Restorative Justice

1. Restorative Justice Class 22

2. Case of the Day • Facts • 14 year old boy completes class assignment to write a song and “put your feelings into it” • Song fantasizes about killing his mother, the vice principal, and police • Suspended from school • Prosecutor filed delinquency charges alleging “terroristic threats” • Boy held in detention for eight days, ordered to undergo psychiatric and psychological tests, and the home of his grandmother (legal guardian) was searched • School official justified legal intervention and suspension by saying that the boy was “reaching out for help” • Boy has strained relationship with his mother, parents are divorced, custody entanglements • Boy is in the “Sundown” disciplinary program • His psychiatrist encouraged him to write as therapeutic task

3. Issues • What are the school’s “special interests” in a “post-Columbine” world? Are these interests sufficient to justify school actions (suspension, referral to police) • How should such threats be evaluated? What developmental, cultural, and other factors should be integrated in assessing the threat? • Note: Grandmother’s statement distinguishing Eric’s behavior from Columbine kids

4. How does threat assessment translate into legal action in the juvenile court? Is there a discount? Did he cause emotional or psychological harm to other students or school staff with this threat? • How would you calibrate the juvenile court’s response (detention, search of grandmother’s home, placement in alternative school that is far from home)? Is the intrusion and deprivation of liberty merited by the boy’s prior record and other factors relevant to detention decisions? Did the publicity of the case influence the prosecutor? • Would Eric be eligible for a Restorative Justice alternative? Why or why not?

5. Restorative Justice • Cultural Origins • Rooted in traditions outside the Common Law, essentially a non-Western model of justice • Communitarian principles • Distinctions from post-Gault juvenile courts • Punishment as last resort • Accountability, victim voice supercedes statutory or normative notions of retributive punishment • “make peace” between parties, repair harm • Interventions calibrated to ensure community protection • Developmentally constructive interventions • Draws on affective theories of procedural justice and therapeutic jurisprudence

6. Forum (in the pristine view of RJ) • Vengeance, punishment, and deterrence are set aside as animating philosophies for forming the response • All direct parties to the offense are included, legal institutions play ‘complementary’ role • Therapeutic process where recognition of harm caused should trigger empathetic response, accountability measures reinforce community obligations • Therapeutic value for victim and offender • Both factual guilt and reasons for offending are examined and incorporated into the response • Community articulation of harm and responses broadens and strengthens the legitimacy of the moral claim • Material reparation is less important than emotional reparation or symbolic reparations

7. Jurisprudence • Derives from diversionary rationale of the juvenile court • Victims rights compete with offender rights, creating the potential for direct negotiation between victim and offender and bypassing criminal justice professionals and the “due process” model (see Lucas at 1392) • But if lawyers are present, does that change the dynamic of the conference? • Justice as goal is replaced by reducing harm • Transfer of power from courts to victims, but where offender can also ‘own’ the process by acknowledging his or her accountability • Preferable to victims? • Does auspice matter? • Does the involvement of prosecutors and judges change the tone and outcome of conferences? • Does location of conference or mediation matter? • Privacy and confidentiality are secondary concerns • Family members, neighbors and community members often attend

8. Critiques • Disproportionality? • Net widening • Interventionists dismiss this, but…..you can’t • Due Process • Is this in effect, a waiver of counsel? • Tradeoff ? • Efficacy?

9. Statutory Approaches • MN, DE and FL Statutes • Strong ties to juvenile court • Deferred prosecution, not a separate legal forum and proceeding • Is the retention of coercion at odds with the communitarian principles of RJ? • Does the continued involvement of the court defeat the notion of victim empowerment? • Parental role and obligations • Developmentally right, but biased toward better resourced families

10. Reliance on contract seems to formalize the therapeutic content of the proceeding – is this theoretically sound? • Legal liability if sanctions are not completed • Confidentiality, admissibility of RJ proceedings in juvenile court hearing? • Risks? • Disparate treatment? • Net widening? • Efficacy tied to value of interventions

11. Design Task • Propose a RJ Program for the Manhattan Family Court • Eligibility and Statutory Authority • Role of Counsel, Corporation Counsel • Role of Court • Role of Parents • Who represents community for victimless crimes? • Staffing • Forum -- Beyond Mediation • Sanctions and Interventions