Fall 2010-#8. Restorative Justice: ADR in Criminal Cases.

Authorby Yvonne Byrd and Judith Gibson

Vermont Bar Journal


Fall 2010-#8.

Restorative Justice: ADR in Criminal Cases

THE VERMONT BAR JOURNALVolume 36, No. 3Fall 2010Restorative Justice: ADR in Criminal Casesby Yvonne Byrd and Judith GibsonVermont's network of twelve community justice centers (CJCs),(fn1) and other restorative justice programs supported by the Vermont Department of Corrections,(fn2) are broadening the potential for justice in criminal cases. These restorative programs offer people affected by crime a means for producing greater satisfaction while helping offenders become accountable for their actions and learn from their mistakes. In this article the authors argue that crime, while not typically described as conflict, can be framed as such and addressed using certain alternative dispute resolution (ADR) techniques, though not traditional mediation protocols where the facilitator is neutral and parties have equivalent roles. This article explores the possibilities and benefits of doing so.

In our traditional criminal justice system, outcomes are deemed just if: (1) set rules regarding legal process, applicable laws, and precedent are followed in determining the outcome; (2) the punishment imposed is perceived to be as serious as the crime and delivers a deterrence message to the offender and others; and (3) there are orders for offenders to pay for material damages. Unfortunately, according to this definition, justice does not do enough to repair the harm or make things better: victims feel excluded from information and decisions; the punishment may not be considered severe enough; the legal process casts those who committed the crime as "defendants" who, instead of taking responsibility, vigorously deny or defend their offenses (even re-casting themselves into the role of victim when found guilty and punished); victims feel (and may be) at risk for retribution; and communities are asked to reabsorb people who may have been punished but who have not necessarily altered their thinking or behavior. By contrast, the programs offered by the CJCs and others, rooted in the tenets of restorative justice and similar to other ADR processes, use dialogue to develop understanding, empathy, and actions that promote transformation in a three-way relationship that includes the persons harmed by the offense, the person responsible, and the community. Justice in this system is determined by the extent to which: (1) all parties feel included and fairly treated (victims are always invited to participate and choose their level of involvement or decline the invitation to participate at all); (2) the offender understands and acknowledges the harm he or she committed; (3) victims needs are heard and satisfied to the extent possible; (4) all parties feel the matter is settled; and (5) the person who offended has made amends and developed some motivation and skills for behaving in ways that reflect community standards.

A cursory review of recent literature on ADR in legal cases turns up many articles and books on using it to negotiate outcomes in civil disputes-environmental, commercial, employment, family, divorce, health care, consumer, or other areas of law that do not extend to criminal wrongdoing. When ADR is mentioned in criminal cases, it is often represented as a way to plea bargain effectively. Gabriel Hallevy writes that a defense attorney formulating a plea bargain is effectively acting as a mediator.

[The] defense counsel's function in plea bargains is identical to that of a mediator, seeking to reconcile the positions of the defendant and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) ... The tactics of influence and use of an impression of force employed by the defense attorney in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations, and numerous other parameters are identical to those employed by the mediator.(fn3)

Hallevy's definition of the role of a mediator may differ from that employed by many mediators in Vermont, who act as neutrals, using neither force nor manipulation, to encourage dialogue and help every voice to be heard. But he opens the door to a discussion of using ADR skills and procedures in criminal cases. We contend that this is only one way that ADR can be applied in these cases.

ADR, in some places referred to as appropriate dispute resolution, allows those most affected by a conflict to have a say in what should happen to resolve it. We believe that restorative justice is the ADR process for criminal conflict, the discord that results when a person commits an illegal act. A restorative justice response in a criminal case, similar to mediation in civil and interpersonal disputes, relies heavily on third-party facilitation of dialogue in a safe and structured setting that seeks an outcome determined largely by the people whose interests are personally and directly affected by the problem. However, restorative justice practices differ from mediation insofar as they account for the way in which criminal conflict is different from civil conflict. Most significantly, in criminal conflict, someone with authority in the criminal justice system has already judged which of the parties is at fault and who has been harmed. For restorative justice to work, communities must assume an active role in mending relationships after a crime is committed. Whether represented by volunteers on a reparative board, by friends...

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