Regulating Restorative Justice: What Arbitration Teaches Us About Regulating The Restorative Process In Criminal Courts – Arbitration & Dispute Resolution

Introduction

My first encounter with restorative justice came in 2016 when I was working as a student researcher in Kigali, Rwanda. After the 1994 Rwandan genocide, I was employed by a local non-profit whose mission was to promote peace and reconciliation. My task was to interview survivors and perpetrators of the Rwandan genocide about their experiences of post-conflict reconciliation. With the help of an interpreter, I spoke in pairs with survivors and perpetrators. In the morning, I would hear the survivor’s account of how the perpetrator killed his family members and why they forgave the man. By noon, I would hear the criminal’s description of the murder and remorse. The day ended with a meal shared by all parties.

Growing up in a retributive justice system in the United States, I had no frame of reference for what I was seeing. According to my sense of justice at the time, a murderer should be tried by a judge, sentenced according to law, and imprisoned for the required statutory period. However, such a scheme was not possible after the Rwandan genocide because there were more murderers than the traditional legal system could handle.1 Instead of a traditional court, the people of Rwanda chose a community-based court.Gacaca“Justice for Genocide.2 In these GacacaIn the courts, exterminators were sentenced by fellow members of the community, many of whom had no formal legal training.3Punishments usually consisted of prison time and/or activities designed to reintegrate criminals into the community, such as repairing roads and public buildings and building new homes for survivors.4

This process, in which offenders and victims participate in community-based reconciliation, closely resembles restorative justice. At its core, restorative justice is a community-centered approach to crime and conflict resolution that rehabilitates the offender while reconciling them with their victims and the community.5 This approach differs markedly from the US criminal justice system, which isolates criminals as a form of punishment. Under a restorative justice approach, the offender, victim, and all affected community members come to their own agreement on how to resolve the problem that brought the offender to court.

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A. Restorative Justice Community Court

After leaving Rwanda and returning to the United States, I dedicated myself to finding similar restorative models for crime and punishment in the American legal system. In 2017, I began my two-year tenure as the presiding judge of the “Restorative Justice Community Court” or “RJCC” in Chicago, Illinois. RJCC is built on that philosophy of restorative justice GacacaCourts. Instead of simply incarcerating those who break the law, RJCC uses restorative justice to repair harm and prevent it from happening again.6 RJCC’s process is somewhat similar to victim-offender mediation, where the offender and victim find a mutually satisfactory way to repair the damage done through the help of a skilled facilitator called a “rounder.”7 However, a restorative justice process differs from mediation in that it is more community focused.8 At RJCC and other rehabilitation courts, the accused and the victim are not alone in the room. Any community member affected by the crime is encouraged to participate in the conflict resolution process and hold the offender accountable for repairing the damage they have caused.9

unlike Gacaca Courts, RJCC contains more trappings of a traditional courtroom. The RJCC is an official court of record of the Circuit Court of Cook County. This means that (1) the RJCC is part of Cook County’s official network of taxpayer-funded courts, (2) its proceedings are recorded by a court reporter and available for public review, and (3) the court is presided over by the full-Cook County Chief Judge. Time County Judge Appointed by Timothy Evans. The RJCC is in session once a week, meeting in its own building located in the community it serves.10 The courthouse is staffed by local community members, as well as all the traditional players in a Cook County courthouse, including the Cook County State’s Attorney, the Cook County Public Defender’s Office, Cook County Social Services and the Cook County Sheriff.11

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The RJCC operates like a traditional diversion court, offering eligible participants an alternative to traditional court proceedings.12 To participate in the RJCC, a participant must be eighteen to twenty-six years of age, charged with a nonviolent felony or misdemeanor.13 Reside in the community where the RJCC is located, have a non-violent criminal history, and accept responsibility for the harm they cause.14 Once all these requirements are met, the accused can enter the process, and the victim also has the opportunity to participate.15

Henceforth, the conflict resolution process is much like a victim-offender mediation. The accused, the victim, and all affected community members will participate in a series of “peace circles,” conversations led by a skilled facilitator about the harm that has been done and how to repair it.16 Lawyers, judges and other legal personnel are not included in this part of the process. Once the team agrees on actions to take to repair the harm—which may include restitution, job training, substance use counseling, an apology, and more—they write them down as recommendations in a “damage repair” agreement. .17 Once approved by the judge, the repair of damages agreement becomes a legal substitute for the defendant’s sentence. If the defendant complies with all terms of the agreement, their case will be dismissed. If they do not, their case will be transferred to a traditional courtroom for adjudication.18

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Footnotes

1 See the Justice Convention, HUMAN RIGHTS WATCH 13 (May 31, 2011), https://www.hrw.org/report/2011/ 05/31/justice-compromised/legacy-rwandas-community-based-gacaca-courts
[https://perma.cc/QM65-RTG3].

2. See id. At 14-15.

3. See id. at 15, 17-18.

4. See id. at 73-74, 77-78.

5. see Howard Zehr, Little Book of Restorative Justice 2-3 (2014).

6. see PRESS RELEASE, Cook County Illinois Circuit Court, Restorative Justice Community Court Launched in Avondale – First on the Northwest Side, (Aug. 5, 2020), http://www.cookcountycourt.org/ MEDIA/View-Press-Free/ ArticleId/2781/restorative-justice-community-court-launched-in-Avondale-first-on-northwest-side
[https://perma.cc/5DJW-DWE7].

7. “Circle keeper”, “restorative justice facilitator” and “facilitator” will be used interchangeably.

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8. According to the American Bar Association, mediation is “a private process where a neutral third person is called a mediator, in which the parties negotiate and try to resolve the dispute.” Mediation, American Bar Association, https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/mediation/ [https://perma.cc/A6TK-4FN5] (Last visited February 15, 2021).

9. see K. Hope Harriman, Restorative Justice: An Analysis of the North Lawndale Restorative Justice Community CourtUniversity of Chicago 51 (Apr. 17, 2018), https://knowledge.uchicago.edu/record/ 2525?ln=en [https://perma.cc/W8E5-5L57].

10. ID card. At 20

11. ID card. At 56

12. For criminal proceedings, a diversion court is a criminal proceeding that addresses a criminal case outside the traditional criminal court system. Typically, a defendant in a diversion court will have their charges dismissed if they agree to the terms of the diversion program, which can include drug treatment, mental health counseling, and more. seeCornell Law School, Diversion, Legal Information Institute, https:// www.law.cornell.edu/wex/diversion [https://perma.cc/7QM7-5PGL] (Last visited February 15, 2021).

13. See K. Hope Harriman and Sarah Staudt, Rethinking restorative justice (Forthcoming 2022) (manuscript at 30-32) (on file with author) (discussing RJCC’s ability and limitations in processing violent crimes).

14. See Press Release, Illinois Circuit Court of Cook County, Restorative Justice Community Court Launched in Avondale – First Northwest Side (Aug. 5, 2020), http://www.cookcountycourt.org/ MEDIA/View-press-release/ ArticleID/2781/restorative-justice-community-court-launched-in-Avondale-first-in-Northwest
[https://perma.cc/5DJW-DWE7].

15. If there is no victim, a “substitute victim” may be elected to fill this vacancy. see K. Hope Harriman and Sarah Staudt, Rethinking restorative justice(forthcoming 2022) (manuscript at 23) (on file with author).

16. See National Juvenile Justice Network, Restorative Justice Community Court, Paper, https://www.njjn. org/uploads/digital-library/07.2017-RJCC%20Brochure%20FINAL%20copy.pdf
[https://perma.cc/F7JA-48AC] (Last visited February 15, 2021).

17. ID card.

18. See K. Hope Harriman, Restorative Justice: An Analysis of the North Lawndale Restorative Justice Community CourtUniversity of Chicago 51 (Apr. 17, 2018), https://knowledge.uchicago.edu/record/ 2525?ln=en [https://perma.cc/W8E5-5L57].

Originally published by Georgetown Law

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