Restorative Justice

RETRIBUTION OR RESTORATION?

THE INTERPLAY BETWEEN RESTORATIVE JUSTICE
AND THE CRIMINAL JUSTICE SYSTEM

by Perry Bulwer, B.A., LL.B.



[While attending the University of British Columbia Law School in Vancouver, Canada I participated in the First Nations Legal Clinic for a 4 month term for semester credits and a 4 month summer employment term. This paper was written in 2001 for that program.]

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The concept of restorative justice, though only recently considered by modern justice systems, is in fact an ancient concept and one that is intrinsic to the human experience. As Howard Zehr points out, “Restorative justice is not new. In fact, it is as old as most people’s histories, as old as the Bible. It’s not abstract; it’s common sense. Restorative justice, in other words, is not a grand system imposed by “experts” but has profound roots in ordinary people’s needs and experiences.”1

In this paper I describe some of the principles underlying restorative justice, and their relation to indigenous justice systems. I will also examine the growing international interest in restorative justice and how Canada plays a leading role in that field. As well as looking at specific restorative justice projects I will look at Canadian legislation and review how the judiciary is responding to that legislation. Finally, I will survey some critiques of restorative justice and consider the interplay between restorative justice programs and mainstream justice systems.
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1 Howard Zehr, Changing Lenses: A New Focus For Crime and Justice (Scottdale, Pennsylvania: Herald Press, 1990) 181
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WHAT IS RESTORATIVE JUSTICE?

Restorative justice is a term applied in a general sense to a wide variety of schemes alternative to the mainstream retributive justice system. As a starting point this dichotomy is useful to define. Howard Zehr put it this way: retributive justice views crime as “a violation of the state, defined by lawbreaking and guilt. Justice determines blame and administers pain in a contest between the offender and the state directed by systematic rules.” On the other hand, from a restorative justice perspective, “crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender and the community in a search for solutions which promote repair, reconciliation and reassurance.”2

A broad definition of restorative justice that emphasizes both the process and the outcome was proposed by British criminologist Tony Marshall: “Restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future.”3 As a broad, working definition it is fine, but it raises many questions that can be answered by outlining some of the agreed upon principles underlying restorative justice. For example, Susan Sharpe proposes the following five key principles:

1) Restorative justice invites full participation and consensus of all interested parties.
2) Restorative justice seeks to heal what is broken.
3) Restorative justice seeks full and direct accountability.
4) Restorative justice seeks to reunite what has been divided.
5) Restorative justice seeks to strengthen the community in order to prevent further harms.4

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2 Ibid.

3 Tony Marshall, as quoted by Daniel Van Ness in “Restorative Justice Around the World”, a paper presented to the Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna, Austria, April 2000 [hereinafter UN Congress] online: <http://www.restorativejustice.org/ (date accessed: 6 April 2002).

4 Susan Sharpe, Restorative Justice: A Vision For Healing and Change, (Edmonton: Edmonton Victim Offender Mediation Society, 1998) 7-12
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Leena Kurki suggests that an underlying theory of restorative justice is that the state “should surrender its monopoly over responses to crime to those most directly affected —- the victim, the offender and the community.”5 She incorporates that theory into her version of the basic principles of restorative justice:

1) Crime consists of more than violation of the criminal law and defiance of government authority.
2) Crime involves disruptions in a three-dimensional relationship of victim, community and offender.
3) Because crime harms the victim and the community, the primary goals should be to repair the harm and heal the victim and the community.
4) The victim, the community and the offender should all participate in determining the response to crime; government should surrender its monopoly over that process.
5) Case disposition should be based primarily on the victim’s and the community’s needs –- not solely on the offender’s needs or culpability, the dangers he presents or his criminal history.6
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5 Leena Kurki, “Incorporating Restorative and Community Justice into American Sentencing and Corrections” in Sentencing & Corrections: Issues For The 21st Century, U.S. Department of Justice, No. 3, September 1999.

6 Ibid.
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Most advocates of restorative justice agree that the principles set out above are the basic building blocks of any restorative justice scheme. However, John Braithwaite has identified another that is crucial to any restorative process and not to be left out. “Non-domination also merits consideration as a core value of restorative justice, ensuring that all voices in the circle are heard and that none are silenced by domination.”7

Many of the principles underlying restorative justice are reflections of ancient, traditional Aboriginal justice practices. “The purpose of a justice system in an 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 that has been wronged.”8 James Zion has canvassed the elders of many indigenous cultures around the world for their views on justice and concludes that “…indigenous justice uses respect, consensus, solidarity, mutuality, interdependence, relationships, reciprocity and even love as the means to heal in traditional justice methods. We do not see those values at play in Canadian or American courts or legislatures.”9

The dichotomy of restorative justice and retributive justice is obvious when comparing traditional Aboriginal justice practices to the mainstream justice system. The values underlying Aboriginal justice clearly indicate that Aboriginal people have a different conceptual understanding of justice. That fact was recognized by the Royal Commission on Aboriginal Peoples when it concluded that one of the main reasons that the Canadian justice system consistently failed Aboriginals was because it had failed to take into consideration the different understanding that Aboriginals have of justice.10
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7 John Braithwaite, “Restorative Justice and Social Justice” (2000) 63 Sask. L. Rev. 185-194 at par.3.

8 Ross Green, “Aboriginal People and the Canadian Justice System”, Justice As Healing, Vol.3 No.4 (Winter 1998) online: <http://www.usask.ca/nativelaw/jah_green.html> (last modified: 8 August 2001).

9 James Zion, “Punishment Versus Healing: How Does Traditional Indian Law Work?”, Justice As Healing, Vol.2 No.3 (Fall 1997) online: <http://www.usask.ca/nativelaw/jah_zion.html> (last modified: 8 August 2001).

10 Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report of Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996) at 12.

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I should clarify here that just as Aboriginal peoples are not a homogenous group, there is no single Aboriginal definition of justice. However, the similarities between the perspectives of Aboriginal nations or cultural groups outweigh the differences to the extent that it is safe to speak of a common understanding of what constitutes justice. Simply put, Aboriginal justice is based on healing whereas mainstream justice is based on punishment. Aboriginal legal theory is organic and flexible, arising from and adapting to the everyday experiences of the community. It “utilizes respect and teaching as its fundamental tenets, unlike the existing criminal justice system where raw coercive force and the threat of incarceration are used to induce the citizenry to abide by an external code.”11

Anyone who has experienced the mainstream justice system, in whatever capacity, knows that it can be an intimidating, heartless, uncaring and rigid process. Aboriginal justice, on the other hand, with its emphasis on healing, reparation and reconciliation often incorporates an element of spirituality into the process that goes beyond merely swearing on a bible. It uses “ceremony and prayer to bond people to the process and to involve the spirits in both the path to a solution and a binding decision.”12 Expressing emotions and feelings is not only allowed, but encouraged as a part of the healing process and a way to get at the heart of the matter. Unlike the mainstream system where offenders are usually labeled as bad persons, the Aboriginal perspective is that the offender has misbehaved as a result of disharmony with others in the community. The flexibility of a restorative approach in being able to investigate the underlying causes of that disharmony and misbehaviour “facilitate[s] the person’s healing process and help[s] them feel connected to the community once again rather than seeking blind justice through punishment under the guise of general and specific deterence.”13
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11 James Guest, “Aboriginal Legal Theory and Restorative Justice”, Justice As Healing Vol.4 No.1 (Spring 1999) online: <http://www.usask.ca/nativelaw/jah_guest2.html> (last modified: 8 August 2001).

12 Zion, supra note 9.

13 Guest, supra note 11.

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Another important difference in the Aboriginal approach to justice is that it is holistic in nature. In the mainstream adversarial system the focus is on a specific offence and many important factors may be excluded from the process according to the rules of evidence. The holistic focus of a restorative approach, on the other hand, allows every aspect of the offender’s life to be examined: physical, psychological, emotional and spiritual. This examination takes place within the context of the offender’s past, present and future relationships with family, community and victim. Other considerations in a holistic approach include moral, social, economic, political and religious factors.14 This broadens the scope of the process far beyond what an adversarial system is able to achieve.

This widened scope allows for the inclusion of victims’ voices, a central aspect that distinguishes restorative justice. Victim’s essentially have no role within the criminal justice system with the exception, perhaps, of direct testimony with it’s limitations, and victim impact statements. They remain in an undefined position at the edge of a system that considers the only actors in the process to be the decision-maker, the state and the accused. Victims remain isolated from the process whereas in most restorative programs victims are an essential component. Space is provided for their voices to be heard and victim input is considered crucial for achieving the goals of healing, reparation and reconciliation. In Donald Evans’ opinion, “A program that purports to be restorative and does not take victims seriously or give them a voice is flawed and doomed to failure as a restorative activity.”15 Furthermore, James Guest posits that “[c]onnecting a person to their community by helping a person see and empathize with the victim may be the greatest tool in crime prevention.”16

Community involvement is the most essential component of any restorative program. “The main procedural element of Aboriginal legal theory is the involvement of community members in the justice system rather than state intervention."17 Definitions of community vary but for the purposes of this paper it refers to a group of people with common interests and experiences that are outside of the mainstream justice system. Barry Warhaft, Program Director of Vancouver Aboriginal Transformative Justice Services (VATJS) uses the term “community of interest” to describe the extensive volunteer network that the program draws upon to form its Community Council Forums.18 “For Minnesota Department of Corrections Restorative Justice Planner, Kay Pranis, community self-defines around the issue that surfaces, so everybody who sees themselves as a stakeholder in a particular issue [makes up the community]”.19

Regardless of what definition is used advocates agree that community involvement is a pillar of restorative justice. Most criminal justice systems seldom, if ever, consult with the affected community and yet it is the community that directly suffers the consequences of crime. Restorative justice programs can be seen as grass roots attempts to empower communities to participate as stakeholders in any policymaking and decision making that affects their health and safety. Pranis contends that the relationship between the criminal justice system and the community needs to be re-evaluated. Her work on restorative justice planning suggests there needs to be a reversal of roles so that the “…community is the primary responder to crime and the system operates in support of the community.”20 Of course, before that can be achieved there must be a broad base of community support for restorative justice principles and practices as well as a high degree of participation. The rapid growth of restorative justice programs throughout the world suggests that the necessary support and participation exists.
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14 Green, supra note 8.

15 Donald G. Evans, “Keeping the Community Involvement in Restorative Justice”, UN Crime Congress, supra note 3.

16 Guest, supra note 11.

17 Ibid.

18 Barry Warhaft, interview, 5 April 2001, Vancouver, Canada.

19 As quoted by Kurki, supra note 5, at 6.

20 Kay Pranis, “Communities and the Justice System: Turning the Relationship Upside Down”, online: Restorative Justice On-line Notebook <http://www.ojp.usdoj.gov/nij/rest-just/ch4/upsidedown.html> (date accessed: 6 April 2002).
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INTERNATIONAL DEVELOPMENTS IN RESTORATIVE JUSTICE

Canada has played a leading role in the contemporary development of restorative justice. The first Victim Offender Mediation programs were developed in Canada in the mid-1970s. There are now over 500 such programs in Europe, over 300 in the U.S. and over 100 restorative justice projects in Canada.21 Aboriginal Peace Circles, adapted from Canadian and U.S. traditional aboriginal justice methods but common also in indigenous cultures around the world, are used at various stages of the justice process throughout North America in both rural and urban communities. The circle model is inclusive, adaptive and has generally developed along two lines: healing circles to dispose of situations outside of the mainstream system and sentencing circles that presently are limited primarily to making recommendations to judges for case disposition. A third restorative justice model that has spread world-wide is Community Conferencing which developed in New Zealand as adapted from the traditional justice practices of the Maori people. Conferencing is also used at various stages of the justice process though it may not be as inclusive as circles, where any interested member of the community may participate. Conferencing, however, is often engaged much earlier in the process than other models and in some jurisdictions “…is often used by police as an alternative to arrest and referral to the formal justice system.”22

An indication of the growing international popularity of restorative justice is the increasingly innovative adaptations of restorative justice principles beyond the three basic models discussed above. In a presentation at the Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders held in Vienna, Austria in April 2000 Daniel Ness of Prison Fellowship International highlighted the following illustrative developments:23

1. Victim-offender encounters are taking place in prisons in the U.S., Canada, England, Belgium, the Netherlands and other countries.
2. Circles of support in some Canadian communities work with serious sexual offenders (often guilty of pedophilia) who are being released into fearful communities. The circles are formed by members of faith communities who enter into a “covenant” with the released offender relating to accountability and support.
3. Mediation and Conferencing are now being done within the justice process. In Australia, England and Belgium police use these alternatives prior to a charge being laid. In Austria, the Czech Republic and Canada probation and parole officers use them.
4. Restorative processes are being used to resolve conflict between citizens and their governments in California, England, South Africa and New Zealand.
5. Legislative action is being taken in a number of countries to expand use of restorative programs. Again, Canada is a leader in this area.
6. Funding and staff for restorative programs is expanding. Most programs begin as pilot projects so increased resources by governments is an indication of success and long-term commitment to the principles of restorative justice.
7. Intergovernmental bodies are taking note of restorative justice. It is increasingly appearing in debate and discussion at the international level. The Committee of Ministers of the Council of Europe adopted a recommendation on the use of mediation in penal matters. The European Union has funded creation of the European Forum on Victim Offender Mediation and Restorative Justice. The Rome Statute for an International Criminal Court contains a number of arguably restorative provisions. The UN’s International Handbook on Justice for Victims notes the importance of restorative justice for addressing victims’ concerns.
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21 “Tutorial: Introduction to Restorative Justice”, online: Restorative Justice Online <http://www.restorativejustice.org/> (date accessed: 6 April 2002).

22 Ness, UN Crime Congress, supra note 3, at 4.

23 Ibid, at 5-6.

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Although this is not an exhaustive list it points to the rapid, worldwide spread of restorative justice initiatives. One definitive sign that the adoption of restorative justice principles is an international movement is the attention paid to it at the Tenth UN Crime Congress.

One of the four agenda topics of the Crime Congress was, “Offenders and Victims: Fairness and Accountability in the Criminal Justice System”. As one observer noted, that appeared to become a code word for restorative justice, given the high interest in the topic expressed by governmental representatives. During the course of the Congress, a number of NGOs sponsored ancillary meetings on various topics related to restorative justice. … At the conclusion of the Congress the delegates approved a summary resolution, known as the Vienna Declaration. This resolution included recognition of the growth of restorative justice programs, and called on governments to increase their use of restorative justice interventions.24

Canada continued its leadership in this area by co-sponsoring a resolution entitled Basic Principles on the Use of Restorative Justice Programs in Criminal Matters. This resolution “…calls on the UN to distribute a draft set of Basic Principles, prepared by the Working Party on Restorative Justice, to solicit comments from governments and others, and to convene a meeting of experts to review those comments and suggestions and propose modifications or alternatives to the Commission [on Crime Prevention and Criminal Justice]”.25 The resolution was adopted by the Commission and the UN Economic and Social Council.
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24 “UN Acts to Advance Restorative Justice”, online: http://www.restorativejustice.org/ (date accessed: 6 April 2002).

25 Ibid.
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CANADA’S USE OF RESTORATIVE JUSTICE

In this section I will examine Canadian legislation that seeks to incorporate principles of restorative justice within the criminal justice system. I will also consider examples of how that is being implemented through the use of sentencing and healing circles.

In September 1996 Canadian Parliamentary Bill C-41 came into effect, substantially reforming the sentencing provisions, Part XXIII, of the Criminal Code. 26 In doing so Parliament sent a clear message to all Canadian judges that too many people were being sent to jail. Two major amendments that altered the sentencing landscape in Canada are found in sections 718 and 742.1 of the Criminal Code. Section 718 sets out the purpose of sentencing in the following terms:

s.718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
s.718.2 A court that imposes a sentence shall also take into consideration the following principles:
... 
 (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Section 742.1 creates an entirely new sentence, the conditional sentence:

s.742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

With the changes introduced by Bill C-41 the Canadian Parliament clearly placed new emphasis on the principles of restorative justice. Minister of Justice Alan Rock made the following comments during the second reading of Bill C-41 on September 20, 1994:

A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences but who do not need or merit incarceration.
[T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done. It is not simply by being more harsh that we will achieve more effective justice. 27

Those comments reflect two of Parliament’s principle objectives in enacting Bill C-41: reducing the use of prison as a sanction and expanding the use of restorative justice principles.
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26 Criminal Code, R.S.C. 1985, c. C-46

27 Allan Rock, House of Commons Debates, Vol.IV, 1st Sess., 35th Parl., at p. 5873.
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In R. v. Gladue 28 Cory and Iacobucci JJ. made the following comment on the creation of conditional sentences in section 241.2:

It is true that there is ample jurisprudence supporting the principle that prison should be used as a sanction of last resort. … The availability of the conditional sentence of imprisonment, particularly, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted only where no other sentencing option is reasonable in the circumstances. The creation of the additional sentence suggests, on its face, a desire to lessen the use of incarceration.

In R. v. Proulx 29 Lamer C.J. stated:

The conditional sentence facilitates the achievement of both of Parliament’s objectives [to decrease the use of incarceration and increase the use of restorative justice]. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community and the promotion of a sense of responsibility in ways that jail cannot.

Commenting on section 718 in Gladue 30 Cory and Iacobucci JJ. stated:

Clearly, s.718 is, in part, a restatement of the basic sentencing aims, which are listed in parts (a) through (d). What are new, though are paras. (e) and (f), which along with (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e) and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process. Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders.
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28 R. v. Gladue, [1999] 1 S.C.R. 688, at para. 40.

29 R. v. Proulx, [2000] 1 S.C.R. 61, at para. 99.

30 Gladue, supra note 28, at para. 43.

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SENTENCING AND HEALING CIRCLES

In Gladue and Proulx the Supreme Court of Canada clearly acknowledges the importance of incorporating principles of restorative justice within the criminal justice system as mandated by Parliament, at least with respect to sentencing. I turn now to a consideration of the use of sentencing circles in some Canadian jurisdictions.

In keeping with the organic, flexible nature of Aboriginal justice, there is no single sentencing circle model, but each circle is adapted to fit the circumstances. The basic process, however, is essentially the same. All concerned parties take their place in a circle. These include the three parties involved in a conventional sentencing hearing: the judge, the crown and the accused with defense counsel. Added to the circle, depending on the circumstances, are elders and other respected community members, the victim and their family and supporters, the accused’s family and supporters, police and probation officers, and other interested members of the community. Usually the judge will facilitate the process, however, the egalitarian nature of “[t]he circle significantly breaks down the dominance that traditional courtrooms accord the lawyers and judges. In a circle, the ability to contribute, the importance and credibility of any input is not defined by seating arrangements. The audience is changed. All persons within the circle must be addressed. Equally, anyone in the circle may ask a direct question to anyone.” 31 Everyone who wishes to may speak to any aspect of the issues before them and make sentencing recommendations to the judge who retains ultimate sentencing discretion. Despite that final authority, there is evidence to suggest that in the majority of cases judges do accept the circle’s often consensual recommendation. 32
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31 Stuart J., R. v. Moses (1992), 71 C.C.C. (3d) 347 (Y. Terr. Ct.) at 357.

32 Ross Green, “Aboriginal Community Sentencing and Mediation: Within and Without the Circle”, (1997) 25 Man. L. J. 77-125, at para. 14.

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Although sentencing circles were not specifically considered in the Gladue and Proulx decisions, the Supreme Court ruled in Gladue that the sentencing provisions in Part XXIII of the Criminal Code, and section 718.2(e) in particular, imposes an obligation on sentencing judges to consider

i) the unique systemic or background factors that may have played a part in bringing the particular Aboriginal offender before the courts, and
ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. 33
Further comments by Cory and Iacobucci JJ. suggest an implicit approval of the use of sentencing circles:

…one of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the Aboriginal concept of sentencing and the needs of Aboriginal people and communities. It is often the case that neither Aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented. In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the Aboriginal perspective. 34

Incorporating the Aboriginal perspective into the mainstream justice system was encouraged by several inquiries into the Canadian justice system’s treatment of Aboriginal people including the Royal Commission on Aboriginal Peoples, the Aboriginal Justice Inquiry of Manitoba and the Saskatchewan Indian Justice Review Committee. For example, the Manitoba Inquiry concluded: “If non-Aboriginal judges and courts are going to be able to formulate sentences which are appropriate to the needs of Aboriginal offenders, victims and communities, they will need input from those communities. In particular, communities need to be involved in the sentencing process, since sentences should, in part, reflect the needs and desires of the community.”35
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33 Gladue, supra note 28, at para. 66.

34 Ibid, at para. 74.

35 Manitoba, Public Inquiry Into The Aministration of Justice and Aboriginal Peoples, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Vol. 1 (Winnipeg: The Queen’s Printer, 1991) at 409.

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Support for community involvement in the sentencing process also comes from the judiciary. Stuart J. of the Yukon Territorial Court, where sentencing circles are common, commented that “[t]he formal, professional justice system must acquire greater confidence and trust in community knowledge, judgement and instincts.” 36  Bastarache J. of the Supreme Court had this to say in support of sentencing circles:
This approach pursues “restorative justice”, whereby healing the community as a whole and reintegration of the offender are of paramount importance. Such a model responds better to traditional aboriginal conceptions of restoring harmony in the community, and gives control to those communities which have felt deeply disenfranchised and alienated by Canada’s criminal justice system. Sentencing circles often place a greater emphasis on community service or involvement, or non-custodial forms of penance. Although there is sometimes a reaction against such methods of sentencing as “soft”, this idea is hard to sustain where the victim, the victim’s family, and the arresting police officers form part of the circle, as they often do. More is required of the offender in terms of true repentance and seeking forgiveness, although less institutional incarceration is imposed. The sense of community, and encouraging by unconventional forms of social control and involvement the integration of the individual in that community, is the essence of this sentencing process. 37
Sentencing circles have been primarily employed in northern and isolated Aboriginal communities in Canada. They are used extensively in the Yukon and less so in Quebec, Manitoba and Saskatchewan. The use of sentencing circles continues to evolve and there is no doubt that the level of community involvement, the cooperation of the Crown and Appellate review will shape that evolution. However, it is not my intention in this paper to analyze in depth the use, merits and success of sentencing circles in the Canadian justice system. 38 Instead, it is simply to point out ways in which the principles of restorative justice are being integrated into the mainstream system as mandated by Parliament and supported by the judiciary.
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36 R. v. D.N., [1993] Y.J. No. 195 (QL) (Y. Terr. Ct.)

37 The Honourable Michel Bastarache, “The Challenge of the Law in the New Millenium”, (1997-1998) 25 Man. L.J. 411-419, at para. 19.

38 For a good analysis of sentencing circles in the Canadian justice system see Ross Green’s article, supra note 32.
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Another example of that integration is the use of Aboriginal Healing Circles under the Alternative Measures provisions found in section 717 of the Canadian Criminal Code. 39  Section 716 sets out the following definition:
“alternative measures” means measures other than judicial proceedings under this Act used to deal with a person who is eighteen years of age or over and alleged to have committed an offence.

Section 717 sets out the conditions and rules governing alternative measures but does not specify any specific model. Vancouver Aboriginal Transformative 40 Justice Services (hereinafter VATJS) is one example of an alternative model of justice that appears to have achieved some success operating within the criminal justice system.

I say within the criminal justice system because although VATJS operates with a fair degree of autonomy and flexibility, and participants are indeed diverted from the court system, the Crown retains a degree of control. For example, Crown Counsel must approve referrals to the program. Furthermore, Crown Counsel are required by Section 717 of the Criminal Code to be satisfied the recommended conditions of any Alternative Measures plan are appropriate. In the case of VATJS a Schedule of culturally appropriate measures was attached to the Protocol Agreement. “Conditions of healing plans that are taken from the Schedule do not require additional approval of Crown Counsel. If the Community Council recommends other reasonable, creative measures tailored to the individual and the circumstances that do not appear on the Schedule, approval of Crown Counsel is required before the measures are implemented.”41

In spite of this controlling influence of the Crown, the Protocol Agreement recognizes that “[o]ne of the key underpinnings of [the] Program is the transfer of responsibility from the courts to the Aboriginal community in holding Aboriginal offenders accountable for their actions. The Community Council model is specifically designed and implemented to allow the Aboriginal community in Vancouver to assume this measure of control over the way the criminal justice system deals with native offenders.”42
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39 Supra note 26.

40 There is debate over the use of the word restorative. Some argue that it presumes there was harmony in the first place and ask, “Restore to what? Pre-existing inequaties?” Barry Warhaft, director of VATJS, says that the notion of transformation is a part of many Aboriginal cultures and is truer to the spirit and intent of the program.

41 Vancouver Aboriginal Restorative Justice Program Provincial Crown Protocol Agreement, Legal Services Society, Native Programs, 1999.

42 Ibid.

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A Community Council consists of a recognized elder and three volunteers who represent a cross-section of Vancouver’s Aboriginal community. The Council comes together in a circle with the offender, the victim (if they agree), and their support people. Within the circle, participants discuss the circumstances of the offence and the underlying problems which led to the wrongful behaviour. The teachings of the sacred four directions of the Medicine Wheel guide the proceedings of the circle: East = setting the climate; South = telling the story; West = discovering what is important; North = creating solutions. The Council, with input from both the victim and offender, reaches a consensus on what is necessary for the offender to do to begin to restore his/her lost balance and make amends for the harm caused to the victim and the community. A plan is developed that consists of any number of options which include, but are not limited to community service, restitution or compensation to victims, apology to victims, direct services to victims, victim/offender reconciliation processes, education/employment/life-skills training, counseling, traditional teaching and cultural awareness, elder’s teachings, sweat lodges, cedar cleansing, family group conferencing and other reasonable, creative measures tailored to the individual circumstances, subject to Crown approval. 43

In April 2002, VATJS celebrated its second anniversary. As of 31 March 2002 there have been 82 cases referred to VATJS, which is considerably fewer than what it is capable of dealing with. There are a couple reasons for this. One is that if, upon receiving a referral, the client cannot be located, the file must be sent back to the Crown. This often occurs when the case is referred only after a period of time has passed, and subsequently the client’s address and/or phone number has changed. If VATJS personnel cannot track down the client his file must be returned. When this happens the client usually only becomes aware he has been referred to VATJS shortly before, or on, the day of his court appearance. The file may or may not be referred back to VATJS, depending on the Crown’s recommendation. This points to the main reason for the low number of referrals. Defense counsel, First Nations Law Clinics, Native Court Workers and the Law Courts Education Society can all request that the Crown refer a file to VATJS, but the ultimate decision rests with the Crown. It appears that the number of Aboriginal accused eligible for the program is greater than the number that are actually referred by the Crown. The reasons for this may be varied, but it highlights a major difficulty in the interaction between a restorative program such as VATJS and the criminal justice system.

This does not mean that the program is not successful, however. What might clearly indicate success or failure would be recidivism rates, however, it is too early in the existence of VATJS to determine that. Program Director, Barry Warhaft, also points out that success should not only be measured by recidivism rates as they do not tell the whole story. Other factors pointing to success include connecting a client to resources, community and spirituality, the healing of all parties, and personal growth in terms of self-esteem, anger management, respect for others and over coming addictions. 44 Furthermore, the Protocol Agreement recognizes “…the arduous and long-term nature of rehabilitation…[and] acknowledges the desire of the program to deal with repeat offenders….” 45

Presently VATJS handles cases concerning less serious offences. Some examples include theft, mischief, prostitution, break and enter, assault (but not spousal assault), and minor drug offences. There have been concerns expressed by women’s groups that serious offences related to violence against women and children should not be included in a program such as VATJS, at least not without proper consultation with women’s groups and serious consideration of their perspective on this issue. The Protocol Agreement demands such consultation. “The [VATJS} will consider more serious offences only when certain key considerations have been met. Those considerations will include but are not restricted to the Program receiving the mandate from the Aboriginal community to proceed with more serious offences as well as having adequate support services in place to deal with those offenders and victims’ concerns. … The degree and pace to which referrals of a more serious nature are accepted by the Program will be determined through the level of support indicated by the Aboriginal community to the [VATJS].” 46 It is the essence of restorative justice to be inclusive of all voices. However, in spite of the rapid growth and tremendous potential of restorative justice programs, that approach to justice is not without its criticisms.
_______________
43 VATJS brochure.

44 Warhaft, supra note 18; VATJS, “Community Drumbeats”, vol. 21, iss. 21, April 2002.

45 Supra note 41.

46 Ibid

_______________

CRITIQUES AND CONCERNS ABOUT RESTORATIVE JUSTICE

It is paradoxical that the growth and expansion of restorative justice programs is occurring at the same time there appears to be, in the U.S. and Canada at least, a public clamouring for the justice system to impose harsher punitive measures. The highest incarcerations rates in the world, the vast industrial prison complex, privatization of prisons and construction of so-called super prisons all belie the fact that restorative justice values are indeed making inroads into the entrenched system. The concern is that “[i]nnovations in entrenched systems such as criminal justice systems are often co-opted and diverted from their original visions. Terms are watered down; old approaches are justified with new concepts; programs are instituted without the necessary value base, with the result that they do not work or have unintended, negative consequences.”47

A common argument against restorative justice relates to the fact that it involves an individualized response to crime. The sentencing principle found in Section 718.2(b) of the Canadian Criminal Code 48 states:
a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

This principle of parity is often construed narrowly to mean that fairness requires “…the same sentence for people who have committed similar crimes. However, [the principle] could just as well be interpreted as requiring comparable sentences for comparable offences. This would mean punishment or responses may vary as long as they are meaningfully related to the nature and effects of the crime. Thus, in principle, there is no reason restorative justice cannot respect the tenets of proportionality and equality.”49
________________
47 Zehr, supra note 1.

48 Supra note 26.

49 Kurki, supra note 5, at 9.
__________________
One of the strongest critiques of restorative justice comes from the feminist perspective. Of great concern is the power imbalance inherent in cases of family violence. What is feared is “…the scenario of a dominating group of family violence offenders and their patriarchal defenders intimidating women and children who are victims into frightened silence.” 50

A report for the Aboriginal Women’s Action Network (AWAN) 51 indicates distrust of and lack of confidence in restorative justice projects for precisely that reason. Community involvement is the backbone of restorative justice but if a community is rife with inequities and power imbalances then that approach to justice only perpetuates the silence around family violence. It may be, however, that a restorative model can initiate the healing that such a community requires by following the example of VATJS and only progressing to serious crimes such as family violence once the community can demonstrate its ability to respond judiciously to such offences. In Australia restorative justice has successfully empowered women’s voices in the justice system. “Kathy Daly reports that this has been the experience so far in her extensive observations, from a feminist theoretical framework, of conferences in South Australia. Mothers are often the most eloquent communicators at restorative justice conferences. Sometimes they even speak of the violence they suffer at the hands of their sons, a matter on which they never want to testify in court." 52

Another concern for feminists is that the advances made by the women’s movement in the 1970s to have family violence treated seriously by the criminal justice system might be diminished by diverting such cases out of the court system. “Restorative justice advocates reply that court processing of family violence cases actually tends to foster a culture of denial, while restorative justice fosters a culture of apology. Apology, when communicated with ritual seriousness, is actually the most powerful cultural device for taking a problem seriously, while denial is a cultural device for dismissing it.”53
_______________
50 John Braithwaite, “Standards for Restorative Justice”, UN Crime Congress, supra note 3.

51 Wendy Stuart & Audrey Huntley, “The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities”, April 2001. Aboriginal Women’s Action Network, c/o VSW 309 – 877 East Hastings St., Vancouver B.C. V6A 3Y1.

52 Braithwaite, supra note 7, at para. 19.

53 Ibid at para. 14.
_______________

Another strong critique of restorative justice cautions against the institutionalization of restorative justice within existing criminal justice systems. James Guest points to several potentially problematic areas:
…the use of a restorative justice process within the linear criminal justice system raises issues regarding the level of coercion or the size of the stick being placed above the head of the victimizer. This sword of Damocles defeats the open, honest and respectful discourse sought by invoking the use of the restorative justice holistic processes within the criminal justice system. Victimizers, victims and communities cannot hope for resolution of their problems when the constant threat of incarceration chills the air. … The use of Family Group Conferencing is probably inappropriate after a charge has been laid. The use of a sentencing circle is inappropriate where exists the chance that the recommendations of elders and community members will not be respected by the judiciary. The use of restorative justice principles is inappropriate where the actors within the criminal justice system are not knowledgeable in the process or lack confidence in the use of the process. … There remains the real danger that reforms in the area of restorative justice will be a simple repackaging and relabeling of the existing criminal justice system. That these attempts will be used to deflect criticisms levied against the criminal justice system by the many reports and commissions. And that these attempts at reform will come to be embodied within statistical data used to “prove” that restorative justice doesn’t work. 54

James Zion puts it this way:
The problem with many contemporary justice initiatives directed at Indians is that they are integrationist and ultimately assimilationist. … Indian justice works because it heals. It should not be taken captive by a legal system based on force, as with circle sentencing dominated by a judge or family group conferencing directed by a non-Indian police officer. Indian justice should stand on its own and if the western systems of power, force, and authority wish to utilize Indian methods in their own way, they should do so. 55

Rather than allowing for an autonomous, Aboriginal legal system within the context of self-government the Canadian government has for some time now been on the path of indigenisation of the existing justice system. This includes many of the restorative justice initiatives discussed in this paper as well as the recruitment of indigenous peoples and organizations to deliver existing socio-legal services and programs. This has a ring of tokenism to it. “[I]ndigenisation serves as a cheap substitute for a measure of autonomy, self-government or, indeed, sovereignty. It assimilates indigenous people into the imposed social control apparatus rather than autonomising the social control apparatus for the benefits of indigenous people.”56 For many commentators “[t]he most appropriate place for Restorative Justice processes remains to be within separate aboriginal justice systems existing within separate aboriginal communities.”57
______________
54 James Guest, “Aboriginal Legal Theory and Restorative Justice: Part Two”, supra note 11.

55 Zion, supra note 9.

56 P. Havemann, “The Indigenisation of Social Control in Canada”, in B. Morse & G. Woodman, eds., Indigenous Law and the State (Dordrecht: Foris Publ., 1988) 74.

57 Guest, supra note 53.

______________

CONCLUSION

It is clear that the theories, principles and practices of restorative justice are making inroads into criminal justice systems around the world. What is less clear is the impact that is having on those systems. In Canada some view the incorporation of restorative justice values into the criminal justice system as a positive step in the right direction. It provides a role for victims and communities, it provides flexibility to an otherwise rigid system and it seeks to rectify centuries of injustice towards Aboriginal peoples by providing them with special consideration within the existing system. This optimistic view considers that restorative justice principles, while perhaps not being able to restructure the entire existing system, will at least influence policies and values for the better. Others feel, however, that for restorative justice to have any significant or lasting effect it should be implemented system wide and become the governing principle of the whole criminal justice system. They argue that it is unlikely that restorative programs can be truly restorative while operating within a system based on retributive values.

A third view sees the mainstream system’s incorporation of restorative justice as another example of cultural appropriation, assimilation and an attempted re-colonization of First Nations communities by neo-colonial states with a history of disempowerment of their indigenous populations. 58 For those that hold this view nothing short of a separate, self-governing Aboriginal justice system will ever provide true justice for Aboriginal peoples.

What all these views have in common is the knowledge that restorative justice works. It works because it is intrinsic to the human experience. It is not a grand system imposed by experts but has profound roots in ordinary people’s needs and experiences. It is common sense. 59
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58 Juan Marcellus Tauri, “Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand”, online: Justice as Healing <http://www.usask.ca/nativelaw/jah_tauri.html> (last modified: 8 November 2001).

59 Zehr, supra note 1.
__________________

BIBLIOGRAPHY


LEGISLATION

Criminal Code, R.S.C. 1985, C-46.


JURISPRUDENCE

R. v. D.N., [1993] Y.J. No. 195 (QL) (Y. Terr. Ct.).

R. v. Gladue
, [1999] 1 S.C.R. 688.

R. v. Moses (1992), 71 C.C.C. (3d) 347 (Y. Terr. Ct.).

R. v. Proulx, [2000] 1 S.C.R. 61.


SECONDARY MATERIAL: MONOGRAPHS

Sharpe, Susan, Restorative Justice: A Vision For Healing And Change (Edmonton: Edmonton Victim Offender Mediation Society, 1998).

Zehr, Howard, Changing Lenses: A New Focus For Crime and Justice (Scottdale, Pennsylvania: Herald Press, 1990) 181.


SECONDARY MATERIAL: ARTICLES

Bastarache, Michel, “The Challenge of the Law in the New Millenium”, (1997-1998) 25 Man. L.J. 411-419.

Braithwaite, John, “Restorative Justice and Social Justice” (2000) 63 Sask. L. Rev. 185-194.

Braithwaite, John “Standards for Restorative Justice”, Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna,Austria, April 2000.
Online:<http://www.restorativejustice.org/conference/UN/RJ_UN_AncillaryM.htm> (date accessed: 8 April 2001).

Evans, Donald G., “Keeping the Community Involvement in Restorative Justice”, Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna, Austria, April 2000. Online:<http://www.restorativejustice.org/conference/UN/RJ_UN_AncillaryM.htm> (date accessed: 8 April 2001).

Green, Ross, “Aboriginal Community Sentencing and Mediation: Within and Without the Circle”, (1997) 25 Man. L. J. 77-125.

Green, Ross, “Aboriginal People and the Canadian Justice System”, Justice As Healing, Vol.3 No.4 (Winter 1998) online:<http://www.usask.ca/nativelaw/jah_green.html> (last modified: 30 November 2000).

Guest, James “Aboriginal Legal Theory and Restorative Justice”, Justice As Healing Vol.4 No.1 (Spring 1999) online:<http://www.usask.ca/nativelaw/jah_guest2.html> (last modified: 25 August 1999).

Havemann, P., “The Indigenisation of Social Control in Canada”, in B. Morse & G. Woodman, eds., Indigenous Law and the State (Dordrecht: Foris Publ., 1988.

Kurki, Leena, “Incorporating Restorative and Community Justice into American Sentencing and Corrections”, Sentencing & Corrections: Issues For The 21st Century, U.S. Department of Justice, No.3, September 1999.

Pranis,Kay, “Communities and the Justice System: Turning the Relationship Upside Down”, online: <http://www.ojp.usdoj.gov/nij/rest-just/ch4/upsidedown.html> (date accessed: 16 April 2001).

Tauri, Juan Marcellus, “Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand”, online: Justice As Healing
<http://www.usask.ca/nativelaw/jah_tauri.html> (date accessed: 23 April 2001).

Van Ness, Daniel, “Restorative Justice Around the World”, Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna, Austria, April 2000. Online: <http://www.restorativejustice.org/conference/UN/RJ_UN_AncillaryM.htm> (date accessed: 8 April 2001).

Zehr, Howard, “Restorative Justice Hits the Big Time”, online:<http://www.restorativejustice.org/conference/Rjhitsbigtime.html> (date accessed: 8 April 2001).

Zion, James, “Punishment Versus Healing: How Does Traditional Indian Law Work?”, Justice As Healing, Vol.2 No.3 (Fall 1997) online:
<http://www.usask.ca/nativelaw/jah_zion.html> (last modified: 25 August 1999).


SECONDARY MATERIAL: REPORTS, COMMISSIONS, INQUIRIES
Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report of Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996) at 12.

House of Commons Debates, Vol.IV, 1st Sess., 35th Parl.

Manitoba, Public Inquiry Into The Administration of Justice and Aboriginal Peoples, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Vol. 1 (Winnipeg: The Queen’s Printer, 1991.

Stuart, Wendy & Huntley, Audrey, “The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities”, Draft version, unpublished, April 2001. Aboriginal Women’s Action Network, c/o VSW 309 – 877 East Hastings St., Vancouver B.C. V6A 3Y1.

Vancouver Aboriginal Restorative Justice Program Provincial Crown Protocol Agreement, Legal Services Society, Native Programs, 1999.


31 comments:

  1. Justice system failing First Nations, report finds

    Iacobucci urges action to get aboriginal representation on Ontario juries

    CBC News February 26, 2013

    It's time for the Ontario government to "get on with it" when it comes to implementing long-awaited recommendations on First Nations juries in Ontario, retired Supreme Court of Canada justice Frank Iacobucci says.

    A long-awaited report released Tuesday that examines a lack of First Nations representation on juries in Ontario makes 17 sweeping recommendations — not just about First Nations jury representation but about justice as a whole.

    Iacobucci, who was asked a year and a half ago to investigate why so few jurors were members of First Nations communities, said a lack of jury representation is a symptom of bigger justice issues for aboriginal people.

    "If the justice system continues to fail First Nations, they will continue to be reticent to participate on juries," he told a Tuesday morning news conference to unveil the report in Thunder Bay.

    "The time for lofty words and speeches is over. It's time for urgent, substantive and meaningful change."

    Iacobucci called on the Ontario government to implement report recommendations promptly, as First Nations people are all too familiar with reports that sit on shelves.

    He also called for the creation of an assistant deputy attorney general position that would be responsible for aboriginal justice issues.

    Iacobucci's other recommendations range from better data collection for jury rolls to cultural training for police, court workers and prison guards.

    A copy of the report follows at the end of this story.

    The recommendations can’t come soon enough for Marlene Pierre, a member of the Fort William First Nation.

    Five years ago, Pierre’s 27-year-old grandson, Jacy Pierre, died at the Thunder Bay District Jail.

    An inquest into his death was stayed because there was no aboriginal representation on the jury.

    "My daughter and I, we left. We walked out of the inquest," said Pierre.

    A new inquest into Jacy Pierre’s death is expected to start sometime this year and Pierre wants to make sure First Nations people are on the jury.

    "We feel that a terrible injustice is being done to aboriginal people,” said Pierre. “And if we can have some impact on that, then fine."

    Concern about First Nations representation on juries also arose during inquests into the deaths of First Nations students in Thunder Bay.

    continued in next comment...

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  2. The Deputy Grand Chief of the Nishnawbe Aski Nation, which represents 49 First Nations in northern Ontario, said the justice system is failing aboriginal communities.

    "I think it's very important that a representative from one of our communities be there ... in order for the families... to see it as a credible process," said Alvin Fiddler.

    The lack of aboriginal representation also means that First Nations people charged with crimes are denied their right to be heard by a jury of their peers, added Fiddler.

    "If you go to trial, you're to be tried by [a] jury of your peers. And I think for many of our community members … if they go to trial and it's a jury trial, chances are they won't see a member of their community as part of that jury."

    Fiddler said he hopes the recommendations Iacobucci puts forward will change that.

    In his report, Iacobucci said that during his meetings with First Nations people from 32 communities, "one point was resoundingly clear: substantive and systemic changes to the criminal justice system are necessary conditions for the participation of First Nations people on juries in Ontario."

    He noted that First Nations leaders "were unequivocal that reintroducing restorative justice programs would have multiple benefits at the community level. Such benefits include the delivery of justice in a culturally relevant manner, greater understanding of justice at the community level ... and an opportunity to educate people about the justice system and their responsibility to become engaged on the juries when called upon to do so.”

    Nishnawbe Aski Nation Grand Chief Harvey Yesno responded to the report by thanking Iacobucci for "his hard work and dedication.”

    “He invested quality time to ensure there was inclusion of our communities through this process, which will go a long way in restoring confidence in the justice system."

    Following the report's release, Attorney General John Gerretsen issued a statement saying he would be reaching out to his "counterparts across government and to First Nations leadership to discuss the important issues raised in this report and to begin the work that is needed to address them.”

    Gerretsen said he would immediately work to address what he called the top two recommendations:

    "We will form an implementation committee that includes the First Nations community... [to] consider the report's recommendations and how they might be implemented.”

    He added a provincial advisory group will be set up to provide advice to the Attorney General on matters relating to First Nations and the justice system.

    http://www.cbc.ca/news/canada/thunder-bay/story/2013/02/26/tby-first-nations-jury-representation-reccomendations-released.html

    you can find the full report in pdf at:

    http://turtletalk.files.wordpress.com/2013/02/english_fullreport.pdf

    ReplyDelete
  3. The Transformative Justice Journal

    by Save the Kids, a grass-roots fully-volunteer organization that is grounded in the values of Hip Hop activism and transformative justice, which advocates for alternatives to, and the end of, incarceration of all youth


    The Transformative Justice Journal (TJJ), founded in 2012, is an online, open-source, and peer-reviewed journal dedicated to promoting transformative justice. As an academic-activist journal, TJJ was developed out of scholarly and community dialogues around promoting social justice community-based alternatives to both the retributive and utilitarian punishment models used by criminal justice systems, which victimize offenders and re-victimize survivors of offenses. The current punitive criminal justice system takes control, responsibility, healing, and accountability away from victims and offenders and instead gives them a powerless and victimizing experience. Transformative justice, however, views conflict not from the lens of the criminal justice system, but from the community; as such, those involved in the conflict are seen as individuals rather than victims or offenders. Moreover, transformative justice addresses oppression by systems of domination, such as racism, sexism, homophobia, ageism, elitism, classism, and ableism within all domestic, interpersonal, global, and community conflicts. In short, transformative justice is restorative justice plus social justice. Transformative justice expands the social justice model, which challenges and identifies injustices, in order to create organized processes of addressing and ending those injustices. Transformative justice and social justice work together in addressing this need. Transformative justice also builds off the principles of restorative justice in order to address experiences of oppression within mediation.

    TJJ’s mission is not only to identify and challenge the current punitive and retributive criminal justice system, but to end all forms of oppression and punishment within society. TJJ also aims to go beyond theory by promoting transformative initiatives and offering practical and actionable strategies for change in a plain-speaking theory-to-action publication.

    http://savethekidsgroup.org/?page_id=2444

    ReplyDelete
  4. Ottawa's Notre Dame High School turns to indigenous tradition to resolve conflict

    Notre Dame High School's 'restorative practices room' open to all students and teachers

    By Waubgeshig Rice, CBC News November 12, 2015

    An Ottawa high school has created a new space to help students resolve conflicts and connect with indigenous culture and traditions such as smudging.

    Notre Dame High School, under the Ottawa Catholic School Board, opened its new "restorative practices room" Thursday with a special ceremony involving local elders, students, teachers and school officials.

    Native studies teacher Alanna Trines and guidance counsellor Kate McGarrity-Fournier helped create the space, which features a circle for discussions, indigenous learning resources and traditional medicines like sage and sweetgrass for smudge ceremonies.

    "Its origins are in First Nations community circles, where people would come together and share their voice and concerns and be respected," said McGarrity-Fournier.

    "If there's a specific conflict in the school, we will be able to refer to this room specifically for restorative practices conflict resolution," added Trines. "We'll be able to have any student that's involved in a conflict sit in a circle, and we'll be able to resolve that conflict in a restorative practices type of way."

    Room open to all students and staff

    Former principal Bonnie Campbell came up with the idea for the room, which will be open to all of Notre Dame's staff and 750 students as a gathering space, or even to hold classes.

    Trines plans to use it regularly for her students, where they'll smudge a few times a week, a practice she's been doing with her classes in recent years

    "I just hope that everyone is going to be comfortable to access this space openly, because I don't want anyone to be shy," said Trines. "If anyone wants to come in, have a class in here, or if a student feels like they just want some quiet time in this space."

    "What we hope for the room is that it will build relationships, create a more inclusive environment at Notre Dame, and a place where people feel their voice can be heard and shared and respected," added McGarrity-Fournier.

    see video of Grade 10 student Kathy Mitchell at:

    http://www.cbc.ca/news/canada/ottawa/ottawa-s-notre-dame-high-school-turns-to-indigenous-tradition-to-resolve-conflict-1.3315751

    ReplyDelete
  5. Restorative justice is effective, not 'soft on crime', say advocates

    North Vancouver organization takes referrals from local police for crimes including arson, theft, assault

    By B.C. Almanac, CBC News November 19, 2015

    Every year, the third week of November is marked as Restorative Justice Week by the B.C. Ministry of Justice.

    http://www.pssg.gov.bc.ca/crimeprevention/justice/

    Catherine Bargen, a restorative justice coordinator with the ministry, said the idea of the week is for people to learn more about restorative justice, which she said has "many misconceptions."

    "It's thought to let someone off the hook, or that it's something that is soft on crime," she told B.C. Almanac host Gloria Macarenko.

    Rather than having a victim and offender going through the court and prison systems, restorative justice brings together those involved in the crime — the offender, victim and others in the community.

    "Restorative justice is a philosophy that actually aims to hold people meaningfully accountable in the aftermath of a harm that has been committed, and ensure that restitution and reparation is made in a meaningful way," said Bargen.

    "It's a victim-focused process, so that victim's needs are met as well, in a way that often cannot be met through the court system."

    A 'powerful' experience

    Alex Zuur, program manager of the North Shore Restorative Justice Society, runs programs with the West Vancouver Police Department and the North Vancouver RCMP.

    http://www.nsrj.ca/

    She said the process starts with separate meetings with the offender, victim and other parties involved, and that leads to a face-to-face meeting, giving the victim an opportunity to have their questions answered directly by the offender.

    "It puts a person to the crime and it gives a context to something that otherwise for a victim can be quite an isolating experience.

    "They never have a chance to ask some of those questions [and] that can be often ongoing and more traumatizing than the event itself."

    Zuur said her organization accepts a "huge" range of referrals, including crimes of arson, theft, assault and property damage, but said they also take non-criminal referrals from community members.

    She said the process doesn't work in all situations, and the offender must be willing to accept responsibility for their actions for the process to go forward.

    Zuur doesn't believe it is an easy way out for offenders.

    "When people are having to sit across the room and look someone in the eye and give them a verbal apology for what they've done, that is — from my experience of witnessing it first hand — often a much, much more powerful experience and can actually often be quite difficult for some people to say those words of apology."

    http://www.cbc.ca/news/canada/british-columbia/restorative-justice-misconceptions-soft-on-crime-1.3327001

    ReplyDelete
  6. Restorative Justice Gives Our Children Dignity in US Schools

    By Eisa Nefertari Ulen, Truthout | December 29, 2015

    The deadly attacks against Black bodies made by police officers in our communities are mirrored by physical attacks against Black bodies made by officers in our schools.

    The October 2015 physical assault of a Black student who refused to leave her desk in South Carolina's Spring Valley High School was a particularly acute example of this, but in reality a spectrum of related violence is directed at Black students every day.

    Black children are more likely to be physically disciplined in US schools than any other racial group. Black children are also more likely to be suspended than other children - even when the offense they commit is the same. That final detail is critical. It is difficult to imagine a blond girl of the same age and attitude flung about like a doll. It is hard to imagine white children forced into silent stillness, a kind of sublimation, as a classmate is body-slammed, lifted and then tossed across the room.

    The obvious normalization of aggressive law enforcement incursions into Spring Valley classrooms is further proven by the covert way other students recorded the incident. Children in fear remain rigidly in place when an adult muscles one of them onto the ground. Children for whom this level of violence is routine do not rise in panic as they bear witness. Children aware that they will be targeted for recording it all pull their phones back into their bags in fear. Yet some students bravely acted as allies and did in fact catch it all for the girl in their class.

    In their video, Richland County Deputy Ben Fields towers over her. He grabs her neck. He yanks her backward. He slams her on her back. She is still in her chair. He lifts her off the ground. He throws her several feet.

    She is a child. We do not see her face. We do not know her name. She is too young for that.

    She is not an anomaly. This is not some rare occurrence - and it is not limited to the actions of officers. Nineteen states still allow corporal punishment in schools. Twelve of those states were part of the Confederacy. Yet all evidence supports the idea that physical assaults against young people increase violence, decrease learning and disrupt school life.

    Experts believe that there are between 2 and 3 million cases of corporal punishment in US schools each year. Victims of corporal punishment are most often young Black boys who attend rural schools. Each year, 10,000 to 20,000 children who receive corporal punishment request medical treatment after the beatings occur. In his 2010 testimony before the House Education and Labor Subcommittee on Healthy Families and Communities, Donald E. Greydanus, a pediatrician, professor of pediatrics and human development at Michigan State University, and pediatrics program director at the MSU Kalamazoo Center for Medical Studies in Kalamazoo, Michigan, concluded that:

    --There is no clear evidence that such punishment leads to improved control in the classroom.

    --Corporal punishment has major deleterious effects on the physical and mental health of students punished in this manner.

    --It severely reduces and does not enhance the academic success of students who are subjected to corporal punishment in schools.

    --The use of corporal punishment in schools reinforces physical aggression and promotes violence in society.

    continued below

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  7. Fortunately, activists have long resisted the imposition of violent disciplinary systems on students of color - and some of them are doing so by providing creative and effective alternatives. Since 2005, Fania Davis has been providing tools for teachers to foster violence-free classrooms through her organization, Restorative Justice for Oakland Youth. The civil rights attorney and community activist, who earned a law degree from the University of California at Berkeley and a Ph.D. from the California Institute of Integral Studies, was inspired by the success of the Truth and Reconciliation Committee in South Africa and restorative juvenile justice legislation in New Zealand.

    "In 1989," Davis told Truthout, "New Zealand passed national legislation that replaced their punitive juvenile justice system with a restorative one, following organizing and pressure by the Maori, an indigenous, oppressed group in that country. Within little more than 10 years in that country, youth incarceration became virtually obsolete - restorative strategies are being used, except for cases of homicide. We can learn a lot from the New Zealand experience."

    Rather than punitive forms of discipline, restorative justice (RJ) seeks a holistic approach to individuals that includes family and community, repairs harm, addresses causes of behavior and meets victims' needs, while promoting youth accountability and growth. In a case like the one at Spring Valley High School, Davis explains, an RJ approach would start with adults "trained to see the kind of behavior the student exhibited as a manifestation of trauma, rather than seeing the behavior as being disrespectful and defiant toward them personally as an authority figure." Adequate RJ training would lead staff to ask questions that reduce fear and help the child shift to a more "reflective state of relaxed alertness."

    "The restorative conversation in the classroom would lead to a deeper conversation with the child and other adults who care about her in which her backstory would have surfaced," Davis added. "An RJ circle to bring together everyone impacted to share stories and feelings, talk from the heart and with respect about what happened, how it impacted everyone, and come up with a plan to address needs and responsibilities and to heal the harm to the degree possible. In this case the circle would have been called with the student, the teacher and adult family members or caregivers of the child. Apologies might be made, and ideally, everyone would feel heard and seen and have their needs addressed."

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  8. RJ is enabling schools to begin to create spaces where our children can heal rather than experience further harm, as the Spring Valley student did when she was arrested after the physical assault in her classroom occurred. Indeed, at a school that embraced RJ, the assault likely would never have taken place at all, as the security officer would not have been called in to manage something as simple as a child's grip on her cell phone. Davis notes that in schools structured around restorative justice principles, 88 percent of teachers reported that implementation of RJ helped them manage difficult classroom behaviors.

    The benefits of RJ implementation extend far beyond improved classroom management. Davis cites a 2015 study that compared academic and social outcomes of RJ versus non-RJ schools over a period of three years that found an increase in graduation rates of 60 percent and an increase of reading scores of 128 percent. Meanwhile, chronic absence decreased by 24 percent and four-year dropout rates decreased by 56 percent.

    The shift from punitive to restorative institutions requires the buy-in and full-on participation of the entire community. In schools, that includes cafeteria workers and maintenance staff as well as school administrators, teachers, and other professionals and paraprofessionals. One full-time member of the school personnel must be adequately trained and experienced to spearhead RJ initiatives on-site and enable effective implementation of schoolwide buy-in, according to Davis.

    Investment of resources, financial and otherwise, is crucial to liberate youth from the dangers of punitive strategies. And right now is a vital time to push for these shifts in both resources and mentalities.

    "Timing for rapid change couldn't be better, given the dramatic rise of the Black Lives Matter movement and the resulting unprecedented national conversation about race, the racialized school-to-prison pipeline and mass incarceration strategies," Davis said.

    It's time to build momentum in the wake of videotaped incidents like the one at Spring Valley High. Schools throughout the Bay Area have begun to implement RJ, as have schools in Minnesota, Pennsylvania, Illinois, Colorado, Maine, Montana and many other states. Certainly, all our children deserve implementation of RJ in every school - and other institutions serving youth - everywhere, nationwide. It's time to build rather than debase.

    http://www.truth-out.org/news/item/34203-restorative-justice-gives-our-children-dignity-in-us-schools

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  9. Residential school survivor says Indigenous Court in Prince George, B.C., marks turning point for justice

    Indigenous sentencing program works with elders to develop healing plans for offenders to re-enter society

    by Andrew Kurjata · CBC News · March 23, 2018

    A residential school survivor says the opening of a new Indigenous Court in Prince George, B.C., marks a turning point for reconciliation in the Canadian justice system.

    Ray Izony is a member of the Prince George Elders Justice Council, which will help sentence offenders selected to take part in the province's sixth Indigenous Court, and first in the north.

    Indigenous Courts (previously referred to as First Nations Courts) work within the existing criminal justice system with offenders who have already admitted their guilt.

    Judges work with lawyers, community elders and often victims to come up with a "healing plan" for the offender that is aimed at rehabilitating them back into society while they serve their sentence.

    Izony and other members of the Elders Justice Council have been trained in how to take part in this system and will develop healing plans for offenders to follow in conjunction with the rest of their sentence.

    "It's very encouraging," Izony said of the grand opening ceremony for the court, held Friday.

    "For the first time, I think, First Nations are going to be up there recognized in the justice system... That means healing for our people."

    Izony, a member of the Tsay Keh'nay First Nation who attended the Lejac residential school as a child, is one of five members of the council which includes elders from the Lhedili T'enneh, Nisga'a, and Gitksan/Tsimshian nations.

    The council worked alongside the Prince George RCMP, Prince George Urban Aboriginal Justice Society and city of Prince George to help bring the court to the city, which has an Indigenous population of over 12,000 people.

    Prince George RCMP Supt. Warren Brown said it's long been a goal of his to establish an Indigenous court in Prince George in order to address systemic problems rather than simply having offenders go in and out of jail.

    Christina Draegen, who is the northern regional manager of the Native Courtworker and Counselling Association of B.C. and lead of the push to bring the Indigenous court system to Prince George, said she was "overwhelmed" to finally see the work come to fruition.

    "For a long time, there's been many tears of frustration thinking that this day would never happen," she said. "And here we are."

    The court begins operations April 1.

    By the numbers
    In 2016, Canada's prison ombudsman provided numbers outlining the overrepresentation of Indigenous people incarcerated in Canada to the federal government. Some of those findings were relayed by Justice Minister Jody Wilson-Raybould in remarks she made favouring restorative justice. They included:

    In 2016, Indigenous people represented more than 25 per cent of inmates while making up just 4.3 per cent of the overall population.

    Between 2005 and 2015, the Indigenous inmate population grew by 50 per cent compared to the overall growth rate of 10 per cent.

    Indigenous women comprise 37 per cent of all women serving a sentence of more than two years.

    Incarceration rates for Indigenous people in some parts of Canada are up to 33 times higher than for non-Indigenous peoples.

    With files from Audrey McKinnon and Nicole Oud.

    http://www.cbc.ca/news/canada/british-columbia/prince-george-indigenous-court-1.4591036

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  10. Restorative Justice Won’t Work Without This Crucial Piece

    by Madison Pauly, Mother Jones August 13, 2021

    Cook County Associate Judge Stuart Katz wanted to try something completely different. The Illinois juvenile court judge was sick of the usual options: locking up young people or sentencing them to community service. More “creative” approaches, like mentoring or drug treatment programs, helped the kids who had been prosecuted, but they did little for the people those kids hurt, Katz says. “You also want to give back to the community,” he explains, “and back to the victim.”

    So in 2011, he launched a program to give convicted youth the option to participate in a restorative justice process, in which people who cause harm, and those affected by their actions, are brought together for a facilitated dialogue. Together, they reach an agreement about how to repair whatever damage has been done. For a hungry child who stole a bag of Cheetos from a Target, such an agreement might involve a community nonprofit helping his family get food stamps, says Patrick Keenan-Devlin, executive director of the Moran Center for Youth Advocacy, an Illinois juvenile defense and social work nonprofit. In a hypothetical case of sexual assault, it might involve a perpetrator fully admitting their guilt to a survivor. Kids who successfully participated in the process set up by Katz, which was facilitated by a local Catholic restorative justice group, received community service credit that counted toward their sentence.

    For the first 10 or so kids who opted in, the program was “hugely effective and transformative,” says Katz, who is now retired. One marker of its success was the recidivism of participants, which fell to almost zero. According to Katz, one child who was caught breaking into a police officer’s house ended up playing on a basketball team coached by the cop after they went through the process. “It was just amazing, and the sort of thing that absolutely never would have happened had it not been for that kind of a program,” Katz says. “That was so clearly the intent of the restorative justice program—to help these kids not recidivate, to help them understand, to let them get what help they needed, and to deal with this on a more personal level, and not just as a cold courtroom.”

    But it wouldn’t last. Before long, public defenders started declining Katz’s offers for restorative justice, worried that whatever their young clients admitted during the process might later be used against them in court. “Just like any other criminal defense lawyer, they’re not going to allow their client to incriminate themselves,” says Amy Campanelli, the former chief public defender in Cook County. Restorative justice, Campanelli explains, involves an open discussion about why a person did what they did, to get to the root causes of a harmful behavior. But if, for example, a participant arrested for selling heroin to an undercover cop says they dealt drugs for years to support an addiction, what’s to stop a prosecutor from tacking on additional possession and trafficking charges? Even when restorative justice practitioners use their own confidentiality agreements, “people can drive Mack trucks through loopholes within those,” Keenan-Devlin says.

    Without a guarantee that statements made in restorative justice wouldn’t be used against the kids who opted in, Katz’s program fell apart in 2012. Now, a new law might make programs like Katz’s possible again. In July, Illinois lawmakers attempted to solve the problem that plagued it by barring any statements made in a restorative justice process from being used later in lawsuits, prosecutions, or other court proceedings. The “privilege” now granted to restorative justice in Illinois resembles the same protections afforded to conversations between doctors and patients; therapists and clients; or in legal mediation.

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  11. It doesn’t prohibit participants in restorative justice from disclosing what’s said in the process. But it prevents those disclosures from being used later to prove a legal case. “It really is about evidence—what can come into a court of law from those sanctioned relationships,” says Keenan-Devlin, the law’s co-author.

    With its new law, Illinois joins a small group of states—including Delaware, Nebraska, and Tennessee—that have created special protections for what’s said in a restorative justice process, according to a database maintained by Shannon Sliva, a professor of social work at the University of Denver. But Illinois’ may be the broadest, because it recognizes not only “victim-offender dialogues” used in the criminal legal system, but also grassroots processes that aren’t directly associated with the courts, such as peace circles run by schools, nonprofits, or individual practitioners. Sliva, who has tracked over 240 pieces of restorative justice legislation passed from the 1970s to 2019, says the law’s definition of restorative justice is unusual because it uses the language of restorative justice practitioners rather than that of the criminal legal system: It references “parties who have caused harm” rather than “offender,” as well as trauma and a goal of strengthening community ties.

    While state laws authorizing and governing restorative justice have become increasingly common, Sliva says, they don’t always yield an uptick in the use of restorative processes. Proponents of the new Illinois law believe it is essential groundwork for the spread of such practices. “That’s the big question,” Sliva says. “If, a year from now or three years from now, or five years from now, that Illinois finds that the passage of this bill has expanded access.”

    Supporters see restorative practices as a powerful alternative to the traditional justice system, in which judges and prosecutors representing the government send people to prison as a way of punishing past crime and deterring future crime, with “rehabilitation” an afterthought if it happens at all. Victims, meanwhile, have their testimony used by a prosecutor to secure a conviction, but are otherwise left out of the justice process. Supporters argue that restorative justice, in contrast, allows victims to define what “accountability” and “justice” mean to them; the people who cause harm get an opportunity to right their wrongs to the extent possible while being supported by their community. Ideally, this prevents them from committing the same crime again. “Restorative justice is a way to create or reestablish relationships where they’ve been broken. It puts names and faces to these things in a way that we haven’t done in quite some time,” says Tanya Woods, whose Chicago-based organization, the Westside Justice Center, uses restorative practices to resolve matters that otherwise would go to civil court. But participants have to feel safe enough to be honest—and in most places in the US, restorative justice conversations are not privileged. “If people are guarded by what they think they can say, you don’t have an honest, open and candid process or conversation, because people have to be worried about what they’re going to say being used against them later,” Woods says. “It almost damns the conversation before it even gets started.”

    “We really want to see restorative practices practiced universally,” Keenan-Devlin says. “We wanted the state, essentially, to condone restorative practices, and communicate out to the residents of the state of Illinois that this is something we encourage. So when you communicate in a restorative setting, you know that the tentacles of the state will not be present, and will not undermine—I’m going to talk like a Catholic for a second—the sanctity of that practice.”

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  12. Restorative justice isnt a religious concept, but Illinois’ new restorative justice privilege law originated in Chicago’s Catholic community. In 2015, during a series of meetings on restorative justice held by the Catholic Lawyers Guild of Chicago, Katz aired his frustrations with the failure of his old program. Other attendees, including Keenan-Devlin, proposed drafting a rule change for the Illinois Supreme Court that would create a restorative justice privilege. When that effort failed, a coalition of advocacy groups led by the Evanston-based Juvenile Justice Initiative brought the idea to the legislature.

    Restorative justice had already gained a little ground in the state. At the urging of the legislature, the Juvenile Justice Initiative had begun researching restorative justice in 2015. Focusing on Northern Ireland, which implemented restorative justice for youth after the Troubles, and other places abroad, they found that other countries broadly followed the United Nation’s principles for the use of restorative justice programs. “One of these critical principles is confidentiality,” says Betsy Clarke, founder and president of the Juvenile Justice Initiative. “You can’t have a restorative justice practice without people feeling safe.” Over the following year, Clarke’s group worked with a London-based foundation to help the Circuit Court of Cook County create “restorative justice community courts.” Launched in 2017, those courts now operate in three neighborhoods, handling nonviolent cases involving young adults. Meanwhile, schools in Chicago adopted restorative processes to deal with student discipline problems without suspensions or other punishments.

    But it took three attempts for the privilege legislation to pass, after bills died without a floor vote in both 2019 and 2020. This year, SB 64 sailed through the Democratic-majority legislature—passing the state Senate mostly along party lines, and winning over a handful of Republicans in the state House of Representatives.

    What changed? “The death of George Floyd,” Katz says simply. In response to last year’s uprising against racism and police brutality, the Illinois legislature made major changes to the state’s criminal legal system, passing landmark bills to abolish cash bail, expand prisoners’ rights, and create a new process to decertify abusive police officers. “Floyd’s death made people aware that we need to do things differently,” Katz says. “Restorative justice was one of the things that started getting thrown out there as an alternative to police, when you talk about defunding police in a broad sense.”

    Black and Brown communities have the most to gain from restorative justice, Woods argues, because they’re the ones most hurt by the punitiveness of the traditional justice system. “The cumulative effect of unfair and unjust systems weighs more heavily upon those who’ve already been oppressed for generations,” she says. “It hurts us more than it hurts anybody else. Because we’re more likely to be picked up off the street, arrested, for crimes that if we lived in Glenview, probably somebody would just call our parents.”

    But in addition—and crucially, according to Clarke—victims’ rights organizations also lined up to support SB 64. Advocates for survivors of gender-based violence argued to the legislature that restorative justice isn’t simply a way for perpetrators to avoid jail time—it gives survivors a much-needed option for pursuing accountability, justice, and healing.

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  13. We have survivors who are walking in the door and saying, ‘This person harmed me. I don’t necessarily want them to go to jail. I don’t want them to go to prison,’” says Madeleine Behr, policy manager for the Chicago Alliance Against Sexual Exploitation. Some of those survivors don’t want to go through the often retraumatizing process of reporting to Chicago police, who have a poor track record of responding to reports of sexual harm—making arrests in only 10 to 20 percent of cases, according to a CAASE analysis. Others are looking for alternative forms of redress, or simply for their abusers to take responsibility for hurting them. For those survivors, Behr says, restorative justice ought to be an option. “Part of restorative justice is making sure that the survivor can really hear from the person that harmed them that they admit to what they did,” Behr says. “The survivor can specify what they need from that person to be able to heal. It can be really tailored to what the survivor wants.”

    “But that can’t happen,” she adds, “if the people who have caused harm can’t really fully open themselves up to that process.” Before SB 64 passed, when survivors asked CAASE about restorative justice, advocates had to let them down gently.

    Having gender-based violence survivors on their side “completely changed the politics,” Clarke says. “That really countered any concerns by law enforcement. Once you have groups that have been harmed, survivor groups, coming forward and saying, ‘We need this option,’ then prosecutors, sheriffs—whatever they say doesn’t carry as much weight.”

    “There is often this perception that criminal justice reform and supporting victims are counterintuitive and oppositional,” Behr says. “We fundamentally repudiate that every chance we get. We can create systems that are beneficial to all parties, and make communities safer, and actually create the kind of accountability and justice that people are looking for.”

    Of course, there are far more barriers to expanding the use of restorative justice than just the issue of privilege. Sliva, at the University of Denver, points to persistent reluctance among judges and prosecutors to use restorative justice, even when their state has passed legislation authorizing it. Campanelli, who became vice president of restorative justice at Lawndale Christian Legal Center after the end of her term as Cook County public defender, argues that another barrier is money—politicians who don’t believe that restorative justice can effectively address crime pour money into law enforcement and prosecution, rather than community-oriented solutions.

    Restorative justice, after all, is also a challenge to those who currently hold power in the criminal justice system. “It’s taking the power away from the judge and the prosecutor,” Campanelli explains. “It’s the community who’s going to have a say in this, and say, ‘Look, we know we know what the effects of crime are on our community, and we’re going to change it. And here’s how we’re going to do it.'”

    https://www.motherjones.com/politics/2021/08/restorative-justice-illinois-privilege-criminal/

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  14. Faced with a violent killing, a family chooses forgiveness over prison

    Donald Fields Jr faced a life sentence after he was charged with his father’s murder. Instead, his case became a pioneering instance of restorative justice

    by Oliver Laughland in Durham, North Carolina
    The Guardian June 26, 2023

    Alex Fields had not spoken to his nephew in four years. Not since the killing.

    He had been preparing himself for months. Speaking with his counselors and siblings, seeking guidance from his church as he ran through what their first conversation would be like. But when his nephew Donald Fields Jr finally appeared over Zoom from the county jail, Alex Fields was consumed by the moment.

    “It just brought back all the memories,” he said. “It brought back that entire day.”

    Don Jr was charged with the murder of his father, Donald Fields Sr, in 2016. He faced a possible life sentence and had not spoken to members of his family since he was taken into custody in June that year. But today was the first step in a long journey that would see a tragedy transformed into a pioneering case of compassion in America’s punitive criminal justice system. It marked the first time that restorative justice – the act of resolving crimes through community reconciliation and accountability over traditional punishment – had been used in a homicide case in the state of North Carolina. And probably the first case of its kind in the US.

    “Hey Don, how are you doing?” Alex Fields remembered saying to his nephew. “It’s been a long time.”

    “Hey,” Don Jr replied, holding back tears, “it’s good to see you.” He had never been known in the family as much of a talker.

    “I just want you to know that what you did was horrific,” Alex said. “It’s been four years and your entire family is still suffering.

    “But I have to forgive you. I want to forgive you. And I want you to forgive yourself.”

    It had taken Alex Fields the better part of three years to forgive his nephew.

    Alex remembered seeing Don Jr at his first court appearance the day after the killing. He had appeared in the Durham county court wearing an orange jumpsuit, his wrists shackled, avoiding eye contact while members of his family sat in disbelief, watching from the public benches.

    Alex was shellshocked. It was a violent, bloody killing that had happened over something so seemingly banal that he could not fathom it.

    According to prosecutors, Don Jr, then 24, had stabbed his father with a folding pocket knife during an argument triggered by the placement of a television set. It happened at the home they shared with other members of the family. The two had briefly argued and Don Sr, 54, had threatened to beat his son and kick him out of the home. That’s when Don Jr pulled the knife.

    An autopsy found 18 lacerations on Don Sr’s body, including wounds to his heart, lungs and humerus bone. The killing left the living room sprayed with blood, staining the carpet, the walls and the chairs.

    Lessie Vivian McGhee-Fields, Alex’s mother and the family’s matriarch, had been in her bedroom. At 93 , she had dementia and was permanently bedbound. Her son had been killed by her grandson in the living room of her own home, one she had acquired through hard work and selfless sacrifice over many decades.

    The thought of his mother, alone in her room while the whole thing happened, would come to haunt Alex. She was left for hours on her own in the house as the police cordoned off the scene.

    Don Jr had fled almost instantly. His cousin Brandon, who had witnessed the stabbing, had sprinted up the road to the local church where family members were wrapping up a Sunday service. They called 911. Hours later, Don Jr turned himself in at a gas station as news of the murder blared on local television. He still had the knife in his possession.

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  15. As Alex sat in court the next day, watching his nephew bow his head, forgiveness was far from his mind. He was irate. And he couldn’t comprehend any of it.

    As he tried to make sense of the situation, the familiar cogs of the legal system had already begun to turn, and Don Jr was facing decades locked away.

    It was one of 45 homicides in Durham that year.

    As a former defense attorney and the leader of a fair housing coalition, Satana Deberry was not a typical candidate for the job of top prosecutor. But her primary victory in May 2018 was decisive and seen as a bold move towards progressive reform in this left-leaning city, which sits in the center of North Carolina and is dotted with college campuses and tall church steeples.

    “We need a culture change in Durham,” Deberry said during the campaign for district attorney. “We can’t continue to call ourselves the most progressive city in the south and over-prosecute people.”

    Despite its liberal facade, Durham’s DA’s office has been marred by a series of scandals in recent years, from misconduct allegations and disbarments to wrongful convictions and the use of junk science during high-profile prosecutions. The city had cycled through six district attorneys, most career prosecutors, in just 12 years before Deberry’s election.

    “For this community, there was no real continuity,” she said one recent afternoon at her office on the eighth floor of Durham’s towering courthouse. “No idea who was in charge, much less how the office worked.”

    Her campaign centered on transparency and the need to address the racial bias underpinning America’s mass incarceration epidemic. She sought reforms to the bail bond system, to limit the prosecution of juveniles as adults, and for greater use of restorative justice throughout the office. All are clarion calls that have echoed throughout the country as a wave of progressive prosecutors won elections in the wake of the prolonged racial reckoning after the police killing of Michael Brown in Ferguson, Missouri.

    There had been informal use of restorative justice in Durham’s criminal legal system before Deberry’s election, mostly confined to misdemeanor offenses. But just a few weeks before her victory, the office concluded its first use of the process in a felony case.

    The incident involved the accidental shooting of an 11-year-old girl, who was injured after a single bullet struck her from above while she lay in bed. The offender, a man named James Berish, had been unloading a stolen handgun in his apartment when it accidentally discharged, piercing the floor. When he heard a child had been shot below him, Berish, a young father, handed himself in to the police and helped them recover the gun. He had faced up to 10 and a half years in prison, but was instead given two years probation after the family opted to pursue restorative justice. The sentencing occurred after a year-long process, which led to him apologizing to the girl in person and offering restitution, including the purchase of a new bed and a basket of art supplies requested by the girl, a keen artist.

    The case was handled by a long-serving Durham assistant prosecutor named Kendra Montgomery-Blinn, one of the office’s earliest proponents of restorative justice. It taught her a number of lessons about how the process could work in cases of serious violence; that patience and time was a necessity, that prosecutors rarely knew all that victims wanted after a crime, and that accountability could extend beyond the parameters of a custodial sentence.

    “I learned that the healing from the restorative justice process is more complete for survivors,” Montgomery-Blinn said. “They feel far more heard and involved.”

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  16. After the Berish case concluded, Montgomery-Blinn thought about another case she had been assigned two years previously, which was still mired in the adversarial formalities of a murder prosecution: the killing of Donald Fields Sr.

    In July 2019, members of the Fields family filed into the DA’s office on the eighth floor.

    They had been meeting regularly as the case progressed slowly through the system and had sat with Montgomery-Blinn to run though sentencing grids, where a charge and its commensurate punishment are laid out, as the DA carried out the standard process of navigating a plea deal to offer.

    They had settled on a 20-year minimum sentence for a plea to second-degree murder, meaning a killing committed “utterly without regard for human life” but without premeditation.

    Some members of the family wanted harsher punishment. Another of Don Sr’s siblings had written to the presiding judge, describing the killing as a “monstrous/gruesome crime” and urging them to hand down “the maximum amount of years … without the possibility of parole”.

    Nonetheless, the plea offer had not been accepted by defense, and the case was now moving towards a lengthy trial – a prospect Alex Fields was dreading. At the end of the process, Don Jr could have received far more than 20 years of incarceration.

    But on this summer’s day, Montgomery-Blinn took the first unorthodox step in the state’s handling of the case. She had sought permission from Don Jr’s defense to share with the family a psychological evaluation his attorneys had commissioned. It was not, in her opinion, a piece of evidence that would change an outcome at trial, but it contained partial answers to some of the questions the family had been asking about why the killing had happened.

    The document is not public, and the public defender who represented Don Jr declined to be interviewed. But Alex Fields described it as an account of anger management issues his nephew had faced, and of a mental maturity that did not match his age.

    The prosecutor left Alex and his two sisters alone to read. .

    “It read true,” Alex recalled.

    He thought about previous episodes of violence he had witnessed between his brother and nephew, which had happened sporadically for five years before the killing. They would go at it “like a boxing match” on occasion, Alex said. Further, his nephew would have witnessed the physically abusive relationship between his parents before their separation when he was six years old.

    Those who are victims of violence are far more likely to become perpetrators of violent acts later on.

    “I knew that anger [in the report] was part of his childhood,” Alex said. “Naturally, he would have had anger.”

    He thought too about how Don Jr had left school before graduating. How he had never really found work and had remained dependent on his father, an electrician, into early adulthood.

    “My brother, it was almost like he didn’t want his son to grow up.”

    But he knew too that Don Jr and Don Sr loved each other deeply. “They really, really did when they weren’t fighting,” he said. “They were like two peas in a pod.”

    After Alex and his two sisters digested the report, Montgomery-Blinn reappeared.

    She asked if they would be interested in bringing the case through a restorative justice process. She explained how it might work – that the DA’s office would approach Don Jr’s attorney to see if he would participate. That their conversations (or circles, as they are called) would occur away from prosecutors and defense lawyers, sanctioned by a court, but not within one. There would be no preordained outcome.

    She told them that a local minister named the Rev Annette Love – a facilitator with a group called Restorative Justice Durham – was sitting in the room nearby should they wish to proceed.

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  17. “I do not want to lose him [Don Jr] to the system,” Alex said as he wept. “I do not want him to be another statistic. He would be swallowed up. So often, Black men, when they go to prison, they throw away the key or do not rehabilitate them.

    “He can be rehabilitated.”

    The Fields family agreed to move forward.

    The Durham DA’s decision to offer restorative justice in violent felony cases makes the office an outlier in the US south, said Mona Sahaf, who monitors the expansion of the practice around the country as director of the Vera Institute of Justice’s reshaping prosecution initiative.

    Sahaf pointed to comparable programs in Boston, Washington DC and Oakland but added that use of restorative justice in homicide anywhere in the country was “incredibly rare”.

    “When we’re dealing with homicide cases, the pain and trauma for families is incredibly high,” Sahaf said. “Because you have lost a person you love so dearly for ever.

    “Victims want to feel some sense of control, and they want to feel some feeling of healing. And unfortunately our system doesn’t offer anything apart from criminal charges. We are taught from a very young age that justice in America means a criminal conviction. It means prison.”

    Although principles of restorative justice have existed for centuries in ancient and Indigenous societies, its modern-day pioneer in the US is Danielle Sered, who founded the Brooklyn-based organization Common Justice – the first in the country to help implement victim-influenced alternatives to incarceration in violent crimes. Still, the group does not take on homicide cases.

    Sered, a sexual assault survivor, argues that in order to address the crisis of mass imprisonment, which has so disproportionately affected Black Americans, the narrative around justice reform must move on from solely addressing non-violent and drug-related offenses. Over half of those in America’s prison system have been locked away over acts of violence, so how can the world’s most incarcerated country engage in meaningful reform without addressing the fate of the majority of its inmate population?

    “Just as we cannot incarcerate our way out of violence, we cannot reform our way out of mass incarceration without taking on the question of violence,” Sered writes in her book Until We Reckon: Violence, Mass Incarceration and a Road to Repair. “The context in which violence happens matters, as do the identities and experiences of those involved.”

    Her approach argues that solutions must be centered on survivors’ needs. They also should be driven by accountability, with the perpetrator acknowledging harm and expressing remorse. Any resolution in a case should place public safety at its center and also be guided by racial equity.

    There is increasing evidence that use of restorative justice lowers rates of recidivism.

    Following Satana Deberry’s victory in 2018, her office began a book club and Until We Reckon became one of its first titles. The office significantly expanded its use of the practice as Montgomery-Blinn encouraged her colleagues to look for the so-called “green flags” that might make a case resolvable outside of traditional prosecution: were victims asking questions that were unlikely to be answered in a court setting? Had they experienced negative interactions with the criminal legal system in the past? Did an offender show early signs of remorse?

    All could be signs that a case could be diverted from a traditional prosecution, where defendants are often encouraged to remain silent, leaving questions like “why did this happen?” rarely answered in full.

    Last year, Restorative Justice Durham resolved 23 felony cases through the process, up from seven the year before.

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  18. Deberry, who was re-elected in 2022, is aware of the political pitfalls of such work, as violent crime remains a polarizing political issue. But she is direct in addressing them.

    “We’re more worried about doing the wrong thing than we are about doing the right thing,” she said. “And if that makes me a target, you know, I’m a Black woman in America. I’m a target anyway.”

    Annette Love met with members of the Fields family for the next six months, holding circles in the offices of a local church alongside an administrator from her organization and an independent attorney.

    The group, which did not include Don Jr at this point, would take turns talking uninterrupted, the speaker holding a small stone until they were finished. Alex spoke about the lingering loss he felt after the killing, and thought deeply about the people and experiences that had shaped him.

    The Fields family had experienced many traumas over the decades. Alex was born in the Jim Crow era and attended a segregated school in the rural suburbs of Durham, his family suffering the manifold indignities and injustices of legalized white supremacy. He had lost two of his brothers in youth: three-year-old Ronald from pneumonia and 29-year-old Dwight after a ruptured pancreas.

    The loss of Ronald made Don Sr the youngest of the eight siblings, and Alex, 12 years his senior, became a father figure in Don’s life. The two looked almost identical as well, both handsome with slim jawlines and deep dimples. In their youth, they were the best of friends.

    All the Fields siblings had been raised with strict moral guidance from their parents to always respect each other – even in disagreement – and to forgive.

    He thought about his own sermons. As a part-time minister, he would regularly preach forgiveness from the pulpit on Sundays: “How can I preach it, if I don’t forgive my nephew for what he’s done, but yet I want God to forgive me for everything that I’ve done wrong?” he said.

    After circling for months, members of the family asked Love to pass the message to Don Jr: they still loved him, they were willing to forgive. As part of their formal mediation offer, known as a repair agreement, the family wanted Don Jr to receive regular therapy while he was held in jail.

    Love, who speaks with the rhythmic intonation of a seasoned minister, met Don Jr for the first time in early 2020.

    He was quiet, she said. “He did not want to open up to us, and yet he agreed to the process,” Love recalled. “He wanted to do it for his family.”

    But the minister, who has worked with victims of violent crime for a decade, observed a calmness at odds with the severity of his offense. “He needed the therapy, the forgiveness,” she said. “He needed a sense of love and assurance.”

    Don Jr agreed to the repair agreement and a date was set for a first meeting with his uncle, who acted as the family’s sole representative in the first sessions.

    It was the meeting that brought Alex Fields to tears. “I have to forgive you. I want to forgive you. And I want you to forgive yourself,” he had said.

    They agreed to meet each other once a month in an effort to restore the relationship. The next four meetings went much the same; the emotions were so high. But gradually, as the uncle and nephew grew more acclimatized to each other’s presence, they edged forward.

    Don Jr acknowledged the harm he had caused; he committed himself to therapy to address his anger.

    Eventually their conversation came to the question of why? It was not something Don Jr was able to answer in much detail.

    “He wasn’t ready to talk about it. I think it’s so painful for him to know, first, that he committed such a horrific crime,” Alex said. “And then secondly, that it’s still a person [his father] that you’re supposed to love.”

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  19. He agreed not to address the topic any further until his nephew felt ready, but accepted that the killing had happened in a moment of rage, that the answer to “why?” may be something impossible to fully articulate.

    By this time, the pair had been meeting regularly for a year. They would joke with each other, share stories and look forward to their next session.

    Alex invited other members of the family, including his two sisters and his niece Brittany Barbee, to their next session. Barbee, 29, had grown up with Don Jr and saw him more as a sibling than a cousin. She had lost her father to a lengthy period of incarceration when she was seven years old, experiencing first-hand the devastating consequences of separation by long-term imprisonment.

    She had no questions for her cousin about the incident itself. All she wanted to know was how he was after five years in jail, still awaiting an outcome in his case.

    “Do I wish things would have been different? Yes, of course,” Barbee said. “But nothing, no question I can ask can change the fact, unless we’re talking about bringing my uncle back from the dead.

    “How are you? And how can we move forward? Those are my only questions at this point.”

    After a year of family circles, Love believed they had brought the process to a natural close. Members of the family were talking again, laughing together, even. And Don Jr was still receiving regular therapy.

    But what did all this mean for the judicial process? A murder charge and the prospect of a trial still loomed.

    The family reconvened with the DA’s office.

    We’re going to think outside the box,” Montgomery-Blinn told the Fields family as they sat in the DA’s office in 2021. “Anything you think you know about the justice system already, I want you to ignore it and tell me what you want next.”

    The conversation turned swiftly to the central question: did Don Jr need to remain incarcerated any longer? The assembled family members were in agreement that he did not. They had seen enough change. And they wanted him to gradually transition back to home, back to family.

    This raised, for the first time, the prospect that Don Jr could actually avoid being sent away to prison altogether, despite the severity of the charges.

    He had been held in jail for almost six years but had not been to trial or received a formal sentence. The decision to slow down the process had meant he stayed in the county’s custody rather than being sent away to a prison elsewhere in the state, which made it far easier to facilitate the dialogue.

    The DA’s office forged a new plea deal, which offered Don Jr the opportunity to plead guilty to voluntary manslaughter, which could see him sentenced to “time served”. The family worked on a new repair agreement, which was 13 points long and had conditions facilitating Don Jr’s release.

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  20. He would not commit any new crime. He would continue to receive therapy. He would stay away from his grandmother’s home, and respect the boundaries of certain family members who still wanted him locked away. He would find a job and live in transitional housing.

    If he did not fulfill the terms, he could receive a harsher sentence of up to 10 years. He would have nine months on the outside to prove he could uphold the conditions and transition back into the public.

    The repair agreement was used as the basis of the plea deal. It was, according to five restorative justice experts and practitioners interviewed by the Guardian, the first time they had seen an agreement used this way in a homicide case.

    On 16 June 2022 Don Jr was released from custody. He was wearing an ankle monitor. The clock began to tick.

    On Good Friday this year, Alex Fields stood in front of his congregation at the Faith Community Church International on the outskirts of Durham. Spotlights spun in unison and Alex preached with wild hand movements, bending his body in rhythm as the band crescendoed frantically. He drew from Luke chapter 23, verse 34: “Father forgive them; for they know not what they do.”

    “Forgiveness is a powerful word,” he told the worshippers. “My family and I, we know what it is all about.”

    He proceeded to tell the story of the killing.

    “But the district attorney had a change of heart and says: ‘I believe he’s worth saving,’” he said. “I promise you, next Thursday he will be set free!”

    Most in the congregation applauded, but a few seemed perplexed.

    Earlier that day Don Jr had stood on the porch of the transitional home as rain pounded the roof. He remained shy and retiring, declining to be interviewed in depth. It was just days before his final sentencing hearing, when a judge would determine whether he had met the conditions of his deal or would be sent to prison to serve more time.

    “I try not to think about a lot of things,” he said. “Especially Thursday.”

    The Fields case has become a transformational experience for the prosecutors involved, said Satana Deberry as she prepared for the hearing. While restorative practices in homicide remain rare, the instances of killings involving parties that have a pre-existing relationship is over 50%, according to FBI crime data.

    Parricide accounts for about 2% of killings in the US, according to research, while in 2019 only 1,372 homicides occurred between strangers, equating to 19% of the 7,119 homicides where relationships were declared to the FBI.

    The numbers, argues Deberry, mean that the process – despite the intensive resources it requires – can be replicated in other homicides and serious violent crime.

    “It’s not so much stranger danger, as we like to say it is,” Deberry said. “Especially in cases of violence, people often have long-term connections with each other somehow, whether they are family members, or they are members of the same community, same neighborhood, young men who’ve grown up together, and ended up in these situations.”

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  21. It was a scorching spring afternoon when Donald Fields Jr came to court with his uncle for the last time. They prayed together before the hearing, and Don Jr pushed his uncle’s wheelchair as they entered the room.

    Alex, a sharp dresser, wore a navy suit jacket. His nephew came dressed in a smart white polo shirt, wearing his thick glasses. The public benches were packed from the front to back, and included the police officer who had arrested Don Jr in 2016, the facilitators of the restorative circles, the managers of the transitional home he had been living in, and members of the Fields family.

    Deberry appeared wearing a necklace with the word “mercy” emblazoned in silver.

    Montgomery-Blinn informed the court that Don Jr had continued to meet all of the parameters of his deal. After months of searching, he had finally found a job – a cashier’s position at a local Burger King. It was the last condition of his plea that the court required.

    She invited members of the community to speak before the judge.

    First was Acie Bell, Don Jr’s mother.

    “When things happen to our children, they happen to us,” she said. “When they hurt, you hurt. When it’s the middle of the night and you don’t know what to do, you cry many tears. But sometimes things are not in our control. Life happens to us.

    “And I just want to thank you, all of you, for taking the chance. For helping him.”

    Don Jr watched and wiped a tear from his eye. His cousin Brittany was among the last to speak.

    She paid tribute to her uncle Alex, for reaching out across a generational divide to save his nephew. “Thank you,” she said through tears. “The fact you wanted to do this for someone in my generation, in our family.”

    Don Jr did not speak. But his lawyer read a brief statement to the court.

    “I would like to take this moment to thank restorative justice, the honorable judge, my attorney for the opportunity to reshape my life and appreciate this chance to continue on the quest of a positive mindset, maturity, dignity, self-love and self-respect,” it read.

    As the proceedings wrapped, the judge sentenced Don Jr to time served. He was free to leave. The courtroom erupted in a round of spontaneous applause. Cake was served by the judge’s bench.

    Montgomery-Blinn, the prosecutor, and Don Jr, the defendant, shook hands.

    As the process concluded, Montgomery-Blinn reflected on the other homicide cases she had tried in her career – 10 of which had ended in sentences of life without parole.

    “Every single one of those cases sits in my heart. And they should do for prosecutors,” she said. “But this case is in my heart in a really different way because I think we did something better.

    “I hope this is the beginning. I hope this is the snowball rolling down the hill.”

    see the numerous photos in this article at:
    https://www.theguardian.com/us-news/2023/jun/26/restorative-justice-murder-charge-prison-don-fields

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  22. Indigenous Justice and a New Path for Canada’s Prisons

    A report offers a blueprint for fixing Indigenous overrepresentation in jails.

    by Simon Rolston, The Tyee June 26, 2023

    Simon Rolston lives in Vancouver, and he writes about criminal justice system issues. His book, Prison Life Writing: Conversion and the Literary Roots of the U.S. Prison System, was published in 2021 by Wilfrid Laurier University Press.

    When I asked Boyd Peters, a Sts’ailes First Nation member and BC First Nations Justice Council director, about the effects of long-term incarceration on Indigenous people, his brow furrowed. He exhaled and looked down before responding.

    “Nobody should have to go through that,” he said.

    But more and more Indigenous people are going “through that” — living in Canadian prisons despite federal government commitments “to reset the relationship between Indigenous peoples and the justice system.” From 2009 to 2018, as the general prison population expanded by only one per cent, the Indigenous prisoner population increased by 43 per cent.

    A recent report by B.C.’s Prisoners’ Legal Services, “Decarceration Through Self-determination: Ending the Mass Incarceration of Indigenous People in Canada,” suggests a better way to address the overrepresentation of Indigenous people in Canada’s prisons. The report’s proposal seems radical, but it potentially realizes Canada’s Truth and Reconciliation Commission’s goal of reducing the “extreme overrepresentation of Indigenous individuals as incarcerated offenders” while honouring the right to Indigenous self-determination in Section 35 of Canada’s Constitution Act.

    Moreover, the report’s proposal largely relies on existing sections of the Corrections and Conditional Release Act, which governs the country’s corrections and parole systems, offering the potential to bring change within the existing legislation.

    Prisoners’ Legal Services makes several proposals in their report, including reforming parole hearings so they better respect Indigenous people’s traditions and rights to self-determination, changing regulations on security classifications to properly account for Indigenous people’s traumatic experiences with colonial violence and reforming Section 84 of the act so that “Indigenous communities are reasonably compensated for the costs of providing community supervision” for Indigenous people on parole.

    But their central proposal is to divert Indigenous prisoners from federal correctional facilities to Indigenous-operated alternatives to incarceration. To make this change in correctional policy happen in practice, the report argues, the federal government should transfer funds and resources from Correctional Service Canada to Indigenous communities and governments.

    “Canada must move resources away from CSC and toward supporting self-determination so that First Nations, Inuit and Métis Peoples can decide what they need to address harm, create safety and heal their nations, communities, families and individuals from colonial genocide, outside of prisons,” the report argues.

    Since 32 per cent of federal prisoners are Indigenous, the report notes, the federal government should transfer the equivalent percentage of CSC’s budget to Indigenous communities who would be responsible for Indigenous people who would otherwise be in federal custody. That’s roughly $1 billion of a $3-billion annual budget. “These funds could be used… for a wide range of alternatives to prison, as well as for autonomous, independent Indigenous services for Indigenous people in prison and on conditional release,” explains the report.

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  23. The report notes that the Corrections and Conditional Release Act already provides some important mechanisms for this transfer of responsibility and funding. These mechanisms need to be used more effectively and according to their original intentions, it says.

    Consider, for example, Section 81 of the act, which authorizes the minister of public safety “or a person authorized by the minister”— in this case, CSC — to “enter into an agreement with an Indigenous governing body or any Indigenous organization” to provide “correctional services” to Indigenous people in custody and for the federal government to pay for those services.

    Under the act, the primary “correctional services” provided under Section 81 are healing lodges: Indigenous-centred alternatives to regular custody that emphasize Indigenous traditions and spiritual practices as ways for Indigenous people held in custody to heal from the trauma of their experiences and from the long history of colonial violence. Although some healing lodges are operated by CSC, Section 81 healing lodges are operated by Indigenous groups.

    Indigenous-run healing lodges have a proven success rate. They reduce incarcerated and formerly incarcerated Indigenous people’s rates of recidivism and risk. The 2015 Final Report of the Truth and Reconciliation Commission explicitly called on “the federal government to eliminate barriers to the creating of additional Aboriginal healing lodges within the federal correctional system.”

    Since the TRC recommendation, there have been repeated calls on CSC to establish Section 81 Indigenous-run healing lodges, including in parliamentary reports, a Union of British Columbia Indian Chiefs resolution, a Standing Senate Committee on Human Rights report and a Canadian Bar Association resolution. But only six Indigenous-run healing lodges have been established under Section 81, and those lodges are woefully underfunded.

    In an email to The Tyee, Kevin Antonucci, a CSC spokesperson, wrote that it is “working to maximize and expand on the use of Section 81 agreements.”

    “We have worked closely with federal partners, including Indigenous governing bodies and organizations, and with advice from the National Indigenous Advisory Committee, to identify and eliminate barriers in the creation of additional Healing Lodges within the federal correctional system,” Antonucci wrote.

    But experts and Indigenous groups tell a different story.

    Peters told The Tyee that the Section 81 application process is unnecessarily prohibitive. The Sts’ailes First Nation initially tried to work towards a Section 81 agreement to manage and administer a healing village, he said.

    But the bureaucracy made the process “very onerous and too limiting,” Peters said.

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  24. The nation eventually partnered with CSC to manage Kwìkwèxwelhp Healing Village, which is a CSC-operated healing lodge. The community still wants a fully Indigenous healing lodge, he said. “It’s just not feasible at this time.”

    Peters said the Sts’ailes First Nation “went through the whole process of negotiating” with CSC, but “what they were offering us as a per diem was way less than what it takes to operate the facility.... It wasn’t economically viable.”

    In his 2021-22 annual report, the Correctional Investigator noted that, through budget 2017 “CSC received $55.2 million (and $10.9 million ongoing thereafter) to enhance its capacity to provide effective interventions for Indigenous offenders.”

    But proportionally “little new funding has been allocated to Indigenous controlled or run community correctional initiatives,” noted the Correctional Investigator, a federal office that provides oversight of the corrections system. The focus of CSC’s Indigenous correctional efforts continues to be mainly prison-based and “signature investments” seem to have gone to “CSC-developed custodial initiatives.”

    The discrepancy between Indigenous-run correctional initiatives and CSC programs can be seen when comparing Indigenous-run healing lodges with CSC-operated healing lodges.

    According to a 2012 Correctional Investigator’s report called Spirit Matters, “In 2009-10, the allocation of funding to the four CSC-operated Healing Lodges [operating at that time] totalled $21,555,037, while the amount allocated to Section 81 Healing Lodges was just $4,819,479. Chronic under-funding of Section 81 Healing Lodges means that they are unable to provide comparable CSC wages or unionized job security.”

    As a result, Indigenous-run healing lodges not only struggle to remain open but, according to Peters, “Indigenous-operated healing lodges can’t pay the staff comparable salaries so it’s really hard to retain any staff.” Often, staff transition to CSC-run institutions where the pay is significantly better.

    Moreover, although CSC-run institutions like B.C.’s Kwìkwèxwelhp Healing Village are permanently funded, Indigenous-run healing lodges under Section 81 agreements are only funded for five years at a time, and there is no guarantee that their funding will continue beyond that five-year period. Predictably, such an insecure financial arrangement makes developing and operating a costly and complex system like a healing lodge a risky investment.

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  25. It’s worth noting that some Indigenous communities are wary of being involved with corrections, for a variety of reasons. David Milward, associate professor of law at the University of Victoria, told The Tyee that it’s important to ensure that a community “has the capacity” to manage the services on their own.

    Milward said he wasn’t making a judgement about the fitness of any community, but instead underscoring how some communities “have been so severely damaged” that they would need outside assistance to implement what are costly and complicated correctional systems.

    It’s also important, cautioned Milward, “not to transplant the same idealistic assumptions onto every Indigenous community.”

    Milward offered a scenario where an Indigenous person was incarcerated for selling alcohol or drugs in an Indigenous community that was struggling with addiction. Although the incarcerated Indigenous person may have experienced their own colonial trauma, and that trauma may play a causal role in their criminality, they might nonetheless constitute a threat to the Indigenous community’s safety and stability. Correctional initiatives that are developed by Indigenous communities need to manage such complex tensions resulting from centuries of colonial violence that are not easily resolved.

    Benjamin Ralston, assistant professor at the University of Saskatchewan’s college of law, told The Tyee that healing lodges can certainly be effective, but Section 81 can also mean a wide variety of Indigenous alternatives to incarceration, like non-facility models, that might be “better tuned” to some communities’ circumstance.

    “Ultimately, it’s going to come down to: What initiatives are being put forward [by Indigenous groups], and where would Indigenous nations like to see that money being allocated?”

    The central proposal of the Prisoners’ Legal Services report, while bold and certainly politically challenging to adopt, is nevertheless promising since its recommended “nation-to-nation” arrangement between Indigenous nations and the federal government would mean that individual Indigenous communities could decide how correctional initiatives were funded and CSC would no longer act as a middleman holding the purse strings, blocking decision-making and functioning as the ultimate arbiter for Indigenous people in custody.

    “When we look at [how] our people dealt with people that were in conflict with the way that we do things normally in our communities,” said Peters, “we had ways of dealing with it. We would correct the person. ‘Correctional’ Services: the way they do it is totally foreign to our people. We treat people with love and respect and dignity. We give them opportunities.”

    https://thetyee.ca/Analysis/2023/06/26/Indigenous-Justice-Canada-Prisons/

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  26. New Mexico Schools Are Increasingly Embracing Restorative Justice

    The shift comes as Indigenous leaders in the state have called for an end to the “criminalization of Native children.”

    By Bryant Furlow, New Mexico In Depth August 20, 2023

    On a brisk February morning with snow on the ground, children arrived at Tsé Bit A’í Middle School in Shiprock, on the Navajo Nation in northwestern New Mexico. Word in the hallway was something was afoot: Substitute teachers were waiting in each classroom.

    The children’s 35 regular teachers were spotted, sitting in a large circle in the library. Students paused at the doorway to watch.

    The teachers, along with school counselors, were training in a new disciplinary approach, often referred to as “restorative justice,” which seeks to rebuild relationships, not simply punish the student who caused the harm. It’s a model New Mexico’s state education department has begun testing with a pilot project in a few other school districts.

    Rooted in the belief that everybody has a role to play in addressing harm, restorative justice largely relies on people talking and listening carefully to one another.

    “I was raised in circles like this; it’s a traditional practice,” said Principal Pandora Mike, who, like much of the school’s staff and nearly all of its 414 students, is Navajo. “Restorative Justice is about self-regulation, responsible decision making. You really want to help students do a lot of reflection on their own behaviors, their own actions.”

    In addition to “circles of sharing,” the program promotes communication through classroom respect agreements to build a greater sense of community among students. When rules are broken, it focuses on mediation. And it seeks to help students understand the root of their misbehavior and how they might do better.

    Proponents say it’s a more effective and less harmful disciplinary approach than removing kids from school through long-term suspensions or expulsions, which are tied to lower graduation rates and a higher risk of incarceration.

    That’s particularly important for Indigenous students. In New Mexico, Native American students are expelled far more often than any other group and at least four times as often as white students, according to an investigation by New Mexico In Depth and ProPublica.

    One school district 90 miles to the south of Tsé Bit A’í, Gallup-McKinley County Schools, is responsible for most of that disparity. Gallup-McKinley has a quarter of New Mexico’s Native students but accounted for at least three-quarters of Native student expulsions in the state during the four school years ending in 2020.

    The school district’s expulsion rate was far higher than the rest of the state, according to New Mexico education department records. The district contested that finding, saying some long-term suspensions were mistakenly classified as expulsions. But Gallup-McKinley’s rate of removals from school for 90 days or more, regardless of what they were called, remained far higher than other districts across the state, an analysis by the news outlets confirmed.

    While Gallup-McKinley has not embraced restorative justice as an alternative to exclusionary punishments, more than a dozen New Mexico schools have, including some serving Navajo children. Twelve statewide are participating in a new state pilot program, but Tsé Bit A’í and Cuba Independent Schools, both of which serve large Indigenous student populations, initiated the change on their own.

    In 2020, leaders from all 23 of New Mexico’s federally recognized tribes called for education reforms, including a shift from harsh discipline and “criminalization of Native children” to restorative justice and peacemaking approaches.

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  27. The stakes are high. Expelling and suspending students frequently doesn’t address the underlying problems and can even backfire, making misbehavior more likely, said Daniel Losen. Losen is the director of the Center for Civil Rights Remedies at the University of California, Los Angeles, and senior director of education at the Washington, D.C.-based National Center for Youth Law. He studies racial disparities in school discipline. Pushing children out of classrooms increases the risk of a child dropping out of school or winding up in the criminal justice system, he said.

    Students – particularly students of color – are often punished harshly and at higher rates for vaguely defined, catchall minor infractions like disorderly conduct, Losen noted. “That’s where the largest racial disparities are usually found.”

    At Gallup-McKinley, for example, disorderly conduct was one of the most frequent reasons for expulsions between the school years 2016-17 to 2019-20, but the term wasn’t even defined in the district’s discipline policy until the 2022-23 school year, after the news organizations asked district officials about this and other facets of student discipline policy. Statewide, Native students were expelled for disorderly conduct at least 76 times and law enforcement was involved in 193 such incidents. About 90% of these incidents occurred in Gallup-McKinley schools.

    Overuse of punitive discipline just pushes kids into an adversarial relationship and discourages them, said Tsé Bit A’í Assistant Principal Dannell Yazzie, who is Navajo. Her school is using classroom circles focused on relationship building, Yazzie said, then disciplinary reconciliation circles in the coming school year. She’s put together a team of teachers.

    But there are critics.

    “Restorative justice means no consequences,” said state Rep. Rod Montoya, a Republican who represents the neighboring town of Farmington, adding that talking circles can disrupt teachers’ instruction time in the classroom. “Teachers are not psychologists.” Montoya said he’s written to school superintendents asking that they not adopt restorative justice practices.

    A decade ago, the New Mexico Center for Law and Poverty spotlighted two school districts next to the Navajo Nation for harsh disciplinary practices in a scathing report: Gallup-McKinley County Schools and Cuba Independent Schools district, on the eastern edge of the Navajo Nation.

    In the years after, the Cuba school district adopted talking circles as the first response to most student misbehavior but Gallup-McKinley has not. Cuba’s expulsion and out-of-school suspensions have all but disappeared, according to the district’s reports to the state.

    Victoria Dominguez, a counselor in Cuba schools, said just holding a talking circle between students or cliques after an altercation can reveal how the school’s rumor mill can cause students to react to falsehoods or misunderstandings without checking to see if they’re true.

    The size of circles depends on who is involved and is willing to participate. It might gather a counselor and two students who fought, for example, or larger groups populated by students, family members and teachers.

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  28. If students are at odds, Dominguez and their principal will bring them in to talk things out. Problems often stem from misunderstandings, and social media cell phone apps like Snapchat have made things worse, fueling the rumor mill, she said. If a problem persists, they’ll sign non-contact agreements to avoid one another as a cool-down mechanism, or bring in the students’ family members for a talking circle.

    “[T]he number of fights has declined significantly with talking circles,” Dominguez said. “It’s been a huge turnaround for the district.”

    She doesn’t always wait for an infraction to get kids together to talk. “I’ve pulled kids together to say there’s a rumor circulating that you are going to fight at lunch. We’re doing a mediation circle.”

    Cuba has a high population of students who lack secure housing, and who suffer from sleep deprivation and hunger, Dominguez noted. Fostering a culture of communication can help. Sometimes, by asking questions and listening closely, problems at home can be identified and addressed by the district, she said.

    “If a teacher’s explaining a really cool math concept but a kid hasn’t eaten in three days or is wearing the same clothes for four or five days, [they are] not going to be able to pick it up,” she said. “In high poverty communities, a lot of times, students are told their truths – they are not given an opportunity to speak their truth, to tell their story from their point of view, uninterrupted. To be heard.”

    Cuba district has seen attendance improve since adopting talking circles, she said, with fewer out-of-school suspensions and fewer missed days.

    But until recently, just a handful of New Mexico schools in the state used talking circles. So last year, the state Public Education Department announced a $237,500 federally funded pilot program to expand restorative justice in schools, with the goal of reducing suspension and expulsion rates – and ultimately, improve graduation rates.

    A dozen schools across the state agreed to have some of their teachers trained and then train their colleagues through the PED pilot program.

    Monte del Sol, a public charter school in Santa Fe, sent two 10th-grade students, a counselor and administrators to the state’s training. The 10th-graders facilitated the school’s first disciplinary remediation circle, with two groups of 8th grade girls.

    It didn’t bring an immediate breakthrough, but Amy Garcia, one of the student facilitators, said it was a good start. “Not everybody is super comfortable with talking about how they feel,” Garcia said. “We did come to an agreement where they would at least give each other their space.”

    Restorative justice proponents like Emma Green, who runs the state’s pilot program, see student misbehavior as a red flag that something’s wrong in a child’s life, and an opportunity for constructive intervention – to discover the underlying problem, mediate and help the child take responsibility for how they’ve affected others, and to connect the child to needed support.

    But student support services are in very short supply in much of the state, skeptics point out. They question whether restorative justice will work across the state.

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  29. Making a student who has been victimized sit down with the student who bullied or victimized them can retraumatize that child, Montoya said.

    When he asked the state public education department whether talking circles would be used even in cases of bullying or physical violence, he was told that is up to individual school districts, which have wide latitude in setting discipline policies.

    Restorative justice facilitator Randy Compton, from Boulder, Colorado, said talking circles won’t resolve every problem. With a case of mild bullying, a talking circle might be appropriate, he said, “but at the extreme end, a child who bullies others will often just manipulate the process. In those cases, you would not necessarily want to put the child and the student who bullied them in a talking circle.”

    In addition to trainings at Tsé Bit A’í Middle and Shiprock High School, Compton also has trained staff at Albuquerque Public Schools and the Aztec, N.M. school district, and schools across the U.S.

    At Tsé Bit A’í, assault, drug and tobacco offenses still will automatically involve out-of-school suspensions, Yazzie said. Upon their return to school, students will attend counseling interventions to discuss their behavior and how it impacted others.

    “People think we just sit in a circle and sing Kumbaya, but it’s not like that,” she said. “It’s not without consequences. And we will discuss why children behave in a certain way. It needs to be both. We’re providing them with an opportunity to learn and think about their behavior.”

    Tsé Bit A’í is adopting restorative justice practices in stages, Yazzie said.

    From initial training sessions to successful implementation, programs typically require three to five years to become a smoothly operating part of a school’s discipline culture, Compton said.

    But that can be a challenge in New Mexico, where schools struggle with staff turnover. Teachers and administrators come and go frequently. Just as a school begins to make progress, trained staff and organizers will move away, and their replacements must then be convinced to invest their time and energy into learning an unfamiliar approach to student discipline.

    Ultimately, university teacher training programs will have to make restorative justice part of their regular curriculum so that newly arriving teachers already understand the concepts and practices involved, Yazzie said.

    “The [college] textbooks definitely do not teach this,” Dominguez agreed.

    For now, it’s up to schools and districts.

    Green echoed Yazzie’s point that restorative justice is not about abandoning consequences for student misbehavior.

    “Letting people off the hook is absolutely not restorative,” she said. “The foundation and the heartbeat of restorative justice is accountability.”

    https://truthout.org/articles/new-mexico-schools-are-increasingly-embracing-restorative-justice/

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  30. Indictment the Podcast launches today – with stories from inside Canada’s criminal justice system

    Peter A Allard School of Law - University of British Columbia
    September 12, 2023

    Canada’s current criminal justice system isn’t working for anyone, says Allard Law professor Benjamin Perrin. Both victims of serious crimes and people who have committed offences agree on that.

    The search for a new approach to criminal justice is the driving force behind Indictment: The Podcast, launched today by Perrin. In each episode, he invites listeners to hear from guests who have first-hand experience with the criminal justice system – including victims of crime and people who have been incarcerated.

    The podcast is the prelude to Perrin’s forthcoming book, Indictment: The Criminal Justice System on Trial, which takes a closer look at why tough-on-crime approaches have failed, and brings forward innovative ideas from around the world that Perrin says could help create a new and better criminal justice system. Indictment was chosen as one of Indigo’s “most anticipated books” of fall 2023.

    We spoke with Perrin about some of the ways our criminal justice system could be overhauled and the impact he hopes his project will have on the lives of Canadians.

    What inspired you to take on this topic?

    One day in 2018, I received a handwritten letter from an Indigenous man who was incarcerated. It was 8 or 9 pages long. At that point, I’d been part of the Harper government’s tough-on-crime approach and helped write the Victims Bill of Rights Act. I hadn’t shown any concern for what life was like behind bars.

    And yet this man wrote me from his cell, just sharing what his experience in prison was like. What he was saying was deeply disturbing and very human. One specific line has stayed with me: “If you want to turn a man into an animal, put him in a cage, without resources to build him back up.”

    Around that time, Jody Wilson Raybould, Canada's first Indigenous Justice Minister, put forward a call for public consultation, asking ‘If we could design a new criminal justice system from scratch, what would it look like?’ I asked my students that same question and we started brainstorming. After that, I couldn’t get that out of my head – we could do things differently.
    Redesigning the justice system is a tall order. How did you get started with this project?

    One of our first steps was to reach out to every victim- and offender-based organization across Canada. We asked one question: What was your experience like with the criminal justice system?

    Within a day, we started getting calls and got absolutely flooded. We heard from everyone – from someone who'd keyed a car to people who had been convicted of murder. People wanted to tell their stories and hearing what they had to say was completely life-changing for me.
    Your book outlines different approaches that have been getting results in communities around the world. What’s one example you’d like to see imported into Canada?

    One big issue is that police are not equipped to deal with someone who is experiencing a mental health crisis. If the police show up heavily armed and say ‘get down on the ground,’ a typically developed person will likely get on the ground immediately. But this only works for people who don't aren’t in mental health distress, have unresolved trauma and who aren’t using substances at the time.

    Professionally trained, well-resourced non-police crisis support is something that's been tested and has been working successfully for over 30 years. In Indictment, we profile a mobile crisis response team based in Oregon called Crisis Assistance Helping Out in the Streets – CAHOOTS. Their mental health and harm reduction workers take between 15 and 20 per cent of all 9-1-1 and non-police emergency calls – at a fraction of the cost. So instead of having the police showing up with weapons, they have someone who doesn’t carry a firearm and who looks like a member of the community.

    continued below

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  31. I personally don't think police officers actually want to show up to meet someone who is having a mental health crisis when the only tools they have are tasers, handcuffs and firearms. And the research shows it works better to have someone who can meet them where they're at.
    What about in Canada? Did you come across examples of initiatives here that are working well?

    It's very, very clear that Indigenous-led peacekeeping teams are more effective than police.

    They have higher rates of community trust and reduced crime rates in First Nations communities that have their own peacemakers, instead of RCMP.

    Likewise, Indigenous-led corrections and Indigenous-led healing lodges are very effective, but they're all underfunded. So the system does these token things, which can be effective, but they’re not enough.

    You also spoke with victims of crime as part of your research. What are their thoughts on overhauling the current system?

    Victims are even more dissatisfied with the system than people who have committed offences. Right now, only a third of crime gets reported to police. People who are victims of crime, who supposedly the system is there to protect, have given up.

    For those who do go through the system, it’s not working. I’ve had many victims tell me ‘I want to be involved. This was not a crime against the state. It was a crime against me. I want to look at them in the eyes and hear an apology.’ But in reality, people who have committed offences can't really speak, because it incriminates them.

    One example from my book is the Collaborative Justice Program in Ottawa, which has been found to have higher levels of satisfaction for survivors and people who have committed offences and lower levels of repeat offences, in comparison with the traditional justice system. Again, at a fraction of the price.

    In Indictment, I also discuss a federal government report commissioned by Public Safety Canada that looked at dozens and dozens of studies on whether prison works to reduce crime, and they concluded that it does not. They found that excessive use of incarceration comes at an enormous cost, not just fiscally, but also socially. The research shows that for many offences, you're actually more likely to re-offend if you're sent to a prison than if alternative measures are used.

    Your podcast launches today. What does it add to the conversation?

    I love listening to podcasts and wanted people to be able to hear for themselves the same powerful stories I heard in my research interviews. Throughout the podcast, you’ll get to hear stories of people’s real experiences with the criminal justice system for yourself. It’s a behind-the-scenes of the book that’s raw and unfiltered – a look inside the system like few have ever seen.

    In the first few episodes, you’ll hear from a man who was imprisoned after missing a court date and ended up traumatized and homeless, and from an Indigenous survivor of violence who has an incredible story of survival and resilience in the face of failures by multiple systems that were supposed to help. You’ll also hear from a former “tough on crime” politician who completely changes his views and from a senior corrections officer who blows the whistle on an ineffective system that isn’t working for anyone.

    I hope the Indictment podcast will get people talking about the challenges with the system and, more importantly, new and better ways we can address harm in our society. The criminal justice debate is incredibly polarized right now and desperately needs fresh ideas.

    Tune into the Indictment: The Criminal Justice System on Trial podcast on all major podcasting platforms or by listening here: https://indictment.simplecast.com/

    Indictment: The Criminal Justice System on Trial (University of Toronto Press) comes out on October 3, 2023

    https://allard.ubc.ca/about-us/news-and-announcements/2023/indictment-podcast-launches-today-stories-inside-canadas-criminal-justice-system

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