Tuesday, September 2, 2014

Does ‘restorative justice’ in campus sexual assault cases make sense?

August 29

In an effort to make it easier for college women to bring charges of sexual assault, the federal government has encouraged the creation of a special breed of disciplinary panels to hear these sensitive cases. The distinguishing factor of these sexual misconduct panels is that victims offer testimony without the accused being present. Unlike criminal courts, where you have the right to face your accuser, these panels hear the details away from the ears of the alleged offender. It is only under these judicial circumstances that victims can share embarrassing details without suffering further humiliation. Without these protections, women will be less likely to report.
At least, that’s the position of victim advocates. The procedures and constitutional safeguards of criminal court, they say, are inherently unsafe for a woman who has been victimized by rape. The adversarial procedures and constitutional protections end up re-traumatizing her. The disciplinary system set up under Title IX is better for the victim because the accused is kept away.
But as more and more of these cases are appealed by respondents who claim their constitutional rights or contractual obligations were violated, more and more colleges are referring these cases to criminal courts. This is a reasonable strategy from the point of view of institutional liability, but not a good idea if it keeps victims from reporting disturbing events in the dorms. But does the in-house system really improve dorm life?
It makes sense that victim advocates put personal safety above all other considerations. They meet her when she is most distraught. But that particular emotional reality, while very big, is not necessarily permanent. In cases of acquaintance rape, the urge to be protected from the offender often competes with the equally strong urge to be heard.
Researchers in the United Kingdom found that sexual assault victims who participated in a restorative justice conference experienced a “really big turning point.” For one victim, being able to speak directly to the offender was not traumatic but deeply healing. “I just wanted him to hear me,” she said.
In Arizona, RESTORE (Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience) uses restorative justice to adjudicate cases of acquaintance rape. Parties in these cases work out a plan for “accountability, healing and public safety.” Safety in this model of justice is not protection from a certain offender but collaboration with others to create a healthier atmosphere.
Rather than seek protection from the offender, which tends to increase his power and her powerlessness, restorative justice allows victims to be more than just afraid. Victims can use their knowledge to create the conditions for better sexual encounters. For students living in co-ed dormitories, this model improves residential life in general. In the current disciplinary system, either the expelled student or the disappointed accuser disappears. Any opportunity for education is lost.
Unfortunately, victim advocates have as many reservations about restorative justice as they do about criminal justice. Restorative justice, they claim, doesn’t recognize the power differential between a victim and her abuser. There is no way that she can approach him and not be re-traumatized.  To confront one’s assailant is to “relieve their assault” as one commentator on an earlier op/ed put it. “How can anyone think that is a good idea?”
If one accepts the assumption that contact equals trauma, then restorative justice is not a good idea. This is position adopted by Title IX guidelines, which prohibit anything resembling mediation. But if we expand our idea of what a healthy confrontation in a well-facilitated and supportive environment might look like, then contact with the offender might actually transform both parties for the better.
Besides, the appellate process undermines the promise that victims can find safety without confronting the accused. She may not have to testify before him in front of a disciplinary panel, but he will be present should she have to testify in a federal appeals court.
Rather than encouraging a judicial system that creates heightened expectations for personal safety, we would do better to provide opportunities for honest conversations that lead to heightened expectations for public safety. The current in-house system, with its fear of confrontation, doesn’t do that. But restorative justice does. The trauma of rape need not define the emotional contours of the recovery.  Using restorative justice allows victims to be more than their fear. And should an aggrieved party decide to sue after a restorative justice hearing, she’ll be ready to meet him in court.

Wednesday, August 20, 2014

Restorative Justice Practices: ?s for responsible person & for affected person

Restorative Justice Practices
Have you or someone you know ever been harmed by another?
What is the process to involve participants to “repair the harm”?

 “For informal justice to be restorative justice, it has to be about restoring victims, restoring offenders, and restoring communities.” J.  Braithwaite 

Following questions developed by International Institute for RESTORATIVE PRACTICES  iirp.edu                                         

Restorative Questions I: of  responsible person: To respond to challenging behavior
What happened?
What were you thinking of at the time?
What have you thought about since?
Who has been affected by what you have done?  In what way?
What do you think you need to do to make things right?

Restorative Questions II: of affected person: To help those harmed by other’s actions
What did you think when you realized what had happened?
What impact has this incident had on you and others?
What has been the hardest thing for you?
What do you think needs to happen to make things right?                                       Restorative Works.net

Restorative Justice Practice is "peace building" instead of "peacemaking,” conflict "transformation" rather than conflict "resolution."  Slogan: “Conflict is opportunity; don’t waste it.”            

Howard Zehr shares "Restorative Justice Three's":

3 assumptions underlie restorative practice:
* When people and relationships are harmed, needs are created.
* The needs created by harms lead to obligations. 
* The obligation is to heal and “put right” the harms; this is a just response.

3 principles of restorative practice reflect these assumptions.  A just response:
* acknowledges and repairs the harm caused by, and revealed by, wrongdoing (restoration);
* encourages appropriate responsibility for addressing needs and repairing the harm (accountability); 
* involves those impacted, including the community, in the resolution (engagement).

3 underlying values provide the foundation: 
* Respect
* Responsibility
* Relationship

3 questions are central to restorative practices:
*Who has been hurt? 
*What are their needs? 
*Who has the obligation to address the needs, to put right the harms, to restore relationships? 
(As opposed to:  What rules were broken? Who did it? What do they deserve?) 

3 stakeholder groups should be considered &/or involved:
*those who have been harmed and their families
*those who have caused harm and their families

3 aspirations guide restorative practices: the desire to live in right relationship:
*with one another
*with the creation
*with the Creator

True peace requires us not to just make peace by ending conflicts but to build an infrastructure for peace.
Individual and Community Safety is first             

 Jon Powell - Campbell Law School                                        Jon Powell - Circle People, USA, by State - Living Justice Press
Children Full of Life - Important Documentary.. Very ... 40:03 40:03    4th grade class in a primary school in Kanazawa, Japan

*Restorative Practices: W Philadelphia HS: Principal Saliyah Cruz
W Philadelphia HS was named a “persistently dangerous school” for violence/crime.  After Restorative Practices were implemented, students realized they had a voice; they had ownership of the school atmosphere.   
Restorative Welcome and Reentry Circle - YouTube  14:00 14:00    *RJ in school settings: UK site:  http://www.transformingconflict.org/

Monday, August 4, 2014

Face to face with victims: Boulder County to expand restorative justice

Face to face with victims: Boulder County to expand restorative justice

DA secures $500,000 under new state law aimed at keeping juvenile offenders out of court
By Mitchell Byars

As a prosecutor, Boulder County District Attorney Stan Garnett is a big believer in the American court system. But even Garnett admits there are times when months of hearings and drawn-out jury trials aren't the answer — especially in the case of adolescents.
"That may make sense for a murder case, but it doesn't make sense for a kid knocking a mailbox off its post," Garnett said.
His office will be one of four in Colorado participating in a state pilot program to help youths stay out of the court system — even the juvenile court system — and resolve their cases through restorative justice. Over the next few months, Garnett and his staff will be working on opening the 20th Judicial District Attorney's Center of Prevention and Restorative Justice.
Rather than focusing on punishment in court, restorative justice seeks to get juveniles face-to-face with the people harmed by their crimes.
In meetings that also include trained facilitators, law enforcement officers and members of the community, offenders create a plan to make amends directly to the people they affected and get a first-hand look at the consequences of their actions.
"Restorative justice can be very powerful," said Peggy Jessel, chief deputy of the Boulder DA Office's juvenile division who will become director of the program. "It's empowering and healing for the victims. It gives them a chance to ask, 'Why did you pick me?'"
Although some jurisdictions — including Boulder County — already use restorative justice in sentencing as a condition of probation, the state Legislature passed a bill in 2013 seeking to expand the use of restorative justice. The bill also created a pilot program to collect data on its feasibility as a possible alternative to the juvenile court system statewide.

Boulder County was selected by the state as one of four judicial districts — along with those in Weld, Pueblo and Alamosa counties — to participate in the pilot program. Garnett said his office has already secured about $500,000 in funding from the state and other grant programs to pay for the estimated $50,000 to $100,000 in extra costs during the center's first several years.
Garnett said he hopes to have the center up and running by October, and he hopes that 60 to 70 percent of the 500 or so juvenile cases Boulder County sees every year will go through the program. Already this year, about 100 juveniles have been diverted to the restorative justice program, he said.
"This could be one of the most dramatic changes in Colorado law ever," Garnett said. "We're excited to be at the forefront of it."
'It personalizes the harm'
The goal of restorative justice is to have the juveniles figure out how they can make up for their crimes directly to the people affected, rather than a judge levying some sort of punitive sentence.
For instance, Jessel said a young person who admitted to shoplifting might be required to work to pay for what he or she stole — and might also have to hear from community store owners about how shoplifting affects them, and apologize to the victim.
"They need to come up with a way to repair the harm," Jessel said.

To do that, the offender and parents meet with the victim or someone who can speak on behalf of the victim. Law enforcement officers — often the arresting officer — and trained community members also participate.
The new restorative justice center will take a few adult cases, but Jessel said restorative justice is much more effective on youth.
"It personalizes the harm, it personalizes who they hurt," Jessel said. "They have to say what they did."
Juveniles sometimes have trouble understanding there are consequences for their actions, she said. Restorative justice forces them to confront those consequences.

"I think with juveniles, they are so impulsive that they don't think through anything," Jessel said. "That's why it is important they meet face-to-face with the victim."
State Rep. Pete Lee, D-Colorado Springs, is the lawmaker who authored the bill to create the restorative justice pilot program.
"(Juveniles) don't respond to things the same way adults do," Lee said. "Emerging brain science explains that, and the criminal justice system has to take that into account."
Jessel also said for adolescents, having to talk about what they did in front of a room full of people — including the victim — can serve as powerful negative reinforcement for future crimes.
"It can be really scary," Jessel said. "They don't want to come back."
'We know it works'
For the most part, area officials say juvenile offenders who go through restorative justice don't come back.
Candy Campbell, executive director of Longmont Community Justice Partnership — a community-based restorative justice program — said her organization sees much lower recidivism rates for young people who go through restorative justice.
Nationwide, about 60 percent of juveniles who go through the court process re-offend as juveniles. Campbell said over 20 years of 150 to 180 cases annually, LCJP has an 8 to 10 percent recidivism rate.
"We know it works based on our statistics," Campbell said. "We have a huge success rate and track record."
LCJP's community-based model allows local agencies such as the Longmont Police Department and area schools to refer children directly to the center, avoiding the court system altogether.
"By being community entrenched, we can serve at a greater level," Campbell said.
Laura Snider, a program manager for LCJP, was training students at Longmont High earlier this week as peer leaders to participate in the restorative justice program. Snider said the impact for juvenile offenders can sometimes be more effective when it comes from people their age.
"Adults can talk until we turn blue in the face," she said.
LCJP has been working with the Boulder County DA's Office to establish a similar program in Boulder within the restorative justice center. Garnett said his hope is that more juvenile cases can be resolved without them ever going into a courtroom so young offenders aren't strapped with records for the rest of their lives. Although juveniles can sometimes get the details of their cases sealed, the record of that arrest and case could still prevent them from getting jobs or going to college.
"It is difficult to do that with a record of arrest," Garnett said. "Even the act of filing a case can have significant problems for a young person."
Lee, the lawmaker, pointed out that in New Zealand, all cases are sent to restorative justice first and then referred to juvenile court if needed, as opposed to the other way around.
But Lee acknowledged not all cases are appropriate for restorative justice. Certain charges — including assault and sexual crimes — by law cannot go through the restorative justice system. He also said restorative justice requires cooperation of the offender.
"One of the keys to restorative justice is the offender accepting responsibility for what they did," Lee said. "I think it works because offenders accept responsibility for what they did and develop empathy for their victims and then are committed to repairing the broken relationship that results from criminal offenses."
And, Lee said, in his experience, victims can sometimes feel like they are pushed to the side in a criminal case. He said restorative justice makes them an integral part of the process.
"The way the system is set up now, the victim isn't a full participant," Lee said. "The victims are represented by the prosecutor but are somewhat peripheral. In restorative justice, they are an equal partner."
Jessel, of the DA's Office, said while going through restorative justice, young people may also need other resources, such as substance abuse treatment or mental health evaluations.
And, she said, in most cases, the victims don't want the juveniles to have criminal records, but simply want them to realize what they've done and repay the damage.
"A lot of victims don't necessarily want a criminal case," Jessel said. "They just want them to fix the damage."
'Culture change'
As part of the pilot, Boulder and the other judicial districts taking part in the program will keep data on the cost, recidivism rate and satisfaction level of victims and offenders going through the restorative justice program.
Garnett said the extra cost in setting up the restorative justice program will be made up by reducing court time and prosecution costs as well as keeping juveniles out of detention, and Lee said he thinks the data will show restorative justice is also more effective.
"That's what's been shown in every other place restorative justice has been effectively integrated," Lee said. "I think when the data comes out and other jurisdictions see that it results in higher satisfaction, lower levels of recidivism and saves money, why would they not adopt it?"
But Lee said using restorative justice does require a different way of thinking by prosecutors, and he commended the counties participating in the pilot program.
"It's a culture change within the DA's Office, and it is always difficult to change culture," Lee said. "They were taught to ask, 'What is the offense, who committed it, and what's the penalty?' With restorative justice, they have to ask different questions: 'What harm occurred, and how do we repair the harm?' It's a lot more of an individual approach to justice than the existing system."
Contact Camera Staff Writer Mitchell Byars at 303-473-1329 or byarsm@dailycamera.com.