Restorative Justice Articles and Information
Research Report on Restorative and Transformative Justice
June Terpstra, Ph.D.
This research report is dedicated to my nephew, Eron Redbird Cayedito, who led me to relatives and friends in the Navajo nation and to my friend, Salle Auger, founder of Mother Earth Lodge, in St. Paul Minn., who was my first teacher on Indigenous knowledge and ways.
Beginning in the 1970s, the US expanded its prison system at a phenomenal rate. The number of prisoners grew from 338,000 in 1970 to over 2.3 million today – this is an eightfold increase, three-and-a-half times the rate of increase in our national population. We now have the highest incarceration rate in the developed world: 716 out of every 100,000 Americans are behind bars. By comparison, England and Wales incarcerate just one-fifth that number – 149 per 100,000 people. In Australia – founded as a prison colony – that number is 130; in Canada, just 114. Criminal Justice Reform
Punishment is one of the most dramatic manifestations of state power and state terrorism. Whom a society punishes and how it punishes are key political questions as well as indicators of its character. There are concrete connections between punishment and politics domestically and globally that must be understood in the politicization and racialization of punishment through which the state dispenses its penal power. Punishment as it constitutes itself today expresses the basest desires for power through the rhetoric of vengeance using the pain of the victims of crime.
In my search for alternative systems of justice I was awarded a semester sabbatical from January to May, 2013, in which I studied restorative and transformative justice methodologies through the lens of practitioners and researchers in USA, Canada, England and EU countries. The research focus for this sabbatical generated out of personal, political and intellectual quests for healing social processes in response to the harm humans do to one another. I was seeking to learn more about processes that have to do with social justice more than capitalizing on punishment. I began with the understanding that Indigenous models of restorative justice and peacemaking are embedded in the philosophies and constructs of every-day living prior to colonization and re-established in an effort to decolonize and restore valued cultural traditions. I began my research project interviewing Navajo Peacemakers on the Navajo reservation in Window Rock, AZ.
Over the last two decades social justice scholars, law enforcers and social workers have been gradually shifting their attention toward models of restorative and transformative justice. For some the agenda is to shift societies and individuals away from punishment models towards models of restoration and transformation that emphasizes healing. For others, specifically UK and the EU conservative blocs, the agenda is to reduce prison populations as an economical response in the promotion of austerity measures. For indigenous practitioners a common stated goal is to reclaim traditional methods of responding to harm and restoring relationships with-in communities with pre-colonial models that resist the injustices established throughout the legal, political, and economic structures of colonial models of the past and present.
What is an offender? It is someone who shows little regard for right relationships. That person has little respect for others. Navajos say of such a person, "He acts as if he has no relatives." So, what do you do when someone acts as if they have no relatives? You bring in the relatives! Robert Yazzie, Chief Justice of the Navajo Nation
“In some cases, conflicts between indigenous peoples and researchers arise because the two groups have disparate systems of thought. In other cases, the conflicts arise because the dominant society has different goals than the indigenous peoples do, and there is disagreement over the concepts of “benefit” or “harm.” Rebecca Tsosie, 14th Annual Native Studies Conference, 2013
There are multiple narratives about the origins of restorative justice theory and practices. Some researchers (generally Anglo) claim the Indigenous origins of restorative justice to be a myth. Indigenous practitioners and trainers consistently emphasize origins in Indigenous pre-colonial history while generally, white European, British and US practitioners believed the origins to be found in the history of their theories of justice. In my study I found there was some agreement that although restorative processes almost certainly existed in pre-modern communities both Indigenous and Imperialist; they existed alongside a diverse range of other practices, including retribution. Western scholars, left, center and right along the ideological spectrum inevitably sought to enlist historical evidence in support of their positions of “ownership”. Indigenous scholars voiced a view that this was more of the historical cultural appropriation with which they are too familiar. In either case, Restorative justice scholars across cultures seeking to effect legal change, have increasingly sought to justify that change by expanding the sources of their legitimacy. In the battle for legitimacy in Western academic capitalist hegemony, history is one more tool in the restorative justice arsenal.
Restorative justice is not one thing, but an umbrella concept that refers to diverse practices to resolve disputes in schools and workplaces, to respond to crime, and to make decisions in the care and protection or child welfare areas. For juvenile and criminal cases, it is used primarily when people have admitted to an offence; it therefore focuses on the penalty, not fact finding phase of the adjudication process. Restorative justice can refer to diversion from formal court process, to actions taken in parallel with court decisions, and to meetings between victims and offenders at any stage of the criminal process, including an offender's release from prison. (Kathleen Daly, 2001)
In his book on Restorative Justice Theory and Practice, Theo Gavrielides describes types of criminal justice defined historically: retributive, distributive and restorative.
The first two focus on the criminal act, deny victim participation in the justice process, and require merely passive participation by offenders. The third one, however, focuses on restoring the harmful effects of these actions, and actively involves all parties in the criminal process. RJ, provides: “a deliberate opportunity for offender and victim to restore their relationship, along with a chance for the offender to come up with a means to repair the harm done to the victim...Howard Zehr whose most prominent piece of RJ work is his book Changing Lenses. There, he claimed that the current criminal justice system’s ‘lens’ is the retributive model, which views crime as law breaking and justice as allocating blame and punishment (Zehr 1990). Zehr sees ‘crime’ as a “wound in human relationships”, and an action that “creates an obligation to restore and repair” (Zehr 1990, 181). To make his understanding of RJ clearer, he contrasted it with the retributive way of defining ‘crime’. He argued that retributive justice understands ‘crime’ as “a violation of the State, defined by law-breaking and guilt. Justice determines blame and administers pain in a contest between the offender and the State directed by systematic rules” (Zehr 1990, 181). On the other hand, RJ, he said, sees things differently as “crime is fundamentally a violation of people and interpersonal relationships” (Zehr and Mika 1998,17). RJ sees ‘crime’ as a conflict not between the individual and the State, but between individuals. Accordingly, this understanding encourages the victim and the offender to see one another as persons. In consequence, the focus of the process is on the restoration of human bonds, and the reunion of the two individuals and of the individual with the community. (Gavrielides, 2007)
I found the following principles to be shared by the practitioners and researchers whom I interviewed in England and Belgium.
According to these principles:
(a) Crime is primarily an offence against human relationships but legally, be it under colonial imposition or otherwise, it is an offence against the state.
(b) RJ is a process to repair harm done as much as possible.
(c) RJ processes must be engaged only with the maximum amount of voluntary cooperation.
While restorative justice is about people acting together to resolve their conflicts and to find a way to set wrongdoing right by repairing the harm incurred, the professionals in the field are pitted against each other by funders both public and private. The funding in England, EU and Australia waxes and wanes volleying between strengthening and broadening the base for funding RJ or weakening and dispersing consensus to defund existing research and programs in play for the past 3 decades.
Mixed Methods—Phenomenological Interviews and Seminars
The most fundamental part of cultural sovereignty is to be able to distinguish who we are as a people, the eternal self-image, from all of those images that come from the outside world about who we are. The exercise of sovereignty means defining for our-selves or we will always fall victim to our past patterns of conditioning and victimization and this is antithetical to Indigenous self-determination. The force that will drive us is cultural sustainability. This calls for a contemporary and historical understanding of relationships between peoples as respected equals.
Rebecca Tsosie, 14th Native Studies Association Conference
The first part of my research journey was spent interviewing indigenous and non-indigenous restorative justice practitioners on two reservations and in legal programs in the USA. The Indigenous program in the Navajo nation is called Peacemaking and in Yavapai nation, wellness court. Additionally, I attended two series of workshops: the 14th Native American Studies annual conference in Tempe, AZ., with a focus on Indigenous restorative justice programs in Canada, and the Restorative Justice Online Series on Indigenous models. The second part of my research took me to London and Bedfordshire, England and to the EURJ program in Leuven, Belgium.
Indigenous peoples in US and Canada are ethnic minorities who have been removed to reserves as their historical territories became part of a colonizing state. In international or national legislation they are generally defined as having a set of specific rights based on their historical ties to a particular territory, and to their cultural or historical distinctiveness from politically dominant populations. The concept of indigenous people may define them as particularly vulnerable to exploitation, marginalization and oppression by nations or states that may still be in the process of colonialism, or by politically dominant ethnic groups. As a result, a special set of political rights have been set to protect them by international organizations with documents such as the Declaration on the Rights of Indigenous Peoples.
Indigenous knowledge (IK) is the local knowledge – knowledge that is unique to a given culture or society. IK contrasts with the international knowledge system generated by universities, research institutions and private firms. It is the basis for local-level decision making in agriculture, health care, food preparation, education, natural-resource management, and a host of other activities in rural communities.
Indigenous Knowledge is the information base for a society, which facilitates communication and decision-making. Indigenous information systems are dynamic, and are continually influenced by internal creativity and experimentation as well as by contact with external systems.
The following Interviews were conducted in USA, Britain, and Belgium:
- • Interviewed an RJ community youth panel member in Chicago, Il. USA
- • Interviewed a Navajo Peacemaker, the trainer of Peacemakers, and two commissioners on the Navajo Reservation in Window Rock, AZ. USA
- • Interviewed Yavapai Tribe Wellness Court judge. AZ, USA
- • Interviewed Prosecuting Attorney and co-founder of Restorative courts (Youth, Mental Illness, and Drug) in Yuma AZ. USA
- • Interviewed a London Criminal defense barrister. London, UK
- • Interviewed a UK Community Resolution Officer. London, UK
- • Interviewed a South African RJ and Reparations expert. London, UK
- • Interviewed IARS Restorative Justice researcher, Theo Galverides, London, UK
- • Interviewed 5 European Forum Restorative Justice interviews with researchers from China, Greece, Albania, Hungary, and Belgium in Leuven, Belgium:
The following seminars were attended:
- • Seminar with restorative justice expert Johan Galtung on the Polynesian/Hawaiian model of restorative justice.
- • Seminar with Indigenous Canadian Grandmother Mona Polacca
- • Seminar with Sequoyah Trueblood, Choctaw, "Indigenous Perspectives on Restorative justice”.
- • Native American Studies Annual conference—Seminars on Canadian Indigenous RJ and Sioux Indigenous RJ
- • University community youth research class, UK
This study was chiefly concerned with the implementation of RJ practices from practitioners and researchers viewpoints. I employed a qualitative phenomenological research methodology to identify perspectives about outcomes that are defined as effective or successful. Like RJ processes, phenomenological research is an inductive, descriptive approach developed from phenomenological philosophy; its aim is to describe an experience as it is actually lived by the person. In order to gain access to this type of information, an open-ended interviewing format was used that often took discussions to unexpected subjects and information. Interviewees were selected based on their intimate knowledge of the practices of restorative justice based on their experiences as researchers and practitioners. The interview instrument was designed to unpack the research questions both directly and indirectly. In addition to directly asking the principle research questions, the interview instrument included questions about initial impressions, training, first steps, specific restorative justice practices, current feelings about the program and other strategic considerations.
- Name, Title, length of time in position?
- What do you call your practice and theory—Restorative Justice, PeaceMaking, Conflict Resolution, Victim Offender Mediation?
- How did you come to learn about these practices?
- What kind of training did you receive concerning your practice or research?
- What do you think are the main principles of restorative justice/peacemaking?
- What are the main restorative justice practices that you use or research?
- What are the goals of these practices and do you think they are successful?
- What lessons did you learn in your practice or research that you wish other institutions would know as they seek to implement restorative justice programs?
- What factors contribute to the successful implementation of Restorative justice Practices?
- How would you describe the values inherent in restorative justice?
- Overall how would you assess using this model within a retributive system?
- Is it possible to advocate Indigenous knowledge and values in Western systems?
- How does RJ in Europe, Canada and US Indigenous communities affect non-Indigenous practices?
- Are moral and cultural imperialism a concern in RJ practices and if so, how can that be addressed?
- Can RJ be used by individuals and groups to negotiate reparations from corporations and governments?
- Is RJ transformative-- does it have the potential to change the system structurally?
Initial research findings are grouped into four categories reflecting the regions examined through the literature review, interviews and seminars: Indigenous, US/Canada, England, and the EU. Across regions, ethnicity and gender, interviewees concur that the main elements of restorative processes involve voluntariness, truth telling, and a face-to-face encounter which fosters a reconnection to human relationships. In my interview with Theo Gavreilides at Independent Academic Research Studies in London he emphatically stated that the main ingredients for a restorative meeting involve victims, offenders and their community in direct (face to face) or indirect (go-betweens) meetings and that they, no one else, can determine how best to deal with the offence. Both victims and offenders are equally important in the restoration of the harm, and that is why their equal treatment and voluntary participation is needed throughout the process. He also stated that when the term “Restorative Justice ” is used in a criminal justice context it can refer to any of these four programs:
- • ‘Victim-Offender Mediation’
- • ‘Family Group Conferences’
- • ‘Healing and Sentencing Circles’
- • ‘Community Restorative Boards
(Gavrielides interview, 2013)
Major theoretical differences among interviewees were articulated on the following topics:
- • The origins of RJ
- • The commensurability of indigenous forms of RJ in Western retributive systems
- • The commensurability of Western RJ in indigenous traditional and socialist/capitalist societies
- • The use of RJ in cases of domestic violence and sexual assault
- • The professionalization of RJ
- • The conservative agenda for RJ
- • The question of inherent moral and cultural imperialism in present day practices of RJ
- • The transformative qualities of RJ for structural and systemic change
- • The possibility of RJ use as an international conflict resolution process in cases of corporations and governments causing harm to local populations.
This report will not discuss all the findings above as that will be the topic of essays, articles and chapters in a book.
Deb Cayedito and Francis Lester at Navajo Nation
Indigenous definitions are quite distinct from the capitalist-colonial legal model imposed upon the colonized historically. Within North American Navajo concepts, according to PeaceMaker Trainer, Roger Begaye the main elements of the Navajo Peacemaking/ restorative processes involve an understanding of Navajo philosophy, language and the sacred stories in order to address the harms invoked by colonialism and occupation with an understanding that there is no victim, offender, or facilitator. All have been harmed and all are responsible to address the harm. Indigenous conferencing finds its roots in tradition. Begaye asserts that the foundation of the restorative justice methods now introduced in the US, Canada, Europe, New Zealand and Australia emerged from Indigenous models of responding to harm in ways that emphasize balance, harmony, community restitution, reconciliation, humane responses and social justice. This claim is disputed by some of the white Euro-American interviewees in this study and in the literature on RJ. (Begaye, Interview 2013)
There are some claims to RJ origins in Maori ancient practices. Included in this particular model are not only primary victims and offenders but also secondary victims, the parties’ families and close friends, community representatives and sometimes, the police. All are welcome who are connected to at least one of the primary participants. They are brought together by a third impartial party, who is usually trained for this task (facilitator). However, the facilitator does not play a role in the substantive discussion. The Maori also hold the view that decisions must involve the families, including whanau (all those descended from common grandparents), hapu (clan) and iwi (tribe), and should not be taken by professionals. A common theme in the literature, seminars and interviews concerns colonization and the manner in which indigenous justice practices should be reinstated on reserves and could be embedded in the current system. Both Navajo and Maori Indigenous justice processes use the notion of colonial and ‘collective responsibility’, which they link to the reasons behind causing harm. These are believed to lie not in the individual, but in a lack of balance in the person’s structural social and family environment. In their view, these problems can be addressed only by adopting a traditional collective community response. Through this, the community can achieve restoration of harmony among all those who could have helped prevent the harm.
Indigenous knowledge (IK), alternately called traditional knowledge, is recognized as a dynamic, holistic system of explicit and implicit information, behaviors and practices, norms, values, language and worldview. Indigenous knowledge systems (IKS) have been developed collectively by groups of people living in fixed areas for long periods of time, in some cases millennia. Such knowledge systems have enabled, and continue to enable, diverse indigenous peoples throughout the world to adapt to and survive environmental change and colonization. The main philosophical values include: Wholeness with everything in the universe believed to be part of a single whole. It is therefore possible to understand something only if we understand how it is connected to everything else. A second philosophical value is that of Change. All of creation is in a state of constant change. Nothing stays the same except change ... There are two kinds of change. The coming together of things ... and the coming apart of things. Both of these kinds of change are necessary and are always connected to each other. Third, Changes occur in cycles or patterns. They are not random or accidental. Sometimes it is difficult to see how a particular change is connected to everything else. This usually means that our standpoint is limiting our ability to see clearly. Finally, The seen and the unseen. The physical world is real. The spiritual world is real. These two are aspects of one reality. Yet, there are separate laws, which govern each of them. Violation of spiritual laws can affect the physical world. Violation of physical laws can affect the spiritual world. A balanced life is one that honors the laws of both of these dimensions of reality. (Four Worlds Development Project, 1984, pp. 26-27).
The African concept of Ubuntu is not a criminal justice term, but is a determining factor in the formation of perceptions that influence social conduct in a society. Pre-colonial African societies (and their legal systems) were family based, linked together in clans and ruled by chiefs who consulted senior members of the community in all matters of consequence and were obliged to always act in the interests of the collective. Decision-making was characterized by lengthy deliberation with consensus reached through negotiation rather than voting. Indigenous justice in Southern Africa, before the introduction of European concepts of law, was determined by groups of people who included both the alleged offender as well as the victim. There’ve been, of late, calls for some aspects of traditional justice, based on ubuntu, to be reintroduced into the mainline criminal justice system of South Africa. (Xotsie, Interview 2013)
According to official US DOJ documents, in September, 2012, the Department of Justice announced over 200 grants to more than 110 American Indian and Alaska Native nations. The grants provided more than $101 million to enhance law enforcement practices, and sustain crime prevention and intervention efforts in 10 purpose areas including public safety and community policing; justice systems planning; alcohol and substance abuse; corrections and correctional alternatives; violence against women; elder abuse; juvenile justice; and tribal youth programs. It is important to note that Indigenous models are embedded in philosophical constructs of cooperation and connectedness within the natural order while non-Indigenous models are inserted into philosophical constructs of citizen’s contractual obligations to the state.
One of the controversial conflicts in RJ practices reared its head early on in my study. While Navajo Peacemakers deal with all conficts including domestic violence and sexual assaults, the non-Indigenous judge heading up the court on the Yavapai reservation that I interviewed raised grave concerns about ever using RJ in these cases. He said, “It’s about power and control and abusers are not gonna stop abusing unless the more powerful make them stop by isolation and shame? Anyone using RJ in these cases should be disbarred.” This controversy and some of the assessments about it will be covered in future work however it should be noted that the use of RJ processes in cases of sexual assault and domestic violence is substantially more prevalent in UK and EU than in the USA.
In 1982, the Navajo Nation revived and institutionalized the traditional Navajo justice system, called hozhooji naat'aanii. This system is called "peacemaking" in English. Peacemaking is embedded within the traditional worldview of the Navajo to resolve the conflict and restore balance within the encompassing umbrella of Navajo philosophy. The Navajo Peacemaking process begins by asking the question, “What happened?”
Peacemaker Francis Lester reports that in order to understand the process itself it is critical to know the history of what happened to the Navajo people, also called, the Diné. The post- colonial focus of the US government has been to make the native dependent and punish them when they do not obey. After genocide, wars, and theft of their lands, the Diné were forced to lay down their weapons and accept the retributive laws and courts of the USA. On the reservation presently all reported felonies go to US federal court. Anything less may go to tribal court. Acts of violence or drinking under the influence are not “crimes” in Navajo system (Lester, Interview 2013).
Roger Begaye, Peacemaker Training Manager for the Navajo Nation, reported that the whole idea of crime and courts has been forced on the Diné. Court is viewed as another mechanism of control and used to punish the Navajo for being Diné. The first experiences that Navajos had with US courts was the enforced travel to Fort Sumner or Fort Defiance resulting in incarceration that to this day the Navajo still call “gooldi”. The very concept of crime is a bilaganna (White/Anglo) concept. (Begaye, Interview, 2013)
Navajo peacemaking is one of the most renowned restorative justice programs in the world with people applying for training from around the world according to Roger Begaye. It is often called a "horizontal system of justice" in the literature because all participants are treated as equals with the purpose of preserving ongoing relationships and restoring harmony among involved parties.
As Peacemaker, I am not there to judge. I am just like everyone there. I am the same as them. We do not use the terms offender and victim. Violence, addictions, these are not against the law on the reservation. (Lester interview, 1/13)
Roger Begaye reports that traditional Diné philosophy has four major categories of law: natural law, traditional law, customary law, and common law. He said:
When you cause harm the mind will suffer and be altered so to get back in harmony you must go to the medicine man for a reconstruction ceremony. Sand paintings are one form of reconstruction. The Peacemaker is the mediator between humans and nature. (Begaye, interview 1/13)
According to official Navajo documents:
Traditional Diné Peacemaking begins in a place of chaos, hóóchx̨o’/ anáhóót’i’, whether within an individual or between human beings. The historic trauma of colonialism and genocide has often resulted in Navajos staying away from face-to-face confrontations. However, in Dine’ philosophy such confrontations are vital in order to dispel hóóchx̨o’/anáhóót’i’. The Peacemaker has the courage and skills to provide the groundwork for the person or group to confront hóóchx̨o’/anáhóót’i’ and move toward mastering harmonious existence… When hóóchx̨o’/anáhóót’i’ is confronted, people may learn there is a choice to leave it. When harmony, hózh̨̨ó, is self-realized, sustaining it will have clarity and permanent hózh̨̨ó will be self-attainable, hózh̨ǫ́ójí k’ehgo nįná’íldee’ iłhááhodidzaa ná’oodzíí’.http://www.navajocourts.org/Peacemaking/Plan/PlanOps.pdf
In the present system of Navajo Peacemaking the parties in conflict meet with a Peacemaker after requesting this process and paying a sixty dollar fee. Sometimes meetings include others such as family members and friends or those with relevant expertise (e.g. addiction counselors and social workers). The Peacemaker, usually chosen by his or her chapter (a unit of local government), is a respected person with a demonstrated knowledge of traditional Navajo language and philosophy.
According to Roger Begaye in the “Cornstalker Philosophy” the distinctions between the Diné and the Bilagaana methods of justice are based in concepts of respect and best illustrated as follows:
The native has respect for himself and his existence in accordance to his creator, mother earth, and the universe. In distinction, he acknowledges reverence for himself and to his creator by offering white corn meal and prayer while anointing himself from the palms of his feet and upwards to the top of his head in the process. In this process he acknowledges his spatial existence, his sacred name by offering to mother earth, the universe, the cardinal directions, the environment in sacred places such as the mountains and nature before he acknowledges himself as a human being. This is a psychological reverence in which he acknowledges the meaning of well- being, existence and his determination to live a long extended life with guidance and eventually attain the virtues of the culmination of all the wisdom one can gain in one’s lifetime, called Yis’ah Na’ada. White people are generally more focused on the mind to achieve goals of profit. The will to survive and prosper with all goodness placed in money, a nice home, forms of travel, jewelry, and attainment of power in money. Respect for the earth and environment is second (if at all/my words) in importance to wealth and prosperity. Spirituality is in the form of church on Sundays. (Begaye, 2007)
There are more than 250 Peacemakers from 110 chapters in the Navajo nation. Using the Navajo language is emphasized and Peacemaking begins with an opening traditional prayer sometimes in both Navajo and English. The Peacemaker explains the traditions from which the process emerged and the ancient teachings. There are four main questions to be posed in the Navajo peacemaking process:
What happened? 2. Why did it happen? 3. How do we go about it--(resolution and a better way)? 4. How do we heal?
The Peacemaker leads the group in developing recommendations and agreements if possible however both men I interviewed agreed that there is sometimes no “solution” or “resolution”.
Sometimes everyone must take some time to smoke and pray. (Begaye, Interview, 2013)
Navajo concepts of healing and healing ceremonies also provide ways to confront family violence and even murder according to Lester. Healing requires that the person be actively involved in the traditional ceremonies prescribed. Francis Lester suggested in his interview that the process would be helpful for soldiers returning from wars with PTSD. Another significant difference between Navajo Peacemaking' and the Anglo model of restorative justice according to Lester is that Peacemaking allows self-referrals and requires no admission of guilt. Identifying the history of where and how the people lost balance and harmony results in identifying the right path for the future. Healing requires that the person be actively involved in the traditional ceremony.
While Navajo Peacemaking was reinstated to protect and support the customary practices of peacemaking it has been imposed within the structure of Anglo American retributive court procedural rules. The judicial institutionalization of Navajo Peacemaking within the retributive system may have the inadvertent consequence of changing its fundamental nature. The literature on restorative justice (RJ) poses several features of Navajo Peacemaking that distinguish it both from typical RJ practices as well as from programs such as family group conferencing (Australia and New Zealand) or sentencing circles (Canada) that operate exclusively or primarily with Indigenous persons or within Indigenous communities.
The Navajo judiciary, like other judiciaries of Native American Nations, has attempted to 'de-colonize' federal Indian law through two processes: (1) establishing Navajo common law (including customary law and traditions, as well as court decisions) as sources of legal authority and (2) establishing processes that more nearly approximate dispute resolution processes said to be in existence pre-colonization…In the 1990s the Navajo Supreme Court began a strong effort to promote Peacemaking, receiving a federal grant to fund the payment of Peacemaking personnel. In 2001, the Navajo Tribal Council passed enabling legislation for the Peacemaking Division (7 NNC§ 409). Thus, unlike processes in some locales Peacemaking was developed from within the Navajo Nation rather than imposed from without. (Coker, 2006)
Indigenous Hawaiian Restorative Justice
Like the Navajo model the Hawaiian indigenous restoration process emphasizes the human connection to all things. Aloha means being one with nature. Trainer, Johan Galtung described five stages in his seminar:
- The wise person asks each person to present their emotions and story and asks the person who caused harm, “why did you do it?”
- The wise person asks everyone in circle “what did you do to prevent this from happening, what could you have done?” Everyone shares the seeds of responsibility.
- The Wise person asks all to hold hands and lift heads to ask apology to the community/ ancestors/Creator for their acts of commission and omission.
- The Wise person asks: “What is to be done to prevent this from happening—what would restore you and what will you do to restore the balance?”
- The Wise person meets with everyone after a period of time to see if everyone is doing their part.
Like Maori, Hawaiian methods also are used within the structure of Anglo American retributive court procedural rules. Does this have the inadvertent consequence of changing its fundamental nature? Even when Indigenous leaders control the process, the criminal justice system is embedded in constructs of power and control which are contradictory to the healing processes these indigenous worldviews foster. The process of using non-Indigenous practitioners in sentencing circles or conferencing even when in consultation with Indigenous leaders may produce an emphasis more on blaming “offenders” and placating “victims than healing for the individuals involved and the whole community.
Western governments “allow” traditional native practitioners the authority to use traditional methods of solving problems or recognize decisions at specific levels. While practitioners within retributive systems may be incorporating some of these restorative processes they are not congruent with retributive civil or criminal law. The critical questions of the Indigenous processes concerning that which will prevent harms inflicted by all involved and the question of how all may heal are key elements that are non-existent in present day crime and punishment systems and structures. A dissonance occurs in embedding restorative processes within retributive systems of justice. Restorative processes must be embedded in systems and structures that embrace congruent philosophies and social justice on all levels of the society if they are to resolve harm, provide solutions enacted by communities, and promote healing.
The Diné government has been too influenced in colonizer ways. Navajos must make the necessary changes on their own terms to continue as a distinct nation. (Cayedito, Interview 2013)
The paradox of liberal imperialism is that human dignity is often promoted in Western discourse to be rooted in the universal human capacity for reason. When Indigenous people trapped in Western retributive systems attempt to advocate their sovereignty with cultural practices unfamiliar or disturbing to the US or European practitioner, they may appear irrational and thus undeserving of recognition and respect. During the course of my interviews I heard repeated testimonies from “Westerners” who participated in trainings conducted by Indigenous leaders and described the methods as “strange” and “uncomfortable” because of the use of candles, sage, and story telling that “felt” hard to understand or out of context.
The restorative justice movement in Canada has gained momentum in
recent years due to economic advantages in keeping people out of public prisons. Seminar leaders from Canada at the Native Studies Conference posed themselves as the vanguard of the RJ movement with their first modern experiment in victim-offender mediation in 1974 along with implementing aboriginal sentencing circles.
Canada, like Australia and New Zealand are interweaving Indigenous and Western Criminal Justice (CJ) methods with multiple points of entry for its use.
After attending training by an Indigenous Canadian one European Forum RJ researcher reported:
“The Peacemaking circle confused me. On one level I find it naive… I was very confused about the generosity of these people. They would say that there is someone who has offended so we must begin by asking, “What did you do for the offender?” That is extremely structural…it was only in the case of native peacemaking I saw this structural aspect.” (Pali, Interview, 2013)
Restorative Justice is not as popular in the USA as it is in Europe, Canada, Australia and New Zealand because of the privatization of prisons which profits from incarceration and hence imprisons more US citizens than in any other country in the world. After endorsing victim-offender mediation in 1994 the American Bar Association (“ABA”) recommended the use of victim-offender mediation and dialogue in courts throughout the country and also provided guidelines for its use and development. Although victim advocates were skeptical about victim-offender dialogue by 1995, the National Organization for Victim Assistance (“NOVA”) endorsed the principles of restorative justice by publishing a monograph entitled Restorative Community Justice: A Call to Action. As funding became available for these programs victim organizations became increasingly supportive and recipients of those funds as leaders and trainers in legal and educational settings.
Reforms in the USA over the past three decades have resulted in Community policing and community Boards made up of small groups of active volunteer citizens, specifically trained to conduct public, face-to-face meetings with offenders ‘sentenced’ by the court. The aim of each board is to provide an opportunity for victims and the community to confront offenders in a constructive manner, while giving the chance to the offender to take personal responsibility. Community Restorative Boards promote citizens’ participation in the CJ system, as they provide them with an opportunity to get directly involved in the justice process, generating ‘community-driven’ consequences for criminal actions that are offered to reduce costly reliance on formal CJ processing. The process usually involves a meeting with the board members discussing the nature of the offence, and the negative effects it had on the victim and community. After a thorough examination, the board develops a set of proposed sanctions, which they discuss with the offender and the victim, until they all reach an agreement.
An additional reform in the US is the establishment of ‘accountability’ courts for offenders with special problems such as drug addiction or mental illness. Interviewee, Mary White, a prosecuting attorney and a founder of the drug, health and youth courts in Yuma, AZ believes it makes no sense to lock up drug offenders for a term of years while doing nothing to treat their addiction. She says that it costs tens of thousands of dollars to imprison an addict but much less to provide them with drug treatment in the community.
Many states have established drug courts, placing offenders in mandatory treatment. Drug court judges are being trained to work with addicts. The judges in these cases hold the offenders accountable for meeting their obligations to the court, society, themselves and their families. Offenders are tested for drug use regularly and randomly. They meet with the judge frequently to review their progress. If they are doing well then they are rewarded; when they do not live up to their obligations, they are sanctioned. Numerous studies have found that drug court graduates are much less likely to use drugs or commit new crimes, and the programs save the state large amounts of money.
Prosecuting Attorney Mary White assessed the US justice system in need of new policies and procedures. She is another passionate advocate for RJ and says that it:
- Reserves costly prison space for dangerous offenders
- Focuses on reducing future harm
- Facilitate victim–offender dialogue
- Provides opportunities for community service and reparation
She also reported that these policies enjoy broad bipartisan support across ideological, theological and racial lines in Arizona and the US generally. The widespread growth and impact of RJ in legal and educational settings has in this researchers assessment completed the co-optation process by the very justice systems that were initially so critical of its existence. Through public and private funding restorative justice programs are developing in nearly every state and range from small and quite marginal programs to a growing number of state and county justice systems and public school systems. Presently, these initiatives are occurring in the states of Arizona, California, Colorado, Illinois, Iowa, Minnesota, New York, Ohio, Oregon, Pennsylvania, Texas, Vermont, and Wisconsin. (White, Interview 2013)
England has implemented restorative justice methods in almost every aspect of social programming primarily through its national health care system but also through the law and judicial systems. According to Dr. Theo Gavrielides, a leading RJ expert and the founder and director of Independent Academic Research Studies, RJ’s first development in England and Wales came from the community without any legislative or other support from the Government. This happened in 1972 with the introduction of a victim-offender mediation program. Since then, the new practice had to find its way in the ‘shadow of the law’, as no specific legislation was enacted to regulate it. (Gavrielides, 2007)
By 1998, the Labor government in Britain created the Youth Justice Board (YJB) and local youth offending teams (YOTs), which resulted in decreases in first-time offending and size of what the literature calls the ”youth secure estate” which seems to suggest the state is protecting itself from it’s youth leading this researcher to ask, which youth? At the same time, England set up the YJB, they set up council adjudication boards which offered additional alternatives that established a multidisciplinary approach, with various agencies finding solutions based on evidence of ‘what works best’ to both punish and resolve conflicts locally. My first interview in London was with the Coordinator of the Kirklees Restorative Justice program which was partnered with Probation Service, West Yorkshire Police, The Prison Service, KASBU, KHN, Victim Support, Kirklees Council Community Safety Team, and the Lifeline and Drugs Intervention Program. A passionate and experienced advocate for RJ she identified the following experiences with RJ:
- RJ reduced repeat offending for some offenders;
- reduced crime victims’ post-traumatic stress symptoms and related costs;
- provided both victims and offenders with powerful experiences that led them to view each other as human;
- reduced some crime victims’ desire for violent revenge against their offenders;
- reduced the costs of criminal justice, when used as diversion from CJ;
- reduced recidivism more than prison (adults) or as well as prison (youths).
This interviewee believed face-to-face meetings among all parties connected to a crime, including victims, offenders, their families and friends, resulted in restorative results along with court-ordered financial restitution. Her experience was based in partnership with a police officer fostered a team that could provide empathy along with knowledge of the law enforcement system. She advocated several entry points for RJ:
- as diversion from prosecution altogether;
- as a pre-sentencing, post-conviction add-on to the
- as a supplement to a community sentence (probation);
- as a preparation for release from long-term imprisonment to
- as a form of warning to young offenders
In 2003, the UK Government announced its intention to consult on a national strategy that would expand RJ outside the youth justice system, covering specific crimes prosecuted within the adult criminal justice system. In 2005, the Home Office RJ unit was closed down and during 2005 – 2007 no major policy or legislative
development followed. However, this interviewee reported that the present conservative government is reorganizing RJ options because it is economically beneficial in keeping some offenders out of publically funded prisons.
While the Council of Europe and the European Union have been promoting and using RJ for at least two decades I will only focus my comments on the European Forum for Restorative Justice (EFRJ) in this report as that is where I conducted interviews and presented findings in Leuven, Belgium. According to its literature, the EFRJ is a non-governmental, not-for profit organization established in accordance with Belgian law in 2000. Its general aim is to aid the establishment and development of victim offender mediation and other RJ practices throughout Europe. It makes possible the exchange of information, experience and expertise in this field, and handles policy-oriented work in an independent manner. It is also funded by the EU. Presently the EFRJ facilitates an exchange of practical experience and studies between Austria, Germany, Northern Ireland, Hungary, Albania, Greece, and Poland providing support for the development of mediation and the training of mediators and judges. I interviewed five EFRJ researchers, the Coordinator and presented my findings to them at their board meeting in April, 2013.
The main principles I found articulated by the staff of the EFRJ included:
- Crime should be dealt with as a harm done to victims, a threat to peace and safety in a community.
- Reactions to crime should contribute towards the decrease of this harm with emphasis on full accountability of the offender.
- The main function of social reaction to crime should not be to punish, but to contribute to conditions that promote restoration caused by the offence.
- The role of public authorities in the reaction to an offence needs to be limited to contributing to the conditions for restorative responses to crime.
- The victim has the right to freely choose whether or not to participate in a restorative justice process.
- If the victim refuses to cooperate, the offender should nevertheless be involved in some form of restorative responses.
The research projects at EFRJ are impressive in their focus to advance joint efforts to maintain and expand RJ onto the statute books and policy agenda in Europe. The extent and focus of the projects at EFRJ were fascinating to this researcher and the researchers interviewed were involved in one or more of the following projects whose links and descriptions are taken directly from the EFRJ website.
This research project aims to answer when and under what conditions are restorative justice processes accessible to citizens and how are restorative justice processes initiated under different jurisdictions and in different models.
This research project aims to develop good practices around providing training in restorative justice for the judiciary, to deliver training and to support the building of networks amongst legal professionals in the field of restorative justice.
- Desistance and Restorative Justice: mechanisms for desisting from crime within restorative justice practices
The general aim of this project is to gain insight in the mechanisms within restorative justice practices that can contribute to desistance from crime and thus reduce victimisation.
The project aims to provide an alternative and deepened understanding based on empirical evidence of how to handle conflicts within intercultural contexts in democratic societies in order to set up security solutions for citizens and communities
The general objective of the project is to achieve more knowledge, through empirical evidence, on the needs, experiences and position of victims when participating in restorative justice programmes. The project runs from 1 January 2011 until 31 October 2012.
This project consists of an exploratory study of conferencing practices, for both adult and young offenders and for low and high level crimes, and their further applicability within Europe. This project runs from 31/12/2008 till 28/02/2011
This European project, carried out by an international Consortium led by the Hungarian organisation Foresee Research Group , focuses on the role of mediation and restorative justice practices not in the pre sentence phase, but rather in prison settings, reaching out for victims of serious crimes and inmates condemned for aforementioned crimes.
The project was a cooperation between the European Forum for Restorative Justice, the Juvenile Justice Department of the Italian Ministry of Justice and the Istituto Psicoanalitico per le Ricerche Sociali (IPRS). It ran from 27 December 2007 until 27 April 2010.
- This project ran from 1 December 2007 until 30 March 2010.
- • Developing standards for assistance to victims of terrorism This project ran from 1 March 2007 till 30 June 2008.
- • AGIS 3: Restorative justice: an agenda for Europe This third AGIS project, which ran for 24 months - from 1 June 2006 till 31 May 2008-, wanted to realise an effective support to the development of restorative justice in Southern Europe on the one hand, and to research what could be the potential role of the European Union in the further development of restorative justice in the whole of the European Union.
- • AGIS 2: Meeting the challenges of introducing victim-offender mediation in Central and Eastern Europe This second AGIS project, which ran for 24 months - from 1 December 2003 till 31 November 2005 -, wanted to realise an effective support to the development of restorative justice in Central and Eastern Europe.
- • AGIS 1: Working towards the creation of European training models for practitioners and legal practitioners in relation to restorative justice practices In 2003, the European Forum obtained a non-recurrent funding from the AGIS programme of the European Commission to work on two topics: the training of mediation practitioners on the one hand, and the training of legal practitioners in restorative justice on the other hand. In the framework of the project, two very concrete instruments were developed: recommendations on the training of mediators and a training course for prosecutors and judges on restorative justice.
- • COST Action A21: Restorative justice developments in Europe COST Action A21 on 'Restorative Justice Developments in Europe' concerns a European network of researchers from some 20 countries, which was started late 2002 and which ran until the end of 2006. http://www.euforumrj.org/projects/overview/
- This diverse and engaged team interviewed in Belgium includes researchers from China, Albania, Greece, Hungary, and Belgium. Future reports will cover their experiences and assessments of the projects past and present.
- While there was some criticism by researchers at the European Forum on Restorative Justice concerning my usage of the terms, “Western” and “Indigenous” to describe differences in values and systems across race and ethnic groups, nations and reserves, the categories and definitions are defined and imposed by European and US definitions and courts. The struggle continues for people to determine for themselves how to deal with harmful behavior and to confront for whom that behaviour is not tolerable, the people or the state? According to an EFRJ Chinese researcher the commensurability dilemma is real. She said, “In ancient China punishment has a central place. I think people’s ideas are very punitive. Penal mediation is used in China for over a decade and is part of the official practices. There are some overlap in values between RJ and with restoring harmony that correspond. There are cases and disputes that are just handled in the Chinese community. In fact a large proportion of conflicts are handled outside the court. RJ is viewed as an imported Western model compared to penal mediation. The main principle of RJ is the restoration of human relationship wherein crime is viewed as harm to the human relationship; RJ has roots in the victim movement but crime is against the state in China.” (Yuan, Interview, 2013)
- The prospects for a "meeting of the minds" among Indigenous and Western practitioners, researchers and visionaries for resolving conflicts concerning origins, values, and methods in restorative and transformative justice are slim. The conflicts are rooted in supremacist capitalist constructs and require new foundations. The conflicts also represent cultural and intellectual struggles of identity and sovereignty in familiar and unfamiliar fields for this researcher. What advocates share in common are their pursuits of reform in justice methodologies while shared pursuits for social justice are not to be found as evidenced when sponsored by governments and corporate hacks..
- When viewed through the discourse lens on the debates concerning restorative vs. transformative justice the conflicts identified in this report become concretized. A recent prosaic paper comparing restorative and transformative justice by one of my student’s sums it up in her own voice:
- Restorative justice attempts to right wrongs after they have been committed. I have seen documentaries about offenders that attempt to apologize to the victim or the victim’s family. The problem with that is that the harm is already done. It is harder to forgive an offense then. I am speaking as a victim. I used to be a lot more forgiving of crime before my life was nearly taken by someone that once claimed to love me. It has been five years since my attack and me and my children are still reeling from the affects of it. I feel the same way about crimes that involve child abuse, sexual assault and other crimes of this nature. The mental aftermath of these crimes is long-lasting. While an apology may help in the healing process it is still a long road of recovery. I am just not sure that many people even want to hear from their offender. When I was going to court, the man that stabbed me in front of my children apologized. That did nothing for me. He was the father of my children. They are conflicted because they loved their father but hate what he did to me. What if I would have died? They would have been left without any parent. Some things just don’t allow for mediation. The services provided by victim assistance are remedial at best. I don’t necessarily blame the program but the occurrence of crime makes it impossible to effectively offer assistance to all those that need it…Transformative justice does a better job at covering more causes of crime. This deals with prevention, accountability and structural to name a few. I think this is important for some of the very same reasons I named above. If society has set up road blocks that prohibit people from earning livable wages then how can we expect different outcome. Social change and accountability is needed to help change our current state of society…I do not think the poor people need more agencies in their lives telling them what is right and wrong. This just undermines the effort to get people to take accountability. Some of these same social service agencies are structured to keep people from succeeding. DCFS workers only need to have a bachelor’s degree in any field. Yet society allows these very people who to come in and ultimately break up a family. Even here at school, I have encountered numerous white boys from the suburbs who want to be CPD. They have no clue about what it is like to live in the ghetto. Besides what they see on the news or rap and hip hop videos they don’t know what goes on. I am pointing out all these things because I think this is what wrong with transformative justice. Who is transforming it? Since I have been in school, I have read study after study about crime in the black community by mostly white scholars. How do they know? Even if they went and lived there how could you truly understand? I live here and I don’t always understand. This bothers me because the very people who hold this transformative future in their hands don’t live here. How can they really predict what services are needed? I am an advocate of the community accountability because poor people can’t wait to be saved. The first norms that people learn are from family…change occurs because people fight for it. Transformative justice will not work without community involvement. Anything less will just be another government agency intruding on the lives of the poor.” (Student paper, Theories of Justice, 2013)
The conflicts on global levels mirrors those of the individual caught in the web of corporate and state control. The offender is the colonizer, the invader, the occupier, the globalizer, the corporation and the state whose harms of invasion, occupation, classism, racism, and sexism are historic and manifest now in poverty, criminalization, torture, exile and deportation. These harms cannot be mediated they must be eradicated now and prevented for the future. How can Western academics, legal scholars, law enforcers, or social workers know what is good or right for the Indigenous, the occupied, the refugee or the immigrant? Is it even possible to know when at the end of the Western continuum of values all that really counts is wealth, profit and power while on the Indigenous end of the continuum that which is most valued is the relationship of kinship among all beings in harmony with the natural and spiritual cosmos? A primary task for restorative and transformative justice advocates is to decode and de-program all forms of cultural imperialism specifically, their own. The terms of engagement must be recast for the absolute right of Indigenous people to sovereignty. Culture is pivotal to the meaning of self-determination and cannot be distilled into one political right or the even the legal discourse of human rights. Finally, we must all put ourselves into the Indigenous story by understanding our collective history and asking the questions, what happened and how can I help prevent more harm? In this way we all may have a fighting chance to create new models of justice.
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Begaye, Roger. Interview. 08 January 2013.
Lester, Francis. Interview. 08 January 2013
Cayedito, Deborah. Interview. 07 January 2013
Passey, Kerry. Interview . 06 February 2013
White, Mary. Interview. 21 February 2013
Cobham-Bismark, Kevin. Interview. 19 March 2013
Mahammud, Zaynab. Interview. 20 March 2013
Stanford-Xostie, Esther. Interview 21 March, 2013
Gavrielides, Theo. Interview 24 March, 2013
Anderson, Monique. Interview. 01, April, 2013
Torz, Edit. Interview. 02, April, 2013
Yuan, Xiaoyu. Interview. 02, April, 2013
Varfi, Tzeni. Interview, 03. April 2013.
Pali, Brunhilde. Interview. 03 April 2013