The decision in offering diversion restorative justice is normally at the discretion of the court and the presiding judge may or may not grant such pleas. The district attorney must first let the court know the desire to offer such service. According to the UN’s Training Manual on Alternative Dispute Resolution and Restorative Justice, there are 3 fundamental principles of Restorative Justice, namely; Punitive actions do not always serve those interests best. The primary determinants of justice are the interests of the victim, the community and even the offender.
Crimes are against individuals and, to some extent, communities, not against the state or “the law. ” Thus when giving a sentence the basis should lie in these principles, example applicable might be for the case of Rupert Madoff’s Ponzi scheme, even though he was sent to the prison and justice was deemed to have been done, the interests of his victims and the Community which lost in excess of $50 billion was not addressed and most of them will not get their savings back.
In November 2006, Festus Oguhebe, a Nigerian professor was sentenced to 2 years in jail for pepper spraying his child by a Hinds County Circuit Judge L. Breland Hilburn. Such a sentencing was reached despite repeated pleas from his two teenage children and wife arguing that they wanted counseling for the professor not jail terms. Such formal pronouncement of the law, while legal, is totally out of the principles of justice. The interest of such litigation lay with the children and the community, not the state.
By sending the bread winner to prison for a social vice against his child, the court not only subjected the children to double jeopardy, but it also denied the victims his right to a good life. This is a typical situation when a restorative justice system would better deal with such a situation. In sentencing their father to jail, the presiding judge did not do justice to the children, who among them were the victim. According to the UN’s Training Manual on Alternative Dispute Resolution and Restorative there are several philosophical roots of Restorative Justice.
The first is that all human beings are capable of reforms and thus everyone convicted of a certain felony has to be evaluated on an individual basis and then a fair judgment reached on merits of having him behind the bar over freedom. The second is that offenders should have a chance to make amends to the crimes against their victims and take responsibility. This drives their conscious to positive thinking. The third is that if an offender makes an amend, then he should be integrated into the society.
The last philosophical root lies in the fact that offenders should be protected from retribution so that society as a whole does not suffer from norms of revenge-taking. The UN publication provides 5 stages of restorative justice system. The first is the trial process. This involves determination if a crime has been committed and excludes sentencing. The second stage is the inclusive encounters of all the stakeholders. Victims, offenders, selected community representatives plus the members of the select judicial system meet to have interactive negotiations.
The law enforcers are also allowed to join in the deliberations. Stage three involves amends. All assembled individuals jointly determine what the offender has to do to repair the harm they have done. The judge mediates the process to a contract but the victim has the final word on the administration of justice. The fourth stage is reintegration. Upon the offenders agreeing to the contract to make amends, they are restored as contributing members of the society while the victim is given the necessary form of additional assistance or therapy.
The final stage involves monitoring and oversight of the reintegration contract by the state and the community.
Fagan, J. , West V. (2005). The Decline of the Juvenile Death Penalty: Scientific Evidence of Evolving Norms. Journal of Criminal Law and Criminology, Volume: 95. Issue: 2. Page Number: 427+. Noel L. (2010). About Juvenile being charged as Adults in Murder Charges, eHow magazine. The United Nation Office on Drugs and Crime. (2007) Training Manual on Alternative Dispute Resolution and Restorative Justice, UN publications