four Worlds Development Project, 1984, pp. 26-27).
The African concept of Ubuntu is not a criminal justice term, but is a determining factor in the formation of perceptions that influence social conduct in a society. Pre-colonial African societies (and their legal systems) were family based, linked together in clans and ruled by chiefs who consulted senior members of the community in all matters of consequence and were obliged to always act in the interests of the collective. Decision-making was characterized by lengthy deliberation with consensus reached through negotiation rather than voting. Indigenous justice in Southern Africa, before the introduction of European concepts of law, was determined by groups of people who included both the alleged offender as well as the victim. There’ve been, of late, calls for some aspects of traditional justice, based on ubuntu, to be reintroduced into the mainline criminal justice system of South Africa. (Xotsie, Interview 2013)
According to official US DOJ documents, in September, 2012, the Department of Justice announced over 200 grants to more than 110 American Indian and Alaska Native nations. The grants provided more than $101 million to enhance law enforcement practices, and sustain crime prevention and intervention efforts in 10 purpose areas including public safety and community policing; justice systems planning; alcohol and substance abuse; corrections and correctional alternatives; violence against women; elder abuse; juvenile justice; and tribal youth programs. It is important to note that Indigenous models are embedded in philosophical constructs of cooperation and connectedness within the natural order while non-Indigenous models are inserted into philosophical constructs of citizen’s contractual obligations to the state.
One of the controversial conflicts in RJ practices reared its head early on in my study. While Navajo Peacemakers deal with all conficts including domestic violence and sexual assaults, the non-Indigenous judge heading up the court on the Yavapai reservation that I interviewed raised grave concerns about ever using RJ in these cases. He said, “It’s about power and control and abusers are not gonna stop abusing unless the more powerful make them stop by isolation and shame? Anyone using RJ in these cases should be disbarred.” This controversy and some of the assessments about it will be covered in future work however it should be noted that the use of RJ processes in cases of sexual assault and domestic violence is substantially more prevalent in UK and EU than in the USA.
In 1982, the Navajo Nation revived and institutionalized the traditional Navajo justice system, called hozhooji naat'aanii. This system is called "peacemaking" in English. Peacemaking is embedded within the traditional worldview of the Navajo to resolve the conflict and restore balance within the encompassing umbrella of Navajo philosophy. The Navajo Peacemaking process begins by asking the question, “What happened?”
Peacemaker Francis Lester reports that in order to understand the process itself it is critical to know the history of what happened to the Navajo people, also called, the Diné. The post- colonial focus of the US government has been to make the native dependent and punish them when they do not obey. After genocide, wars, and theft of their lands, the Diné were forced to lay down their weapons and accept the retributive laws and courts of the USA. On the reservation presently all reported felonies go to US federal court. Anything less may go to tribal court. Acts of violence or drinking under the influence are not “crimes” in Navajo system (Lester, Interview 2013).
Roger Begaye, Peacemaker Training Manager for the Navajo Nation, reported that the whole idea of crime and courts has been forced on the Diné. Court is viewed as another mechanism of control and used to punish the Navajo for being Diné. The first experiences that Navajos had with US courts was the enforced travel to Fort Sumner or Fort Defiance resulting in incarceration that to this day the Navajo still call “gooldi”. The very concept of crime is a bilaganna (White/Anglo) concept. (Begaye, Interview, 2013)
Navajo peacemaking is one of the most renowned restorative justice programs in the world with people applying for training from around the world according to Roger Begaye. It is often called a "horizontal system of justice" in the literature because all participants are treated as equals with the purpose of preserving ongoing relationships and restoring harmony among involved parties.
As Peacemaker, I am not there to judge. I am just like everyone there. I am the same as them. We do not use the terms offender and victim. Violence, addictions, these are not against the law on the reservation. (Lester interview, 1/13)
Roger Begaye reports that traditional Diné philosophy has four major categories of law: natural law, traditional law, customary law, and common law. He said:
When you cause harm the mind will suffer and be altered so to get back in harmony you must go to the medicine man for a reconstruction ceremony. Sand paintings are one form of reconstruction. The Peacemaker is the mediator between humans and nature. (Begaye, interview 1/13)
According to official Navajo documents:
Traditional Diné Peacemaking begins in a place of chaos, hóóchx̨o’/ anáhóót’i’, whether within an individual or between human beings. The historic trauma of colonialism and genocide has often resulted in Navajos staying away from face-to-face confrontations. However, in Dine’ philosophy such confrontations are vital in order to dispel hóóchx̨o’/anáhóót’i’. The Peacemaker has the courage and skills to provide the groundwork for the person or group to confront hóóchx̨o’/anáhóót’i’ and move toward mastering harmonious existence… When hóóchx̨o’/anáhóót’i’ is confronted, people may learn there is a choice to leave it. When harmony, hózh̨̨ó, is self-realized, sustaining it will have clarity and permanent hózh̨̨ó will be self-attainable, hózh̨ǫ́ójí k’ehgo nįná’íldee’ iłhááhodidzaa ná’oodzíí’.http://www.navajocourts.org/Peacemaking/Plan/PlanOps.pdf
In the present system of Navajo Peacemaking the parties in conflict meet with a Peacemaker after requesting this process and paying a sixty dollar fee. Sometimes meetings include others such as family members and friends or those with relevant expertise (e.g. addiction counselors and social workers). The Peacemaker, usually chosen by his or her chapter (a unit of local government), is a respected person with a demonstrated knowledge of traditional Navajo language and philosophy.
According to Roger Begaye in the “Cornstalker Philosophy” the distinctions between the Diné and the Bilagaana methods of justice are based in concepts of respect and best illustrated as follows:
The native has respect for himself and his existence in accordance to his creator, mother earth, and the universe. In distinction, he acknowledges reverence for himself and to his creator by offering white corn meal and prayer while anointing himself from the palms of his feet and upwards to the top of his head in the process. In this process he acknowledges his spatial existence, his sacred name by offering to mother earth, the universe, the cardinal directions, the environment in sacred places such as the mountains and nature before he acknowledges himself as a human being. This is a psychological reverence in which he acknowledges the meaning of well- being, existence and his determination to live a long extended life with guidance and eventually attain the virtues of the culmination of all the wisdom one can gain in one’s lifetime, called Yis’ah Na’ada. White people are generally more focused on the mind to achieve goals of profit. The will to survive and prosper with all goodness placed in money, a nice home, forms of travel, jewelry, and attainment of power in money. Respect for the earth and environment is second (if at all/my words) in importance to wealth and prosperity. Spirituality is in the form of church on Sundays. (Begaye, 2007)
There are more than 250 Peacemakers from 110 chapters in the Navajo nation. Using the Navajo language is emphasized and Peacemaking begins with an opening traditional prayer sometimes in both Navajo and English. The Peacemaker explains the traditions from which the process emerged and the ancient teachings. There are four main questions to be posed in the Navajo peacemaking process:
What happened? 2. Why did it happen? 3. How do we go about it--(resolution and a better way)? 4. How do we heal?
The Peacemaker leads the group in developing recommendations and agreements if possible however both men I interviewed agreed that there is sometimes no “solution” or “resolution”.
Sometimes everyone must take some time to smoke and pray. (Begaye, Interview, 2013)
Navajo concepts of healing and healing ceremonies also provide ways to confront family violence and even murder according to Lester. Healing requires that the person be actively involved in the traditional ceremonies prescribed. Francis Lester suggested in his interview that the process would be helpful for soldiers returning from wars with PTSD. Another significant difference between Navajo Peacemaking' and the Anglo model of restorative justice according to Lester is that Peacemaking allows self-referrals and requires no admission of guilt. Identifying the history of where and how the people lost balance and harmony results in identifying the right path for the future. Healing requires that the person be actively involved in the traditional ceremony.
While Navajo Peacemaking was reinstated to protect and support the customary practices of peacemaking it has been imposed within the structure of Anglo American retributive court procedural rules. The judicial institutionalization of Navajo Peacemaking within the retributive system may have the inadvertent consequence of changing its fundamental nature. The literature on restorative justice (RJ) poses several features of Navajo Peacemaking that distinguish it both from typical RJ practices as well as from programs such as family group conferencing (Australia and New Zealand) or sentencing circles (Canada) that operate exclusively or primarily with Indigenous persons or within Indigenous communities.
The Navajo judiciary, like other judiciaries of Native American Nations, has attempted to 'de-colonize' federal Indian law through two processes: (1) establishing Navajo common law (including customary law and traditions, as well as court decisions) as sources of legal authority and (2) establishing processes that more nearly approximate dispute resolution processes said to be in existence pre-colonization…In the 1990s the Navajo Supreme Court began a strong effort to promote Peacemaking, receiving a federal grant to fund the payment of Peacemaking personnel. In 2001, the Navajo Tribal Council passed enabling legislation for the Peacemaking Division (7 NNC§ 409). Thus, unlike processes in some locales Peacemaking was developed from within the Navajo Nation rather than imposed from without. (Coker, 2006)
Indigenous Hawaiian Restorative Justice
Like the Navajo model the Hawaiian indigenous restoration process emphasizes the human connection to all things. Aloha means being one with nature. Trainer, Johan Galtung described five stages in his seminar:
- The wise person asks each person to present their emotions and story and asks the person who caused harm, “why did you do it?”
- The wise person asks everyone in circle “what did you do to prevent this from happening, what could you have done?” Everyone shares the seeds of responsibility.
- The Wise person asks all to hold hands and lift heads to ask apology to the community/ ancestors/Creator for their acts of commission and omission.
- The Wise person asks: “What is to be done to prevent this from happening—what would restore you and what will you do to restore the balance?”
- The Wise person meets with everyone after a period of time to see if everyone is doing their part.
Like Maori, Hawaiian methods also are used within the structure of Anglo American retributive court procedural rules. Does this have the inadvertent consequence of changing its fundamental nature? Even when Indigenous leaders control the process, the criminal justice system is embedded in constructs of power and control which are contradictory to the healing processes these indigenous worldviews foster. The process of using non-Indigenous practitioners in sentencing circles or conferencing even when in consultation with Indigenous leaders may produce an emphasis more on blaming “offenders” and placating “victims than healing for the individuals involved and the whole community.
Western governments “allow” traditional native practitioners the authority to use traditional methods of solving problems or recognize decisions at specific levels. While practitioners within retributive systems may be incorporating some of these restorative processes they are not congruent with retributive civil or criminal law. The critical questions of the Indigenous processes concerning that which will prevent harms inflicted by all involved and the question of how all may heal are key elements that are non-existent in present day crime and punishment systems and structures. A dissonance occurs in embedding restorative processes within retributive systems of justice. Restorative processes must be embedded in systems and structures that embrace congruent philosophies and social justice on all levels of the society if they are to resolve harm, provide solutions enacted by communities, and promote healing.
The Diné government has been too influenced in colonizer ways. Navajos must make the necessary changes on their own terms to continue as a distinct nation. (Cayedito, Interview 2013)
The paradox of liberal imperialism is that human dignity is often promoted in Western discourse to be rooted in the universal human capacity for reason. When Indigenous people trapped in Western retributive systems attempt to advocate their sovereignty with cultural practices unfamiliar or disturbing to the US or European practitioner, they may appear irrational and thus undeserving of recognition and respect. During the course of my interviews I heard repeated testimonies from “Westerners” who participated in trainings conducted by Indigenous leaders and described the methods as “strange” and “uncomfortable” because of the use of candles, sage, and story telling that “felt” hard to understand or out of context.
The restorative justice movement in Canada has gained momentum in
recent years due to economic advantages in keeping people out of public prisons. Seminar leaders from Canada at the Native Studies Conference posed themselves as the vanguard of the RJ movement with their first modern experiment in victim-offender mediation in 1974 along with implementing aboriginal sentencing circles.
Canada, like Australia and New Zealand are interweaving Indigenous and Western Criminal Justice (CJ) methods with multiple points of entry for its use.
After attending training by an Indigenous Canadian one European Forum RJ researcher reported:
“The Peacemaking circle confused me. On one level I find it naive… I was very confused about the generosity of these people. They would say that there is someone who has offended so we must begin by asking, “What did you do for the offender?” That is extremely structural…it was only in the case of native peacemaking I saw this structural aspect.” (Pali, Interview, 2013)
Restorative Justice is not as popular in the USA as it is in Europe, Canada, Australia and New Zealand because of the privatization of prisons which profits from incarceration and hence imprisons more US citizens than in any other country in the world. After endorsing victim-offender mediation in 1994 the American Bar Association (“ABA”) recommended the use of victim-offender mediation and dialogue in courts throughout the country and also provided guidelines for its use and development. Although victim advocates were skeptical about victim-offender dialogue by 1995, the National Organization for Victim Assistance (“NOVA”) endorsed the principles of restorative justice by publishing a monograph entitled Restorative Community Justice: A Call to Action. As funding became available for these programs victim organizations became increasingly supportive and recipients of those funds as leaders and trainers in legal and educational settings.
Reforms in the USA over the past three decades have resulted in Community policing and community Boards made up of small groups of active volunteer citizens, specifically trained to conduct public, face-to-face meetings with offenders ‘sentenced’ by the court. The aim of each board is to provide an opportunity for victims and the community to confront offenders in a constructive manner, while giving the chance to the offender to take personal responsibility. Community Restorative Boards promote citizens’ participation in the CJ system, as they provide them with an opportunity to get directly involved in the justice process, generating ‘community-driven’ consequences for criminal actions that are offered to reduce costly reliance on formal CJ processing. The process usually involves a meeting with the board members discussing the nature of the offence, and the negative effects it had on the victim and community. After a thorough examination, the board develops a set of proposed sanctions, which they discuss with the offender and the victim, until they all reach an agreement.
An additional reform in the US is the establishment of ‘accountability’ courts for offenders with special problems such as drug addiction or mental illness. Interviewee, Mary White, a prosecuting attorney and a founder of the drug, health and youth courts in Yuma, AZ believes it makes no sense to lock up drug offenders for a term of years while doing nothing to treat their addiction. She says that it costs tens of thousands of dollars to imprison an addict but much less to provide them with drug treatment in the community.
Many states have established drug courts, placing offenders in mandatory treatment. Drug court judges are being trained to work with addicts. The judges in these cases hold the offenders accountable for meeting their obligations to the court, society, themselves and their families. Offenders are tested for drug use regularly and randomly. They meet with the judge frequently to review their progress. If they are doing well then they are rewarded; when they do not live up to their obligations, they are sanctioned. Numerous studies have found that drug court graduates are much less likely to use drugs or commit new crimes, and the programs save the state large amounts of money.
Prosecuting Attorney Mary White assessed the US justice system in need of new policies and procedures. She is another passionate advocate for RJ and says that it:
- Reserves costly prison space for dangerous offenders
- Focuses on reducing future harm
- Facilitate victim–offender dialogue
- Provides opportunities for community service and reparation
She also reported that these policies enjoy broad bipartisan support across ideological, theological and racial lines in Arizona and the US generally. The widespread growth and impact of RJ in legal and educational settings has in this researchers assessment completed the co-optation process by the very justice systems that were initially so critical of its existence. Through public and private funding restorative justice programs are developing in nearly every state and range from small and quite marginal programs to a growing number of state and county justice systems and public school systems. Presently, these initiatives are occurring in the states of Arizona, California, Colorado, Illinois, Iowa, Minnesota, New York, Ohio, Oregon, Pennsylvania, Texas, Vermont, and Wisconsin. (White, Interview 2013)
England has implemented restorative justice methods in almost every aspect of social programming primarily through its national health care system but also through the law and judicial systems. According to Dr. Theo Gavrielides, a leading RJ expert and the founder and director of Independent Academic Research Studies, RJ’s first development in England and Wales came from the community without any legislative or other support from the Government. This happened in 1972 with the introduction of a victim-offender mediation program. Since then, the new practice had to find its way in the ‘shadow of the law’, as no specific legislation was enacted to regulate it. (Gavrielides, 2007)
By 1998, the Labor government in Britain created the Youth Justice Board (YJB) and local youth offending teams (YOTs), which resulted in decreases in first-time offending and size of what the literature calls the ”youth secure estate” which seems to suggest the state is protecting itself from it’s youth leading this researcher to ask, which youth? At the same time, England set up the YJB, they set up council adjudication boards which offered additional alternatives that established a multidisciplinary approach, with various agencies finding solutions based on evidence of ‘what works best’ to both punish and resolve conflicts locally. My first interview in London was with the Coordinator of the Kirklees Restorative Justice program which was partnered with Probation Service, West Yorkshire Police, The Prison Service, KASBU, KHN, Victim Support, Kirklees Council Community Safety Team, and the Lifeline and Drugs Intervention Program. A passionate and experienced advocate for RJ she identified the following experiences with RJ:
- RJ reduced repeat offending for some offenders;
- reduced crime victims’ post-traumatic stress symptoms and related costs;
- provided both victims and offenders with powerful experiences that led them to view each other as human;
- reduced some crime victims’ desire for violent revenge against their offenders;
- reduced the costs of criminal justice, when used as diversion from CJ;
- reduced recidivism more than prison (adults) or as well as prison (youths).
This interviewee believed face-to-face meetings among all parties connected to a crime, including victims, offenders, their families and friends, resulted in restorative results along with court-ordered financial restitution. Her experience was based in partnership with a police officer fostered a team that could provide empathy along with knowledge of the law enforcement system. She advocated several entry points for RJ:
- as diversion from prosecution altogether;
- as a pre-sentencing, post-conviction add-on to the
- as a supplement to a community sentence (probation);
- as a preparation for release from long-term imprisonment to
- as a form of warning to young offenders
In 2003, the UK Government announced its intention to consult on a national strategy that would expand RJ outside the youth justice system, covering specific crimes prosecuted within the adult criminal justice system. In 2005, the Home Office RJ unit was closed down and during 2005 – 2007 no major policy or legislative
development followed. However, this interviewee reported that the present conservative government is reorganizing RJ options because it is economically beneficial in keeping some offenders out of publically funded prisons.
While the Council of Europe and the European Union have been promoting and using RJ for at least two decades I will only focus my comments on the European Forum for Restorative Justice (EFRJ) in this report as that is where I conducted interviews and presented findings in Leuven, Belgium. According to its literature, the EFRJ is a non-governmental, not-for profit organization established in accordance with Belgian law in 2000. Its general aim is to aid the establishment and development of victim offender mediation and other RJ practices throughout Europe. It makes possible the exchange of information, experience and expertise in this field, and handles policy-oriented work in an independent manner. It is also funded by the EU. Presently the EFRJ facilitates an exchange of practical experience and studies between Austria, Germany, Northern Ireland, Hungary, Albania, Greece, and Poland providing support for the development of mediation and the training of mediators and judges. I interviewed five EFRJ researchers, the Coordinator and presented my findings to them at their board meeting in April, 2013.
The main principles I found articulated by the staff of the EFRJ included:
- Crime should be dealt with as a harm done to victims, a threat to peace and safety in a community.
- Reactions to crime should contribute towards the decrease of this harm with emphasis on full accountability of the offender.
- The main function of social reaction to crime should not be to punish, but to contribute to conditions that promote restoration caused by the offence.
- The role of public authorities in the reaction to an offence needs to be limited to contributing to the conditions for restorative responses to crime.
- The victim has the right to freely choose whether or not to participate in a restorative justice process.
- If the victim refuses to cooperate, the offender should nevertheless be involved in some form of restorative responses.
The research projects at EFRJ are impressive in their focus to advance joint efforts to maintain and expand RJ onto the statute books and policy agenda in Europe. The extent and focus of the projects at EFRJ were fascinating to this researcher and the researchers interviewed were involved in one or more of the following projects whose links and descriptions are taken directly from the EFRJ website.
This research project aims to answer when and under what conditions are restorative justice processes accessible to citizens and how are restorative justice processes initiated under different jurisdictions and in different models.
This research project aims to develop good practices around providing training in restorative justice for the judiciary, to deliver training and to support the building of networks amongst legal professionals in the field of restorative justice.
- Desistance and Restorative Justice: mechanisms for desisting from crime within restorative justice practices
The general aim of this project is to gain insight in the mechanisms within restorative justice practices that can contribute to desistance from crime and thus reduce victimisation.
The project aims to provide an alternative and deepened understanding based on empirical evidence of how to handle conflicts within intercultural contexts in democratic societies in order to set up security solutions for citizens and communities
The general objective of the project is to achieve more knowledge, through empirical evidence, on the needs, experiences and position of victims when participating in restorative justice programmes. The project runs from 1 January 2011 until 31 October 2012.
This project consists of an exploratory study of conferencing practices, for both adult and young offenders and for low and high level crimes, and their further applicability within Europe. This project runs from 31/12/2008 till 28/02/2011
This European project, carried out by an international Consortium led by the Hungarian organisation Foresee Research Group , focuses on the role of mediation and restorative justice practices not in the pre sentence phase, but rather in prison settings, reaching out for victims of serious crimes and inmates condemned for aforementioned crimes.
The project was a cooperation between the European Forum for Restorative Justice, the Juvenile Justice Department of the Italian Ministry of Justice and the Istituto Psicoanalitico per le Ricerche Sociali (IPRS). It ran from 27 December 2007 until 27 April 2010.
- This project ran from 1 December 2007 until 30 March 2010.
- • Developing standards for assistance to victims of terrorism This project ran from 1 March 2007 till 30 June 2008.
- • AGIS 3: Restorative justice: an agenda for Europe This third AGIS project, which ran for 24 months - from 1 June 2006 till 31 May 2008-, wanted to realise an effective support to the development of restorative justice in Southern Europe on the one hand, and to research what could be the potential role of the European Union in the further development of restorative justice in the whole of the European Union.
- • AGIS 2: Meeting the challenges of introducing victim-offender mediation in Central and Eastern Europe This second AGIS project, which ran for 24 months - from 1 December 2003 till 31 November 2005 -, wanted to realise an effective support to the development of restorative justice in Central and Eastern Europe.
- • AGIS 1: Working towards the creation of European training models for practitioners and legal practitioners in relation to restorative justice practices In 2003, the European Forum obtained a non-recurrent funding from the AGIS programme of the European Commission to work on two topics: the training of mediation practitioners on the one hand, and the training of legal practitioners in restorative justice on the other hand. In the framework of the project, two very concrete instruments were developed: recommendations on the training of mediators and a training course for prosecutors and judges on restorative justice.
- • COST Action A21: Restorative justice developments in Europe COST Action A21 on 'Restorative Justice Developments in Europe' concerns a European network of researchers from some 20 countries, which was started late 2002 and which ran until the end of 2006. http://www.euforumrj.org/projects/overview/
- This diverse and engaged team interviewed in Belgium includes researchers from China, Albania, Greece, Hungary, and Belgium. Future reports will cover their experiences and assessments of the projects past and present.
- While there was some criticism by researchers at the European Forum on Restorative Justice concerning my usage of the terms, “Western” and “Indigenous” to describe differences in values and systems across race and ethnic groups, nations and reserves, the categories and definitions are defined and imposed by European and US definitions and courts. The struggle continues for people to determine for themselves how to deal with harmful behavior and to confront for whom that behaviour is not tolerable, the people or the state? According to an EFRJ Chinese researcher the commensurability dilemma is real. She said, “In ancient China punishment has a central place. I think people’s ideas are very punitive. Penal mediation is used in China for over a decade and is part of the official practices. There are some overlap in values between RJ and with restoring harmony that correspond. There are cases and disputes that are just handled in the Chinese community. In fact a large proportion of conflicts are handled outside the court. RJ is viewed as an imported Western model compared to penal mediation. The main principle of RJ is the restoration of human relationship wherein crime is viewed as harm to the human relationship; RJ has roots in the victim movement but crime is against the state in China.” (Yuan, Interview, 2013)
- The prospects for a "meeting of the minds" among Indigenous and Western practitioners, researchers and visionaries for resolving conflicts concerning origins, values, and methods in restorative and transformative justice are slim. The conflicts are rooted in supremacist capitalist constructs and require new foundations. The conflicts also represent cultural and intellectual struggles of identity and sovereignty in familiar and unfamiliar fields for this researcher. What advocates share in common are their pursuits of reform in justice methodologies while shared pursuits for social justice are not to be found as evidenced when sponsored by governments and corporate hacks..
- When viewed through the discourse lens on the debates concerning restorative vs. transformative justice the conflicts identified in this report become concretized. A recent prosaic paper comparing restorative and transformative justice by one of my student’s sums it up in her own voice:
- Restorative justice attempts to right wrongs after they have been committed. I have seen documentaries about offenders that attempt to apologize to the victim or the victim’s family. The problem with that is that the harm is already done. It is harder to forgive an offense then. I am speaking as a victim. I used to be a lot more forgiving of crime before my life was nearly taken by someone that once claimed to love me. It has been five years since my attack and me and my children are still reeling from the affects of it. I feel the same way about crimes that involve child abuse, sexual assault and other crimes of this nature. The mental aftermath of these crimes is long-lasting. While an apology may help in the healing process it is still a long road of recovery. I am just not sure that many people even want to hear from their offender. When I was going to court, the man that stabbed me in front of my children apologized. That did nothing for me. He was the father of my children. They are conflicted because they loved their father but hate what he did to me. What if I would have died? They would have been left without any parent. Some things just don’t allow for mediation. The services provided by victim assistance are remedial at best. I don’t necessarily blame the program but the occurrence of crime makes it impossible to effectively offer assistance to all those that need it…Transformative justice does a better job at covering more causes of crime. This deals with prevention, accountability and structural to name a few. I think this is important for some of the very same reasons I named above. If society has set up road blocks that prohibit people from earning livable wages then how can we expect different outcome. Social change and accountability is needed to help change our current state of society…I do not think the poor people need more agencies in their lives telling them what is right and wrong. This just undermines the effort to get people to take accountability. Some of these same social service agencies are structured to keep people from succeeding. DCFS workers only need to have a bachelor’s degree in any field. Yet society allows these very people who to come in and ultimately break up a family. Even here at school, I have encountered numerous white boys from the suburbs who want to be CPD. They have no clue about what it is like to live in the ghetto. Besides what they see on the news or rap and hip hop videos they don’t know what goes on. I am pointing out all these things because I think this is what wrong with transformative justice. Who is transforming it? Since I have been in school, I have read study after study about crime in the black community by mostly white scholars. How do they know? Even if they went and lived there how could you truly understand? I live here and I don’t always understand. This bothers me because the very people who hold this transformative future in their hands don’t live here. How can they really predict what services are needed? I am an advocate of the community accountability because poor people can’t wait to be saved. The first norms that people learn are from family…change occurs because people fight for it. Transformative justice will not work without community involvement. Anything less will just be another government agency intruding on the lives of the poor.” (Student paper, Theories of Justice, 2013)
The conflicts on global levels mirrors those of the individual caught in the web of corporate and state control. The offender is the colonizer, the invader, the occupier, the globalizer, the corporation and the state whose harms of invasion, occupation, classism, racism, and sexism are historic and manifest now in poverty, criminalization, torture, exile and deportation. These harms cannot be mediated they must be eradicated now and prevented for the future. How can Western academics, legal scholars, law enforcers, or social workers know what is good or right for the Indigenous, the occupied, the refugee or the immigrant? Is it even possible to know when at the end of the Western continuum of values all that really counts is wealth, profit and power while on the Indigenous end of the continuum that which is most valued is the relationship of kinship among all beings in harmony with the natural and spiritual cosmos? A primary task for restorative and transformative justice advocates is to decode and de-program all forms of cultural imperialism specifically, their own. The terms of engagement must be recast for the absolute right of Indigenous people to sovereignty. Culture is pivotal to the meaning of self-determination and cannot be distilled into one political right or the even the legal discourse of human rights. Finally, we must all put ourselves into the Indigenous story by understanding our collective history and asking the questions, what happened and how can I help prevent more harm? In this way we all may have a fighting chance to create new models of justice.
Begaye, R. (2007). Cornstalker Philosophy at Navajo courts.org. http://www.navajocourts.org/Peacemaking/corntext.pdf
Claassen, R. (1995). Restorative Justice Principles and EvaluationContinuums, Fresno Pacific College: National Centre for Peacemaking
and Conflict Resolution: Clovis, California.
Coker, Donna. (2006) “Restorative justice, Navajo Peacemaking and Domestic Violence” in Theoretical Criminology © 2006 SAGE Publications.
Daly, K. (2001) 'Restorative Justice: The Real Story. in
- Von Hirsch, J. Roberts and A. Bottoms (eds) Restorative Justice
and Criminal Justice, Oxford: Hart Publishing.
Gavrielides, T. (2007) Restorative Justice Theory and Practice:
Addressing the Discrepancy. Finland. Publication Series No. 52.
Tsosie, R. 1998. Justice in Indian Country: A Process Evaluation
of the U.S. Department of Justice Indian Country Justice Initiative -- Final Evaluation Report
Zion, James. (1998) “The Dynamics of Navajo Peacemaking”, Northern Arizona University Journal of Contemporary Criminal Justice,Vol. 14 No. 1, © Sage Publications, Inc.
Begaye, Roger. Interview. 08 January 2013.
Lester, Francis. Interview. 08 January 2013
Cayedito, Deborah. Interview. 07 January 2013
Passey, Kerry. Interview . 06 February 2013
White, Mary. Interview. 21 February 2013
Cobham-Bismark, Kevin. Interview. 19 March 2013
Mahammud, Zaynab. Interview. 20 March 2013
Stanford-Xostie, Esther. Interview 21 March, 2013
Gavrielides, Theo. Interview 24 March, 2013
Anderson, Monique. Interview. 01, April, 2013
Torz, Edit. Interview. 02, April, 2013
Yuan, Xiaoyu. Interview. 02, April, 2013
Varfi, Tzeni. Interview, 03. April 2013.
Pali, Brunhilde. Interview. 03 April 2013
Student writes on "Four Programs of Restorative Justice From Different Countries"
Family Group Conferences in New Zealand: Restorative justice began in New Zealand in 1989 with the introduction of family group conferences for youthful offenders. The Children,Young Persons and their Families Act 1989 incorporated Maori ways of dealing with crime. It was originally envisioned as a family empowerment process not as a restorative justice (Doolan, 2003). It is a requirement before any child can be taken into state care, a referral for a family group conference must be made, and a trained facilitator must be appointed. The aim of this program is intended to produce three part result: (1) the giving and accepting of an apology,(2) restitution or other reparation, and (3) the penalty.
Family Group Conferences are decision making meeting, face-to-face encounter with the offender and their families, victim and their supporters, a police representative. It is coordinated by a youth justice coordinator who is a social services professional. The conference begins with prayer in Maori language, and all parties use interpreter to ensure full understanding. Victim and offender tell their stories after which a plan will be set, everyone must agree to this plan and be satisfied with the plan. This program was designed to be consistent with the historical family decision making practices of the indigenous Maori people, and also provide blood-related family members with the chance to make decisions about safety of their children.
The Biidaaban Healing Model Among Mnijikaning people in Ontario
The program of restorative justice was developed by the First Nation Community. Biidaaban works with people who have committed wrong doing or been hurt. This program try to avoid the use of “offender” or “victim” instead, behavior is addressed as bii meanibg future, daa present and ban which means past. Biidaaban which means living in the present and looking towards the future. The main goal of this program is for offenders to take responsibility for their action, be accountable to the community and their victim, public apologize and make amends and restitution. This program handle cases such as domestic violence, assult, sexual abuse, armed robbery etc. The process consists of victims and offender, family and the community. At the gathering, everyone introduces themselves and the reason for coming. The offender then apologize and everyone suggest what needs to be done to make things right and restore harmony. A community healing plan is developed and the contract is signed by the offender and biidaaban team. After the signing process, a celebration follows.
The Magamba Program in Mozambique
Restorative justice has been in existence in Mozambique long before the coming of the Portuguese. After the liberation front of Mozambique (FRELIMO) which is a nationalist movement fighting for independence, there was a bloody war against the opposition Mozambique Resistance Movement(RENAMO) as a result of this civil war, lots of people died from starvation,disease, fighting people were displaced so there was need for restorative justice. In Gorongoso one of the rural area in Mozambique with history of war, Magamba spirit is invoked. This means the spirit of the dead soldiers who return to claim justice. The perpetrators of violence would be possessed by the spirit of Magamba which would allow for healing process. The main goal of this program is to bring true healing in a way that the formal justice system cannot, and to restored harmony in the community. The healer would then mentioned all the perpetrators and the things needed to be done to appease the spirit of the victim. According to Igreja, V. & Lambranca, B. D. (2008). The spirit required a correction of past wrong doing, either on the part of person possessed or his or her family members. Crimes and punishments are shared responsibilities in this program.
Mato Oput Program in Northern Uganda
In Northern Uganda, restorative justice is practiced under what is called traditional acholi. The understanding of life is called “mato oput” meaning to drink a bitter portion. This process does not involve court, it is mediated by the elders in the community (Werner, 2010). The high cost of civil war among Uganda people made them to look for a very good way of resolving conflicts. They went through their leaders appealing to the government to manage effective reconciliation program against offences.Forgiveness is one key element of mato oput. The victim must be willing to forgive the offender likewise, the offender must show remorse. The mediation process begins with mediation through traditional chiefs, and drinking of the bitter herb.The constitution allowed for traditional chiefs to exist in Uganda and their political power gives them enhanced credibility in mediating reconciliation. The drinking of the bitter herb means that both parties accept the bitterness of the past and promise never to taste such bitterness again. Compensation follows, in form of cows or cash victim is compensated for the harm done. After this process, a traditional ritual will be carried out, this ritual will rid the offender and the community of vengeful spirit. It should be noted that in this society, human beings share burdens and benefits. According to Werner, K. (2010). Praise and blame are communal assets which are shared by all members of a family.
Post-Conflict Resotrative and Transformative Justice
June Terpstra, 2022
Post-conflict societies are those who due to invasions, occupations, covert and overt uprisings and wars along with military interventions by other countries or NATO are left with a shattered or puppet political system. They are most often fragmented societies with devastated economies that are often forced to take loans from the IMF. A universal feature of postconflict societies is the pervasive antagonism, mistrust, and hostility between the former adversaries, even though "peace" has been brokered or imposed by superpower countries or groups. Examples include colonized indigenous nations, the former Yugoslavia, Rwanda, Apartheid South Africa, and Palestine.
Centuries of struggle have gone into forcing governments to recognize their treaties, acknowledge war crimes, and protect the rights of indigenous people. It was not until 1981 that the Convention 107 on Indigenous and Tribal Populations was signed and opened a legal door in which to review developments that led to the UN Declaration on the Rights of Indigenous People. In 1985, the General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Three years later, the UN started work on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Since 1999, the United Nations has advocated restorative justice as a means of addressing criminal behavior, conflict, and justice. While the Basic Principles were not approved by the General Assembly until 2005, they influenced other UN instruments and state policy during their development. The Basic Principles were ratified, as a binding international law, by well over 100 nations throughout the globe, asserting that victims should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation which includes the following forms: restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition.
Acknowledging the many African forms of spirituality and community that are at the center of African life and the manner in which the colonized completely disrupted those lives is essential to the healing journey. The spiritual discord and resultant communal problems following conflicts such as the Rwanda massacres of 1994 must attend to the history and the traditional worldviews in healing processes. Reconciliation work done in Africa, particularly South Africa, Zimbabwe, and Rwanda, provides examples of the possibilities for international responses in postcolonial conflict situations. However, there is much improvement to be done on these early models.
The UN, the Council of Europe and the European Union have been promoting and using restorative justice for at least two decades emphasizing the following main principles.
1. Crime should be dealt with as a harm done to victims, and a threat to peace and safety in a community.
2. Reactions to crime should contribute towards the decrease of this harm with emphasis on full accountability of the offender.
3. The main function of social reaction to crime should not be to punish, but to contribute to conditions that promote restoration caused by the offense.
4. The role of public authorities in the reaction to an offense needs to be limited to contributing to the conditions for restorative responses to crime.
Examples of post-conflict RJ include:
The Magamba Program in Mozambique
Restorative justice has been in existence in Mozambique long before the coming of the Portuguese. After the liberation front of Mozambique (FRELIMO) which is a nationalist movement fighting for independence, there was a bloody war against the opposition Mozambique Resistance Movement(RENAMO) as a result of this civil war, lots of people died from starvation, disease, fighting people were displaced so there was a need for restorative justice. In Gorongoso one of the rural a in Mozambique with a history of war, Magamba spirit is invoked. This means the spirit of the dead soldiers who return to claim justice. The perpetrators of violence would be possessed by the spirit of Magamba which would allow for a healing process. The main goal of this program is to bring true healing in a way that the formal justice system cannot, and to foster harmony in the community. The healer would then m all the perpetrators and the things that needed to be done to appease the spirit of the victim. According to Igreja, V. & Lambranca, B. D. (2008). The spirit required a correction of past w, either on the part of person possessed or his or her family members. Crimes and punishments are shared responsibilities in this program.
Mato Oput Program in Northern Uganda
In Northern Uganda, restorative justice is practiced under what is called traditional "acholi". The understanding of life is called “mato oput” meaning to drink a bitter portion. This process does not involve court, it is mediated by the elders in the community. The high cost of civil war among Uganda's people made them look for a way of resolving conflicts. They went through their leaders appealing to the government to manage an effective reconciliation program. Forgiveness is one key element of "mato opu"t. The victim must be willing to forgive the offender likewise, the offender must show remorse. The mediation process begins with mediation through traditional chiefs and drinking of the bitter herb. The constitution allowed for traditional chiefs to exist in Uganda and their political power gives them enhanced credibility in mediating reconciliation. The drinking of the bitter herb means that both parties accept the bitterness of the past and promise never to taste such bitterness again. Compensation follows, in the form of cows or cash victim is compensated for the harm done. After this process, a traditional ritual will be carried out, this ritual will rid the offender and the community of vengeful spirit. It should be noted that in this society, human beings share burdens and benefits. Praise and blame are considered communal assets that are shared by all members of a family.
The success of restorative justice in Europe has led in the last decade(s) to a growth in both the use and regulation, in international and national law, of restorative justice practices in Europe. Since 2013 EU countries are “invited to consider” coordinated efforts to develop national delivery standards, ensure victims know their RJ options, and encouraging the use of mediation in criminal proceedings. A primary task for restorative justice advocates is to critique reflexively all forms of cultural imperialism, specifically their own. The terms of engagement must be recast for the absolute right of indigenous people to sovereignty. Culture is pivotal to the meaning of self-determination and cannot be distilled into one political right or the even the legal discourse of human rights. Finally, we must all put ourselves into the global story by understanding our collective history and asking the questions, what happened and how can I help prevent more harm? In this way we all may have a fighting chance to create new models of justice.
The legal precedent for the recognition of the disproportionate representation of indigenous people in the prison systems of Canada has opened the door to reforms when sentencing. The following sentencing checklist for counsel and judges is an important model in this development.
Is the offender an Aboriginal person (Indian, Metis, Inuit)? If yes, which band or community, rural or urban area?
What unique circumstances have played a part in bringing this offender before the courts: Substance abuse, poverty, overt racism, family or community breakdown, unemployment, dislocation and/or residence school education?
What alternatives are there to incarceration or can the sentence be reduced?
What factors are relevant to healing?
Sentencing circles typically involve a multistep procedure that includes: (1) application by the offender to participate in the circle process; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle to develop consensus on the elements of a sentencing plan; and (5) follow-up circles to monitor the progress of the offender.
The sentencing plan may incorporate commitments by the system, community, and family members, as well as by the offender. Sentencing circles are used for adult and juvenile offenders with a variety of offenses and have been used in both rural and urban settings. Specifics of the circle process vary from community to community and are designed locally to fit community needs and culture. Sentencing circles have been developed most extensively in Saskatchewan, Manitoba, and the Yukon and have been used occasionally in several other communities. Their use spread to the United States in 1996 when a pilot project was initiated in Minnesota.
Family Group Conferencing in New Zealand
Conferencing emerged in the 1980s in the context of Maori political challenges to white New Zealanders and to their welfare and criminal justice system. They argued that investing decision-making practices with Maori cultural values meant that family groups would have a greater say in what happens, that venues should be culturally appropriate, and that processes should accommodate a mix of culturally appropriate practices. Conferencing is better understood as an attempt to grapple with the realities of colonialism’s foreign bureaucratic forms of justice with elements of indigenous conflict traditions. The conferencing process is one of the most common restorative processes and is used in justice settings across North America, New Zealand, Australia, and Great Britain. It has been evaluated and compared to other diversion programs and to courtroom processes. There is a body of existing studies that show evidence of high satisfaction ratings on the part of participants and that it positively affects recidivism.
An important distinction to be drawn in group conferencing is between a system which attempts to re-establish an indigenous model of precolonial times from a system of justice which is culturally appropriate imposed by the colonial system. The New Zealand system seeks to incorporate many of the features apparent in traditional decision-making processes and seen in meetings today, but it also contains elements quite alien to indigenous models.
Family group conferencing is probably the most common process used in criminal applications of restorative justice across the country. Many conferencing programs rely on community volunteers to act as impartial facilitators. Community members also sit in the circle to represent the needs and concerns of the community at large, recognizing that reduced crime and increased social development on the part of youth serves the community well.
The basic family group conferencing process involves the following:
A referral from court or prosecuting attorney’s office
Preconferences with victim and offender and the support person associated with each
Development of the circle including affected community members
Conference process where questions of harm are addressed and a contract to repair harm is developed
A fulfillment of contract and a recommendation to court regarding charge disposition.
Community sentencing circles are sentencing circles completely governed by the community. In other words, after a conflict a circle meeting is held, with the goal of finding a solution for the conflict without an intervention of the judicial authorities. Community court sentencing circles are sentencing circles where the judicial authorities are present. These circle meetings are held as an alternative for the traditional court hearing, often after the offender has already given a “guilty plea.” The judge has the final word in the decision of the sentence.
Peacemaking Circles in a European Context
Peacemaking circles have recently been introduced in Europe. Training in peacemaking models began in 2013 because the European advocates of RJ believed peacemaking circles may have the highest potential for restorative success. The RJ movement in Europe and in England began by using victim-offender mediation widely, with conferencing gaining ground as the most favored practices. Peacemaking circles are used in many different ways in many different contexts, such as school conflicts, neighborhood disputes, workplace complaints, and during strikes and negotiations. Circles are held to support one or more people who have gone through a painful experience, be it a crime, mistreatment, harassment, or discrimination. Healing circles, sometimes called peacemaking circles, use traditional circle ritual and structure to involve the victim, victim supporters, the offender, offender supporters, judge and court personnel, prosecutor, defense counsel, police, and all interested community members. Within the circle people can speak from the heart in a shared search for understanding of the event, and together identify the steps necessary to assist in healing all affected parties and prevent future crimes.
The basic process of peacemaking begins with everyone introducing themselves and telling their story of what happened that brought them to the circle. The intent is to build trust and give people the opportunity to see and hear each other. The next stage in the process identifies the needs and issues for those who experienced harm and to develop an action plan for restoration, with people assessing the feasibility of the plan. The goal here is to give voice to the pain and support the persons and community toward a better understanding of what the person in need of healing has gone through and what they need in order to heal. A similar circle can be held for the offenders to understand why they caused harm. Finally, an agreed-upon closing ceremony is completed as part of the action plan.
Legal Issues Relating to Peace-Building and Postconflict Reconstruction
Restorative justice (RJ) work will not be effective without telling the trues stories of particular experiences of victims, be they as individuals or groups with colonialism, genocide and state sanctioned oppression. For too long the dominant intellectual predispositions that control stories about violence, security, and peace have been from the view of the colonizer, invader, and predator. Critical analysis of international peace building must acknowledge the considerable energies involved in struggles for power in states where international militaries are deployed. The legal grounds for which it is now possible or legitimate to intervene militarily in a conflict rely heavily on the narratives of humanitarian and expansionist interpretations of peace-building practices. Military and socioeconomic connections are being radically transformed with invasions and occupations sanctioned by the rhetoric of terrorism. The existing narrative of humanitarian interventionism using militaries translates into immense harms on whole peoples whose lives are lost in geopolitical war games.
How do the people of former Yugoslavia, Afghanistan, Iraq, Libya, Syria, Palestine, the Congo, Sudan, and Somalia begin the healing journey of which our text on indigenous healing so eloquently addresses? Is it possible without honoring the sovereignty and self-determination of these countries and yet again imposing another form of Euro-American idea of justice? In recent years the UN and EU have sponsored restorative justice programs attempting to use restorative justice processes within postconflict societies. This is sometimes referred to as transitional justice meaning the transitional context as a response to civil war, occupation, or widespread crimes against humanity that have taken place in the past and the posttransitional context for which sustainable domestic justice institutions must be established, as in the case of the former Yugoslavia, Iraq, and Libya. Transitional justice is not a “special” kind of justice, but an approach to achieving justice in times of transition from conflict and/or state repression. By trying to achieve accountability and redressing victims, transitional justice provides recognition of the rights of victims, promotes civic trust, and strengthens the democratic rule of law.
Postconflict societies must deal with the legacies of serious and widespread massacres, destruction from invasions and occupations, established foreign-sponsored terrorist networks, war crimes, and large numbers of displaced, traumatized people. Transitional justice is the processes that these communities and societies go through in an attempt to come to terms with the atrocities they have endured. The principles of restorative justice are highly relevant to transitional justice, which includes unearthing what happened, understanding the harms that were caused, holding those responsible accountable for their actions, and addressing the needs of victims and communities for healing and redress—ultimately, working toward a just and peaceful future by laying a foundation through reintegration and reconciliation to prevent history from repeating itself. The principles of restorative justice provide a framework that is relevant not only for the transitional period, but for the posttransitional period as well. During transitional periods, members of postconflict societies need to create processes in order to prepare their responses to crimes and other justice issues in the future. Lasting and sustainable peace can only be ensured by honoring culturally appropriate steps and indigenous knowledge which are agreed upon by the people of that culture and not imposed by international bodies. Whether it is instigated from external global state and corporate actors or generated from within the society itself, members of postconflict societies need to create restorative processes so they are equipped to deal with future conflicts.
The restorative vision of justice holds great potential for repairing harm in times of transition from conflict. Justice requires restoration of respectful state and global relationships, which is also true in established societies seeking to build sovereignty. The necessity of dealing with the past and doing justice is often felt so strongly in postconflict societies, even by those not directly injured, because the harm from wrongdoing extends beyond the individual victim. Respecting the diversity of ideologies and religions of countries and cultures is a respectful and restorative approach between existing international institutions and mechanisms. A restorative justice framework for transitional and postconflict societies ensures that the roles of international and regional bodies are to affirm the importance of national and community self-determination and sovereignty in their choice of healing processes.
We must not expect commonality in justice principles or practices between distinct indigenous societies. There are approximately 300 million indigenous people in more than 70 countries across the world, from Africa and the Middle East, across South, Southeast and East Asia, and in Latin America. The United Nations and other international agencies and practitioners must recognize that culturally appropriate use of restorative principles would need to recognize the systemic violation of oppressed people past and present and listen to the people in those countries and communities as they take leadership in developing new models of justice. Restorative justice has no moral legs on which to stand without addressing the global harms with the offending nations. Western modern versions of restorative justice practices should not be introduced from the outside. The UN and EU have developed handbooks, trainings, and evaluation projects on the work they have been sponsoring for the past decade, which holds the possibilities for a fundamental paradigm shift in shared epistemologies about justice.
The use of restorative justice internationally is expanding. The introduction of victim/offender mediation and alternative dispute resolution in Argentina, Costa Rica, Brazil, Chile, and Mexico has laid the path of support for restorative practices. UNICEF recommends restorative practices as an alternative to the imprisonment of juvenile offenders worldwide. In Chile, there is a bill of criminal responsibility of teenagers, from 2005, which incorporated principles of RJ by allowing for flexible sanctions. The emphasis in this law focuses on the responsibility and reintegration of teenagers who have caused harm to take responsibility and commit to agreed-upon reparations in sessions that include a judge, victims, families, offenders, and professionals. However, sexual assault and domestic violence are excluded as an option under this law. Brazil has restorative justice prisons, APAC prisons, Associacao de Protecao e Assistencia aos Condenados, where the prisoners are given options for restorative ways to repair the harms, including reconciliation. Evaluations so far have shown that less than 10% of prisoners are arrested again.
Restorative Justice Possibilities
The victim rights movement kept pace as restorative justice was applied to areas of more serious criminal acts. Family members are offered an opportunity unheard of in a retributive, courtroom-driven process. When possible, they have been granted the opportunity, in facilitated dialogue, to sit down face to face and engage with the offender responsible for their loss. With ongoing success, restorative practices continue to expand within the field of criminal justice and beyond. Currently, processes are available for victims of serious acts of violence to meet offenders responsible for those acts in the states of Texas, Pennsylvania, Ohio, and most recently, Colorado.
A review of literature shows numerous cases of victims speaking out regarding their desires to engage on a personal level with the perpetrators of the crimes that have caused them harm. With the backing of victim rights organizations, this desire has led to restorative justice dialogue taking place in prisons with incarcerated offenders. Although there have been cases where this push was powered by offender proponents, for the most part, individual victims and victim advocacy movements have been responsible for its expansion. This is particularly true in criminal cases of severe violence and death. Many participants in these processes report a positive outcome from the meetings.
Restorative justice offers the means for humanity to transcend cultural differences, resolve longstanding internecine strife, and perhaps take the first steps toward attaining true peace and justice worldwide. The acknowledgment by offending corporations and governments regarding the dynamics of power imbalances and economic inequalities advances the success of restorative measures.
In another area of emerging practice, restorative practices are gaining ground within K-12 schools. Many schools use restorative discipline and circle processes as a basis for classroom management. In fact, as school districts nationwide swing away from the “school to prison pipeline” that some believe is caused by zero-tolerance legislation, restorative-based policies are being implemented. Click on the link to view a student blog that began after restorative justice practices were initiated in a school through the Longmont (Colorado) High School Restorative Justice Team. For another example of restorative justice successfully being implemented in a school environment, watch the following video:
Restorative Justice In Schools
Summary: Montbello High School reduces suspension and expulsion rates by 30% using Restorative Justice.