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4 Corner posts of restorative justice compensation, victim services, the steps of the criminal prosecution
a. Inclusion of all parties; and the victim's rights during the proceedings.
b. Encountering the other side;
c. Making amends for the harm; PRESENCE IN COURT
d. Reintegration of the parties to their communities Many victims and survivors want to observe their criminal justice
proceedings. However, this is not always permitted because of
Restorative justice processes are more inclusive than the traditional concerns that it any testimony they may offer will have been
criminal justice processes. They actively invite all affected parties-- influenced by what other witnesses have said. Some jurisdictions
victims, offenders, and community members--to participate in allow the victims to observe the trial after they have testified. Others
resolving the crime. allow the victim to attend all of the proceedings unless it can be
shown that this will jeopardize the defendant's right to a fair trial.
Inclusion seeks the full participation of all parties, and it is
accomplished by (1) inviting all interested parties to participate, (2) VICTIM IMPACT STATEMENTS
expecting the parties to pursue their own interests, and (3) being Many jurisdictions allow victims to make a statement during the
flexible enough to accept new approaches relevant to the particular sentencing phase. They are able to offer testimony about the
situation. physical, mental, emotional, social, and/or economic harm caused by
the crime. In some places they are allowed to comment on what
These characteristics are especially important for victims because sentence the offender should receive.
they do not have officially-recognized legal interests in most criminal
justice systems. Criminal justice has to do with the State's LEGAL STANDING
prosecution of the accused offender. This legal process conflicts with Generally, the victim does not have a legal standing in the justice
the experienced reality of the victim who was harmed by the proceedings. If the restorative value of amends were taken seriously,
offender's criminal acts. the victim could be given the legal right to pursue restitution during
the criminal proceedings.
Methods of Inclusion: Although the criminal justice system cannot be
as inclusive as restorative justice processes, there are at least four There are many areas where the victim can be included in the justice
ways that the victim could become more involved in the process. process. The basic forms of this inclusion are consultation with the
These are: prosecutor and initiation of action independent of the prosecutor.
Although the majority of victims are interested primarily in the
INFORMATION sentencing of the offender, some have interests in other stages of the
The least inclusive of these reforms is nonetheless very important to criminal justice process.
many victims. It involves keeping victims informed about the services
and rights they may expect, and the status of their particular case in Investigation
the criminal justice process. They should be told about victim Arraignment through Pre-sentencing
Plea Bargaining
2 RESTORATIVE JUSTICE Lesson 1
Sentencing restorative response when a party is not identified or is
Post-sentencing. unwilling/unable to meet the other).
The French system of partie civile is an example of victim inclusion in
the justice process. The victim is permitted to bring a civil claim as a A restorative encounter has five interwoven elements: meeting,
part of the criminal case. This combination of penal and civil actions narrative, emotion, understanding, and agreement. Each of these
allows for consistency and efficiency. The civil claims are considered elements contributes to the strength of the encounter. One that
after the criminal charges have been proven. The victim does not features all five elements will be most powerful in helping parties
have to prove guilt, only a linkage between the crime and the harm move toward healing.
for which the victim seeks reparations.
MEETING
__________________________________ In mediation, conferencing, and circles, the victims meet with their
own offenders; with victim-offender impact panels, the meetings are
This article was abstracted from Van Ness, Daniel and Karen between representative victims and offenders. If the meeting is done
Heetderks Strong. 2003. "Chapter 7: Inclusion." In, Restoring Justice. through exchange of letters, tapes or videos, or if it is done through
2nd. Cincinnati: Anderson Publishing. Used by permission from indirect communication, the "meeting" will not involve face-to-face
Anderson Publishing Company. All rights reserved. No part of this confrontation. Nevertheless, what takes place during any form of the
book may be reproduced in any form or by any electronic or meeting directly engages the other party, in contrast with court
mechanical means including information storage and retrieval proceedings where at most each party will only observe the other's
systems without permission in writing from the publisher. statements to judge or jury.

Restorative justice places a high value on having the victim and NARRATIVE
offender encounter one another. This encounter might be done At the meeting, the parties talk to one another; they tell their stories.
directly in a meeting between the two (and perhaps others as well) In their narrative they describe what happened to them, how that
with a facilitator assisting them. It can be done indirectly through has affected them, and how they view the crime and its
exchange of letters, videos and by messages delivered by a third consequences. This is a subjective rather than objective account and,
party. consequently, it has integrity both to the speaker and to the listener.

The programmes that make encounters possible -- victim offender EMOTION


mediation, conferencing, circles, and so on -- are strongly identified Narrative permits the participants to express and address emotion.
with restorative justice. Stories of confession, forgiveness and Crime can produce powerful emotional responses that obstruct the
reconciliation forcefully remind us of the relational wounds caused more dispassionate pursuit of justice to which courts aspire.
by crime and the need to address those. Encounter, however, is not Encounter programmes let those emotions be expressed. This can
the only dimension of restorative justice, and is certainly not an result in healing for both victims and offenders. All of the encounter
essential element of a restorative response (or else there could be no programmes described above recognize the importance of emotion
in training facilitators, preparing participants and establishing ground
3 RESTORATIVE JUSTICE Lesson 1
rules. As a result, crime and its consequences are addressed not only victim and offender. If the needs of victim and offender are not met
rationally but emotionally as well. and if the victim-offender relationship is not addressed, the hostility
is likely to remain or worsen. If however, victim and offender needs
UNDERSTANDING are addressed, the relationship may be moved toward the
The use of meeting, narrative and emotion leads to understanding. reconciliation pole, which in itself is worthwhile.
As David Moore has observed about conferencing, "in this context of
shared emotions, victim and offender achieve a sort of empathy. This ___________________
may not make the victim feel particularly positive about the offender
but it does make the offender seem more normal, less malevolent." David Moore, "Evaluating Family Group Conferences," in David Biles
Likewise, for offenders, hearing the victims' story not only humanizes and Sandra McKillop, eds., Criminal Justice Planning and
their victims but also can change the offenders' attitude about their Coordination: Proceedings of a Conference Held 19-21 April 1993,
criminal behaviour. Canberra (1994), 222, at 213.

AGREEMENT Ron Claassen and Howard Zehr, VORP Organizing: A Foundation in


Reaching this understanding establishes a productive foundation for the Church (Elkhart, IN: Mennonite Central Committee U.S. Office of
agreeing on what happens next. Encounter programmes seek a Criminal Justice, 1989), 5.
resolution that fits the immediate parties rather than focusing on the
precedential importance of the decision for future legal proceedings. ___________________
Encounter, therefore, opens up the possibility of designing a uniquely
crafted resolution reflecting the circumstances of the parties. This article was abstracted from Van Ness, Daniel and Karen
Further, they do this through a cooperative process rather than an Heetderks Strong. 2003. "Chapter 4: Encounter." In, Restoring
adversarial one, through negotiation that searches for a convergence Justice. 2nd. Cincinnati: Anderson Publishing. Used by permission
of the interests of victim and offender by giving them the ability to from Anderson Publishing Company. All rights reserved. No part of
guide the outcome. this book may be reproduced in any form or by any electronic or
mechanical means including information storage and retrieval
Do these elements—meeting, narrative, emotion, understanding and systems without permission in writing from the publisher.
agreement—yield reconciliation when combined? Not necessarily.
But they will increase the parties' ability to see each other as persons, Restorative justice seeks to repair the harm done by crime.
to respect each other, to identify with the experiences of the other, Whenever possible this repair should be done by the persons
and to arrive at an agreement. In other words, some movement responsible for the harm. That is why restorative justice values
toward reconciliation will have occurred. As Claassen and Zehr have efforts by offenders to make amends.
noted:
There appear to be four elements or facets of amends: apology,
Hostility and reconciliation need to be viewed as opposite poles on a changed behaviour, restitution, and generosity. Each element has
continuum. Crime usually involves hostile feelings on the part of both potential for helping the victim to heal and the offender to become a
4 RESTORATIVE JUSTICE Lesson 1
productive part of the community, although usually more than one change. Attending school and not hanging out in old haunts are ways
will be involved in a restorative outcome. It is the victim and offender to change the environment. Drug treatment programmes, anger
who decide which ones are important and feasible in particular cases. management classes, and educational and job training programmes
That is why restorative encounters are important. are ways that offenders learn new behaviours. Follow-up meetings
to the encounters may be used to monitor the offender's progress in
APOLOGY trying to change and give him/her positive reinforcement on progress
An apology can be written or verbal. The three parts of apology are made.
acknowledgement, affect, and vulnerability. With acknowledgement,
the offender accepts responsibility for hurting the victim by his/her GENEROSITY
actions. The offender also accepts that there was real harm caused But the outcomes of restorative processes suggest that victims and
by this conduct. Finally, the offender accepts that the harm caused offenders may move beyond simply balancing the books. Offenders
was experienced by another human being who did not deserve the may offer to perform services that are not related to the crime or to
harm. the victim, but that are understood by the victim as evidence of a
sincere apology. For example, the offender may agree to perform
Affect goes beyond acknowledgement of guilt to remorse or shame community service at an agency the victim chooses.
by the offender for what he/she has done. Regret may be expressed
verbally or through body language. Witnessing offenders express RESTITUTION
regret can be healing for victims. However, the offender may feel Restitution can be made by returning or replacing property, paying
deep regret but be unable to express it in ways that can be money, or providing direct services to the victim. Restitution should
appreciated fully by the victim. be paid first to the persons suffering direct harm from the crime,
including surviving family members of murder victims. If community
Vulnerability has to do with a shift in power between the offender service is ordered or agreed to as a way of "paying a debt to society",
and the victim. One of the realities of crime is that the offender has rather than volunteered as evidence of generosity, it is important to
asserted control over the victim in order to commit the crime. In have a clear link between the crime and the community service the
apologizing, the offender gives control to the victim, who can decide offender will do. Ideally, it will have a direct bearing on the needs and
whether or not to accept the apology. The offender cannot know interests of the victim.
what the victim will do before offering the apology. In offering the
apology, the offender cedes to the victim the control and power over ___________________________
himself/herself.
This article was abstracted from Van Ness, Daniel and Karen
CHANGED BEHAVIOR Heetderks Strong. 2003. "Chapter 5: Amends." In, Restoring Justice.
At the most basic level, changed behaviour by the offender means 2nd. Cincinnati: Anderson Publishing. Used by permission from
not committing crimes. This is why negotiated agreements will Anderson Publishing Company. All rights reserved. No part of this
include elements such as changing the offender's environment, book may be reproduced in any form or by any electronic or
helping the offender learn new behaviours, and rewarding positive
5 RESTORATIVE JUSTICE Lesson 1
mechanical means including information storage and retrieval The following are examples of such communities.
systems without permission in writing from the publisher.
SUPPORT GROUPS
Crime causes injuries. It also can result in both the victim and In victim support groups and ex-offender support groups,
offender experiencing stigmatization. Therefore, restorative justice participants understand the difficulties that others face because they
places a high value on the reintegration of the victim and of the have faced them too. When members find they are not understood
offender. The goal is to have them become whole, contributing by others near them, even their own families, they are able to form
members of their communities. strong ties within the group because of their common experiences.
These shared experiences help build respect, commitment, and
Victims often feel stigmatized by family, friends and the community. understanding.
Sometimes this is because of the loneliness experienced during and
after a traumatic crisis. But sometimes it is because victims are CIRCLES OF SUPPORT
uncomfortable reminders to those around them that crime can Although support groups help with building self-esteem and more
happen to anyone. Out of fear, people who might naturally support positive responses to life, they are limited in the relationships that
victims instead attempt to explain away what happened by blaming are formed. The Mennonite Central Committee in Ontario Canada
the victim or wishing he/she would "just get over it." This works to has organized Circles of Support for ex-offenders needing more
separate the victim from loved ones and community members and accountability than a support group would offer. This programme
can lead to stigmatization. uses volunteers working with the police, community groups, and
treatment professionals to address the needs of serious sex
Offenders also face stigmatization. Since crime causes fear in the offenders as they are released from prison. The programme reduces
community, offenders become vilified in the eyes of society. recidivism, aids the offender's transition into the community, and
Incarceration separates them from their families and communities. addresses the fears of the community.
Upon release, offenders frequently lack stable support structures,
and even start-up money for food and clothes, housing, FAITH COMMUNITIES
transportation, and other parts of a healthy productive life. At the Faith communities are present in virtually all communities. Many are
same time, offenders face discrimination in their attempts to become encouraged by their beliefs and traditions to help meet needs in their
productive citizens. communities. Many have the resources and presence to provide
many services. For example, Christianity is filled with traditions and
Reintegration occurs when the victim or offender can become active examples of caring for those in needs. The story of the Good
and productive parts of their communities. To accomplish this, Samaritan encourages the church to aid victims of crime. Jesus' act of
victims and offenders must find communities with the following forgiveness and acceptance of the thief on the cross provides an
characteristics: (1) mutual respect for those in the community, (2) example of acceptance of repentant offenders into the community.
mutual commitment to others in the community, and (3) intolerance
for--but understanding of--deviant behaviour by members of the When support groups, community groups, faith communities or
community. other communities offer friendship, material aid, and spiritual or
6 RESTORATIVE JUSTICE Lesson 1
moral direction, they offer the victim and offender the opportunity the physical and emotional safety of affected parties is a primary
to leave the shadows and reenter the larger community as consideration.
contributing members. The community's responsibility is to make The second normative value is respect. All people are treated as
those reintegrating communities available. Responsibility for joining worthy of consideration, recognition, care and attention simply
those communities lies with the victim and the offender. because they are people. The operational values that encourage
respect are inclusion and empowerment. The parties are invited to
_____________________________ directly shape and engage in restorative processes and are equipped
to effectively influence and participate in the response to the
This article was abstracted from Van Ness, Daniel and Karen offence.
Heetderks Strong. 2003. "Chapter 6:Reintegration." In, Restoring
Justice. 2nd. Cincinnati: Anderson Publishing. Used by permission The third normative values is solidarity. This refers to the feeling of
from Anderson Publishing Company. All rights reserved. No part of agreement, support, and connectedness among members of a group
this book may reproduced in any form or by any electronic or or community. It grows out of their shared interests, purposes,
mechanical means including information storage and retrieval sympathies, and responsibilities. Three operational values that build
systems without permission in writing from the publisher. solidarity are encounter (parties are invited, but not compelled, to
participate in making decisions about how to respond to the offence),
VALUES assistance (parties are helped to become contributing members of
their communities in the aftermath of the offence), and moral
Some have suggested that restorative justice might be better education (community standards are reinforced as the values and
described in terms of values rather than through definitions or norms of the parties, their communities, and their societies).
principles. A number of values have been proposed and one way of
organizing them would be to think in terms of normative values, The final normative value is active reponsibility. This can be
which describe the world as it should be, and operational values, contrasted with passive responsibility, which means being held
which guide how we achieve those. accountable by others. Active responsibility arises from within a
person; passive responsibility is imposed from outside the person.
The first normative value is a peaceful social life. Peace means more Two operational values contribute to development of active
than the absence of open conflict. It includes concepts of harmony, responsibility. One is collaboration, in which the parties are invited
contentment, security, and wellbeing that exist in a community at to find solutions through mutual, consensual decision-making. The
peace with itself and with its members. When conflict occurs, it is second is making amends, which means that those responsible for
addressed in such a way that peaceful social life is restored and the harm caused by the offence are also responsible for taking steps
strengthened. Two operational values help achieve peaceful social to repair it.
life. One is resolution, meaning the people are cared for and the
issues surrounding conflict and its aftermath are addressed as
completely as possible. The second is protection, which means that
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PROGRAMS Restitution programs require offenders to repay those who have
been harmed by their offenses, generally through monetary
A number of programs have become associated with restorative payments but in some cases through in-kind services to the victims
justice because of the processes they use to respond to and repair
the harm caused by crime: Community service programs require offenders to address the
indirect harm to a community caused by crime by performing unpaid
Victim-offender mediation programs use trained mediators to bring work that benefits the community
victims and their offenders together in order to discuss the crime, its
aftermath, and the steps needed to make things right Victim compensation funds provide payment to victims by the
government or another party unrelated to the offender, in an
Circles are similar to victim-offender mediation, but differ in that amount based on the nature and extent of the harm received
they involve not only the offender and victim, but also their family
members, community members, and government representatives

Conferencing programs are also similar to victim-offender


mediation, but have tended to more closely linked to the criminal
justice system than either VOM or circles

Victim-offender panels bring together groups of unrelated victims


and offenders, linked by a common kind of crime but not by the
particular crimes that have involved the others

Victim assistance programs provide services to crime victims as they


recover from the crime and proceed through the criminal justice
process

Ex-offender assistance programs provide services to offenders while


they are in prison and on their release

Although reparative in nature, the following outcomes are not


inherently restorative since they can be -- and have been -- used in
ways that are more destructive or vindictive than reparative.

However, when they are the outcome of a restorative process, they


can provide important avenues for "making things right".