Restorative justice From Wikipedia, the free encyclopedianavigation search This article is written like a personal reflection or opinion essay that states a Wikipedia editor's personal feelings about a topic. Please help improve it by rewriting it in an encyclopedic style. (March 2018) ( Learn how and when to remove this template message)It has been suggested that Circle justice be merged into this article. ( Discuss) Proposed since March 2018. Criminology and penology Theory [show]Types of crime [show]Penology [hide]Deterrence Incapacitation Prisonreformabolition Prisonerprisoner abuseprisoners' rights Rehabilitation Recidivism Justice in penology Participatory Restorative Retributive Solitary confinement Schools [show]v t e Positive criminology People Italian school of positive criminology ( Enrico Ferri, Raffaele Garofalo, Cesare Lombroso) Natti Ronel Topics Peacemaking criminology Positive psychology Recidivism Rehabilitation (penology)Reintegrative shaming Restorative justice Right realism Social integration Therapeutic jurisprudencev t e Alternative dispute resolution Arbitration Conciliation Mediation Negotiation Collaborative law Conflict resolution Dispute resolution Lawyer-supported mediation Party-directed mediation Restorative justicev t e Restorative justice is an approach to justice that personalizes the crime by having the victims and the offenders mediate a restitution agreement to the satisfaction of each, as well as involving the community. This contrasts to other approaches such as retribution, deterrence, rehabilitation, or incapacitation. Victims take an active role in the process. Meanwhile, offenders take meaningful responsibility for their actions, seizing the opportunity to right their wrongs and redeem themselves, in their own eyes and in the eyes of the community. [1] In addition, the restorative justice approach aims to help the offender to avoid future offenses. The approach is based on a theory of justice that considers crime and wrongdoing to be an offense against an individual or community, rather than the state. [2]Restorative justice that fosters dialogue between victim and offender has shown the highest rates of victim satisfaction and offender accountability. [3]Contents [ hide ]1 Definition1.1 Difference from other approaches2 History2.1 History of the term2.2 Contemporary research2.2.1 Influence from indigenous groups2.2.2 Influence from Mennonites2.2.3 Recent developments in North America2.2.4 Recent developments in Continental Europe3 Application3.1 In system-wide offences3.2 In criminal cases3.3 In social justice cases3.4 In prisons3.5 In schools4 Processes4.1 Victim-offender mediation4.2 Family group conferencing4.3 Restorative conferencing4.4 Community restorative boards4.5 Restorative circles and restorative systems4.6 Circles of Support and Accountability4.7 Sentencing circles4.8 Implementation4.9 Rituals of circles5 Limitations on restitution6 Confidentiality7 Recidivism8 Restorative practices9 Other social movements9.1 Intimate Partner Violence9.2 Prison abolition9.3 Positive criminology and positive victimology10 Research11 Criticisms12 Mass media13 See also14 References15 External links Definition [ edit]According to John Braithwaite, restorative justice is: [4]...a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process. In a restorative justice process, the citizens who have been affected by a crime must take an active role in addressing that crime. Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime. [4] The process of restorative justice thus shifts the responsibility for addressing crime. Dr. Carolyn Boyes-Watson (2014) at Suffolk University's Center for Restorative Justice defines restorative justice as:...a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. These range from international peacemaking tribunals such as the South Africa Truth and Reconciliation Commission to innovations within the criminal and juvenile justice systems, schools, social services and communities. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the safety and dignity of all." [5]Difference from other approaches [ edit]According to Howard Zehr, restorative justice differs from traditional criminal justice in terms of the guiding questions it asks. In restorative justice, the questions are: Who has been hurt? What are their needs? Whose obligations are these? What are the causes? Who has a stake in the situation? What is the appropriate process to involve stakeholders in an effort to address causes and put things right? [6]In contrast, traditional criminal justice asks: What laws have been broken? Who did it? What do the offender (s) deserve? [7]Restorative justice is also different from the adversarial legal process or that of civil litigation. As Braithwaite writes, "Court-annexed ADR ( alternative dispute resolution) and restorative justice could not be philosophically further apart". While the former seeks to address only legally relevant issues and to protect both parties' rights, restorative justice aims at "expanding the issues beyond those that are legally relevant, especially into underlying relationships." [8]History [ edit]History of the term [ edit]The term "restorative justice" has appeared in written sources since the first half of the nineteenth century. [9]The term "restorative justice" was likely coined by Albert Eglash in 1977. Eglash distinguished between three approaches to justice:"retributive justice", based on punishment;"distributive justice", involving therapeutic treatment of offenders;"restorative justice", based on restitution with input from victims and offenders. [10]Contemporary research [ edit]Howard Zehr's book Changing Lenses–A New Focus for Crime and Justice, first published in 1990, is credited with being "groundbreaking", [11] as well as being one of the first to articulate a theory of restorative justice. [12] The title of this book refers to providing an alternative framework for thinking about – or new lens for viewing – crime and justice. [13]Changing Lenses juxtaposed a "retributive justice" framework, where crime is viewed as an offense against the state, with a restorative justice framework, where crime is viewed as a violation of people and relationships. [14] The book made reference to the positive results of efforts in the late 1970s and 1980s at victim-offender mediation, pioneered in the United States by Howard Zehr, Ron Claassen and Mark Umbreit. [15]By the second half of the 1990s, the expression "restorative justice" had become popular, evolving to widespread usage by 2006. [16] The restorative justice movement has attracted many segments of society, including "police officers, judges, schoolteachers, politicians, juvenile justice agencies, victim support groups, aboriginal elders, and mums and dads." [17]"Restorative justice is a fast-growing state, national, and international social movement that seeks to bring together people to address the harm caused by crime," write Mark Umbreit and Marilyn Peterson Armour. "Restorative justice views violence, community decline, and fear-based responses as indicators of broken relationships. It offers a different response, namely the use of restorative solutions to repair the harm related to conflict, crime, and victimization." [18]Influence from indigenous groups [ edit]According to Howard Zehr, "Two peoples have made very specific and profound contributions to practices in the field – the First Nations people of Canada and the U. S ., and the Maori of New Zealand ... [I]n many ways, restorative justice represents a validation of values and practices that were characteristic of many indigenous groups," whose traditions were "often discounted and repressed by western colonial powers". [19] For example, in New Zealand/ Aotearoa, prior to European contact, the Maori had a well-developed system called Utu that protected individuals, social stability and the integrity of the group. [20]Influence from Mennonites [ edit]Several scholars believe it is not a coincidence that Mennonites in North America, like Howard Zehr and Claassen, [15] and the social-action arm of their church-community, Mennonite Central Committee, played major roles in popularizing the theory and practices of restorative justice. [21] [22] " [T]he antinomian groups advocating and supporting restorative justice, such as the Mennonites (as well as Amish and Quaker groups), subscribe to principled pacifism and also tend to believe that restorative justice is much more humane than the punitive juvenile and criminal justice systems." [23]Recent developments in North America [ edit]In North America, the growth of restorative justice has been facilitated by NGOs dedicated to this approach to justice, such as the Victim Offender Mediation Association, as well as by the establishment of academic centers, such as the Center for Justice and Peacebuilding at Eastern Mennonite University in Virginia, the University of Minnesota 's Center for Restorative Justice and Peacemaking, the Community Justice Institute at Florida Atlantic University, the Center for Peacemaking and Conflict Studies at Fresno Pacific University in California, and the Centre for Restorative Justice at Simon Fraser University in British Columbia, Canada. [24]Recent developments in Continental Europe [ edit]The development of restorative justice in continental Europe, especially the German speaking countries, Austria, Germany and Switzerland, is somewhat different from the Anglo-Saxon experience. For example, victim-offender mediation is just one model of restorative justice, but in the present European context it is the most important one. [25] [26] Restorative justice is not just a theory, but a practice-oriented attitude in dealing (not only) with criminal relevant conflicts. Restorative justice may be moving towards restorative practice. [27]Application [ edit]In system-wide offences [ edit]The South African Truth and Reconciliation Commission shows how restorative justice can be used to address system-wide offenses that affect broad swaths of a group or a society. [28]In criminal cases [ edit]In criminal cases, victims can testify about the crime's impact upon their lives, receive answers to questions about the incident, and participate in holding the offender accountable. Meanwhile, offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to compensate the victim directly – to the degree possible. [29] In criminal cases, this can include money, community service in general and/or specific to the offense, education to prevent recidivism, and/or expression of remorse. In social justice cases [ edit]In social justice cases, impoverished victims such as foster children are given the opportunity to describe their future hopes and make concrete plans to transition out of state custody in a group process with their supporters. [30] In social justice cases, restorative justice is used for problem solving. [31]Restorative justice can proceed in a courtroom or within a community or nonprofit organization. A courtroom process might employ pretrial diversion, dismissing charges after restitution. In serious cases, a sentence may precede other restitution. [32]In the community, concerned individuals meet with all parties to assess the experience and impact of the crime. Offenders listen to victims' experiences, preferably until they are able to empathize with the experience. Then they speak to their own experience: how they decided to commit the offense. A plan is made for prevention of future occurrences, and for the offender to address the damage to the injured parties. All agree. Community members hold the offender (s) accountable for adherence to the plan. [ citation needed]While restorative justice typically involves an encounter between the offender and the victim, some organizations, such as the Mennonite Central Committee Canada, emphasize a program's values over its participants. This can include programs that only serve victims (or offenders for that matter), but that have a restorative framework. Indigenous groups are using the restorative justice process to try to create more community support for victims and offenders, particularly the young people. For example, different programs are underway at Kahnawake, a Mohawk reserve in Canada, and at the Pine Ridge Indian Reservation of the Oglala Lakota nation, within the United States. In prisons [ edit]Besides serving as an alternative to civil or criminal trial, restorative justice is also thought to be applicable to offenders who are currently incarcerated. [33] The purpose of restorative justice in prisons is to assist with the prisoner's rehabilitation, and eventual reintegration into society. By repairing the harm to the relationships between offenders and victims, and offenders and the community that resulted from the crime, restorative justice seeks to understand and address the circumstances which contributed to the crime. This is thought to prevent recidivism (that is, that the offender repeats the undesirable behavior) once the offender is released. The potential for restorative justice to reduce recidivism is one of the strongest and most promising arguments for its use in prisons. However, there are both theoretical and practical limitations, which can make restorative justice unfeasible in a prison environment. These include: difficulty engaging offenders and victims to participate in mediation; the controversial influence of family, friends, and the community; and the prevalence of mental illness among prisoners. [34]In schools [ edit]In schools, restorative justice is an offshoot of the model used by some courts and law enforcement; it seeks to repair the harm that has been done by acknowledging the impact on the victim, community, and offender, accepting responsibility for the wrongdoing, and repairing the harm that was caused. [35] Restorative practices can "also include preventive measures designed to build skills and capacity in students as well as adults." [36] Some examples of preventative measures in restorative practices might include teachers and students devising classroom expectations together or setting up community building in the classroom. [36] Restorative justice also focuses on justice as needs and obligations, expands justice as conversations between the offender, victim and school, and recognizes accountability as understanding the impact of actions and repairing the harm. [37] In this approach, teachers, students and the community can reach agreements to meet all stakeholders’ needs. [37] Collectivity is emphasized as the group must create an action plan to heal the harm and find a way to bring the offender back into the community. [38]Processes [ edit]Victim-offender mediation [ edit]Victim-offender mediation, (VOM, also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a meeting, in the presence of a trained mediator, between victim and offender. This system generally involves few participants, and often is the only option available to incarcerated offenders. VOM originated in Canada as part of an alternative court sanction in a 1974 Kitchener, Ontario case involving two accused vandals who met face-to-face with their many victims. [39]Family group conferencing [ edit]Family group conferencing (FGC) has a wider circle of participants than VOM, adding people connected to the primary parties, such as family, friends and professionals. FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender's life. Examples can be found in New South Wales ( Australia) under the 1997 Young Offenders Act, and in New Zealand under the 1989 Children, Young Persons, and their Families Act. The New South Wales scheme has been favorably evaluated by the New South Wales Bureau of Crime Statistics and Research. Fiji utilises this form of mediation when dealing with cases of child sexual assault. While it may be seen as beneficial to involve the victim's family in the process, there are multiple issues stemming from this. For example, the vast majority of offenders are known to the victims in these cases. In a Fijian context, the notion of family extends wider than that of the normative Western idea. Therefore, involving the family in these cases may become complicated, for the family may not necessarily side with the victim or the process itself could cause rifts in within the clan. Furthermore, the process as a whole places much emphasis on the victim forgiving the offender, as opposed to the offender making amends with the victim. This is because Fijian culture greatly values community harmony. Overall, the current process has the potential to cause great trauma and revictimise the victim. [40]Restorative conferencing [ edit]Restorative conferencing (RC) also involves a wider circle of participants than VOM. Restorative conferences, which have also been called restorative justice conferences, family group conferences and community accountability conferences, originated as a response to juvenile crime. [41] [42]An RC is a voluntary, structured meeting between offenders, victims, representatives from the community, [43] and both parties' family and friends, in which they address consequences and restitution. RC is explicitly victim-sensitive. [44] [45]The conference facilitator arranges the meeting. In some cases, a written statement or a surrogate replaces an unwilling victim. The conference facilitator sticks to a simple script [46] and keeps the conference focused, but intentionally does not actively participate in structuring the outcome of the conference. The goal of the conference is for the participants to produce a mutually acceptable agreement that addresses the harm caused by the offender. [43] The intent is to allow subsequent conferences to succeed without a facilitator. [44]RC was successfully introduced in several schools in England, including St. Augustine of Canterbury (2004–2008) Taunton, Somerset by Avon and Somerset police officer, Andy Jenrick. Positive results led officials to offer training to all Somerset secondary schools. [47] [48]The largest restorative justice conference in history took place in the course of a reconciliation campaign that ended the blood feuds among ethnic Albanians in Kosovo at Verrat e Llukës on 1 May 1990, which was attended by between 100,000 and 500,000 participants. [49] The reconciliation campaign was led by Anton Çetta. Over a period of three years (1990-1992) approximately one third of the entire population of Kosovo were documented to be actively involved in restorative justice conferences to end the blood feuds. [49]Community restorative boards [ edit]A community restorative board, also referred to as Community Justice Committees in Canada and Referral Order Panels in England & Wales, is typically composed of a small group, prepared by intensive training, who conduct public, face-to-face meetings. Judges may sentence offenders to participate; police may refer them before charging them; or they may engage outside the legal system. Victims meet with the board and offender, or submit a written statement which is shared with the offender and the board. Board members discuss the nature and impact of the offense with the offender. The discussion continues until they agree on a deadline and specific actions for the offender to take. Subsequently, the offender documents progress in fulfilling the agreement. After the deadline passes, the board submits a compliance report to the court or police, ending the board's involvement. Restorative circles and restorative systems [ edit]This section contains wording that promotes the subject in a subjective manner without imparting real information. Please remove or replace such wording and instead of making proclamations about a subject's importance, use facts and attribution to demonstrate that importance. (September 2015) ( Learn how and when to remove this template message)In Brazil, the juvenile justice system, neighbourhoods and schools have begun to use Restorative Circles [50] [51] developed by Dominic Barter inspired by Nonviolent Communication. The approach involves a much wider circle of participants than conventional victim/offender conferencing, and begins with establishing a restorative system in the neighbourhood or school where circles will be held. As such, Barter's approach offers scope for radical social transformation. This process is being adopted in Germany, the US the UK, Canada and Uganda, and outside of the justice and education systems. [ citation needed]In Hawaii, Huikahi Restorative Circles allow prisoners to meet with their families and friends in a group process to support their transition back into the community. Meetings specifically address the need for reconciliation with victims of their crime (s). [52] A Modified Restorative Circle was developed and used in Hawaii for offenders whose loved ones are unable or unwilling to participate. Other prisoners sit in the Circle and help develop the transition plan. [ citation needed]Circles of Support and Accountability [ edit]Main article: Circles of Support and Accountability Circles of Support and Accountability (Co SA) originated as a project of the "Welcome In", a Mennonite church in Hamilton, Ontario. This approach has demonstrated the capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. Canada judges some sex offenders too dangerous for any form of conditional release, "detaining" them until they serve their entire sentence. A subsequent conviction often leads to designation as a "Dangerous Offender". Prior to 1994, many such offenders were released without any support or observation beyond police surveillance. Between 1994 and 2007, Co SA assisted with the integration of well over 120 such offenders. Research indicated that surrounding a 'core member' with 5–7 trained volunteer circle members reduced recidivism by nearly 80%. [53] Further, recidivist offences were less invasive and less brutal than without the program. Co SA projects now exist in every Canadian province and every major urban centre. Co SA projects are also operational in several U. S. states (Iowa, California, Minnesota, Oregon, Ohio, Colorado, Vermont) as well as in several United Kingdom regions (Cornwall, Devon, Hampshire, Thames Valley, Leicestershire, North Wales, North Yorkshire, and Manchester). Sentencing circles [ edit]Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress. Implementation [ edit]This section contains wording that promotes the subject in a subjective manner without imparting real information. Please remove or replace such wording and instead of making proclamations about a subject's importance, use facts and attribution to demonstrate that importance. (February 2016) ( Learn how and when to remove this template message)Brian Royce developed an approach he called "Operationalized Restorative Justice" for a contracted private prison for the state of Pennsylvania in the United States. The system was adopted and used in numerous contracted prisons around the country. The system was shown to significantly reduce recidivism and internal conflicts within the prisons. [54]The two primary uses within an institution are to manage behavior overall and to respond to specific criminal actions and behavior. Using restorative justice as an overall BMT is significantly more effective over the long term. It can be difficult to implement, as such wide changes to the culture of an institution are usually met with resistance from both the staff and the institution population. Predominately restorative justice is used for the victim, specifically with a kind of mediation and/or restitution from the offender. Restorative justice is based on bringing together the victim, the offender, and the community; all have equal parts in repairing the relationships destroyed by crime. Generally the offender is held accountable to the victim for the criminal action and accountable as well to the community. The underlying premise of restorative justice holds that all three are accountable to each other. The offender must be held accountable, the offender must give back in the way prescribed by the victim to make amends. Additionally the offender must also give back to the community, as crime devalues any community. The community is accountable to the victim by assisting in enforcing any reparations agreed upon by the victim, and to the offender by helping the person avoid committing any more crime. In some cases, it may be difficult for the victim to participate in meetings directly, but the system is based on the offender being brought to face the implications of the crime. To implement the system within an institution, considerable ground work is needed. First, the institution has to establish what the norms are – what really goes on within the institution, evaluate whether they are acceptable to the whole community, and work from there. Ideally, the institution will define and establish positive norms which each person understands. For example, Albert Elias wrote about the norms of Respect, Responsibility, Confrontation, Help, Trust and Support. He gave concrete definitions for these norms, and held the inmates in their care to these norms, establishing what was called normative behavior. It is likely better for an institution to decide its norms through a process. The second aspect is to ensure that the rules support the norm and are consistent with it, to make the rules enforceable. When there are clear norms/rules for what is acceptable and unacceptable behavior, the community can be held accountable to live by these. This can be done numerous ways, depending on the size of the institution, the physical layout, the type, the counseling programs, and the staffing. Here is where the separation between a response to criminal behavior within the institution and the overall behavior management tool becomes apparent. When used as a response to criminal behavior, the sequence of events is: Crime takes place;A circle (defined below) is called, composed of the victim, offender, and people within the community; and The circle discusses what happened, and develops and executes some sort of reparation. A circle is one of the most commonly used Restorative Justice practices, usually comprising the offender and the community and, if applicable, the victim. The offender must acknowledge the crime, the community discusses the implications, and, if applicable, the victim discusses the ramifications and the personal "cost". The circle must come to agreement on an acceptable restoration. The offender has to restore the cost, or provide a kind of compensation. The circle has regular meetings to discuss the progress, address any issues, and ultimately attempt to restore justice. Rituals of circles [ edit]According to writer Kay Pranis, the circle is "a dialogue process that works intentionally to create a safe space to discuss very difficult or painful issues in order to improve relationships and resolve differences.” [55] Organizations such as schools can implement restorative circles for the whole school community such as classroom circles or check-in check out circles—these circles are usually used to create a fun environment, build trust, or community building, and typically the classroom teachers and the class participate. [56] School communities can also address problematic behaviors that caused harm through restorative circles. These circles involve families, teachers, students, peers, and community members. [56] The type of circle utilized reflects its purpose; however, the basic components remain the same. Restorative circles may follow the following procedures: [57]Opening and closing: Creating the atmosphere for the meeting, setting the goals (the purpose of the circle)Talking piece: an item passed around the circle. Everyone listens to the individual holding the talking piece. This can serve as a way to bring out the quiet voices and a way of active listening Guidelines: setting general rules to remind everyone how to treat others in the circle, making it a safe environment for everyone to speak comfortably and honestly The "Keeper": At least one person to facilitate the circle; the "Keeper" prepares the circle and keeps the dialogue going. Their job is to mediate, not dictate the group. There is a shared leadership in the circle, as everyone has the opportunity to contribute and learn from the group. Respect: in every aspect of the circle, there is to be respect towards everyone in the circle and being sensitive to all discussions. When used as an overall behavior management tool, Restorative Justice embraces cognitive behavioral techniques (CBT) through counseling and therapy. It is based on a person's taking positive actions and being able to see oneself positively. By feeling good about being positive, the person is more likely to maintain the positive behavior. CBT can contribute to the success of restorative justice. Restorative justice and CBT are being used together in alternative counseling, specifically targeted at sex offenders, juvenile offenders, extremely violent offenders, drug counseling, family counseling, etc. Limitations on restitution [ edit]Some judicial systems only recognize monetary restitution agreements. For instance, if victim and offender agree that the offender would pay $100 and mow the victim's lawn five times, the court would only recognize the $100 as restitution. Some agreements specify a larger monetary amount (e.g., $200) to be paid if the non-monetary restitution is not completed. Many jurisdictions cap the amount which a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors. In addition, personal service usually must be approved by the juvenile's parents. According to the Victim Offender Mediation Association, victims are not allowed to profit from restitution (the equivalent of punitive damages ); only out-of-pocket losses ( actual damages) can be recovered. Courts can disallow unreasonable compensation arrangements. Poor facilitator training is a common cause of poorly designed agreements. [ citation needed]Confidentiality [ edit]Some restorative justice systems, especially victim-offender mediation and family group conferencing, require participants to sign a confidentiality agreement. These agreements usually state that conference discussions will not be disclosed to nonparticipants. The rationale for confidentiality is that it promotes open and honest communication. Recidivism [ edit]Reduction of recidivism is also a goal of RJ, [58] secondary to the restoration of offenders. [59] Proponents argue that it can prevent reoffending [58] [60] and deter other potential criminals. [61] Critics counter that RJ does not significantly influence crime rates. [59] [61]While some older studies showed mixed results, as of 2013, studies that compared recidivism rates have become more definitive and in favor of Restorative Justice. [58] [61] Some studies claim modest, relative reductions, [62] [63] [64] [65] but more recent studies are finding significant and meaningful reductions in recidivism rates (see below). After defining RJ more accurately and perhaps improving RJ practices, Latimer, Dowden and Muise (2005) [66] conducted the second meta-analysis on the effectiveness of RJ. This study is important because it addresses the file-drawer problem. Also, some of the studies analyzed implemented a randomized controlled trial (a gold standard in research methods), although this does not represent the majority of studies included. This meta-analysis lends empirical support for the effectiveness of RJ to lower recidivism rates and increase compliance and satisfaction rates. However, the authors caution that a self-selection bias is rife through most studies of restorative justice. They reference authors from one study [67] who found no evidence that restorative justice has a treatment effect on recidivism beyond a self-selection effect. The third meta-analysis on the effectiveness of RJ was conducted by Bradshaw, Roseborough, and Umbreit (2006). The results of this meta-analysis add empirical support for the effectiveness of RJ in reducing juvenile recidivism rates. Since then Baffour (2006) and Rodriguez's (2007) studies also supports the use of RJ over the traditional justice system when it comes to recidivism rates. Bergseth and Bouffard (2007, 2012) supports these findings and also concludes that there may be some long-term effects of RJ over the traditional justice system; as well as RJ being more effective with serious crimes. RJ participants are less likely to commit serious crimes if they do re-offend and they go longer without re-offending. All of these studies found that RJ is equally effective regardless of race. Sherman & Strang's (2007) book is a review of the previous literature and they conclude that in no way can RJ be more harmful than the traditional justice system. It is at least equally as effective as the traditional justice system in all cases. In most cases (especially with more serious offenses and with adult offenders) it is significantly more effective than the traditional justice system at lowering recidivism rates. These authors conclusions are as follows... 1) Substantially reduced repeat offending for some offenders, but not all. 2) Doubled (or more) the offenders brought to justice as diversion from CJ [Conventional Justice or traditional justice]. 3) Reduced crime victims' post-traumatic stress symptoms and related costs. 4) Provided both victims and offenders with more satisfaction with justice than CJ. 5) Reduced crime victims' desire for violent revenge against their offenders. 6) Reduced the costs of criminal justice, when used as diversion from CJ. 7) Reduced recidivism more than prison (adults) or as well as prison (youths). (Sherman & Strang, 2007, p. 4). A recent meta-analysis by the Cochrane Collaboration (2013) on the effect of youth justice conferencing on recidivism in young offenders found that there was no significant effect for restorative justice conferencing over normal court procedures for number re-arrested, nor monthly rate of reoffending. They also noted a lack of high quality evidence regarding the effectiveness of restorative justice conferencing for young offenders. [68]Restorative practices [ edit]The restorative practices (RP) concept has its roots in RJ. RP is an emerging field of practice and study devoted to building social capital through participatory learning and decision-making. RP ties together theory, research and practice in fields such as education, counseling, criminal justice, social work and organizational management. The unifying hypothesis of restorative practices is that human beings are happier, more cooperative and productive, and more likely to make positive behavioural changes when others do things with them (via collaboration), rather than to them (via coercion) or for them (via independent action). In criminal justice, RP circles and conferences allow involved parties to resolve offenses collaboratively. [69] In social work, RP family group decision-making (FGDM) and FGC support collaboration within families, e.g., to protect children. [70] In education, student circles and groups collaborate to peacefully resolve disputes. [71]The criminal justice field uses the phrase "restorative justice"; [72] social workers say "empowerment"; [73] educators prefer "positive discipline" [74] or "the responsive classroom"; [75] while leadership consultants choose "horizontal management". [76]RP is spreading in multiple countries, in education, criminal justice, family and youth and-serving and workplace applications. [42] [77]Since 2000, Kahnawake, a Kanien'kehá:ka reserve, has introduced the use of restorative justice to intervene before an arrest occurs, and to prevent one. Feeling ill-served by the adversarial Canadian system, the community is particularly interested in incorporating restorative justice to work with its younger members and help prevent future offenses. [78] Some Native American nations have also begun to adopt Restorative Justice practices; the Oglala Sioux Tribe of the Pine Ridge Reservation is planning a tribal justice center to include a courtroom for Restorative Justice. The role of the facilitator is key to a successful restorative justice conference outcome for both victim and offender, according to a 2010 study. [79]In schools, circles are not the only way that restorative justice can be utilized. Restorative justice is being used by schools in a wide variety of ways. [80] Some schools use mediation and conferencing between students or teachers and students. These conferences are facilitated by a trained mediator to peacefully resolve the conflict and prevent conflict in the future. [81] Other schools have utilized a peer jury in which trained student volunteers offer guidance and support to the referred student with advice on how to repair the harm they have done. [81] Restorative justice can also be applied in more creative ways such as student-led conferences, which serves as an alternative to the traditional system of teacher-led conferences and provides students with a larger voice. [81] Ultimately, restorative practices can be implemented in a variety of ways that still support the underlying philosophy of inclusivity, respect, repairing relationships, and responsibility. [80]Other social movements [ edit]Intimate Partner Violence [ edit]RJ has been tentative when applied to drug offences, sexual assault and domestic violence. South Australia and New Zealand have attempted RJ with juvenile sexual offenders. [77] Indigenous regions of Canada have tentatively implemented circle sentencing to deal with domestic violence. Advocates believe that it may be applicable to these indigenous communities because it relates to traditional cultural values of restoring balance in the community. In addition, First Nations have low regard for the local (punitive) court system, in which their people are over-represented in court and in prison. There have also been promising practices developed in some community-based programs in Canada. One of these programs was highlighted in the critically acclaimed documentary A Better Man. [82] Maclean's reported, “The film manages to be simultaneously agonizing and hopeful… it is revelatory to know these kinds of [restorative] conversations are possible.” [83] Film reviewer Miria Bale of Vulture.com heralds the RJ/ IPV film as a "Revolutionary documentary." [84]Prison abolition [ edit]Prison abolition not only calls for the eradication of cages, but also new perspectives and methodologies for conceptualizing crime, an aim that is shared by restorative justice. In an abolitionist style of restorative justice, participation is voluntary and not limited by the requirements of organizations or professionals, the process includes all relevant stakeholders and is mediated by an independent third party. The emphasis is on meeting the needs of and strengthening the community. [85]Positive criminology and positive victimology [ edit]Positive criminology and positive victimology are conceptual approaches, developed by the Israeli criminologist Natti Ronel and his research team, that are well connected to restorative justice theories and practice. Positive criminology and victimology both place an emphasis on social inclusion and on unifying and integrating forces at individual, group, social and spiritual levels that are associated with the limiting of crime and recovery from victimization. In traditional approaches the study of crime, violence and related behaviors emphasizes the negative aspects in people’s lives that are associated with deviance, criminality and victimization. A common understanding is that human relationships are affected more by destructive encounters than by constructive or positive ones. Positive criminology and victimology argue that a different approach is viable, based on three dimensions – social integration, emotional healing and spirituality – that constitute positive direction indicators. Research [ edit]A 2007 meta-study of all research projects concerning restorative justice conferencing published in English between 1986 and 2005 found positive results, specifically for victims: [3]Greater ability to return to work, to resume normal daily activities, and to sleep No cases of offenders verbally or violently abusing victims Reduced fear of the offender (especially for violence victims); lower perceived likelihood of another offense; increased sense of security; reduced anger towards the offender; greater sympathy for the offender and the offender's supporters; greater feelings of trust in others; increased feelings of self-confidence; reduced anxiety Other findings included: The only principled basis for selectively allowing, or banning, RJ is harm reduction. Limited public familiarity and misconceptions about RJGreater availability, together with information about victims' positive views is likely to increase the proportion of victims willing to participate. In July 2011, the International Center for Transitional Justice published a report entitled "To Live as Other Kenyans do: A Study of the Demands of Kenyan Victims of Human Rights Violations". [86] The findings are based on individual and group interviews of victims of human rights abuses from Kenya's 2007 post-election violence. It highlights the importance of a victim-centered approach to determine the most effective mode of implementation for a comprehensive reparations program. The main finding of the report is that victims demand tangible basic benefits lost as a product of violence, such as food and shelter. It also acknowledges the need for symbolic reparations, such as formal apologies. The provision of reparations will in a sense create a restoration of the way life was before violence, and also signal the moving forward of a society through institutional change. The COREPOL Project (Conflict Resolution, Mediation and Restorative Justice and the Policing of Ethnic Minorities in Germany, Austria and Hungary) tries to broaden the fundament of knowledge concerning applied Restorative Justice concepts in Germany, Austria and Hungary. COREPOL uses a comparative design (Germany, Austria, Hungary) to establish whether better police – minority relations can be achieved through means of a Restorative Justice (RJ) approach. The extent and cultural particularities of RJ programs and their affiliation to the criminal justice system is ascertained. Then specific minority populations (Turks in Germany, Roma in Hungary, Africans in Austria) will be examined in regard to the country's security context. The involvement of police in RJ programs for minority populations will be explored. Finally, the proposed research will exemplify the scope of RJ approaches for the improvement of police – minority communication and interaction. Based on the legality principle and on an inquisitorial civil law tradition of policing and criminal justice, the partner countries' legal and policing systems differ substantially from the Anglo-American-Australian hemisphere of restorative justice. The findings will have a wider impact on the Middle and Eastern EU situation. The research will include open questions of gender, age and cultural compatibility of RJ. With positions at police universities the researchers are well grounded in police science and have carried out previous work on minorities. This grants them access to the field and to practical areas of police work and management. Their principal involvement in B. A./ M. A. programs for police officers and in further European research secures dissemination into police and the scientific community. COREPOL is coordinated by the German Police University and funded through the European Commission´s Seventh Framework Program (FP7). Criticisms [ edit]According to Morris, the following are some of the most common criticisms that are used against the practicality or realism of restorative justice:...restorative justice erodes legal rights; restorative justice results in net-widening; restorative justice trivializes crime (particularly men's violence against women ); restorative justice fails to "restore" victims and offenders; restorative justice fails to effect real change and to prevent recidivism; restorative justice results in discriminatory outcomes; restorative justice extends police powers; restorative justice leaves power imbalances untouched; restorative justice leads to vigilantism; restorative justice lacks legitimacy; and restorative justice fails to provide "justice". [87]Another critique of restorative justice suggests that professionals are often left out of the restorative justice conversation. Albert W. Dzur and Susan M. Olson argue that this sector of justice cannot be successful without professionals. They claim that professionals can aid in avoiding problems that come up with informal justice and propose the theory of democratic professionalism, where professionals are not just agents of the state – as traditional understandings would suggest – but as mediums, promoting community involvement while still protecting individuals' rights. [88]Additionally, some critics like Gregory Shank and Paul Takagi see restorative justice as an incomplete model in that it fails to fix the fundamental, structural inequalities that make certain people more likely to be offenders than others. [89] They and others question the structure of society and the fairness of institutional systems at their very core, pushing for addressing the root causes of many one-on-one offenses as well as for creating a socio-economic system that will be more conducive to harmonious, healthy living in general. [90]Finally, some researchers agree that more research must be conducted to support the validity of restorative justice in schools, specifically in how its implemented. [38] More exactly, restorative justice practices that are inconsistent, insufficient, or run out of funding tend to have the worst reputations for success. [91] While many research studies support positive findings in restorative justice, continuing studies are still needed. Mass media [ edit]A recent increased public awareness of alternatives to the classic prison system has created favorable social climate for the growth of restorative justice in the public domain. Studies by Kelly M. Richards have shown that the general public would be open to the idea of alternative forms of justice only after the idea has been explicitly explained to them. [92] According to other studies performed by Vicky De Mesmaecker, in order for restorative justice to become publicly accepted, there must be an effective public relations collaboration between the media and the criminologists. [93]The use of forgiveness as a tool has in the restorative justice programs, run for victims and perpetrators of Rwandan genocide, the violence in Israeli–Palestinian conflict, and Northern Ireland conflict, has also been documented in film, Beyond Right and Wrong: Stories of Justice and Forgiveness (2012). [94] [95]See also [ edit]Bullying Civil Rights and Restorative Justice Project Conflict resolution Distributive justice Ho'oponopono International Institute for Restorative Practices Restorative justice in social work Therapeutic jurisprudence Transformative justice Victimology References [ edit]^ "A New Kind of Criminal Justice", Parade, October 25, 2009, p. 6.^ Price, Marty (2000). "Personalizing Crime". 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Devon, UK: Willan Publishing, 2007: 77.^ Umbreit, Mark, Marilyn Peterson Armour. Restorative Justice Dialogue – An Essential Guide for Research and Practice. New York: Springer Publishing Co., 2011: 2.^ Zehr, Howard. Changing Lenses – A New Focus for Crime and Justice. Scottdale PA: 2005, 268–69.^ "Utu". Ministry of Justice, New Zealand. Retrieved 17 September 2013.^ Dorne, Clifford K. Restorative Justice in the United States. N. J.: Pearson Prentice Hall, 2008: 166–67.^ Johnstone, Gerry, Daniel W. Van Ness. Handbook of Restorative Justice. Devon, UK: Willan Publishing, 2007: 512.^ Dorne, Clifford K. Restorative Justice in the United States. N. J.: Pearson Prentice Hall, 2008: 166.^ Johnstone, Gerry, Daniel W. Van Ness. Handbook of Restorative Justice. Devon, UK: Willan Publishing, 2007: 512.^ Pelikan, Christa/Trenczek, Thomas: Victim-offender mediation and Restorative Justice - the European landscape, in Sullivan, D./Tifft, L. (eds.) 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South Africa's Restorative Approach to Transitional Justice". Polity. 36 (1): 23–51.^ Leo Zaibert, Punishment And Retribution (Ashgate Publishing 2006).^ Walker, Lorenn (Fall 2005). "E Makua Ana Youth Circles: A Transition Planning Process for Youth Exiting Foster Care". VOMA Connections (21).^ Braithwaite, J., Restorative Justice and Responsive Regulation, 2002.^ "Pono Kaulike: A Hawaii Criminal Court Provides Restorative Justice Practices for Healing Relationships". Uscourts.gov. Retrieved 2014-03-01.^ Toews, Barb. The Little Book of Restorative Justice for People in Prison–Rebuilding the Web of Relationships," Good Books, 2006.^ Albrecht, Berit (2011). "The Limits of Restorative Justice in Prison". Peace Review. 23 (3): 327–34. doi: 10.1080/10402659.2011.596059.^ Jeanne Stinchcomb; Gordon Bazemore; Nancy Riestenberg (April 2006). "Beyond Zero Tolerance: Restoring Justice in Secondary Schools". Youth Violence and Juvenile Justice. 4 (2): 123–47.^ a b Smith, D (2015). 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Paper presented at the "First International Conference on Conferencing " ". Minneapolis, MN.^ a b "Restorative Justice: An Alternative to Court". mineslaw.com.^ a b O'Connell, Terry; Wachtel, Ben; Wachtel, Ted (1999). Conferencing Handbook: The New Real Justice Training Manual. Pipersville, PA: The Piper's Press.^ Morris, A.; Maxwell, G. (2001), "Restorative conferencing", in Bazemore, G.; Schiff, M., Restorative community justice: Repairing harm and transforming communities, Cincinnati, OH: Anderson Publishing Co., pp. 173–97^ [1] Archived December 16, 2007, at the Wayback Machine.^ "The International Institute for Restorative Practices". Iirp.org. Retrieved 2014-03-01.^ Restorative Justice in Somerset^ a b Marsavelski, Aleksandar; Sheremeti, Furtuna; Braithwaite, John. "Did Nonviolent Resistance Fail in Kosovo?". British Journal of Criminology. Retrieved 15 December 2017.^ "Toward Peace and Justice in Brazil Dominic Barter and Restorative Circles" (PDF). 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(2003), "A survey of assessment research on mediation and conferencing", in Walgrave, L., Repositioning Restorative Justice, Devon, UK: Willan Publishing, pp. 67–120^ American Humane Association (2003). FGDM research and evaluation. Protecting children, 18 (1–2).^ Riestenberg, N. (August 8, 2002). "Restorative measures in schools: Evaluation results. (Paper presented at the "Third International Conference on Conferencing, Circles and other Restorative Practices," Minneapolis, MN. Roca, Inc. Peacemaking circles: A process for solving problems and building community)" (PDF). Retrieved December 5, 2007.^ Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice, Scottdale, PA: Herald Press.^ Simon, B. (1994). The empowerment tradition in American social work. New York: Columbia University Press.^ Nelsen, J. (1996). Positive discipline (2nd Ed.). New York: Ballantine Books.^ Charney, R. (1992). 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Illinois Criminal Justice Information Authority.^ Augusta-Scott, T., (2017). Preparing Men to Help the Women They Abused Achieve Just Outcomes: A Restorative Approach. In T. Augusta-Scott, K. Scott, & L. Tutty (Eds.). Innovations in Interventions to Address Intimate Partner Violence: Research and Practice. New York: Routledge Press.^ Mac Lean's^ Vulture^ Ruggiero, Vincenzo (2011). "An Abolitionist View of Restorative Justice". International Journal of Law, Crime and Justice. 39 (2): 100–10. doi: 10.1016/j.ijlcj.2011.03.001.^ ICTJ; Simon Robins (2011-01-07). " " To Live as Other Kenyans Do": A Study of the Reparative Demands of Kenyan Victims of Human Rights Violations | International Center for Transitional Justice". Ictj.org. Retrieved 2014-03-01.^ Morris, Allison (2002). "Critiquing the Critics: A Brief Response to Critics of Restorative Justice". The British Journal of Criminology: an International Review of Crime and Society. 42 (3): 596–615. doi: 10.1093/bjc/42.3.596.^ Dzur, Albert W.; Susan M. Olson (2004). "Revisiting Informal Justice: Restorative Justice And Democratic Professionalism". Law & Society Review. 38 (1): 139–76. doi: 10.1111/j.0023-9216.2004.03801005.x.^ Shank, Gregory; Paul Takagi (2004). "Critique of Restorative Justice". Social Justice. 31 (3): 147–63.^ Lofton, Bonnie Price. "Does Restorative Justice Challenge Systemic Injustices?" in Critical Issues in Restorative Justice (2004), edited by Howard Zehr and Barb Toews.^ Armour, M (2013). "Restorative Justice in School Communities: Successes, Obstacles, and Areas for Improvement". The University of Texas School of Social Wor.^ Richards, Kelly M. (2005). "Unlikely Friends? Oprah Winfrey And Restorative Justice". Australian and New Zealand Journal of Criminology. 38 (5): 381–99. doi: 10.1375/acri.38.3.381.^ De Mesmaecker, Vicky (2010). "Building Social Support For Restorative Justice Through The Media: Is Taking the Victim Perspective The Most Appropriate Strategy?". Contemporary Justice Review. 13 (3): 239–67. doi: 10.1080/10282580.2010.498225.^ "The key to forgiveness is the refusal to seek revenge". The Guardian. 8 February 2013. Retrieved Feb 21, 2013.^ "Beyond Right & Wrong: Stories of Justice and Forgiveness". Forgiveness Project. February 1, 2013. Retrieved Feb 22, 2013. External links [ edit]This section's use of external links may not follow Wikipedia's policies or guidelines. Please improve this article by removing excessive or inappropriate external links, and converting useful links where appropriate into footnote references. (March 2016) ( Learn how and when to remove this template message)BBC story on 2007 Cambridge University report Conference Facilitator's Script Restorative justice, homepage UK Restorative justice, homepage Instituto Latino Americano de Prácticas Restaurativas COREPOL project Why Me? UK charity promoting restorative justice Thom Brooks, "On Punitive Restoration""Restorative Justice FAQ, Victim Offender Mediation Association. Community Restorative Board, Restorative Justice Fact Sheet, U. S. Department of Justice. Peacemaking Circle process (Minnesota)The Effectiveness of Restorative Justice Practices: A Meta-Analysis, Research and Statistics Division Methodological Series, Department of Justice Canada, 2001. (PDF) [ hide]v t e Types of justice In philosophy Commutative Distributive Divine Interactional Global Natural Organizational Procedural Restorative Retributive Social Transformative Victor's Substantive areas Climate Criminal Environmental Gender Military Racial Resource Spatial Trade Other Frontier Poetic Authority control NDL: 01070908Categories: Restorative justice Positive criminology Mediation Relational ethics Theories of law Crime prevention 
. Home > Test Bank > EDUK 81308EDUK 81308Subscribers only. The answer may locate at the end of this page. According to the U. S. Department of Education, minority students, especially boys, face much harsher discipline in public schools than other students. a. True b. False Answer: View Answer People in the United States live in a stratified society in which social strata are created by the unequal distribution of wealth, power, and prestige. a. True b. False Answer: View Answer Which of the following is true regarding restorative justice programs? a. Restoration programs are relatively new having been developed only in the last decade. b. Restoration programs have been part of peacekeeping in Asian, Native American, and Native Canadian communities for centuries. c. While used in Europe and Asia, restoration programs have yet to be implemented in the United States. d. According to Howard Zehr, the core value of the restorative justice process can be translated as therapy for all. Answer: View Answer Some political criminals plot to overthrow the existing government and replace it with one that holds views they find more acceptable. a. True b. False Answer: View Answer Online gambling casinos have proven particularly vulnerable to Do S attacks. a. True b. False Answer: View Answer Primary prevention programs provide treatment, such as psychological counseling, to youths and adults after they have violated the law. a. True b. False Answer: View Answer According to the major premise of this theory, crime occurs when the wealthy and the poor live close to one another. a. Anomie theory b. General strain theory c. Institutional anomie theory d. Relative deprivation theory Answer: View Answer Neurophysiology studies twin behavior in order to understand criminality. a. True b. False Answer: View Answer As the number of guns in the population increases, so do violent crime rates. a. True b. False Answer: View Answer Political crimes can include both violent and nonviolent crimes. a. True b. False Answer: View Answer Racial threat theory contends that as the percentage of African Americans in the population increases, so does the amount of social control that the justice system aims at blacks. a. True b. False Answer: View Answer Which of the following is a reason why some critics say it is premature to embrace three-strikes policies? a. Most three-time losers are on the verge of aging out of crime anyway. b. Few career criminals engage in violent crime. c. Most crime is committed by juveniles who are not eligible for three-strikes punishment. d. Crime rates have dropped dramatically in the last decade. Answer: View Answer In regard to Anderson’s study in Philadelphia addressing neighborhood life of youth and gangs, those individuals who were respected by residents and who at one time played an important role in socializing youth were referred to as ______. a. old heads b. dust devils c. parrots d. snitches Answer: View Answer Which of the following is not one of the political terrorist groups listed in the text? a. Boko Haram b. Posse Comitatus c. Aryan Nation d. Ku Klux Klan Answer: View Answer According to arousal theory, sensation seekers look for stimulating activities that may include aggressive, violent behavior patterns. a. True b. False Answer: View Answer Unlike any other crime, in a rape case it is essential to prove that the attack was forced and that no question of ____ exists. a. consensual influence b. voluntary manipulation c. consensual authority d. voluntary compliance Answer: View Answer Armed military bands that use hit-and-run terror tactics to destabilize the existing government are known as _____. a. profiteers b. insurrectionairies c. mutineers d. guerillas Answer: View Answer Recent research by Hinduja and Patchin on cyberbullying has found that roughly 46 percent of high school students surveyed had been a victim of cyberbullying and nearly 62 percent reported perpetrating cyberbullying. a. True b. False Answer: View Answer According to critical feminist theory, women are considered a commodity worth possessing, like land or money. a. True b. False Answer: View Answer Of all the commonly practiced paraphilias, which causes the general public the most concern? a. Pedophilia b. Frotteurism c. Sadomasochism d. Exhibitionism Answer: View Answer Reconciliation programs are based on the concept of restorative justice. a. True b. False Answer: View Answer The “truly disheartened” is the term used by William Julius Wilson to describe socially isolated people who dwell in urban inner-cities, who occupy the bottom rung of the social ladder, and who are the victims of discrimination. a. True b. False Answer: View Answer Boosters or heels steal goods for the intention of reselling for a profit. a. True b. False Answer: View Answer__________ was the forerunner of modern learning theorists who believed that people learn from one another through imitation. a. Albert Bandura b. Charles Goring c. Gabriel Tarde d. Sigmund Freud Answer: View Answer Fred is a 20-year-old who lives in a large metropolitan city. He graduated high school but decided that he would get a job immediately following high school instead of going to college. He thought making money at that moment was more important than furthering his education. Now, Fred realizes he is stuck at a dead-end job making minimum wage and is tired of working so many hours and making so little money. Fred is thinking about committing various crimes in order to supplement his income. Fred would also consider his needs, skills, and prerequisites to commit burglary. Which of the following would not be an offender-specific assessment that Fred would make? a. Whether he possesses the necessary skills to commit the crime b. The ease of selling stolen merchandise c. Fred’s fear of apprehension and punishment d. Fred’s physical ability Answer: View Answer The Animal Liberation Front is a group of domestic terrorists who smuggle animals for genetic reasons from third-world countries to the United States for financial gain to support their larger mission of world dominance. a. True b. False Answer: View Answer Aging out is a term used to address the ending of a sentence for those convicted of lengthy felony sentences. a. True b. False Answer: View Answer Messner and Rosenfeld’s institutional anomie theory argues that the goal of success at all costs has invaded every aspect of American life. a. True b. False Answer: View Answer Life course theories integrate personal, social, socialization, situational, and cognitive factors to explain human behavior. Personality and intelligence are __________ factors that can explain the onset and continuation of criminality. a. personal b. social c. socialization d. cognitive Answer: View Answer Cybercrimes are vast in scope and place a heavy burden on society a. True b. False Answer: View Answer While email is the most common form of spam, many are not aware that viruses and spam can be sent in the form of instant messaging, online forums, social media and even text messaging. a. True b. False Answer: View Answer Some victims, for instance, the elderly, the poor, and minority group members, develop a persistent and paralyzing fear that they will again become victimized. a. True b. False Answer: View Answer A number of causal factors contribute to violent crime. Identify and discuss those causal factors. Answer: Answers will vary List and describe the primary data associated with predicting future crime trends. Answer: Answers will vary. Compare and contrast the Uniform Crime Report and the National Crime Victimization Survey. What are the differences in the way data are collected for these primary crime data sources? Answer: Answers will vary.________________ is the illegal buying of stock in a company on the basis of information provided by someone who has a fiduciary interest in the company. Answer: View Answer Discuss the relationship between hormonal changes and mood and behavior. Answer: Answers will vary. Explain the influence of family relations on delinquency and crime. Answer: Answers will vary_______________________ refers to those who begin to engage in antisocial behavior after the onset of a psychiatric disorder and their criminal behavior is attributed to the symptoms of the disorder. Answer: View Answer The typical goal of an ____________ is to confront the existing government for control of all or a portion of its territory, or force political concessions in sharing political power. Answer: View Answer Crimes that effect the environment are referred to as _______________ crimes. Answer: View Answer One of the most prominent social learning theories is differential association theory. Discuss the major assumptions and principles of this theory. Answer: Answers will vary Using anti-smut or anti-gay marriage campaigns as your example, explain how moral crusaders seek to shape the law. Answer: Answers will vary The ________________ is the reasonably stable patterns of behavior that distinguish one person from another. Answer: View Answer__________________________ theory focuses on changes in criminality over the time brought about by shifts in experience and events which occur as one ages. Answer: View Answer Discuss the issues of consent and past sexual history as they pertain to rape cases and explain why these issues are legally problematic. Answer: Answers will vary. Every state has a Victim’s Bill of Rights. What are the general rights legally accorded to victims of crime? Answer: Answers will vary. The unlawful taking, carrying, leading, or riding away of property from the possession of another is known as __________. Answer: View Answer Under Merton’s Social Adaptations of crime, __________ occurs when individuals embrace conventional social goals and also have the means to attain them. Answer: View Answer Criminologists who focus on victims of crime are known as ____________. Answer: View Answer Discuss how the educational setting influences crime. Answer: Answers will vary Related Essay EDU 56959 Which of the following is not true […]EDUK 44125 Efforts to prevent crime through […]SESP 36006 Late bloomers combine […]SED EM 68302Developmental theories attempt to […]EDUC 44608 The creation of false emails or […]  Does the Punishment Fit the Crime? FEBRUARY 8, 2015The history of crime and punishment across the millennia remains an inconsistent chronicle of experimentation, borrowing and adaptation, often dependent on time, place and history. The global history of crime and punishment remains a work in progress. ON MY FIRST READING of An Eye for an Eye, Mitchel P. Roth’s new book, I recall closing it and asking myself a series of questions: “What have I learned?,” “How do I feel about what I had read?,” “Was it worth my time and effort?” This book is not a quick read, not a book where you can quickly turn to the next page. Often you have to, and want to, ponder what you’ve just read. But if you are interested in the subject matter, or if you are a judge, lawyer, elected official, or a “student” of jurisprudence, reading this book will be worth your time and effort. My dominant feeling was when I finished my first read of the book was disappointment — but it was not the content of the book that disappointed me. The book is the first I have read that attempts to chronicle and dispassionately explore the world history of crime and punishment. Professor Roth’s effort is forceful, scholarly yet easily readable, informative, sometimes even entertainingly informative, and, lastly, provocative. Roth has said it was not written with the purpose of being a university textbook, but it easily could be the bones of a very interesting class for students of history or those interested in the law, government, philosophy, or criminology. The book is crammed with interesting facts and statistics and dozens of fascinating and sometimes gory anecdotes that have been brought together through disciplined and thorough research by the author (and probably others working with him). Roth, who teaches criminal justice and criminology at Sam Houston State University in Huntsville, Texas, has done an admirable job of scholarship. My disappointment stemmed from the conclusion I drew, based on the facts Roth presents: that there is not one nation in the history of the world whose people, government, or rulers haven’t been responsible for perpetrating horrific acts of cruelty, sadism, and savagery on other human beings. Is this the nature of man? Are we any safer today than 100, 500, 1,000, or 5,000 years ago? Roth could persuasively argue that we are indeed much safer — at least from the common street criminal. When you put aside acts of terrorism and accept that crime statistics in some countries are at best woefully inadequate, I think he is probably correct. WHAT IS A CRIME? Let us go back to the beginning. Roth gives us this definition of what constitutes a crime: “for the purposes of this book,” he writes, “crime will be regarded as a legal concept, that is, what is or is not against the (written) law.”Happily, for those interested in the history of crime and punishment, Roth goes back thousands of years to the Chinese, Egyptians, Israelites, Babylonians, Mongols, and world tribe histories to share with us what constituted a crime before there were written laws. These were norms of expectations that citizens of communities or tribes were expected to follow. Communities created what I would call “community justice,” sometimes very harsh and other times what would be called today “progressive.” When laws were ultimately written they were laws that came from these cultures, social norms, and religious beliefs. Once written, most laws were viewed as rules that came from a god or prophet and needed to be obeyed without exception. Roth makes clear how most groups borrowed from others in dealing with the issue of crime and justice. The Japanese borrowed from the Chinese, and many groups borrowed from the Egyptians, the Babylonians, and the Israelites. The English borrowed from their invaders, especially from the Romans and the Normans. We in the United States, of course, borrowed primarily from the English — the norm for former colonies of European states. But clearly each nation state establishes its own definitions of what constitutes a crime and what is an acceptable process of justice. What one entity may call a crime, another may call lawful. For example, in our own country, there are still 21 states that define adultery as a crime. In reading An Eye for an Eye, what stood out for me was how early definitions of crimes were clearly biased against women, ethnic minorities, and the poor. Today we might have a more even and fair system of justice, but clearly some of the prejudices and unfairness still exist in our country as well as in others. The timing of this book’s release follows closely upon the publication of the Senate Intelligence Committee Report on the Central Intelligence Agency’s program that resulted in the detention and torture of terrorism suspects after the September 11th attacks. Interestingly the banner headline of The New York Times did not use the word “torture”; it used the word “brutality.” The editorial page in its lead editorial was not as lenient as the headline editors. The editorial page used the word that would have come to the mind of most Americans, “torture.” The report would seem to prove that CIA agents and their agents tortured and sometimes wrongfully detained people who were viewed or suspected of being terrorist suspects. Some might play word games and call some of the forms of torture used by CIA agents and operatives, “enhanced interrogation techniques.” Clearly, in my opinion, most Americans would view many of these “techniques” as acts of torture. Chairwoman Senator Dianne Feinstein called the CIA acts “a stain on our values.” But who is asking that someone, the Attorney General or a special prosecutor, review this conduct to determine whether criminal prosecution is warranted? Do the clear acts of torture establish a crime? If not, how will we be able to deter similar conduct the next time we have a terrorist attack in our country? These are questions that deserve answers. Perhaps the Patriot Act or some other federal law protects those who engaged in acts a majority of the committee concluded were torture. If so, you and I and the world should be made known of these laws and serious thought given to amending them. Torture of course has not always been a criminal act; in fact, it has often been a juridical one — a central form of punishment meted out by the justice system. WHAT IS THE RIGHT PUNISHMENT? Roth describes the horrific forms of torture and execution that man has perpetrated since the beginning of humankind — in every nation state and people of our world. Before becoming a photographer, I was in the Los Angeles County District Attorney’s office for 32 years. In those 32 years I spoke with and interviewed hundreds of police officers, victims and witnesses of brutal crimes, lawyers, and medical examiners. Even with this experience, I was shocked by the descriptions of torture and executions Roth describes. And for what purpose were these means employed worldwide? Was it to gain information or a confession? Was it community retribution? Was it to deter similar acts by others? Most likely the answer to each question is a qualified “yes,” but Roth doesn’t address the effectiveness and reliability of those means for the ends sought. We do know that most nation states were moving away from torture by the mid-18th century. We learn that torture was declared illegal first in Scotland and Prussia in 1740. Other nation states followed over the ensuing decades. When some of the nation states that had made torture illegal founded colonies in Africa, South and North America, the illegality of torture was overlooked or ignored. The larger question for me is: what purpose does any punishment serve? Law school students learn in their criminal law class that the purposes of punishment for violating criminal laws are: Deterrence, Incapacitation, Retribution, Restitution, and Rehabilitation. Not all apply in every case. This is a subject that could take a separate essay on its own to properly discuss. Later in this essay I will address the ultimate criminal punishment a nation state could impose, the most extreme case of incapacitation, execution, and the purpose it is meant to serve. Roth documents the change in both crime and punishment on a worldwide basis. In California we have substantially changed the so-called “Three Strikes” law that kept some felons in state prison on a life sentence. Through the recently passed Proposition 47, Californians have reduced some crimes from felonies to misdemeanors with the consequence of much more lenient punishments. We have also de-criminalized the possession of marijuana. But there will be many more issues to address in years to come — issues that are both difficult and complex. For example, why are the vast majority of our citizens who are facing criminal charges people of color? We learn from Roth’s book that laws were often formed by communities or written into law in order to protect the elite or at least to favor them. Hundreds of years later there are many segments of our communities who would argue that the law and justice system still greatly favor the rich or powerful and that people of color and poor people are treated more harshly and with less fairness. The book also does not try to address issues that will be coming to the front, like the fairness of an ex-convict forever having to bear the consequences of being a felon. When you cannot get a job or an apartment simply because you are a felon, what are the consequences to the felon and the community? Will punishment for his or her crime continue for a lifetime? Is that fair? Is society loading the dice against a convicted felon and greatly increasing the chances that this person will be forced to return to a life of crime because carrying the label of a “felon” makes it much more challenging to find a decent job and apartment or home?¤An Eye for an Eye is not written to address these questions. But the book does us all a great service in forcing these and other questions to the front — questions and issues that deserve serious thought, consideration, and action. And it spurred me to think and write about two subjects that weigh heavily for me: about the acts of on-duty police officers that result in the death of a citizen and, secondly, the death penalty. WHEN IS AN ACT OF A POLICE OFFICER A CRIME? The killing of Michael Brown by Ferguson city police officer Darren Wilson and the killing of Eric Garner by New York City police officer Daniel Pantaleo are the latest examples of the killing of an unarmed black man or woman in the United States. The St. Louis County District Attorney chose to present the case to the Grand Jury rather than make the decision himself as to whether to prosecute Officer Wilson for the killing of Mr. Brown. In St. Louis County it takes the votes of at least nine of 12 grand jurors to return an indictment. We do not know how many, if any, grand jurors voted to indict Office Wilson and which charges they considered. But we do know the St. Louis Grand Jury declined to return an indictment. The killing of Mr. Eric Garner, apparently due in part, if not in whole, to the use of a chokehold by NYPD officer Daniel Pantaleo, was also heard by a Grand Jury, this one in Staten Island. As in the Brown case the Grand Jury declined to initiate criminal charges against officer Pantaleo or any of the other officers involved in subduing and arresting Garner. In New York, at least 12 of a minimum of 16 grand jurors hearing all of the evidence presented to the Grand Jury must vote to indict. The vote of this grand jury has not been made public. In New York a Grand Jury is comprised of up to 23 grand jurors. I was a member of the Los Angeles County District Attorney office from 1968 to 2000. I was the elected District Attorney for eight years, the second ranking deputy district attorney for four years, and in charge of a division of prosecutors and investigators whose exclusive responsibility was the review, investigation, and where appropriate, the prosecution of every police shooting resulting in the death or injury of a citizen by a police officer. I held that position for approximately six years. Many controversial police shooting cases, including for example the Euila Love case, were cases that this division handled (i.e., this division made the decision whether to seek criminal prosecution or decline criminal prosecution). In Los Angeles County, criminal cases are rarely taken to the county Grand Jury for possible indictment. The usual practice is for the district attorney’s office to either charge a criminal suspect with a crime or to formally decline to charge that person. If charges are brought, the case goes through what is called a preliminary hearing. The purpose of this hearing is for a judge to determine whether there is a strong suspicion that a crime has been committed and that the charged person is the one responsible for the crime. If the judge finds the requisite probable cause, the case is then set for trial. (If a Grand Jury returns an indictment, the case skips the preliminary hearing and the case is set for trial. )However, we have left out one key piece of the charging decision. At least in California, and I think most states, before charges can ethically be brought by either the prosecuting attorney’s office or the Grand Jury, there must be an independent finding: 1. That there is sufficient evidence to prove that a crime has been committed; 2. That there is sufficient evidence that the accused is the person responsible for the crime; 3. That the admissible evidence is of such convincing force that it would warrant conviction of the crime (s) charged by a reasonable and objective fact finder after hearing all the evidence available at the time of charging and after considering the most plausible, reasonably foreseeable defense (s) inherent in the prosecution’s evidence. If the prosecuting attorney or Grand Jury concludes that any of the three is lacking, then, ethically, the prosecution must be declined. When it comes to decisions to prosecute, the usual response from the community is “THAT is the job of a jury. It is not the D. A.’s job to make that decision.” But, at least in California, it is the legal and ethical responsibility of the District Attorney. Indeed the vast majority of police shootings in Los Angeles as well as in the country result in no criminal action against an officer who shoots and kills a citizen. Our system of justice, right or wrong, makes it exceedingly difficult to successfully prosecute a police officer in a shooting case, most of which involve split-second judgment calls occurring in heated encounters. Even when officers are charged in such cases, it is the exceedingly rare case that 12 jurors will vote to convict the police officer of the charged crime. Some object to the District Attorney’s office handling such cases because of what is seen as a conflict of interest. Prosecutors are seen as working hand in hand with police officers every day. The feeling of many community members is that the prosecutor really can’t be fair and impartial. Whether that is true or not, we don’t have time or space to explore. It is enough perhaps that such a perception is very strong, especially in the minority communities most affected by police shootings. Is there an answer that would give the community and police a better sense or feeling of fairness that the current system might not be able to provide today? A recent editorial in The New York Times endorses the New York State Attorney General’s position that all police shooting cases in the state should be the responsibility of the state Attorney General’s office. I support this position. Some District Attorneys would howl that their office properly, professionally, and ethically handles such cases. But we are dealing with a public perception by significant parts of our constituencies that because of their daily working relationship with the police, local district attorneys simply cannot be the fair, impartial, and professional prosecutors that these cases require and demand. Even if this were to happen, it still leaves a question that I have never seen addressed, the ability of the local judge to sit as a totally fair and impartial jurist in a police officer shooting case that involves a split second decision by the accused officer. While I endorse the idea of taking all cases involving alleged police misconduct from the local District Attorney’s office, I surely wouldn’t want to be the Attorney General who, by law, would now be charged to handle these cases. He or she might rue the day he or she argued for exclusive jurisdiction over police officer shooting cases. Still, I would prefer an elected official having the responsibility of making these decisions rather than a special prosecutor appointed by the Governor, Attorney General, or Court. WHAT USEFUL SOCIETAL PURPOSE DOES THE DEATH PENALTY SERVE? Perhaps Roth’s book gives us the best historical treatise on a governing body’s ultimate power in cases where an individual is charged with a crime: the possibility that the accused could receive a sentence of death. The oldest of what we today call “governments” have used execution as the ultimate form of punishment. To today’s sensibilities, many early crimes punishable by death are shocking. Trespassing onto a farm and stealing a chicken or eggs has resulted in the thief being executed in more than one country. It didn’t make any difference in the law that the thief was a youngster. Virtually every country in the world today outlaws such reprehensible punishments. If a woman committed adultery in the 18th century in the United States she could be executed (I have not seen any historical reference to a male adulterer being executed). Today 21 states still have anti-adultery laws but no convicted adulterer can be sentenced to death — well, at least not by a court of law! In fact, what we see today is a world that continues to move away from using the death penalty — though women convicted of adultery in some countries can still be executed, even today. While the United States is slowly moving away from using the death penalty, we should be aware that our country was just behind China, Iran, Saudi Arabia, and Iraq in the number of persons executed between 2007–’12. Like countries in the rest of the world, our states continue to replace the death penalty with life imprisonment without the possibility of parole. Eighteen states no longer have the death penalty. In Colorado, Washington, and California, there are executive or legally mandated moratoria on the death penalty. My basic question about the death penalty is simple. Is there any useful societal purpose for it? As District Attorney I implemented and supported the death penalty. While I was the District Attorney we ultimately sought the death penalty in about 22 percent of all cases where someone was eligible for the death penalty. While these were clearly “the worst of the worst,” I wanted to believe that the death penalty had a higher purpose than revenge or retribution. I wanted to believe that the death penalty was a deterrent. I wanted to believe that the best way of protecting our citizens was to execute the convicted murderer. I felt no sympathy for the killer regardless of his circumstances. The horrors he or she had brought to his victims and their loved ones were always on my mind. I was wrong about deterrence. Virtually all experts agree that there is no proof that the death penalty deters. I also now realize that the most reasonable and least expensive way to protect our citizens from these killers is to keep them in prison for the rest of their lives. As of January 5, 2015, there are 749 condemned prisoners on California’s Death Row. It is estimated that this incarceration alone costs taxpayers $137 million every year. As more convicted murderers are sentenced to death, the costs to taxpayers rise. If those 749 prisoners were sentenced to life in prison without any chance of parole, the costs to taxpayers would be an annual cost of approximately $11.5 million. That means that every year taxpayers would have $125.5 million to be used for productive purposes such as keeping teachers on their jobs, police officers working to solve crime, or providing restitution to victims of crime. Today we can expect that the vast majority of the 749 condemned prisoners will live, by prison standards, a luxury life until they die of natural causes. I do not believe we will see another state execution in California. Why should we want this result even if it saves the taxpayer tens of millions of dollars every year? Our system of justice is built on the belief that it is better that one guilty man go free than to convict an innocent man. How many innocent men have been executed in our country? We do not know the answer, but each of us know that this has happened even if we can’t name a case. We are talking about human nature, human mistake, and, yes, about people in power abusing the criminal justice system for their own purposes. We are reminded of this terrible history too often. Just weeks ago we learned that a 14-year-old boy, George Stinney, was executed for the murder of two girls — murders he did not commit. Since 1973 there have been 150 people in the United States freed from death row. Virtually every month we read about the freeing of a person imprisoned for decades and who a judge now determines was wrongfully convicted. At least that person is alive to walk out of prison. The witnesses, police, prosecutors, judges, or juries who fail to meet the ethical and moral obligations of our society are few. But even those who meet every expected norm and responsibility of our criminal justice system make mistakes. When I see 749 prisoners on California’s death row, I know that there must be some who do not belong there. Understand me, the vast, overwhelming majority of prisoners sentenced to death in this state and by the state, never deserve to be released from prison. But I also know that humans make mistakes. Execute a wrongfully convicted citizen and we all lose. I have answered the question I posed at the top of this section and now challenge you, the reader, to respond if you disagree with me. Perhaps you can teach me something I do not know or persuade me with your argument. If you think retribution in itself is sufficient in terms of a useful societal purpose, I ask but can we afford it? What do we gain from it? Having been intimately involved in the debate about the death penalty and having had firsthand experience with it, I must conclude that the death penalty has no useful societal purpose and that it should be replaced with a sentence of life in prison without the possibility of parole. As Roth’s An Eye for an Eye shows us, history has brought us here.¤Gil Garcetti was prosecutor with the Los Angeles County District Attorney’s office for 32 years, eight of which he was the elected District Attorney (1992–2000).  . Justice in the Nicomachean Ethics These notes are built primarily from a selective summary of Chapter 4 in Richard Kraut's Aristotle . Kraut gives many references in Aristotle, and I encourage you to refer to Kraut if you are interested in a particular bit of the following summary. For Aristotle, there are two senses of justice:1) narrow justice Narrow justice is sometimes labeled as 'equality' in Aristotle, but it is not arithmetical: rather it is proportional (and comes in three kinds: distributive, corrective, and reciprocal: see examples a ways below). But not all justice has to do with equality/proportionality2) broad justice. Broad justice is lawfulness. By "law" is meant what we might term "law, rule, and custom" (i.e. it's not just 'legal')All justice has to do with these laws. "Lawfulness" may make it sound as though Aristotle thinks that merely obeying whatever those in power say is always just (sound like Thrasymachus? ), that obeying the letter of the written laws is all there is to justice, and as though all laws are always just. That is not really the case: First of all, think about the fact that the meaning of the term which is translated as "law" in Aristotle is nomos , which means much more than legal laws. It applies to the entire system of custom and the norms of a community, whether they are written or not. On the other hand, Aristotle would not call a "law" that addressed a specific situation a "law." He would call it a "decree." He thought that tyrants rule by decree , and have no law. Creon's edict in the Antigone is thus not a law according to Aristotle. It might, however, be in accord with a law (it is: traitors were generally not allowed a public burial)And furthermore, Aristotle held that being lawful involved interpreting the laws as the legislators intended. In other words, "the letter of the law" should be jettisoned when it becomes clear that the legislators would not apply the law in a certain way For example, suppose that using a metal object in a crime were punishable according to the law by a greater punishment than using a wooden one. Surely the intent would be to punish use of knives, swords, and other real weapons as opposed to clubs, canes, and other wooden weapons rather than the use of wedding rings versus the use of multiple large impaling wooden stakes). Aristotle rejects Plato because he holds that justice is necessarily exhibited by action and involves interpersonal relations. Plato held that justice is an intrapersonal phenomenon. Aristotle held that one must involve oneself in one's city's affairs to be fully just, whereas Plato held that philosophers in most cities must withdraw from public affairs in order to be just. Aristotle held that improving imperfect systems was just. Plato held that such imperfect systems would only corrupt and victimize those who engaged in them. Aristotle's method of defining justice is by means of opposites: he determines what injustice consists in, and argues that its opposite is just. That procedure works well with certain sorts of "opposites," and seems to work with justice. The "equality" part has to do with not grasping for more than what is fair. The just person wants their fair share, not more, not less, and so that fits with Aristotle's contention that virtues are means between extremes (think of Plato's argument that the virtuous optimize whereas the vicious maximize as used against Thrasymachus). The punishment should be proportional, or equal, to the crime. (corrective proportionality)The price should be proportional, or equal, to the value of the object. (reciprocal proportionality)People in the same boat should receive equal treatment. (Distributive proportionality)4.3Aristotle thought that unjust laws exist (1282a41). In fact, a whole community could be mistaken in their concept of their ultimate goal, well-being (Sparta is a common example used by A., the details of which are not important here). So justice is the intellectual and emotional skill which brings it about that a community possesses a stable system of laws, rules, and customs that further the attainment of its ultimate goal, well-being (happiness). To be just involves possessing all the other virtues as well (1129b25). The just person will be skilled in resolving disputes, distributing goods, and meting out punishments (reciprocal, distributive, and corrective justice). Notice that like Plato's justice, Aristotle's justice does not give us directions for how to act in particular situations. It gives us general guidelines: Aristotle was explicitly clear that no science or area of knowledge should have conclusions that are more precise than the nature of the subject matter allows.4.4Laws are too general. The juror must call on justice to help decide particular cases equitably and to correct the deficiencies that even a well-crafted law will exhibit. So "lawfulness" in fact involves not obeying the letter of the law, right or wrong, but rather it is a laborious process that involves applying the law. But the juror is not simply to twist the law to fit his or her own views. The juror must take on the point of view of the legislator and follow their intent!An individual is not at all justified in disobeying an unjust law. That individual should be punished, but the individual should also try to change the law within the system. Lawlessness is worse than the inevitable deficiencies of any particular system of laws. Think of what Aristotle would say about Antigone and Creon: he would certainly be more sympathetic to Creon than most moderns are.4.5All legal systems aim at the good of the community: they are not pointless regulations deserving obedience simply because they exist. Obeying an unjust law is still worth doing because the whole of the system is important , and legal systems, imperfect as they almost always are, could not exist unless people were willing to obey imperfect laws. Having a reliable system for resolving disputes is valuable, simply because it is reliable. Being relatively certain in one's expectations is also valuable, simply because one can be relatively certain. Thus lawfulness promotes the well being of the community at large even in cases where laws are imperfect. Even though Greek cities were exclusive about citizenship, much of their laws were formulated for the good of the entire community. That seed of an ideal is important!4.6Justice is unique among the virtues in that the other virtues can be done on one's own in a private capacity, but the other virtues become justice when they are done for the good of the community. E.g., refraining from eating the whole thing is temperate, but if there is more than enough to go around, it is just temperate for oneself. If, however, there is not enough, or just enough, to go around, then it is also for the sake of the community, and so temperance can be just. In other words, an action that fits under any other virtue can be done in isolation, but an action only becomes just when it involves the good of some community.4.7Aristotle distinguishes between various kinds of justice. Political justice affects only one's fellow-citizens, and so is only a part of justice. Household justice involves husband and wife, son and wife, etc. Aristotle thinks that a father's family members are like parts of himself, and so he will be just to them. Aristotle further distinguishes between natural justice and legal justice . For example, it is legally just that one sacrifice two goats rather than one, because that is the norm of one's community, but it is not a matter of natural justice to do so. A legally just thing is Existent because it is recognized by some community,Capable of variations, and Varies from community to community. Natural justice on the other hand is justice no matter what community one enters into, even if that community does not recognize that fact.4.17 Aristotle versus Plato Aristotle thinks justice has a broad and a narrow sense (lawfulness and equality). Plato thinks it has only one (intrapersonal harmony and intra-polis harmony are just smaller and larger instances of the same justice). At 1138b5, Aristotle suggests that one can, in a way, be just to oneself: the rational part and the irrational parts of the soul can treat each other justly or unjustly. He thinks, however, that that is but a part of justice. It is the justice of master and slave. Thus the intrapersonal actions and state that Plato calls justice are not wholly rejected by Aristotle, but they are seen as being but a small part of justice and not fully deserving the name justice. Aristotle thinks that being just involves being active in a community's public life. Plato thinks that it necessitates withdrawing from the imperfect communities that actually exist. Aristotle thinks that a craftsperson participates in justice by the exchange of goods: Plato thinks the craftsperson does so by sticking to his or her own job. Aristotle thinks justice has to do with activity. Plato thinks it is a state of the soul. (a simplistic way to put it, which is not quite accurate, because Plato too held that virtue is an activity)Plato thought that the impersonal Forms can be just, but Aristotle rejected Plato's metaphysics. Specifically when it comes to justice, he rejected the idea that there are things separate from the things of this world that can be just. If Aristotle is right, then the philosophers who withdraw and refuse to be involved are perhaps guilty of injustice by being in a position to improve civic life but failing to do so (be careful here, however). Plato required the account of the ideal city to tease out his concept of justice. Aristotle elucidates his account prior to any discussion of politics. Plato's philosopher is not of any obvious use outside of the ideal city. Aristotle's just person (whether or not he or she is actually a real philosopher) will be of benefit to his or her city because of his or her justice.4.18 Socrates and Aristotle As a man, rather than as a thinker, Socrates too withdrew from public life. He preferred to speak with individuals in a private capacity. In a significant sense, Socrates was not just according to Aristotle. He did not benefit Athens as he could have. Socrates was, however, a man with tremendous respect for law. The key to the theoretical difference between Aristotle and Socrates' conception of justice is that Socrates held that rationality is all there is to justice . It is a matter of knowledge. If you know what is right, you do it, period. Aristotle, however, held that habit was as important as knowledge, hence he would set up an elaborate system of education in his ideal city, and he held that much of virtue is about habituation. The very term "ethics" is from a Greek word that means "habits," among other things. Thus like Plato, Aristotle held that habituation is as important as knowledge for virtue. If you are virtuous based on knowledge, your virtue might be vulnerable to evil persuasion, but if you have been raised in such a way that your default is virtue, you will act virtuously out of habit (but you may not be fully virtuous): adding the rational components of virtue to your actions will make them fully virtuous. So what of Aristotle himself? He was a foreigner with no citizen status in Athens. He was not publicly involved in the ways he requires that a politically just person be involved!  Crime and Punishment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15Crime and Punishmentby Marty Price In our society's criminal justice system, justice equals punishment. You do the crime, you do the time. You do the time, you've paid your debt to society and justice has been done. But justice for whom? Certainly not the victim. Because our society defines justice in this manner, the victims of crimes often seek the most severe possible punishment for their offenders. Society tells them this will bring justice, but it often leaves them feeling empty and unsatisfied after getting what they sought. Punishment does not address the other important needs of victims. It cannot restore their losses, answer their questions, relieve their fears, help them make sense of their tragedy or heal their wounds. Regardless of their particular point-of-view, most people agree that crime and violence are exploding out-of-control in the streets of our towns and cities. Most also agree that what we are doing about it is not working. We are fearful and we have good reason. We know our criminal justice system is broken and we don't know how to fix it. Victim-offender mediation, with its focus on restorative justice, cannot provide all of the answers to our crime problem, but it is an essential part of the solution. Some background about the author and a description of victim-offender mediation will be helpful before proceeding with a discussion about crime, punishment and restorative justice. About the author... I am one of the small minority of victim-offender mediators who work with cases of severe violence, including homicides. My qualifications for this work include training and experience as a social worker and as a lawyer, fifteen years as a mediator, trainer and program consultant, founding and directing a juvenile court-based Victim-Offender Mediation Program, training in victim's assistance and last, but not least, my own victimization. About victim-offender mediation... Victim-Offender Mediation Programs (VOMP), also known as Victim-Offender Reconciliation Programs (VORP) bring offenders face-to-face with the victims of their crimes, with the assistance of a trained mediator, usually a community volunteer. Crime is personalized as offenders learn the human consequences of their actions, and victims (who are largely ignored by the justice system) have the opportunity to speak their minds and their feelings to the one who most ought to hear them, contributing to the healing process of the victim. Victims get answers to the often haunting questions that only the offender can answer. The most commonly asked questions are, "Why did you do this to me? Was this my fault? Could I have prevented this? Were you stalking or watching me?" With their questions answered, victims commonly report a new feeling of peace of mind, even when the answers to their questions were even worse than they had feared or imagined. It seems to be better than not knowing the answers. Offenders take meaningful responsibility for their actions by mediating a restitution agreement with the victim, to restore the victims' losses, in whatever ways that may be possible. Restitution may be monetary or symbolic; it may consist of work for the victim, community service or anything else that creates a sense of justice between the victim and the offender. Victim-Offender Mediation Programs have been mediating meaningful justice between crime victims and offenders for over twenty years; there are now over 300 such programs in the U. S. and Canada and about 500 in England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand. Remarkably consistent statistics from a cross-section of the North American programs show that about two-thirds of the cases referred resulted in a face-to-face mediation meeting; over 95% of the cases mediated resulted in a written restitution agreement; over 90% of those restitution agreements are completed within one year. On the other hand, the actual rate of payment of court-ordered restitution (nationally) is typically only from 20-30%. Why is there such a huge difference in restitution compliance? Offenders do not experience court-ordered restitution as a moral obligation. It seems like just one more fine being levied against them. When the restitution obligation is reached voluntarily and face-to-face, it is experienced by offenders in a very different way. Perhaps most important, after facing the victims of their crimes, offenders commit fewer and less serious offenses than similar offenders who are processed by the traditional juvenile or criminal justice system. When a case is referred to a VOMP, a mediator contacts both the victim and the offender to arrange appointments for separate meetings with each. At the individual meetings, the mediator explains the program, answers questions and screens the case for its appropriateness for mediation. If the case is a suitable one and the offender and the victim agree to participate, they are prepared for a mediation session. The preparation may include homework assignments and sometimes there are additional preliminary meetings. Mediation sessions, at their best, focus upon dialogue rather than upon reaching a restitution agreement, facilitating empathy and understanding between victim and offender. Before beginning the session, the mediator provides ground rules to assure safety and respect. The victim usually speaks first, telling the offender how the crime affected him/her and may ask questions of the offender. The offender may offer an explanation and/or an apology. The victim's losses are discussed. Whatever agreements the victim and offender make will reflect justice that is meaningful to them, rather than being limited to the narrow definitions of the law. In cross-state and cross-national studies, the overwhelming majority of participants, both victims and offenders, have reported in post mediation interviews and questionnaires that they obtained a just and satisfying result. Victims who have feared revictimization by the offender whom they have met in mediation typically report this fear is now gone. The victim-offender mediation process may be useful at any stage of the criminal justice process. With young offenders and first-time offenders, mediation may be a "diversion" from prosecution and an opportunity to avoid getting a juvenile or criminal record. In these cases, charges may be dismissed if the offender mediates an agreement with the victim and then completes the requirements of the agreement. After a guilty plea or a conviction, a judge may refer an offender to a victim-offender mediation program as a part of the court's sentence or as a term of probation. Victim-offender mediations have taken place in prisons; some have occurred after an offender has been released from prison. The impending release of an offender may motivate the victims to seek mediation. About mediation in cases of severely violent crimes... Most victim-offender mediation programs do their work only with juvenile offenders and only with nonviolent offenses. The mediation of severely violent crimes is not commonplace. However, in a growing number of victim-offender programs, victims and survivors of severely violent crimes, including murders and sexual assaults, are finding that confronting their offender in a safe and controlled setting, with the assistance of a mediator, returns their stolen sense of safety and control in their life. Increasingly, mediation is helping to repair the lives of surviving family members and offenders devastated by drunk-driving fatalities. Such violent offenses are usually mediated upon the initiation of the victim, and only after many months (sometimes even years) of work with a specially trained and qualified mediator, collaborating with the victim's therapist and/or other helping professionals. Participation must be completely voluntary, for both victim and offender. Mediators carefully screen cases and every aspect of the mediation process has the safety of the victim as its foremost concern. Only offenders who admit their guilt, express remorse and want to make amends are candidates for mediation. There may be restitution agreements for funeral expenses, psychotherapy and other financial losses, but there is obviously no way to restore the lost life of a loved one. The primary focus is upon healing and closure. It is the healing power of the victim-offender mediation process that draws me and many others to become involved in this work. Heartfelt apologies are usually offered and the victim and offender may discuss the issue of forgiveness. Forgiveness is not a focus of the mediation process, but the process provides an "open space" in which forgiveness may occur, for victims who wish to consider it at that time. Forgiveness is a process, not a goal. It must occur according to the victim's own timing, if at all. For some victims, forgiveness may never be appropriate. In cases of severely violent crime, victim-offender mediation is not a substitute for punishment. In such cases, judges seldom reduce prison sentences as a result of mediation. What about the need for punishment? I am not talking about the need to incapacitate the most violent of felons--those who appear to be intractably hazardous to our health and safety. Incapacitation, unfortunately, must continue until we can learn how to generate change in such individuals. However, it is important to understand the need to incapacitate dangerous offenders as separate and distinct from punishment. When we focus on punishment and incarcerate offenders who are not dangerous (including those who have committed victimless crimes), we consume precious correctional system resources that should be reserved for those offenders whom we must incapacitate for our protection. I am not talking about punishment as a deterrent to crime. The punitive approach to justice has resulted in the United States becoming the largest jailer (per capita) in the industrialized world, with a violent crime rate that is also second to no other industrialized nation. (Until just a few years ago, the U. S. was the number three jailer in the world, falling behind the former Soviet Union and the Union of South Africa.) If punishment deters crime, we should be the safest nation in the world. If punishment deters crime, then the answer to our out-of-control crime problem must be that we need to lock up more people still. How far should we go with this approach? (Prisons have become one of our fastest growing industries and some states now have a punishment budget that is larger than their education budget. Unless we stem this monumental draining of the public coffers, it is unlikely that there will ever be stable and adequate resources for the human services needed to address the societal roots of crime--poverty, injustice, illiteracy and unemployment. )I'm not talking about punishment for the purpose of rehabilitation. Our criminal justice system abandoned that theory for punishment in the 1970s and 1980s. Prisons rehabilitate relatively few offenders. The vast majority pass through the "revolving doors" repeatedly. We "warehouse" offenders in institutions where the culture within rewards violence, meanness, deceit, manipulation and denial. Most offenders return to the community as individuals who are then even more antisocial than before they were incarcerated. Then why punishment? If punishment is not really about incapacitation, deterrence or rehabilitation, then what is it about? Punishment is primarily for revenge (or retribution .) Victims of heinous crimes commonly demand revenge. It seems like a natural response. Some may argue that the desire for revenge in response to victimization is "hardwired" into the human animal. History suggests this may be true. Our criminal justice system is a system of retributive justice. Our policy of inflicting pain (i.e., punishment or retribution ) upon those who harm others often leaves offenders feeling like they are victims. Those "victims" may then seek their own revenge. Unless we execute them or put them away for life without the possibility of parole, we must remember that they will eventually come back to us, often with their need for revenge screaming for satisfaction. So punishment does not work as deterrence or as rehabilitation and it often exacerbates the problems we are trying to correct. Still the public (sometimes) and the politicians (more often) cry out that we must "get tougher on crime," demanding more punishment and more prisons. A well-known anthropologist once said that human beings are the only species on earth that recognizes what is not working and then does more of the same. Our society must find more creative, more effective solutions. If not punishment, then what? As I stated above, I think the desire for revenge may be a natural reaction to victimization. But, should we act on all of our natural impulses? I submit that when our criminal justice system begins to take the healing needs of victims seriously and does a good job of meeting those needs--when it meaningfully addresses the victims' losses and injuries, victims may no longer be so concerned with how much punishment an offender receives. Currently, victims receive little else that feels like justice. Our society tells us that justice equals punishment. But justice for whom? Certainly not the victim. I have asked many crime victims' rights advocates, "How many victims or families of victims do you know who have felt satisfied, justified and healed after the offender was put to death or put away for a life sentence without the possibility of parole?" The typical answer is that it helped a little. The victims felt like they got something . But overall, they still felt like they had been revictimized by the workings of a criminal justice system that did not care about them. They needed much more than this punitive kind of justice. The system told them they should feel satisfied, even lucky, if they got this much. I'm thinking about a victim advocate (I shall call him John) whose parents were murdered in his presence when he was a teen-ager. John and his sister were shot and left for dead. Some years later, after witnessing the execution of one of the murderers, John experienced no relief from the hate and bitterness that had been burning inside him for so many years. This disappointment led him to seek a mediated confrontation with the other murderer (I shall call him Ralph), who was serving two consecutive life sentences. After months of preparation with the mediator, John came face-to-face with Ralph, behind prison walls. In a three-hour mediation session, Ralph learned from the lips of his victim of the terrible devastation he had brought upon a family. He told John of his daily shame and pain, and his wish that he could have been executed along with the other murderer. John learned of the brutal victimizations Ralph had suffered throughout his childhood and teen-age years. They cried together. John reported that the mediation and the months he spent preparing for it changed his life. It brought him a release from the thoughts and feelings that had seemed inescapable and it freed him to move on with his life. Punishment is not for the benefit of victims. Our society exacts punishment in response to the notion that crime is a violation against the state and it creates a debt to the state. The case is called "the People of the State of Oregon vs. John Jones." The prosecutor represents the state, not the victim. The system is offender-focused; its attention is upon punishing the offender, while protecting the legal rights of the offender. Victims of the crime receive little attention. Crime Victims' Bills of Rights, now law in many states, seem to affect the balance somewhat. A currently proposed Victims' Rights Amendment to the U. S. Constitution could make a greater impact. What is restorative justice? If our system of retributive justice is not working and not meeting our needs, then what is more effective? Victim-offender mediation is but one of many approaches to restorative justice. Restorative justice sees crime as a violation of human relationships rather than the breaking of laws. Crimes are committed against victims and communities, rather than against a government. Our offender-focused system of retributive justice is designed to answer the questions of, "what laws were broken, who broke them and how should the law-breaker be punished?" Focusing on obtaining the answers to these questions has not produced satisfying results in our society. Instead, restorative justice asks, "who has been harmed, what losses did they suffer, and how can we make them whole again?" Restorative justice recognizes that, to heal the effects of crime, we must attend to the needs of the individual victims and communities that have been harmed. In addition, we must give offenders the opportunity to become meaningfully accountable to their victims and to become responsible for repairing the harm they have caused. Merely receiving punishment is a passive act and does not require offenders to take responsibility. By focusing on punishment, our criminal justice system treats offenders as "throwaway people." Restorative justice recognizes that we must give offenders the opportunities to right their wrongs and to redeem themselves, in their own eyes and in the eyes of the community. If we do not provide those opportunities, the offenders, their next victims and the community will all pay the price. Restorative justice is not just victim-offender mediation. It is not any one program or process. It is a different paradigm or frame of reference for our understanding of crime and justice. Some other restorative justice responses to crime include family group conferencing, community sentencing circles, neighborhood accountability boards, reparative probation, restitution programs and community service programs. About victims' rights and victim-offender mediation... Over the years, there has sometimes been an uneasy relationship between victims' rights advocates and the growing restorative justice/victim-offender mediation movement. Victim advocates objected loudly (and rightly so!) when early victim-offender programs were overly persuasive or even coercive, in their well-meaning but misguided efforts to enlist the participation of victims. Victims' assistance programs are now co-training with victim-offender mediation programs, teaching mediators how to work more sensitively and respectfully with victims. Victim advocates have sometimes viewed mediation as "soft on crime" and therefore, not in the best interests of victims. Those victim advocates who have observed or participated in mediation sessions, taking note of the trepidation seen in offenders as they face their victims, know that mediation is not soft on crime. Many victims' rights advocates are now asserting that a mediated confrontation ought to be a victim's right, available for all victims who want such an opportunity. The recognition of common ground between victim advocates and restorative justice advocates has led to recent alliances, partnerships and collaborations to support or promote restorative justice reform of the criminal justice system. Some of the organizations which have contributed to these efforts include, at the federal government level, the U. S. Department of Justice Office for Victims of Crime, the National Victim Center, the National Institute of Justice, the National Institute of Corrections, and the Office for Juvenile Justice and Delinquency Prevention's "Balanced and Restorative Justice Project." Outside the government, other national organizations contributing to this work include the National Organization for Victim Assistance (NOVA), Mothers Against Drunk Driving (MADD), the Victim-Offender Mediation Association (VOMA) and the Center for Restorative Justice and Mediation, at the University of Minnesota School of Social Work. About getting tougher on crime... Understandably feeling deprived of justice in so many ways, crime victims and their advocates have often sparked and championed the recent flood of "get tough" legislation and ballot initiatives for longer prison terms and increased mandatory minimum sentences. At the same time, many other victims, victim advocates and criminal justice experts are re-thinking the value of more punishment. Social research is suggesting that for many crimes, sentences of from one to two years are the most likely to be effective, while longer sentences may be counter-productive to rehabilitating offenders. Such relatively moderate sentences serve the dual purposes of denouncing the crime and punishing the offender, while reducing the likelihood that the offender's bonds with family and community support systems will be permanently destroyed and replaced with allegiances to other criminals. The fracturing of family and community bonds and the long-term imprinting of prison culture and values are the two factors which are the most predictive of an offender's prompt return to crime after being released from prison. A call to action for criminal justice reform... While actively supporting the work of victims' rights organizations, including the Victims' Rights Amendment to the U. S. Constitution, I also suggest to crime victims and victim advocates that they are being revictimized by our criminal justice system when they let the system sell them its "party line"--selling them punishment as the cure for what ails them. In our mainstream criminal justice system, punishment is the "bone" that the system throws to victims, while offering little else. Victims, their advocates and others would do better to let go of their demands for more prisons and more punishment. Those demands are not serving the needs of victims or society. They are instead helping to perpetuate a system of retributive justice that is failing us all. Let us work together to implement restorative approaches to justice that focus the attention of offenders upon the victims of their crimes and upon their communities, instead of upon the law and the legal system. A restorative justice approach concerned with righting the wrongs to victims and making amends, repairing the harm done (in whatever ways possible, including victim compensation) and restoring the lives affected by crime, offers us a much more hopeful vision for the future. Biography Marty Price, J. D., a "recovering attorney" and social worker turned mediator, is the founder and director of the Victim-Offender Reconciliation Program (VORP) Information and Resource Center, in Camas, Washington. He is a Board Member and former Co-Chair of the Victim-Offender Mediation Association (VOMA), a non-profit, international, educational and advocacy organization that promotes restorative justice and supports victim-offender mediation and reconciliation programs. Price provides victim-offender mediation, consultation and training to courts, mediation programs and individuals, specializing in the mediation of drunk driving fatality cases and other crimes of severe violence. Email Author Website: www.vorp.com Additional articles by Marty Price Comments More Comments  forensic psy 62 terms csmith616forensic psy Learn Flashcards Write Spell Test Match Gravity Advertisement Upgrade to remove ads Like this study set? Create a free account to save it. Create a free account Maybe later Sort Describe the 5 major assumptions our criminal justice system makes about juries and jurors. ... What is the formula for "field theory." B=F (P,E) Behavior is a function of the person and their environment Qualities of the external environment and pressures from the situation affect an individual's behavior Highly publicized case - may result in harsher sentence What does this field theory suggest about participants in the legal system? psychologists remind us that the behavior of participants in the legal system is a result not only of their personal, internal qualities, but also the setting in which they operate Which model appears to dominate our system ... How is that model reflected in different aspects of our system - in other words what elements (such as "trial by a jury of our peers") in our system seem designed to support the model you have chosen? ...legality ...morality ...justice ... Why are you defining each the way you are? (3) Discuss how these three can be in conflict. (4) Discuss each of the following as they relate to this comparison: ● Intention ● Do No Harm ● Voluntary action ... Decribe, in order, the 8 levels of intent according to psychology. (2) Give an example of an action that would fall at each category. 1. pure accident 2. reflex action ex. fall grab someone 3. action out of unconscious ex. sleep walk 4. action under stress ex. peer pressure 5. action under hypnotic suggestion 6. action under social pressure ex. gangs 7. action where the consequence is foreseeable ex. doing drugs 8. conscious action with conscious intent ex. premeditated murder) Describe the "AND" model of attribution. (2) What assumptions does this model make? (3) What implications does this model have for the courtroom? observes someone's behavior make a dispositional inference and situational correction. major assumptions - dispositional inference is first situational is second - dispositional inference is easy, situational is hard -busy perceivers will be able to make dispositional inferences but should be unable to engage in situational corrections Describe Kohlberg's theory of moral development - 3 levels and 2 stages per level. preconventional stage 1- punishment and obedience stage 2 - hedonistic orientation (self-interest) conventional stage 3- good boy nice girl (conformity to others) stage 4- law and order (upholding the rules) postconventional stage 5- social contract (consider alternatives) stage 6- universal ethical principles (internalized standards)What kind of evidence/information would a juror operating from each level need in order to be convinced that someone is guilty of committing a crime? ... What is the level of moral thinking of most jurors? (4) Why? (5) Knowing this, what suggestions would you make to the prosecution in terms of "winning" the case? (6) Knowing this, what suggestions would you make to the defense in terms of "winning" the case? most are pre conventional What is Jury Nullification? Describe research assessing the potential impact of Jury Nullification instructions on jury decision-making. juries have to ability to ignore the law Describe the process of jury selection. As you describe the process, be sure to include a discussion of each of the following terms: ● Voir Dire ● Peremptory Challenge ● Dismissal with cause draw a panel of jurors-venire process of void dire is sued to select the actual jurors peremptory challenge- dismissing with out cause dismissal with cause- has to give a reason to dismiss Discuss judge/jury differences in decision making. (2) Based on these differences, what would you recommend to someone who is accused of a crime in terms of having that crime tried by a judge along or by a jury? jury more lenient in gambling law violations jury more lenient in hunting law violations jury more lenient in prostitution cases among consenting adults jury is harsher in libel cases against television or newspaper judge/jury more light to agree in serious crimes like murder or kidnapping Discuss what is known about false confessions? (2) What are the FOUR categories of false confessions? (3) How can we determine the validity of a confession? (4) Describe the 5 hurdles that a confession must pass in order to be deemed voluntary. ... Profiling inputs this involves the collection and assessment of all of the materials relating to the specific case. -any photographs taken of the crime scene and victim, a background check of the victim, autopsy protocols, other forensic examinations relating to the crime, information about what occurred before, during or after the crime. This stage serves as the basis for all others, and should incorrect or poor information be provided, the subsequent analysis will be affected. Decision process models arranging information gathered in the previous stage (Profiling Inputs) into a logical and coherent pattern. (timeline) This might also include were involved, for example, with the purpose of establishing whether the crime was the result of a serial offender. Crime assessment This stage would typically involve the reconstruction of the sequence of events and the specific behaviors of both the victim and perpetrator. This will aid the analyst in understanding the "role" each individual has in the crime and should assist in developing the subsequent profile of the criminal. The criminal profile This is the process of providing a list of background, physical, and behavioral characteristics of the perpetrator. In the FBI model, this stage may also involve providing the requesting agency with directions on how to most appropriately interview the individual. This stage would also inform investigators how to identify and apprehend the perpetrator. The investigation Here, the actual profile is provided to requesting agencies and incorporated into their investigation. If no suspects are generated, or if new evidence comes to light, the profile is reassessed. A quality profiling process is recursive (self-repeating, iterative, etc. )The apprehension It is stated that the purpose of this stage is to cross check the profile produced with the characteristics of the offender once they are apprehended. This would occasionally be extremely difficult as the offender may never be apprehended, apprehended in another jurisdiction and not available for cross checking, arrested on some other charge, or simply cease criminal activity. The rate of solved cases represents less than 50% of cases profiled. The primary foundation of the FBI's system lies within the organized and disorganized offender dichotomy. Discuss what is meant by organized and disorganized offenders. (2) How can this information be useful in a criminal investigation?. Describe "investigative psychology" and its history. (2) Cantor's model includes 5 aspects of the interaction between the victim and the offender. Describe each of these 5 levels and what each level can tell us about the offender. Known offender populations are studied, broad offender groups are defined, and the crimes of an unknown offender compared to this group. five aspects of the interaction between the victim and the offender, known as the five-factor model. interpersonal coherence, significance of time and place, criminal characteristics, criminal career, and forensic awareness. Describe "Behavioral Evidence Analysis." (2) Be sure and discuss the 4 main steps of the BEA and the 2 phases in which these steps can be categorized. ... Describe Merton's "Strain Theory". As you describe this theory be sure and discuss each of the following: ● what creates "strain"? ● how do people "adapt" this strain? ● what is conformity? ● what is innovation? ● what is ritualism? ● what is retreatism? ● what is rebellion? the american dream and the reality of not getting it causes strain 5 modes of adaptation available in reaction to the "success goal" of american society conformity- acceptance of societies goals and means innovation- accept goals but reject traditional methods attaining them- not always good ritualism-reject goals but follow approved means retreatism- rejection of goals and means rebellion- reject goals and means and desires to establish new social order Describe Sutherland's Social Learning Theory of Crime. Why is it important to note that criminal behavior is not innate? Be sure and discuss ALL 9 steps and explain how one leads to the next or how each comes from the one that preceded it. 1. criminal behavior is not innate (bc its learned) 2. criminal behavior is learned through communication 3. learning takes place in intimate groups 4. learning of criminal behavior involves learning how to commit crimes motives and attitudes 5. people learn motive and attitudes about the law that are either positive ore negative. 6. people will differentially associate with the definitions that are favorable to violating the law (being around the same ppl with same views) 7. differential association depends on frequency, duration, priority and intensity 8. learning criminal behavior follows the same principles as other forms of learning 9. criminal behavior is not necessarily an expression of needs and values What are the 4 elements of Social Control Theory of Crime? attachment- Affection for and sensitivity to others commitment- to conventional society belief- in obeying conventional rules involvement- in conventional activities Define "labeling theory" and explain what is meant by self-fulfilling prophecy. people become stigmatized by the label- self fulfill prophecy What is the main assumption of Clarke and Cornish's Rational Choice Model? limited or bounded free will background characteristics that may predispose someone to crime Describe Freud's Psychoanalytic theory and how Id, Ego and Superego might be involved in crime. For each aspect (Id, Ego and Superego) be sure and describe where that aspect comes from and the principle by which it operates. id- biological urges only aspect we are born with "pleasure principle" ego- develops through contact with reality supereo- operates according to the "morality principle" rules Discuss the three levels of Kohlberg's theory of moral development as they relate to the commission of crime. ... In order for punishment to be effective, B. F. Skinner said it must be _____, _____ & _____. ... Explain what is meant by this phrase, "crime is highest in transitional zones in cities". ... Describe the "Free and Voluntary Rule". Why is it called a "two-prong" test? Explain each prong and what happens if the confession does or does not meet these. two prong test- circumstances and internal factors of person if either of these are violated (coercion that crosses the line) the confession will be deemed invalid and thrown out What does it mean when we say that a confession is "valid"? circumstances of the confession obtained not coercive What is Law of Torture and how is that different from the "Free and Voluntary" rule? How do these relate to the dilemma of Individual Right vs. Common Good that we discussed in class? cx Approach to studying the legal system: The Anthropological Approach Compare laws & mechanisms for instituting, enforcing and altering laws in different societies Also concerned with how a society's laws relate to other characteristics of the society How do societal factors influence crime? Example, societal influences on incidence of rape Amount of violence in society Extent of separation of sexes during childhood Degree to which males dominate females Influences laws, definitions & punishments for rape *** OVER TIMEApproach to studying the legal system: The Sociological Approach Study a specific society and its institutions (e.g., family, church, subcultures) to determine the role of these institutions in developing adherence to the law. Does coming from a "traditional" family foster stronger adherence to the law? What role does social class play in degree and types of crimes committed? Often use concepts such as "social control" to explain deviant behavior Some sociologists define "Law" as governmental social control. Approach to studying the legal system: The Philosophical Approach Seek to understand the nature of "justice" Do differences exist, for example, between what is legal and what is moral? What is the purpose, value and impact of laws Are there inconsistencies in how the law is applied? Are laws moral and just? Should a man who rapes a 7 year old receive more severe punishment than a man who rapes a prostitute? Is it just for a wealthy injury victim to receive more compensation than a poor injury victim? Approach to studying the legal system: The Psychological Approach Emphasized the human determinants in the law. The emphasis is on the individual, not the culture or the institution. Individuals are seen as responsible for their own conduct and as contributing to its causation. Psychology looks at the impact of each of the major players on the legal system: Police officer Victim Defendant Expert witness Lawyer Juror Judge Attorneyspsychological approach: major assumptions Psychology assumes that characteristics of participants in the legal system affect how the system operates Characteristics, in this case, means the persons' abilities, their values, their biases, their experiences Will a police officer arrest a traffic violator or let her go? Will a defendant take a plea bargain or go to trial? Will a Hispanic juror be more or less sympathetic toward a Hispanic defendant? Will certain types of persons respond better to rehabilitation than others?4 dilemmas: Individual rights v. common good Individuals have rights but society has expectations One function of the law is to ensure that individual rights are attainable society claims a vested interest in restricting those who take risks that may injure themselves or others, because these actions can create a burden on society legal system has two goals: Protect the individual Protect the collective Individual rights v. common good: conflict and tension tension between the two values is reflected in supreme court decisions over the last 30 years. Chief Justice Earl Warren in the 60's principles that provided rights for those suspected of breaking the law - like the Miranda Rule The court from 1969-present, has trimmed individual rights ruling in favor of the police Recently, the Patriot Act has limited these rights even more Individual rights v. common good: Probably cause The court ruled in 1991 that police did not need a warrant to search a suitcase or other container in a car if they had "probable" cause that it contained drugs or contraband. The difficulty with this is how one decides what constitutes probable cause Individual rights v. common good: two models due process and crime control2 CJ Models: due process model Due Process - primary emphasis on protecting innocent citizens - even if they are criminal suspects - from possible abuses President John Adams- "it is better than many guilty persons go free than one innocent person should suffer.2 CJ models: crime control model Seeks the punishment of law breakers Emphasizes the efficient detection & prosecution of suspects so that society can assume that criminal activity is being contained or reduced. Laws are passed that seriously limit individual rights4 dilemmas: Equality vs. discretion Centers around questions of whether punishments should be meted out equally without regard to individual circumstances or whether there should be room for discretion ***Do the Crime, Do the Time!Equality vs. discretion: principles of equality The principle of equality means the same treatment for all people who commit the same crime Equality vs. discretion: principle of proportionality The Supreme Court has, on occasion, applied a principle of proportionality - that punishment should be consistently related to the magnitude of the offense.discretion Discretion means one should use judgments about the circumstances of certain offenses that lead to variations in how the system responds to these offenses. ***Equality vs. discretion: determinant sentencing To counteract sentencing disparity, in the last 15 years many states have implemented what is known as determinant sentencing - the offense determines that sentence and courts have little discretion. Discover truth vs. resolve conflict should we focus on discovering the right or resolving the conflict? what is the purpose of a trial? -to find out the truth? -determining the truth means learning the facts including events, intentions, actions and outcomes -can what really happened ever be known? Discover truth vs. resolve conflict: Plea Bargaining*** system is inclined to speed up the conflict than discover the truth over 90% of all cases result in plea bargainingroutine activity theory for a crime to occur there must be a convergence of 3 elements ( a likely offender, a suitable target, and absence of a capable guardian)rational choice theory crime is intended to benefit the offendersituational crime prevention influence offender's decision or ability to commit crimes at particular times and placesopportunity theory opportunity causes crime regardless of criminal inclinationsdisplacement theory what types of crime may occur when another type of crime prevented? could a murder occur because a mugging was thwarted and the criminal become more aggressive with the next mugging?  Restorative Justice Restorative Justice By Michelle Maiese Updated June 2013 by Heidi Burgess and Sarah Cast Originally published October 2003"How can justice be found in the face of genocide, a crime so vast and evil that it defies simple justice? Is there restorative justice beyond retribution and revenge? Must some kind of justice be done before healing can take place?"" [In Rwanda] something different had to be invented, a different way of defining justice, a different way of dispensing it." -- Jane Ciabattari The Aims of Restorative Justice Restorative justice is concerned with healing victims' wounds, restoring offenders to law-abiding lives, and repairing harm done to interpersonal relationships and the community. It seeks to involve all stakeholders and provide opportunities for those most affected by the crime to be directly involved in the process of responding to the harm caused. A central premise of restorative justice is that victims, offenders, and the affected communities are all key stakeholders in the restorative process. [1] Victims include not only those directly affected by the offense, but also family members and members of the affected community. The safety, support, and needs of these victims are the starting points for any restorative justice process. Thus a primary objective is to attend to victims' needs: material, financial, emotional, and social. [2] Addressing these needs and the needs of the community is necessary if public demands for severe punishment are to be quelled. This requires the assumption that crimes or violations are committed against real individuals, rather than against the state. Restorative justice, therefore, advocates restitution to the victim by the offender rather than retribution by the state against the offender. Instead of continuing and escalating the cycle of violence, it tries to restore relationships and stop the violence. [3]A restorative justice process also aims to empower victims to participate effectively in dialogue or mediation with offenders. Victims take an active role in directing the exchange that takes place, as well as defining the responsibilities and obligations of offenders. Offenders are likewise encouraged to participate in this exchange, to understand the harm they have caused to victims, and to take active responsibility for it. This means making efforts on their parts to set things right, to make amends for their violations, by committing to certain obligations, that may come in the form of reparations, restitution, or community work. While fulfilling these obligations may be experienced as painful, the goal is not revenge, but restoration of healthy relationships between individuals and within communities that have been most affected by the crime. Restorative justice is a forward-looking, preventive response that strives to understand crime in its social context. It challenges us to examine the root causes of violence and crime in order that these cycles might be broken. [4] This approach is based on the assumption that crime has its origins in social conditions, and recognizes that offenders themselves have often suffered harm. Therefore, communities must both take some responsibility for remedying those conditions that contribute to crime and also work to promote healing. [5]Healing is crucial not just for victims, but also for offenders. Both the rehabilitation of offenders and their integration into the community are vital aspects of restorative justice. Offenders are treated respectfully and their needs are addressed. Removing them from the community, or imposing any other severe restrictions, is a last resort. It is thought that the best way to prevent re-offending is re-integration. [6]The justice process in this way strengthens the community and promotes changes that will prevent similar harms from happening in the future. It is generally thought that restorative justice should be integrated with legal justice as a complementary process that improves the quality, effectiveness, and efficiency of justice as a whole. [7] Because they focus on the needs of the victim, the offender, and the community, restorative processes can help to determine how the law should be applied most fairly. Processes at the National Level Restorative justice at the national level takes on various forms. Victim-offender mediation is perhaps the most common, and involves face-to-face dialogues between victims and offenders. Victims' needs, including the need to be consulted, are the focus. In victim-offender meetings, offenders have a chance to take active steps to make reparation to their victims. This extends further than monetary compensation, and includes an apology and an explanation of how the crime occurred. The offender might also do some work for the victim, or for some community cause selected by the victim. In addition, offenders have to listen to victims' stories and face up to the reality of what they have done. They are often deeply affected by this experience, and have positive motivation to make reparations. Because this process brings victims and offenders together and enables them to talk to one another, it can allow them to see the other as a person rather than a stereotype. For this process to be effective, a skilled mediator should facilitate these meetings. Group conferencing is an extension of victim-offender mediation and includes more parties, such as family members of the victim or offender, community contacts, teachers, neighbors, or counselors. The involvement of extra parties can make conferencing more forceful than one-on-one mediation. Community victim-support organizations work to provide victims with material, psychological, and social support and aid in the healing process. Other organizations offer support services for offenders, including literacy education, relationship counseling, drug counseling, and housing accommodation. Some agencies assist in reintegration for offenders and help them to find employment. Still other groups work to help communities as a whole become less prone to crime. [8]U. S. school districts plagued by segregation and gang violence are increasingly implementing restorative justice programs for students to develop mutual empathy and address past wrongs through meaningful reparations. An Oakland, California school program that facilitates student conversations by hosting talking circles, for example, is offered as an alternative to "zero tolerance" policies like expulsion. [9] The program thus seeks to replace punitive responses to violence with opportunities to address the root causes of school and community-wide disputes. Restorative Justice at the International Level Restorative justice might also have an important role in responding to severe human rights violations or cases of genocide. A crucial step toward restorative justice is taken when governments tell the truth about past atrocities carried out by the state. [10] It is thought that true healing requires three steps: Remembering the atrocities committed,Repenting, and Forgiving. War crimes inquiries and truth commissions can aid in the process of memory and truth telling, and help to make public the extent to which victims have suffered. Restoration often becomes a matter of restitution or war reparations. In cases where clear acts of injustice have taken place, some type of compensation can help to meet the material and emotional needs of victims and begin to remedy the injustice. Repentance can also help to re-establish relationships among the conflicting parties and help them to move toward reconciliation. In some cases, conflicts can end more peacefully when parties acknowledge their guilt and apologize than when formal war crimes adjudication or criminal proceedings are used. In cases of civil war, because the line between offenders and victims can become blurred, a central goal of peacebuilding is to restore the community as a whole. In Northern Ireland, for example, the adoption of restorative justice techniques and practices helped transform destructive practices of punishing various actors into more constructive, non-violent mechanisms of dispute resolution. [11] Restoration often becomes tied to the transformation of the relationship between the conflicting parties. However, such restoration cannot take place unless it is supported by wider social conditions and unless the larger community makes restorative processes available. Restorative justice in the international context is therefore linked to social structural changes, reconstruction programs to help communities ravaged by conflict, democratization, and the creation of institutions of civil society. [1] Howard Zehr and H. Mika. 1997. "Fundamental Concepts of Restorative Justice." Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice, Volume 1, Issue 1, pp. 47-56. < http://www.beyondintractability.org/library/external-resource?biblio=14829 >. [2] Tony F. Marshall. "Restorative Justice: An Overview," (Home Office Research Development and Statistics Directorate, 1999). < http://webarchive.nationalarchives.gov.uk/20110218135832/http://rds.homeoffice.gov.uk/rds/pdfs/occ-resjus.pdf >. [3] Peggy Hutchison and Harmon Wray. "What is Restorative Justice?" (New World Outlook, 1999). < http://gbgm-umc.org/nwo/99ja/what.html >. [4] Hutchison and Wray. [5] Marshall, 6. [6] Zehr and Mika, 2. [7] Marshall, 7. [8] See section on "The Cornerposts of Restorative Justice" in Daniel W. Van Ness and Karen Heetderks Strong, Restoring Justice: An Introduction to Restorative Justice. ( Elsevier, 2010). < http://books.google.com/books?id=AZv2MVk HBTc C >. [9] Patricia Leigh Brown. "Opening Up, Students Transform a Vicious Circle" The New York Times. April 3, 2013. < http://www.nytimes.com/2013/04/04/education/restorative-justice-programs-take-root-in-schools.html >. [10] Hutchison and Wray. [11] Graham Ellison and Peter Shirlow, "From War to Peace: Informalism, Restorative Justice and Conflict Transformation in Northern Ireland," in Restorative Justice: From Theory to Practice. (Emerald Group Publishing, 2008). < http://books.google.com/books?id=4sttq Cszsng C >. Use the following to cite this article: Maiese, Michelle. "Restorative Justice." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: October 2003 < http://www.beyondintractability.org/essay/restorative-justice >. Additional Resources  Criminal Justice and ADR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15Criminal Justice and ADRby Shirli Kirschner January 2018From ADRAC- The Australian Dispute Resolution Advisory Council Blog, organized with Shirli Kirschner This paper was settled jointly by the members of ADRAC. What does ADR mean in the criminal justice context? Assessing the use of ADR processes in the criminal justice context is attended by difficulty because of the absence of clear boundaries around the definition of ADR. 1 For this reason, much of the literature on ADR makes only limited reference to its role in the criminal justice system. 2Inherent in many people’s understanding of the notion of ADR is the existence of a dispute between identifiable parties. Criminal justice, however, is not usually conceptualised as a dispute between victim and offender, but is instead seen as a matter concerning the relationship between the offender and the state. 3 This raises a complex question as to whether a criminal offence can properly be described as a ‘dispute’. The goals of criminal justice also differ from the usual goals of ADR. While ADR is often restricted to consideration of the interests of parties to the relevant dispute, criminal justice involves consideration of a number of public policy goals such as, among others, punishment, deterrence, protection of the community, and rehabilitation. 4 For this reason, the state plays some role in many ADR-type processes used in the criminal justice system. In part, because of these definitional issues, much of the literature dealing with the use of ADR processes in the criminal justice context (such as conferencing and victim-offender mediation) does not actually use the term ‘ADR’. Most of the literature on this topic refers, instead, to the closely related concept of ‘restorative justice’. 5What is restorative justice? A commonly accepted definition of restorative justice comes from Marshall, who defines restorative justice as ‘a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’. 6Restorative justice processes can be used to divert offenders away from traditional criminal justice processes or can be complementary or supplementary to such processes. 7 In comparison with the traditional criminal justice processes, restorative justice places more overt focus on the victim, gives decision-making power to a broader range of actors, and allows for more free discussion between a wide-range of parties. 8The topic is addressed in more detail in Restorative Justice. Is ADR used in the criminal justice context in Australia? In Australia, the use of ADR processes in the criminal justice system is now ‘mainstream’ for juvenile offenders 9 and has largely come in the form of: conferencing (including ‘forum sentencing’), circle sentencing, and victim-offender mediation. Broadly, the goals of each of these processes are to:divert offenders (particularly young offenders) away from court proceedings;allow for community involvement;provide an active role for victims in the criminal justice process;support victims of crime and assist their recovery;increase the confidence in the sentencing process amongst participants;encourage healing;allow the offender to make amends;empower the offender, the victim and communities; andaddress the causes of offending. 10Conferencing (or ‘Youth Conferencing’) as an ADR process in criminal matters Youth or family conferencing is the most widely adopted form of ADR in the Australian criminal justice system. Conferencing refers to a facilitated group discussion about the impact of an offence between a young offender, the offender’s support persons, the victim, the victim’s support persons, police and an impartial facilitator. 11 In all jurisdictions other than the ACT, the conference can take place without the victim’s participation. The aim of conferencing is for the parties to mutually develop a plan for the offender to repair the harm caused by the offence. Plans may require an offender to do such things as make an apology, undertake community service, undergo counselling, complete treatment for drug or alcohol addictions, or donate to a charity. 12 If parties are unable to agree on a plan, the matter is sent back to the referring party (either the police or the court). By involving both the victim and the offender in developing this plan, conferencing aims to meet the specific needs of particular victims and to engender a sense of accountability in the offender. 13Young offenders who are assessed as suitable can be referred to conferencing by police, prosecutors or courts, depending on the regime in place in the relevant jurisdiction. Whether a matter is suitable for conferencing depends on a number of factors including the seriousness of the offence, whether the offence involved violence, the harm suffered by the victim, and the extent of offending by the offender. 14 The legislation in some jurisdictions excludes certain offences from conferencing. 15Conferencing is available in each State and Territory of Australia. All jurisdictions but Victoria have statutory youth conferencing schemes. 16The topic is dealt with in more detail in Children and ADR. Conferencing is also available for adult offenders in certain circumstances in NSW, and South Australia, and pilot programs for adult conferencing have been undertaken in other jurisdictions. Forum sentencing In NSW, adult conferencing, called Forum Sentencing, is available only through referral by a court after a plea or finding of guilt. In Forum Sentencing the conference develops an intervention plan which is then approved by the court. The offender must then complete the plan before sentencing. The court is then notified of the completion of the plan and this completion is a relevant factor in sentencing. Alternatively the plan may form part of the sentence subsequently imposed by the court. Circle sentencing Circle sentencing refers to a process in which sentencing of some adult Aboriginal offenders is performed in a community, rather than court, setting. The offender, a judge and community members (possibly including lawyers, the police, the victim, the offender’s family and respected community members) form a circle to discuss the offence and the offender, and to communally determine a sentence that is appropriate for the specific offence and offender. 17 Circle sentencing is available in NSW and Western Australia. A 2008 study found that circle sentencing in NSW has had positive outcomes by reducing barriers between Aboriginal communities and the courts, empowering Aboriginal communities, supporting Aboriginal victims and offenders, increasing confidence in the sentencing process, reducing barriers between Aboriginal communities and the courts, and providing more appropriate sentencing options. 18Victim-Offender Mediation Victim-offender mediation (VOM) refers to a facilitated discussion between the victim and offender about the offence, its consequences, and possible means of repairing the harm caused. NSW, Queensland, WA, NT and Tasmania all offer VOM services. 19 VOM usually involves a trained mediator, the victim, the offender, and support persons. In contrast to conferencing (in which victim involvement is usually optional), the victim must be involved in order for VOM to proceed. Depending on the jurisdiction mediation may be initiated by the offender, the victim or, in the case of WA and NT, the judge, the prosecutor or corrections officers. VOM services in WA and Tasmania take place prior to sentencing. In both Tasmania and WA mediation is available for certain offences after a finding of guilt but prior to sentencing. A mediation report is prepared and may be taken into account by the court in sentencing. In NSW, Queensland and NT, VOM is offered only after sentencing. In these jurisdictions, mediation has no impact on the sentence received by the offender and takes place strictly for ‘restorative’ purposes. Are ADR processes in the criminal justice context ‘effective’? Numerous studies have been conducted to determine whether ADR in criminal justice is ‘effective’. These studies have largely addressed two criteria of effectiveness: (i) effect on reoffending; and (ii) party satisfaction with ADR processes. Although these are the most commonly studied metrics of effectiveness, it should be noted that there are other relevant measures of effectiveness. In particular, the comparative cost of ADR and court processes is a notable consideration. A study of conferencing in NSW found that youth conferences cost 18% less per person than Children’s Court proceedings. 20Effect on reoffending The results of studies on the effect of conferencing on reoffending have been mixed. In 2012, Smith and Weatherburn reviewed previous studies of the effectiveness of restorative justice in reducing reoffending. 21 While some of the reviewed studies found that conferencing reduced the likelihood or frequency of reoffending, Smith and Weatherburn identified multiple methodological problems in those studies, and argued that there was no clear basis for believing that conferencing reduces reoffending. They subsequently compared the rates of reoffending of youth offenders who participated in conferencing in NSW and those who were eligible but did not participate, and found no effect on the rate of reoffending time before the next offence or the frequency of reoffending. Other studies have, however, had different findings. For example, a study of restorative justice programs in the ACT found lower rates of reoffending amongst violent offenders who participated in conferencing as compared with similar offenders who did not participate in conferencing. However, conferencing had no impact on reoffending amongst property offenders and shoplifters. 22An evaluation of circle sentencing in NSW in 2008 found that circle sentencing had no effect on the likelihood and frequency of reoffending, 23 though this must be considered alongside the identified positive outcomes of circle sentencing identified above. Party Satisfaction There is a substantial amount of evidence from various jurisdictions that victims who participate in conferencing are highly satisfied with those processes. 24 Similarly, studies have identified high levels of satisfaction amongst participants in circle sentencing. 25 Notably, some studies have found that satisfaction with these processes is distinct from satisfaction with the outcome of the process. 261. NADRAC, ADR Terminology: A Discussion Paper (2002).?2. Melissa Lewis and Les Mc Crimmon, ‘The Role of ADR Processes in the Criminal Justice System: A View from Australia’ (Paper presented at ALRAESA Conference, Entebbe, Uganda, 4 9 September 2005) 4.?3. Ibid.?4. See e.g., Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A.?5. Lewis and Mc Crimmon, above n2, 4.?6. Australian Institute of Criminology (AIC), ‘Restorative Justice in Australian Criminal Justice System’, (2014) 127 Research and Public Policy Series, 23-28.?7. Kathleen Daly and Hennessey Hayes, ‘Restorative Justice and Conferencing in Australia’ (February 2001) No 186 Trends & Issues in Crime and Criminal Justice, Australian Institute of Criminology.?8. Ibid.?9. AIC, above n6, 5.?10. See Evi Kadar, Victim-Offender Mediation Program (VOMP) (paper presented at National Conference on Juvenile Justice, Canberra, 22-24 September 1992); AIC, above n6, 16; Gordon Bazemore and Mark Umbreit, ‘A Comparison of Four Restorative Conferencing Models’ (February 2001) Juvenile Justice Bulletin, Washington: Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, 6; NSW Department of Justice and Attorney General, ‘Circle Sentencing’ (2009) Factsheet.?11. Daly and Hayes, above n7.?12. AIC, above n 6, 6.?13. Lewis and Mc Crimmon, above n2, 10.?14. AIC, above n 6, 6.?15. See AIC, above n 6, 8-9; e.g. in NSW sexual assault, drug offences, traffic offences, offences causing death and breaches of AVOs are excluded offences under the Young Offenders Act 1997 (NSW).?16. See AIC, above n6, 8-14 for a detailed summary of youth and adult conferencing schemes in each jurisdiction.?17. AIC, above n6, 16; NSW Department of Justice and Attorney General, above n10.?18. AIC, above n6, 17; Kathleen Daly and Gitana Proitetti-Scifioni (2009) Defendants in the Circle: Nowra Circle Court, the Presence and Impact of Elders, and Re-Offending, Brisbane: Griffith University.?19. See AIC, above n6, 18-21 for a detailed summary of victim-offender mediation schemes in each jurisdiction.?20. AIC, above n6, 28; Andrew Webber, ‘Youth Justice Conferences Versus Children’s Court: A Comparison of Cost-Effectiveness’ (2012) 164 Contemporary Issues in Crime and Justice, NSW Bureau of Crime Statistics and Research.?21. Nadine Smith and Don Weatherburn ‘Youth Justice Conferences Versus Children’s Court: A Comparison of Re-offending’ (2012) 160 Contemporary Issues in Crime and Justice, NSW Bureau of Crime Statistics and Research.?22. AIC, above n6, 24-25.?23. Jacqueline Fitzgerald ‘Does Circle Sentencing Reduce Aboriginal Offending?’ (2008) 115 Crime and Justice Bulletin, NSW Bureau of Crime Statistics and Research.?24. AIC, above n6, 27-28.?25. Ibid 17.?26. Ibid.? Biography Shirli Kirschner has been a qualified mediator for 12 years and is the principal of Resolve Advisors Pty Ltd, which she established in August 1996. Resolve provides mediation, facilitation and ADR and system design services to a wide client base. Shirli is on a number of mediator panels including the LEADR Advanced panel, UTS/CDR and Law Cover panels. She was on the standby panel for Sydney Ferries for the Sydney Olympic games. Recent mediations include disputes in the wholesale telecommunications market between stakeholder carriers and a partnership disputes within a small ($8 million turnover) company. Shirli is the NECA dispute reolution adviser for the National Electricity Market. She is on the editonal panel of the ADR bulletin. Email Author Author Website Additional articles by Shirli Kirschner Comments  Popular Study Materials from Criminal Justice Crj 211 E01 High-level appellate courts are also referred to as__________.courts of last resort Courts that have authority to review decision by lower courts have _____.appellate jurisdiction Which of the following is NOT a characteristic of the U. S. Supreme Court? The U. S. Supreme Court justices serve for eight years. Which Supreme Court case held that new evidence of innocence is no reason to order new state trial when constitutional grounds are lacking? Herrera V. Collins On appeal, when a trial court of general jurisdiction offers a new trial instead of the review of the lower court’s decision it is giving a Trial de Novo A formal written accusation submitted to the court by the grand jury, alleging that a specified person has committed a specified offense, usually a felony. Indictment At which stage of the hearing are defendants brought before a judge to possibly be afforded the opportunity for bail Federal system is divided into ___ judicial districts A formal written accusation submitted to a court by a prosecutor, alleging that a specified person has committed a specified offense, is known as a (n) __________. Mc Nabb v. U. S. formally established that a defendant has to appear at a first appearance within how many hours after an arrest How many regional courts of appeal are there in the United States? Which U. S. Supreme Court case established the Court's authority as the final interpreter of the U. S. Constitution? Bob had his wallet stolen while he was eating lunch at a university cafeteria. When the man who stole his wallet was caught, Bob opted to resolve the disagreement informally. the disposition of his case was Probably heard at a One purpose of ____ is to help ensure the reappearance of the accused at trial Which of the following is NOT an alternative to bail? What is the lawful authority of a court to hear or to act on a case from its beginning and to pass judgement on the law and facts? As state court systems developed, which of the following court models was copied by most states? Which of the following is NOT part of the structure developed by states that follow the federal court model? All of the following EXCEPT which are names used in place of "trial court of general jurisdiction"? Which court is the first appellate level for courts of limited jurisdiction? How many states have intermediate appellate courts? Which of the following is NOT a reason for the dependent's first appearance before a judge? Which of the following is an alternative to the cash bond system? A document guaranteeing the appearance of a defendant in court as required and recording the pledge of money or property to be paid to the court if he or she does not appear is known as a (n) _________. Which type of bail is similar to a credit contract? Approximately ______ of all state-level felony defendants are released before trial. Which of the following laws limits the right to bail for certain kinds of offenders? The lawful authority of a court to hear cases that arise within a specified geographic area or that involve particular kinds of law violations is known as _______ jurisdiction. Which of the following cases supports the decision by Congress to deny bail to offenders who represent a danger to the community? How many (percentage) states use grand juries as part of the pretrial process? Which of the following is NOT decided during the preliminary hearing? What type of plea is most similar to a guilty plea? When a defendant "stands mute" at her arraignment, she is considered to have entered a What is the primary purpose of the preliminary hearing? All of the following are considered professional in the courtroom work group, EXCEPT the _________. All of the following discretionary decisions are always appropriate, EXCEPTWhich of the following statements is false regarding the role of the judge in the courtroom work group? Which work group member has the responsibility of demonstrating to a jury that a defendant is guilty beyond a reasonable doubt? The role of a defense attorney does NOT include _________. Criminal defendants who are unable to afford their own lawyer can use all of the following systems, EXCEPT __________. What is the primary purpose of any criminal trial? In the courtroom workgroup, who is responsible for maintaining security and order in the judge's chambers and courtroom? R efers to the issue of whether the defendant is actually responsible for the crime of which he or she stands accused. The most widely used system of indigent defense is Who is responsible for summoning members of the public for jury duty and subpoenaing witnesses for the prosecution and the defense? All of the following are outsiders to the courtroom work group except Which of the following represents the order of the steps in a criminal trial Weapon's, tire tracks, and fingerprints are examples of _______. Court-appointed defense attorneys, whose fees are paid at a set rate by local or state government, are also called_____. Relies on full-time salaried government staff; most common. Which of the following is NOT another name for a prosecuting attorney? During trial, the ____ stage happens before the ________ stage, but after the _______ stage. Which of the following is an example of jury tampering? The most important form of prosecutorial discretion lies in the power to1. What is the most important criteria for determining the level of proof necessary for conviction In criminal trials? What percentage of state inmates represent themselves at trial?which of the following witnesses provides information about the personality, family life, business acumen, and so on of the defendant in an effort to show that this is not the kind of person who would commit the crime with which he or she is charged? Which of the following is NOT a responsibility of a bailiff? Creates record of all that occurs during trial A written order issued by a judicial officer requiring an individual to appear in court to give testimony is called a __________. A jury that is isolated from the public has been Juries in most states are composed of how many members? Indirect evidence that requires interpretation or a person to draw a conclusion from it.the intentional making of a false statement as part of the testimony by a sworn witness in a judicial proceeding on a matter relevant to the case at hand Which of the following is NOT one of the goals of contemporary sentencing? A just desert perspective that emphasizes taking revenge on a criminal or group of offenders: The use of imprisonment or other means to reduce the likelihood that an offender will commit future offenses. Which sentencing goal is closely associated with the phrase and eye for an eye?____________ deterrence seeks to reduce the likelihood of recidivism by convicted offenders. Which sentencing goal attempts to make the victim "whole again"? A sentence of 8 to 25 years is an example of a (n)Cooperating with the authorities,good character, and no prior record are examples of ____ factors"Truth in sentencing" guarantees that offenders will serve at least _______ of their sentence. When a judge, before sentencing, reviews information on the background of a convicted defendant, it is called _________. Which of the following is NOT a characteristic of restorative justice? Which of the following cases determined that the method of execution of an offender may not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death? The U. S. Supreme Court has ruled that ______ must decide the facts that lead to a death sentence. What goal of sentencing is sometimes referred to as the lock ‘em up approach? Under the indeterminate sentencing model, what is the primary determinant of the amount of time served? Which of the following is a form of structured sentencing? How many federal cases result in guilty pleas? Which of the following is NOT a form of structured sentencing?______ is known as the suspension of criminal proceedings before sentencing and referral to a private agency. The U. S. Supreme Court case of Mc Clesky v. Kemp deals with the issue of _____ in capital crimes. Which sentencing principle holds that the severity of sanctions should bear a direct relationship to the seriousness of the crime committed? Which of the following is NOT a right under the Crime Victims' Rights Act to the victims of federal crimes? The Supreme Court case of In re Kemmler deals with what form of execution? The Supreme Court case of Wilkerson v. Utah deals with what form of execution? As of August 1, 2012 what percentage of death-row inmates in the United States were male? The act of taking revenge on a criminal perpetrator. About how many offenses are punishable by death under federal laws? What method of execution is used in most death-penalty states? Which of the following is NOT an advantage of fines? Intermediate sanctions are also sometimes termed _______. Which of the following is considered a disadvantage of probation and parole? Sheila Macco is sentence to probation. The conditions of her probation include: maintain employment, possess no firearm, obey all laws, and meet with her probation officer biweekly. These ______ conditions apply to all probationers in the jurisdiction where she was sentenced. Which of the following statements about probation is false? Which of the following is NOT a function of probation/parole officer's work? Which of the following is not an advantage of using probation instead of imprisonment? Which model emphasizes probation and parole officers' service role and views probationers and parolees as clients? What type of sentence requires the offender to serve weekends in jail and receive probation supervision during the week? Which of the following sentences is not an example of an intermediate sanction? Which intermediate sanction resembles a military-style boot camp? House arrest is a valuable alternative to prison for ________. Revocation of probation or parole _________. In Samson v. California the U. S. Supreme Court held that: A sentencing alternative that requires offenders to spend at least part of their time working for a community agency is known as ________. The serious violent offender reentry initiative (svori) has found that ______ reduce (s) recidivism. Which of the following is NOT cited as a disadvantage of probation and parole? Which supreme court case held that parole boards do not have to specify the evidence used in deciding to deny parole? Probation is sentenced by the ____. Which supreme court case ruled that probation officers may search a probationer's residence without a search warrant? Most common form of sentencing in the United States. According to the Bureau of Justice Statics study, about what percentage of people convicted of homicide are placed on probation? Which of the following sentence is a prisoner reentry strategy? Nationwide, approximately what percentage of inmates successfully complete parole? Which of the following is not one of the most frequent violations of which revocation occurs? Which type of sentence requires that offenders serve time in a local jail before a period of supervised probation? Who makes the release decision when an offender is sentenced to shock parole? Which of the following intermediate sanctions exposes offenders to highly regimented environment involving strict discipline, physical training, & hard labor? What has been described as the "stricktest form of probation for adults in the U. S. ? In Georgia, the typical caseload of an intensive supervision officer iswhich of the following is not a general condition of probationers? Women account for about what percentage of the country's jail population? Which supreme court case held that overcrowding in prisons is not by itself cruel and unusual punishment?___ capacity refers to the inmate population the institution was originally built to handle. The use of prison gangs, the abolition of parole, and an emphasis on individual responsibility and punishment are aspects of the _________ model of imprisonment.which of the following refers to ultra-high security prisons? Related Study Materialsciti questionsquiz and exam questionsintro to sociologyabnormal psychology 281juvenile delinquency mid-termfinal examcj 350 final examcriminal justice mid-term reviewcj mid termcriminal ethicspolice functionpolicing chapter 4Recent Class Questionsleading biosocial researcher ________ explains it this way: "in virtually every...people appear to be particularly fascinated by ________ crime.which american sociologist described the years of american colonial slavery when...  Ethics 7 32 terms Jess Babyy Ethics 7Learn Flashcards Write Spell Test Match Gravity Advertisement Upgrade to remove ads Sort True Diane Whiteley argues that the community should feel moral indignation over a crime done to a victim. True Ayn Rand agrees with John Locke about the three negative rights. False Megan's Law makes any murder of a child under fourteen a "special circumstances" case, eligible for the death penalty. True Walter Berns argues that anger has a deep and appropriate connection to moral indignation. Benjamin Franklin Who said that "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety"? False Distributive justice: The justice meted out to a person who has broken the law. False A human being is always identified as a person. False Judith Jarvis Thomson proposes an analogy to the abortion question: If you found yourself in a hospital bed, attached to a famous violinist, you'd have no right to unplug yourself. True In earlier times, animals were put on trial for crimes. NOT: Could a slave population of clones be created? There are several questions associated with the prospect of human cloning. Which one isn't in the textbook? Kant Retribution is a backward-looking reason for punishment. True Utilitarianism may conclude that those patients with a higher quality of life should have preferential treatment to those patients with a lower quality of life. NOT: Retribution wants punishment to fit the crime, whereas vengeance may exceed the damage done by the criminal. There are three factors separating retribution from vengeance. Which one shouldn't be on the list? True Historically, gods and goddesses, totems, and dead ancestors have been granted personhood. False For Rawls, it is acceptable to allow an inequality as long as only a small minority of the population suffers because of it. False Ronald Dworkin is in favor of what he calls the first model: We have to find a balance between the rights of the individual and the demands of society. True Retribution is a backward-looking reason for punishment. NOT: fundamental equality There are three classical definitions of equality. Find the one not discussed in the text. True The principle of treating equals equally and unequals unequally may be used in favor of affirmative action. True The three negative rights advocated by John Locke are: The right to life, liberty, and property. True Kant's theory of personhood might include nonhuman beings who are rational. False A homunculus means a tiny person; in the textbook we meet the concept in the old conviction that inside each person's head is a small copy of that person, representing the soul. False The film Gattaca explores the issue of interracial adoption. False Ronald Dworkin is in favor of what he calls the first model: We have to find a balance between the rights of the individual and the demands of society. NOT: John Hospers Three thinkers mentioned in the textbook agree about the three negative rights. Which one shouldn't be on the list? True One of the questions raised concerning human cloning is that clones might be considered an expendable population. True In the Declaration of Human Rights there are examples of both positive and negative rights. False Elizabeth Wolgast argues that since humans are social atoms, the original position is an ingenious practical aid in determining social fairness. True Karl Marx argued in favor of positive rights. False Deterrence is a backward-looking theory of punishment. True Elizabeth Wolgast is an advocate of communitarianism. True Kant claims that you qualify as a person if you are a rational being. Advertisement Upgrade to remove ads Features Quizlet Live Quizlet Learn Diagrams Flashcards Mobile Help Sign up Help Center Honor Code Community Guidelines Students Teachers About Company Press Jobs Privacy Terms Follow us Language© 2018 Quizlet Inc.  Restorative Justice Restorative Justice Cutting Edge Law Categories: Restorative Justice Topics: Introduction/Description What is Restorative Justice? Restorative Justice is a different approach to those involved and affected by crime than the traditional judicial system provides.• Restorative Justice helps victims, survivors, offenders, and communities to take a pro-active approach to crime and engages all parties involved in the healing process after a crime has been committed.• Restorative Justice can be utilized in crimes of severe violence or non-violent crimes as well as with juvenile offenders.• Restorative Justice is an approach to crime which puts the victim or the victim’s family first and fully acknowledges the harm caused by the offender.• The restorative justice process facilitates the offender in taking full responsibility for their actions by creating a direct or indirect dialogue with the victim, the victim’s family and/or the community.• A restorative justice approach seeks to support the victim and/or their family in expressing the harm done and fulfilling their needs as a result of the crime.• Restorative justice is an approach that supports the community in healing from the crime.• Restorative justice expects the offender to take full responsibility for their actions and assists them in taking steps to find solutions to help heal the harm they have caused. Unlike the traditional judicial system, restorative justice acknowledges that crime effects the persons directly involved as well as the community – in the traditional justice system, crime is treated as an offense against the state i.e. Joe Smith vs. State of California. A restorative justice approach has traditionally been used by indigenous communities to maintain a unified community, while holding standards of conduct and addressing harms done to its community members and the community as a whole. Restorative justice is not a particular program but is an approach to justice. Some common restorative justice programs include: Restorative School Discipline & Anti-Bullying programs Truth and Reconciliation Commissions Peace-making circles Community justice programs Family-group conferencing Sentencing circles Restorative Community Service Victim-Offender Conferencing Victim-Offender Mediation/Dialog See http://www.restorativejustice.orghttp://restorativejustice.orghttp://voma.org  EIGHTH AMENDMENT EIGHTH AMENDMENT'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 'Cruel and Unusual Punishment In Solem v. Helm (1983) 463 U. S. 277 a split court found a life sentence without the possibility of parole for a seventh nonviolent felony was unconstitutional. In Solem, a bare majority of the court held a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. (Id. at 292. )Solem is weakened by Harmelin v. Michigan (1991) 501 U. S. 957, in which a life sentence without possibility of parole for possessing 672 grams of cocaine was upheld. The case produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. As one court has concluded, disproportionality survives; Solem does not. (Mc Gruder v. Puckett (5th Cir. '92) 954 F.2d 313, 316. )In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, determined Solem was wrongly decided and the Eighth Amendment contained no proportionality guarantee. (Harmelin v. Michigan, supra, 501 U. S. 957, 965.) Justice Kennedy, joined by Justices O'Connor and Souter, found the Eighth Amendment encompassed a narrow proportionality principle. (Id. at 997.) [T]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime. (Id. at 1001.) Consideration of the first factor identified in Solem, supra, 463 U. S. 277 was sufficient to uphold the constitutionality of defendant's sentence; intra- and inter-jurisdictional analyses are appropriate only in rare cases. (Harmelin v. Michigan, supra, at 1004-05.) The defendant in Harmelin was sentenced to spend the rest of his life in prison for possessing a large quantity of drugs. Defendant here, a violent recidivist with 19 current felony convictions with weapon use enhancements, received essentially the same sentence. The sentence is not grossly disproportionate to defendant's more serious crimes. Moreover, in Solem v. Helm, supra, 463 U. S. 277, 296 the court focused on the nonviolent nature of both the defendant's current offense of uttering a 'no account' check ('one of the most passive felonies a person could commit') and his prior offenses. The majority acknowledged a life sentence for fourth-time heroin dealers and other violent criminals would pass constitutional muster. (Id. at p. 299 and fn. 26. )The California Constitution prohibits cruel or unusual punishment. (Cal. Const., art. I, 17, italics added.) We construe this provision separately from its counterpart in the federal Constitution. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 355.) A punishment may violate the California Constitution although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, footnote omitted.) The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. (Id. at 425.) Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at 426.) Third, they compared the punishment to the penalty for the same offense in different jurisdictions. (Id. at p. 427. )Google+d  . Offender Management and Community Safety - The Division is dedicated to providing professional supervision of offenders to enhance community safety. Court Services - The Division is dedicated to conducting thorough Pre-Sentence Investigations to assist District Courts in making informed sentencing decisions. The Division also assists various agencies within the criminal justice system, and prepares supervision and violation reports addressing the conduct of probationers and parolees. Victims’ Rights - The Division assists victims by determining the impact of the offense committed against them, and seeking input with regard to sentencing recommendations. The Division assists victims through collection of restitution and participation in a computerized tracking program, V ictim I nformation and N otification E veryday (VINE). Ethics - The Division promotes the highest level of ethical values and professionalism. Public Relations - The Division establishes effective community relationships and partnerships to improve offender services and increase community involvement. Emergency Response - The Division provides emergency response when called upon to assist allied agencies to further the Department’s overall mission of community safety. Leadership Development - The Division facilitates leadership through training, mentoring and empowering employees.  Do you need restorative justice? Criminal justice Early intervention Community Housing Schools Workplace Other areas Restorative justice as a career Do you need restorative justice? Frequently Asked Questions What is restorative justice? Restorative justice gives victims the chance to meet or communicate with their offender to explain the real impact of the crime - it empowers victims by giving them a voice. It also holds offenders to account for what they have done and helps them to take responsibility and make amends. Restorative justice often involves a conference, where a victim meets their offender face to face. Sometimes, when a face to face meeting is not the best way forward, the victim and offender will communicate via letters, recorded interviews or video instead. Why would I take part? Which offences can restorative justice be used for? How will I know what to do? Can I stop the process at any time? Is restorative justice safe? When does restorative justice happen? How can I access restorative justice? How can I hear from other people who have been through restorative justice? You can find resources for victims here.  Chapter 14 â Fuzzy Justice: Alternatives to Court American Criminal Courts Legal Process and Social Context2014, Pages 480–509Chapter 14 – Fuzzy Justice: Alternatives to Court Casey Welch Show morehttps://doi.org/10.1016/B978-1-4557-2599-1.00014-X Get rights and content Summary Restorative justice is an informal method of resolving disputes that seeks to preserve relationships. Restorative justice programs forgo the adversarial processes of the traditional court system in favor of a less formal way to allow people to resolve conflicts. Restorative justice programs seek to solve the present dispute and address underlying issues. The advantages of restorative justice processes are that they attempt to repair the harm done to relationships and give the victim the opportunity to address the offender. The disadvantages of restorative justice processes are that victims often do not want contact with those who have harmed them, particularly in cases of violence, and that restorative justice processes do not necessarily guarantee due-process rights. Bringing offenders, victims, and other interested parties together can give everyone an opportunity to understand the effects of the offense. By including community members, some of the underlying conditions that lead to offending can be addressed. An ombud serves as a neutral party within an organization and provides conflict resolution and problem-solving services. Ombud program standards of practice revolve around four principles. These are: independence (the ombud should be independent from other entities within the organization); neutrality and impartiality (the ombud should not advocate for the organization or for any of the participants in the dispute and have no interests in the outcome); confidentiality (participants should feel that their conversations are confidential); and informality (conflicts may be addressed without putting individuals on the record). Ombud’s offices engage in mediation, help disputants identify options for resolution, and help the organization evaluate problematic trends. Military commissions are courts used to try violations of the laws of war and other offenses. Some reasons that military commissions are appropriate for dealing with terrorism are they protect sensitive information; the United States has a history of using military commissions during war; al Qaeda fighters do not follow the rules of war, so they lose the right to be considered soldiers; and terrorist activities are not like traditional street crime. Some reasons that military commissions are inappropriate for dealing with terrorism are that the definition of terrorism is so broad that it could include almost any behavior; military commissions circumvent the principles of due process; terrorism is enough like war that fighters should be accorded Geneva Conventions protections; military commissions flout constitutional values. Keywordsmilitary commission, ombud, rendition, restorative justice Learning Objectives After reading this chapter, you should be able to:1. Discuss restorative justice as an alternative to formal court processing.2. Give the advantages and disadvantages in bringing victims and offenders together.3. Tell how reconciliation can be accomplished in a restorative justice framework.4. Define ombud.5. List and discuss the four principles upon which ombud standards of practice are based.6. Describe the activities that ombuds participate in.7. Define military commissions.8. Discuss reasons that military commissions are appropriate for dealing with terrorism. Discuss reasons that they are inappropriate for this task. Key Termsmilitary commissionombudrenditionrestorative justice The criminal court is not always the best place to address every dispute [1]. The court is an arena where the state can bring charges against and prosecute suspects, and sentence those who are convicted of breaking the law. But the criminal court is often overworked. In this chapter, we looked at some alternative courts that relieve some of the extremely heavy caseload of criminal courts because those courts can devote resources that deal more specifically with certain types of issues. A step beyond using alternative courts is to bypass the court system altogether. There are times when the legal machinations of the court system are not necessary or are even counterproductive [2]. Sometimes it is preferable to let individuals work out their differences in a structured environment without resorting to the often expensive resources of the criminal or even the civil court. Alternative dispute resolution mechanisms can not only save a great deal of money, but relationships between disputants can be preserved and more satisfactory outcomes can be achieved [3]. In this chapter, we will look at restorative justice programs, ombud programs, and military commissions. These programs, which are used by the communities, private companies, and the government, are often successful in diverting cases from the court system. Although alternative programs offer some benefits, going outside the court system also has some disadvantages. For example, participants may forfeit some legal protections and due process in exchange for the greater efficiency of alternative processes. Granted, participants often voluntarily waive these protections, but sometimes they do not [4]. A prime example is the military commissions the government uses to deal with terrorism suspects. These quasi-court mechanisms were invented to give the appearance of legitimate legal processing. This is a disputed and controversial practice that requires serious consideration. Without taking a position on the legality and morality of such hearings, this chapter will present arguments from both perspectives as to their efficacy [5]. The term “fuzzy justice” suggests that alternative court processes can be both beneficial and problematic to the goals of ensuring that both individuals and the state are afforded an equal opportunity to achieve justice. Fuzzy justice mechanisms will find adherents and detractors. As we explore these alternatives to formal court processing, we will be especially attuned to the power of the state to control the process and to the range of protections afforded to participants in quasi-legal courts and dispute resolution programs. Restorative Justice One promising and popular alternative to formal court processing is a program called restorative justice. Restorative justice is an informal method of resolving disputes between individuals that acts to preserve their relationships [6]. By forgoing the adversarial processes of the traditional court system, restorative justice programs seek a less formal way to allow people to resolve their conflicts in a manner that allows for mutually agreed-upon compromises. Each party must feel that not only has justice been done, but also that they have not been declared a loser by the court system. Many, if not most, of the cases brought to criminal court involve people who have prior relationships. It may be a dispute between neighbors, a fight between members of rival gangs, a case of domestic violence, or a larceny of a store by a regular customer. In each of these cases, not only have the disputants had a prior relationship, they are also likely to have an ongoing relationship in the future. Restorative justice programs seek to solve the present dispute and address the underlying issues so the parties feel that they have settled their present issue fairly and have obtained new tools for resolving future problems. In this way, restorative justice programs can be more effective than traditional criminal-court programs in solving problems of the present and the future [7]. Restorative justice practices require that we rethink what justice means [8]. At the heart of the theories behind restorative justice is the concept of “victim.” Traditionally, the victim of a criminal offense has always been the party that suffered the offense. In ancient times, the victim or the victim’s family was entitled to seek revenge or retribution from the offender and/or the offender’s family. This is true of many cultures from ancient times and was encoded into the ancient Code of Hammurabi and several other Middle Eastern codes. Additionally, both Roman and Germanic tribal laws, as well as those in England, required restitution to victims and their families [9]. The crucial distinction here is that the victim and the victim’s family were the ones entitled to justice, not the state. Things are different today, and victims have been pushed farther toward the periphery of the justice process. The government prosecutes criminal suspects and demands that the legal outcome be focused on punishment or rehabilitation rather than restitution, thus taking the case away from the victim. Norwegian criminologist Nils Christie compares these conflicts to property [10]. The conflict has become the responsibility of the prosecutor who determines charges, engages in plea bargaining, and works with other members of the court to achieve justice for the state. What is missing in the modern court is a place for the victim and the offender to reconcile their differences, and the victim is often left with the feeling that he or she is superfluous to the case [11]. To understand restorative justice, we must look at it through a different lens [12]. Instead of considering the offense as a violation of the law, restorative justice looks at the way the injury has affected the victim and the community. Instead of limiting the concerned parties to the offender and the government, restorative justice includes the community and the victim. The goal of restorative justice is to repair the damage done to relationships rather than simply sentence offenders to punishment or treatment in the hope that this will deter future crime. But how is this done? Ron Claassen at Fresno Pacific University has developed a list of fundamental principles of restorative justice (see Focus on Discretion). From this list of principles, it is easy to see how restorative justice principles differ from those of the criminal court. Although there are a variety of restorative justice programs, each with its own methods and practices of implementing restorative justice principles, some of the core values of restorative justice find their way into programs in one manner or another. Focus on Discretion Source: Ron Claassen, Restorative Justice—Fundamental Principles, Center for Peacemaking and Conflict Studies, Fresno Pacific College, peace.fresno.edu/docs/rjprinc.html.1. Crime is primarily an offense against human relationships and secondarily a violation of law since laws are written to protect safety and fairness in human relationships.2. Restorative justice recognizes that crime (the violation of persons and relationships) is wrong and should not occur. It also recognizes that there are dangers and opportunities after crime does occur. The danger is that the community, victim (s), and/or offender emerge from the response further alienated, more damaged, disrespected, disempowered, feeling less safe, and less cooperative with society. The opportunity is that injustice is recognized, equity is restored, and the future is clarified so that participants are safer, more respectful, more empowered, and cooperative with each other and society.3. Restorative justice is a process to “make things as right as possible” which includes attending to needs created by the offense such as safety and repair of injuries to relationships and physical damage resulting from the offense; and attending to needs related to the cause of the offense, such as addictions, lack of social or employment skills or resources, lack of moral or ethical base, and so on.4. The primary victim (s) of a crime is/are the one (s) most affected by the offense. The secondary victims are others affected by the offense and may include family members, friends, witnesses, criminal justice officials, and the community.5. As soon as immediate victim, community, and offender safety concerns are satisfied, restorative justice views the situation as a teachable moment for the offender, and an opportunity to encourage the offender to learn new ways of behaving in the community.6. Restorative justice prefers responding to the offense at the earliest point possible and with the maximum amount of voluntary cooperation and minimum coercion, since healing in relationships and new learning are voluntary and cooperative processes.7. Restorative justice prefers that most offenses are handled using a cooperative structure, including those affected by the offense, as a community to provide support and accountability. This might include primary and secondary victims and family (or substitutes if they choose not to participate), the offender and family, community representatives, government representatives, faith community representatives, school representatives, and so on.8. Restorative justice recognizes that not all offenders will choose to be cooperative. Therefore, outside authority must make decisions for uncooperative offenders. The actions of the authorities and the consequences imposed should be tested to confirm that they are reasonable, restorative, and respectful to the victim (s), offender, and community.9. Restorative justice prefers that offenders who pose significant safety risks and are not yet cooperative be placed in settings where the emphasis is on safety, values, ethics, responsibility, accountability, and civility. They should be exposed to the effects of their offenses on victims, invited to learn empathy, and offered learning opportunities to become better equipped with skills to be a productive member of society. They should continually be invited, not coerced, to become cooperative with the community and be given the opportunity to demonstrate this in appropriate settings as soon as possible.10. Restorative justice requires follow-up and accountability structures utilizing the natural community as much as possible, since keeping agreements is the key to building a trusting community.11. Restorative justice recognizes and encourages the role of community institutions, including the religious/faith community, in teaching and establishing the moral and ethical standards which build up the community. Question How does restorative justice differ from our traditional concepts of justice based upon retribution? Bringing Victims and Offenders Together Many victims do not want contact with those who have harmed them. This is particularly true in cases of violence [13]. However, in other cases, it is appropriate to bring victims and offenders together in order to attempt to repair the harm done to their relationship. Bringing victims and offenders together works best when it is done under the auspices of a well-run restorative justice program. In a regular courtroom, there is limited opportunity for the victim to address the offender. Recently, courts have recognized that crime victims get little or no opportunity to participate in the cases other than being witnesses and have allowed victims to provide victim impact statements for the judge to use during the sentencing phase. Victim impact statements typically express the victims’ outrage and detail the emotional and physical injuries that were sustained. The intent is to convince the judge to prescribe a severe punishment. Although this may assuage the victims to some extent, it does little to repair the damage to the relationship or bring closure to the victim [14]. Several types of restorative justice programs allow encounters between victims and offenders. Let’s take a look at some of these, including mediation, conferencing, circles, and impact panels. Mediation Mediation programs involve bringing the offender and victim together along with a trained mediator who helps guide the interaction [15]. Although reconciliation might be a primary goal in some victim–offender mediation programs, it is not always a realistic one. Often, the victim and offender were strangers before their conflict and have little likelihood of seeing each other again. Repairing the harm done by the offense in cases such as this is not something that is vigorously pursued by either party, but it may still occur. More important, the goal of resolving the conflict revolves around the issues of identifying the injustice that has been done, discussing how to make things right, then developing a plan. Mediation helps the offender comprehend the harm that has been done to the victim and to ascertain his or her responsibility. It also allows victims to “have a voice” in which they may confront the offender and tell their side of the story. Mediation programs allow the victim and offender to negotiate a resolution to their conflict that can be satisfying to each. There are some obstacles, however, to reaching a satisfying resolution, such as a power differential between the victim and the offender [16]. The offender may be the victim’s boss, spouse, or landlord. A truly successful mediation ends up with the offender committing to an agreement and making restitution or providing an apology ( Photo 14.1 ). Photo 14.1. Mediation. Mediators must often undergo several hours of training. Here, a student covers his face while laughing during an exercise at a New York Department of Education mediation training session. The exercise involved the participants treating one another in the manner suggested on their headbands. Figure options Conferencing Conferencing is another way of bringing offenders and victims together to craft solutions to their conflicts. The primary distinction between conferencing and mediation is that conferencing involves many more parties. Besides the offender and the victim, members of each family, the arresting officer, representatives from the criminal justice or juvenile justice system, and concerned members from the community who have input into the circumstances of the case (or an interest in the result) are present [17]. It is not unusual to have a dozen or more people present at the conference. Rather than being mediated, conferences are guided by a trained facilitator who ensures that the discussion stays on topic and does not wander into unproductive and argumentative territory. The conference begins with the person thought to be responsible for the harm explaining what happened. Then, beginning with the victim, the other conference participants ask questions, make suggestions, or detail their experiences and feelings about the event. The conference then moves on to the task of developing a plan to resolve the problem. The goal of the conference is to repair the harm brought about by the act. By allowing all concerned parties to have a hand in developing the resolution plan, it has been shown that not only does recidivism decrease, but that there is a higher level of victim satisfaction than with normal court processing [18]. Conferencing was first developed in New Zealand and Australia. Today, most conferencing is performed with young lawbreakers and their families. Although there are distinct differences between various models of conferencing, the overall structure remains consistent. The goal of repairing the harm done to the relationship between the offender and the victim, as well as other affected parties, remains primary [19]. The challenge for the conference facilitator is to maintain a positive atmosphere without resorting to dominating the proceedings. The idea is to let the participants express their perspectives and feelings and craft their own resolution plan. In this way, everyone becomes more committed to making the process work because, rather than have it dictated to them, they actually develop it themselves [20]. Circles Restorative justice circles share many of the qualities of conferencing. There are, however, several distinct differences. This technique was first developed by American Indians and focuses on the harmony of the community as much as it does on the offender and the victim [21]. The circle includes a wide range of participants including not only the offender and the victim but also friends and families, community members, and justice system representatives. The primary distinction between conferencing and circles is that circles do not focus exclusively on the offense and do not limit their solutions to repairing the harm between the victim and the offender. Rather, circles consider the situation that has caused the conflict in a more holistic manner. The advantage of this process is that it allows the community to look at the underlying problems that may produce conflict. For instance, if groups of young people are fighting over limited recreational facilities, such as a basketball court, the solution may be for the community to build more basketball courts. This is a solution that cannot be affected by the traditional court system, mediation, or even conferencing programs. It requires the input of community stakeholders who have the authority and resources to solve the underlying problem of limited recreational facilities. The restorative justice circle can be cumbersome and time-consuming. Often, the issues cannot be resolved in a single meeting; circles typically require multiple sessions in which new participants continuously enter the process. In this way, systemic change can be accomplished, the initial conflict between offender and victim is addressed, and a wider solution that affects the entire community is developed [22]. Impact Panels Impact panels differ significantly from the types of restorative justice practices that we have discussed. In impact panels, offenders and victims exchange viewpoints, but not with those involved in their particular offense. That is, the offender does not meet the victim, but rather victims of offenses similar to the one he or she committed [23]. In a particularly traumatic offense, a victim does not want to meet with their actual offender. However, victims often desire to tell their story to other offenders. For instance, those who have lost loved ones in a drunk-driving accident will address a group of those convicted of driving under the influence and impress upon them the distress they experience because of the accident. The hope is that by listening to the victims of a similar incident, drunk-driving offenders will appreciate how their behavior has affected their victims [24]. Impact panels are not the give-and-take discussion that allows offenders to talk about their actions, and not all offenders are suitable for this type of encounter. Offenders who participate in impact panels need to have shown some type of remorse for their offense and a willingness to listen respectfully to their victim’s story. Not all victims are suitable for impact panels, either. The idea is not to demean or humiliate the offenders, but rather to allow them to listen and try to appreciate the harm they have done. For example, it is been shown that those convicted of burglary begin to understand how it is not necessarily the loss of property that has most upset the victim, but rather the fact that a stranger has entered their house and violated their sense of security [25]. Making Amends As can be seen from the above examples of restorative justice encounter sessions, bringing together offenders and victims and other interested parties can promote healing for everyone. At first blush, this may seem counterintuitive, but reconciliation can be accomplished by giving offenders and victims an opportunity to understand the effects of the offense [26]. Furthermore, by including community members in some sessions, some of the underlying conditions that led to the offense can be addressed. What does this have to do with justice? Rather than the offender answering to the state by being sentenced to incarceration or required to pay financial restitution, the offender answers to the victim or victims of the offense and is able to express remorse, ask forgiveness, and begin the journey toward repentance. For the victim, the experience allows them to “have voice” by telling their story to their offender, or in cases of impact panels, to those who have committed similar offenses. For a victim/offender encounter to be successful, the offender must make amends to the victim. These amends include three distinct characteristics [27]:▪Apology. The offender must apologize to the victim. In this apology, the offender must take responsibility for his or her actions by acknowledging the offending behavior and admitting it was wrong. Second, the offender should express regret. When the victim witnesses this regret, he or she may be better able to forgive the offender. Finally, the offender must make this apology without offering excuses [28]. The key is that offenders do not try to cast themselves as a victim of circumstances or try to excuse their behavior [29].▪Change of behavior. An apology falls flat if the offender continues to commit the offense. By changing behavior, the offender can show as well as tell. For instance, a man who makes inappropriate sexual innuendos at work must stop this type of behavior so that females feel comfortable in his presence. By saying he is sorry, but still engaging in inappropriate behavior, the apology is a hollow platitude.▪Restitution. A third step in making amends is for the offender to pay restitution to the victim or the community. Restitution is an important step to repairing the harm done to not only the relationship between the offender and the victim, but also as a way for the offender to develop the feelings of “paying his dues.” Restitution can take many forms: a financial payment to the victim, performing direct services for the victim, or engaging in community service. Depending upon the situation, the victim may desire no further contact with the offender but this does not mean the offender cannot engage in activities that mitigate the harm [30]. The elements of restorative justice can be considered as efforts to make the justice system more responsive to the needs of victims and offenders. They allow for the reintegration of offenders into the community and for victims into the normal routines of their life before the offense. Crime is a traumatic event for its victims, and the criminal justice system process can be traumatic for the offender. What is the role of restorative justice programs in the criminal justice system? The answer depends upon the ability of restorative justice professionals to convince traditional criminal justice practitioners that restorative justice is not only a viable alternative to normal criminal justice processing but also that it advances the goals of justice. This can be a difficult case to make. For many people, justice implies retribution, punishment, and incapacitation. They have a difficult time understanding the idea that victims and offenders can negotiate a fair outcome of the case. There are a number of conceptual and practical objections to restorative justice programs, including:▪Multiple parties cannot pursue multiple goals and achieve a single purpose.▪Not all offenses can be identified, and of those that are, not all are of equal importance.▪Government and community will not be able to share responsibility for public safety in the way anticipated by restorative justice theory.▪Restorative justice will diminish due-process protections.▪Victims cannot receive adequate attention in any model that simultaneously considers offender rehabilitation.▪Restorative justice will cause unacceptable disparity of sanctions.▪Coercion will be necessary, and coercion is antithetical to a restorative model.▪Restorative justice will not work with dangerous offenders.▪Most victims and offenders are never identified.▪Large-scale use of restorative justice will lead to its depersonalization.▪Individualistic and pluralistic cultures will keep restorative justice from working.▪Restorative justice may work for minor offenses, but certainly not for rape or murder [31]. Many of these objections are substantial and require a good deal of reflection and explanation. Let’s highlight a couple of these objections and discuss how they affect crucial criminal justice system issues. One of the important objections that highlights the theme of our discussion of the criminal justice system is the allegation that due-process protections will be reduced. As discussed in previous chapters, the development of due-process protections has been difficult and contentious in the history of the criminal court [32]. Anything that reduces these protections may be considered a threat. So how do restorative justice practices affect due process? The answer is “it depends.” It depends upon the training of the restorative justice personnel and the structure of the program. The argument can be made that because restorative justice requires voluntary participation from offenders, they waive some of their due-process rights. However, most of the offenders who participate in restorative justice are willing to admit their guilt and are interested in resolving the conflict in a harmonious manner. Those who believe they are completely innocent of any wrongdoing are unlikely to choose a restorative justice process. Another commonly expressed objection to restorative justice is that it will not work with serious offenses. However, when one closely examines a large percentage of the types of murders committed in the United States, it becomes clear that murder may be one of the offenses that is most amenable to restorative justice (see Courts in the Media). In many cases of homicide, the victim and offender know each other or may even be related. Those who have ongoing relationships can benefit from programs that help them ease some of the harm that has been done [33]. A man who murders his wife will continue, in some fashion, to be a parent to his children. It may be possible for the family to come to terms with the tragedy and find ways of mitigating the harm done to the relationship between father and children. It is important to note that not all cases can be successfully resolved through restorative justice practices. History has shown us, however, that some of the most unlikely cases have been successfully brought to closure. Courts in the Media Forgiveness A criticism of restorative justice is that it can only be used for minor offenses. Setting up a meeting between a victim and offender and attempting to reintegrate the offender into the community may serve well for an offense like vandalism, shoplifting, or even burglary, but not for serious offenses such as rape and murder. How can healing and forgiveness occur after such a destructive offense? Even if the victim or the victim’s family did forgive the offender, what good does it do? After all, the breaking of a law is an offense against the state, and the state punishes offenders, in part, to set an example to others who may be considering breaking the law. Although the restorative justice model has not been used extensively enough in serious offenses for any reliable data to be gathered, some individuals have been successful in applying restorative justice processes and ideals in their own lives to recover from tragedy. In the cases below, victims’ families embarked on their own restorative justice plans; these were not processes suggested or required by the state. However, the positive effects of forgiveness and reconciliation in these instances are unmistakable.▪In 1973, Marietta Jaeger Lane, her husband, and five children were on a camping trip in Montana. During the first night, David Meirhoffer cut through the family’s tent and kidnapped 7-year-old Susie. The child was never found, although police continued to search for the kidnapper. Lane says she “was just ravaged with hatred and a desire for revenge,” but drew on her religious faith for guidance. A year later, when Meirhoffer phoned Lane to taunt her about the kidnapping, Lane spoke to him with compassion and asked what she could do to help. Meirhoffer broke down in tears, and their hour-long conversation helped police find Meirhoffer. In court, Meirhoffer admitted to the rape, strangulation, and dismemberment of Susie, along with three other murders. He plead guilty when offered, at Lane’s request, mandatory life imprisonment without parole. Just hours after confessing, Meirhoffer killed himself [34].▪In 1987, Mike Carlucci, a career offender and drug addict, shot 24-year-old Scott Everett in the head outside an apartment complex after mistaking him for a burglar. Everett’s father, Walt, a pastor, struggled with feelings of rage and hate for a year after the murder, especially when he learned Carlucci was only sentenced to 5 years in prison. After Everett gave his victim impact statement, Carlucci apologized. Later, Everett wrote Carlucci a letter explaining that he forgave Carlucci for murdering his son. Carlucci thanked Everett for his forgiveness, and the two began a correspondence. In 1991, Everett went to the parole board in support of Carlucci’s freedom, and Carlucci left prison after serving 3 years. Today, the two men are good friends and together give talks about their experiences [35].▪In 1993, 16-year-old Oshea Israel shot and killed Laramiun Byrd, 20, at a party. Israel served 16 years in prison. Byrd’s mother, Mary Johnson, admitted that when she saw the 16-year-old Israel in court, she had wanted to “go over and hurt” him. However, after 12 years of anger, she began visiting Israel in prison and telling him about her son. It was then that “he became human to me,” Israel says. Today, the two live next door to each other in Minneapolis. Israel visits Johnson and runs errands for her, and Johnson treats Israel as a son. “It motivates me to make sure that I stay on the right path,” Israel says [36]. Question Can you identify the restorative justice principles at work in each case? Ombud An ombud serves as a neutral party within an organization and provides conflict resolution and problem-solving services. Ombud programs have been around for many years and are used as alternative methods of settling disputes before they reach the courts. The cases heard by ombud programs are not criminal cases. At least not yet. If the ombud is successful, he or she resolves the conflict between the parties before it reaches formal grievance procedures, lawsuits, or violence. As a form of dispute resolution program, ombud programs actively involve the contesting parties in the resolution of the case. Because individuals get to participate in the solution, they have a greater sense that justice has been served. This means that the resolutions are more likely to last a long time. By opening lines of communication between the disputing parties and teaching them how to negotiate in a civil manner, ombud programs empower the participants to deal with future conflicts. In this manner, ombud programs can help change the culture of an organization so that it becomes more cooperative [37]. (See Careers in the Court for more on the occupation of ombud. )Careers in the Court Ombud An ombud serves as a neutral party within an organization and provides conflict resolution and problem-solving services. An internal ombud serves members of the organization, and an external ombuds serves the organization’s clients and customers. Of course, a single ombud may do both jobs. Some organizations split the job along different lines. For example, a university may employ an ombud for faculty and students and another ombud for staff. Any sector of the workforce may employ ombuds, including corporate, academic, governmental, and nonprofit sectors. Because the job of ombud is so new, there is no established path to the position, nor any specific training or certification required. However, an ombud must be at good at both listening and talking, be able to communicate with a diverse range of people, be discreet, be creative, and able to analyze and solve problems. Typically, ombuds have a high school diploma or equivalent, and a college degree. Some ombuds have worked as lawyers and professors. A prospective or newly hired ombud may be required to complete training in conflict resolution, negotiation, or conflict management. Many ombuds have held other jobs within their organizations, such as positions in customer service, human resources, or administration. An academic ombud may have a degree in law, criminology, criminal justice, sociology, social work, and may have held a previous administrative position. Organization that does not hire an ombud from within may use independent or freelance ombud who contract their services. Ombuds are most likely to find work in large metropolitan areas that have many corporations or government agencies. The salary ranges depend on the employer, the field, the geographic location, and the size of the organization. The average salary is about $65,000, although some small government agencies may pay as little as $25,000. Some ombuds in medical fields earn over $90,000. Question What skills should an ombuds possess in order to resolve conflicts? Four Principles of Ombud Programs The International Ombudsman Association has established standards of practice that dictate how member organizations should implement ombud programs. These standards of practice revolve around the four following principles: independence, neutrality and impartiality, confidentiality, and informality [38]. Independence The ombud who works within an organization should be independent from other entities within the organization. The ombud should not hold any other position in the organization that could compromise neutrality. However, this separation is typically difficult to achieve, and only large organizations have the resources to employ a dedicated ombud. In smaller organizations, the ombud holds other duties and performs the ombud’s activities on a part-time basis. Nevertheless, the ombud’s office should conscientiously pursue independence. In maintaining independence, a few concerns must be considered. First, the ombud should report directly to the head of the organization. The ombud’s reports should be general in nature and not disclose any circumstances of any cases. Additionally, the ombud should have sole authority to hire staff for the office and manage the budget. The ombud’s office should not be part of human resources or personnel because the policies of these offices, and the actions of their employees, are often the subjects of dispute. The ombud should be organizationally located outside of these offices. The ombud should have access to all the organization’s records and be able to view them without being required to explain anything about any cases that are currently under consideration. Additionally, the ombud should have the discretion to open any case based upon any complaint or upon his or her direct observation. Neutrality and Impartiality The ombud should be neutral. The ombud should not advocate for the organization or for any of the participants in the dispute and have no personal or organizational interests in the outcome. The ombud’s role is to help the participants find common ground to resolve their disputes. The ombud does not act as prosecutor or judge, but simply as a facilitator who helps the participants to identify ways of resolving their differences. This impartiality can sometimes be difficult to achieve. In many cases, one of the participants may have acted illegally, unethically, or against the organization’s best interests. The ombud must hold in abeyance his or her moral judgment on the case and assist the participants in identifying the issues, developing options, and choosing the best resolution. These judgments must be made by the disputing parties and not the ombud. However, the ombud has an opportunity and the responsibility to ensure that the legitimate concerns of the participants are fully addressed. Confidentiality The ombud must pledge confidentiality to all those who seek help from the office. By contacting the ombud’s office, complaining parties should not be required to press the case forward, defend their concerns, or be worried that administrators or supervisors will learn that they have contacted the ombud. Participants should feel that their conversations are confidential and that the ombud office will not “run away with their case.”The ombud pledges confidentiality and in trying to resolve the case, always asks permission from each party about what can and cannot be shared with the opposing party. The information provided in the ombud’s office is considered privileged and others cannot waive this. For instance, if the president of the organization wanted to know who had concerns with a particular policy, the ombud would not reveal this even though instructed to by the president. The idea behind the privilege of the ombud’s office is that it serves a higher goal of truth and trust rather than the organization’s immediate concerns. The idea is that the organization is healthier when individuals have confidence that what they tell the ombud will not be shared with others in the organization without their permission. The ombud does not testify in court or in formal grievance procedures should the case not be satisfactorily resolved. Although it may be tempting for some attorneys to use the ombud’s proceedings as a form of discovery, the principles of the International Ombud Association specifically guard against this. Any notes concerning the meeting should be destroyed once the case is completed. Additionally, any appointment books, calendars, or other materials that are directly or indirectly related to the case should be kept secure from observations by others and destroyed once the case is concluded. Informality Informality means that conflicts may be addressed without leaving a paper trail or putting individuals on the record as having difficulties within the organization. The ombud’s office is not a place where notice to an organization can be registered. This means that some activities, such as sexual assault, require members of the organization to record and report allegations even if the victim desires otherwise. The ombud is not required to report such cases and in fact is prohibited from doing so by the standards of practice. What the ombud does do is provide the victim with the information about how and where to register notice of the activity. This allows the victim to decide whether to make the report. If the ombud’s office was required to make reports in such cases, then individuals would be reluctant to talk to the ombud for fear that the case would be “taken away from them” and reported to his or her supervisors. The informal nature of the ombud’s office helps to provide disputants with an arena to explore the conflicts they are having with others and an opportunity to participate in crafting solutions. How Ombud’s Offices Work? Ombud’s offices engage in several activities, including mediation. One variant of mediation that ombud’s offices use frequently is “shuttle diplomacy.” Many cases can be resolved without sitting the disputants down in a room and having them air their grievances to each other. Sometimes this type of mediation can be counterproductive because it increases the tension between the parties. By using shuttle diplomacy, the ombud, armed with permission from each party, negotiates a resolution without the parties ever meeting. In these third-party negotiations, the ombud will go from one party to the other and try to distinguish what the core principles of the dispute are. Within the parameters of the permission, the ombud has been given to share information, the ombud will attempt to find a resolution to the problem by demonstrating how one party may have a legal or morally superior position, by showing how both parties may benefit from a compromise, or by establishing that the dispute is so trivial that the disputants are spending unnecessary time and resources to address it. Often, the ombud does not have a clear picture of exactly what the dispute is until he or she is well into the case. The disputants may not have a clear idea either until the ombud shares the concerns of the other party. This process can happen quickly or it could drag on for weeks. Sometimes the resolution calls for a direct face-to-face mediation, and sometimes it can be resolved with a verbal agreement. By using ascertainable criteria, such as the employee handbook, the ombud can often demonstrate to the disputants that policies are already in place that dictate how the case should be decided. It is remarkable how often employees (as well as employers) are not familiar with their organization’s policy documents. In addition to shuttle diplomacy, the ombud can help complaining disputants identify options. Often, individuals simply do not understand the policies and procedures of the organization or how to deal with their problems. After talking with the ombud, they can gather valuable information about the organization’s policies and ascertain whether they have actually been disadvantaged. Once this has been decided, the ombud can help them appreciate the options that are available to them and to select one that best satisfies their sense of justice. At no time does the ombud make decisions on the part of the individual or the organization. The role of the ombud is simply to provide an arena where people can gather the necessary information to make informed decisions themselves. Although the ombud does not participate in policy development, he or she may be called upon to help the organization evaluate problematic trends. As long as confidentiality is not compromised, the ombud may give advice on a wide range of issues. It is up to the traditional structures of the organization to implement any recommended changes. The ombud’s goal is to make sure that the concerns of all involved are carefully considered in evaluating policy changes. Several concerns can be raised about the practice of ombud offices. Sometimes the process fails to protect the rights of the individuals in conflict. The International Ombud Association has gone to great lengths to develop a code of ethics and standards of practice that address these concerns. Still, a few issues continue to be of interest to those that question the efficacy of the ombud’s office.▪Confidentiality. Although the ombud makes it a point to assure confidentiality to all those who come in contact with the office, the ombud may not be able to fulfill that promise in all cases. Once a case escalates to the level of a lawsuit or trial, the ombud may be compelled to provide the information the office has gathered. To protect against this, ombud’s offices purposefully destroy their records once cases have been resolved or move on to more formal proceedings. However, a court can instruct ombud’s office not to destroy records [39].▪Power differentials. There are times when the disputants have a vastly different status with the organization. This difference between a secretary and a boss, a maintenance worker and a faculty member, or a manager and a CEO may make it difficult for the subordinate to feel comfortable in providing information about the case. It is always possible that the conflict will reappear in a different form later and that the subordinate will suffer from challenging the organization. Even if a satisfactory resolution is created, the subordinate may still fear not having adequate legal protection against thinly guised reprisals. Subordinates may also be uncomfortable in arguing their case in the presence of a boss who they deem to be a bully [40].▪Due-process protections. Most organizations have a well-articulated grievance procedure that defines the protections afforded each party. At minimum, each disputant should have the opportunity to present his or her side of the story, question hostile evidence and witnesses, and be provided written notice of the charges against them. In the ombud’s process, these due-process procedures are often considered unnecessary. Because the participants voluntarily engage in the ombud’s process, they are not so concerned with the details of their due-process rights as long as they feel they are being treated fairly. Individuals are much more likely to share their feelings, suggest options for mutual gain, and commit to solutions when they are released from worrying about all the legal issues that may arise in the case [41]. The effect of restorative justice programs and ombud offices on the number of cases in the criminal court is difficult to measure. Because the goal of these types of programs is to address the dispute at the lowest level possible, there is really no way to measure how many of these cases have been diverted from the criminal court and how many never would have made it there anyway. Nevertheless, these processes engender a type of fuzzy justice that is difficult to evaluate. There is no question that these programs have become popular ways of resolving disputes that have saved courts a great deal in terms of time and resources but, it can be argued, some of the cases handled this way would have been better served had they been sent to criminal court. The central theme of this chapter is concerned with the efficacy of using these alternatives to the criminal-court programs. It can be argued that individuals feel more empowered by using these programs even though they utilize quasi-legal processes that bypass the normal protections of court procedures. But what happens when individuals do not voluntarily give up their due-process rights, but rather are deprived of them? Military Commissions The terrorist events of September 11, 2001, were a turning point in how the United States utilizes its criminal justice system and military. To deal with those who attacked the United States as part of al Qaeda, the government created military commissions, or courts that try violations of the laws of war and other offenses. Military Commissions Versus the Criminal Court The criminal-court system is designed to achieve two goals. First, it seeks to assign guilt and sentence those who have broken the criminal law. Second, it attempts to do this within the rule of law. This means that U. S. citizens are protected by a variety of legal devices designed to ensure that the power of the state does not overwhelm their individual rights and liberties. The Constitution, particularly the Bill of Rights, state constitutions, federal and state statutes, and court precedent all make the functions of the criminal court not only transparent and ascertainable but also fair in its application of justice. The phrase “a nation of laws, not of men” is often used to describe how the rule of law drives criminal-court processes. Foreign nationals who break the law in the United States are also protected by the rule of law, and well-designed legal processes handle issues such as immigration and deportation, extradition, and transnational crime [42]. Those suspected of criminal offenses enjoy many of the same privileges as citizens in terms of access to attorneys and the right to confront hostile witnesses. For individuals from many nations around the world, the legal rights provided in a U. S. court far exceed those of their native lands. There are, however, some notable exceptions, as well as some legal trends that make the phrase “rule of law” a matter of much contention. The Military Commissions Act of 2006 (MCA) is currently the statutory basis for military commissions (some improvements were made in the MCA of 2009). Congress enacted the MCA in direct response to the Supreme Court’s decision in Hamdan v. Rumsfeld (see Landmark Cases). The military commission’s jurisdiction is “alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission” [43]. The commission is a group of at least five commissioned armed forces officers who are appointed by the secretary of defense or the secretary’s designee. Military attorneys serve as defense and prosecution, and a military judge presides over the proceedings. The commission only hears some of the evidence because classified information remains protected. After the arguments, the commission deliberates in private, votes by secret paper ballot, and may convict a defendant by a two-thirds majority. The standard of proof required by the commission is proof beyond a reasonable doubt. If the death penalty is possible, then conviction and sentencing requires a unanimous vote [44]. Landmark Cases Hamdan v. Rumsfeld (2006)The military commissions set up in the wake of September 11 do not have the power to try Guantánamo Bay detainees because they violate the Geneva Convention and the Uniform Code of Military Justice. In 2001, Afghani forces captured Yemeni national Salim Ahmed Hamdan, Osama bin Laden’s former chauffeur, and the U. S. military incarcerated him in Guantánamo Bay. Over a year later, President Bush deemed Hamdan eligible for trial by military commission. Hamdan challenged his detention by filing writ of habeas corpus in federal district court. Before the district court ruled, Hamdan was designated an enemy combatant in a military commission hearing. The district court granted Hamdan’s petition a few months later, ruling that he must first receive a hearing to determine whether he was a prisoner of war under the Geneva Convention before a military commission could try him. The Circuit Court of Appeals for the District of Columbia reversed the decision, finding that federal court could not enforce the Geneva Convention and that Congress had authorized the establishment of military commissions. The Supreme Court held that the military commission used in this case was unauthorized by either Congress or the Executive branch. The military commission had to comply with U. S. law and the laws of war, including the Geneva Conventions and the statutory Uniform Code of Military Justice. The defendant’s exclusion from parts of his own trial that the military commission considered classified violated the Geneva Conventions and the Uniform Code of Military Justice. The trial was therefore illegal. If a defendant is found guilty, that finding is subject to automatic review by a panel of appellate military judges. The convicted may appeal the decisions of both the commission and the appellate panel to the U. S. Court of Appeals for the DC Circuit, and the Supreme Court may review the decision. The president must approve death sentences [45]. Despite the existence of the military commission, those accused of terrorist activities can be held indefinitely, in secret, without access to attorneys, without charges, and with no opportunity to defend themselves against allegations [46]. For an example of why this situation has developed, we will look at a hypothetical case of a Saudi Arabian citizen who has been captured on a battlefield in Afghanistan.▪Saudi Arabia. Even though this man is a citizen of Saudi Arabia, the behavior for which he is being incarcerated occurred in Afghanistan. Therefore, the legal protections that Saudi Arabia has for its citizens are not available to this man. This is a well-established legal principle. When visiting another nation, you are subject to that nation’s laws.▪Afghanistan. The laws of Afghanistan do not apply to this Saudi citizen because Afghanistan is not prosecuting him. Therefore, instead of being subject to the laws of Afghanistan, one would expect this individual be subject to the Geneva Conventions, which, in part, sets forth the international standards for the humanitarian treatment of prisoners of war.▪The United States. After capturing this man in Afghanistan, the United States transports him to a U. S. military base in Cuba. Even though this man was captured on a battlefield, he is not designated a “prisoner of war” but rather an “enemy combatant,” a designation invented to describe alleged terrorists. Because this man was not part of a regulated army, but was rather a volunteer to the al Qaeda movement, the United States asserts that he is not actually a soldier, but an uncommitted resistance fighter or terrorist. Because he lacks a uniform, is not subject to a hierarchical chain of command in his combat unit, is free to leave the battlefield and go home whenever he wants, and is not subject to a specified military discipline system, it is reasoned that this man lacks the circumstances of a soldier and so is not entitled to be considered a prisoner of war. Additionally, because this man is not a U. S. citizen, he is not protected by the Constitution. Furthermore, this man is not part of the United States military, so he is not covered by the Uniform Code of Military Justice. In effect then, no system of law provides any protection to a man who is accused of terrorism under these circumstances.▪Cuba. The U. S. military base at Guantánamo Bay, Cuba, is not subject to Cuban law. Instead, the U. S. military under the auspices of the Department of Justice has developed its own legal mechanism for dealing with those alleged to have committed terrorist acts. Because they are enemy combatants rather than prisoners of war, they are not protected by any national or international legal convention. This method of combating terrorism has been defended in a number of ways. It can be argued that terrorism is somewhat similar to war, but is so different that extraordinary measures are required to deal with it. Typically trials for war crimes, such as the Nuremberg trials after World War II, occur after hostilities have ceased. Germany was defeated, and any evidence or testimony that was revealed by these trials could not affect a war that was already over [47]. By contrast, the war on terrorism is an ongoing endeavor with no end in sight. Any trials or military commissions that seek to assign culpability for terrorism risk providing intelligence to the enemy. Revealing how evidence was obtained (electronic surveillance, covert operators, al Qaeda informants) could compromise human assets and shut off productive streams of intelligence. There are good reasons to protect sensitive information that should not be made public because of the ongoing nature of the war on terror. The United States a history of using military commissions during war. It was used as a tool of the legal system in the Mexican-American war, the Civil War, and World War II. A military commission tried those implicated in the 1865 assassination of President Abraham Lincoln and the attempts on Vice President Andrew Johnson, Secretary of State William Seward, and General Ulysses Grant. This commission, called the Hunter Commission, was a commission composed of nine officers in which more than 350 witnesses testified. Given the condition of Washington, DC, after the Civil War and assassination, it is unlikely that a fair and impartial civilian trial would have been possible [48]. Military Commissions and Fuzzy Justice Although there may be good reasons to refer to military commissions to deal with international terrorists, this method of justice has drawn a great deal of criticism. One fundamental problem is concerned with how terrorism is defined. One of the central problems with the presidential order is that its definition of terrorism is so broad that it could include almost any behavior … Further confounding the definition of terrorist is that the President, through the Attorney General, has discretion to determine who fits the definition. This unreviewable decision places tremendous powers of life and death into the administration’s hands. Moreover, the definition of terrorist is vague and indefinite, providing the Attorney General, vis-à-vis the authority of the Executive, wide latitude in determining who is subject to a commission. It is this open-ended latitude to place U. S. persons in commissions that is an affront to our U. S. cultural and legal identity [49]. In addition to this concern about the shift of power from the criminal justice system to the executive branch of the government, the use of military commissions for the prosecution of terrorist suspects is problematic for other reasons. For instance, why are al Qaeda fighters not afforded Geneva Conventions protections? They fight as military units and have been captured on battlefields. One reason given for the lack of Geneva Conventions protections is that the conventions do not cover “unlawful actors.” Al Qaeda fighters do not follow the rules of war; therefore they lose the right to be considered soldiers [50]. The process the commission uses to gather evidence against the alleged terrorists has also been criticized. Several tactics have used the war on terror to circumvent the principles of due process.▪Rendition. Rendition is the process of sending a criminal suspect to another country to be interrogated or detained. The Central Intelligence Agency (CIA) purportedly renditions terrorism suspects to nations that have different standards from the United States on what constitutes torture. By using the CIA’s aviation fleet to deliver prisoners to nations such as Egypt, Syria, and Iraq, the CIA is able to allow officials from these nations to torture prisoners for information on terrorist activities [51]. Although CIA officials do not participate in the torture themselves, they are present when suspects are tortured. This gives the CIA “plausible deniability” that they did not perform the torture themselves. Although the argument can be made that rendition might save lives, they undermine the credibility of the United States as a nation that adheres to the rule of law [52].▪Torture. The United States has engaged in a wide range of what they term “enhanced interrogation techniques.” These include physical and psychological tactics aimed at breaking down suspected terrorists. The most controversial of these techniques is waterboarding. Waterboarding, or simulated drowning, typically consists of forcing the victim to lie supine, then force water into his or her mouth. This type of torture has several advantages. First, it can be done frequently. Suspects recover quickly and can be subjected to it many times the same day or over many weeks or months. Second, it does not leave marks or scars. Waterboarding produces acute temporary discomfort, but no long-term physical damage. At issue is the value of the information obtained by this method. Because these prisoners have been held in custody for such a long time, it is suggested that whatever interrogation techniques elicited the information that is being used against the detainees is still considered by the detainees as being produced by the threat of torture.▪Indefinite detention. Some of the detainees at the Guantánamo Bay detention camp have been there for many years, held without charges, without a formal hearing, and without an opportunity to challenge their confinement. Under most established legal systems, they would have been either charged with criminal offenses or released a long time ago. It is unclear how the prisoners can receive a fair trial when they have been incarcerated for such a long time. The offenses they are accused of occurred on the battlefields of Afghanistan, and the prisoners do not have access to interviewing witnesses or accusers. After such a long incarceration, it is highly unlikely that detainees can produce a credible defense against any charges [53].▪Access to attorneys. Although these detainees are being held in various prisons around the world, including Guantánamo Bay, they have been denied access to attorneys. When attorneys are provided to some of these detainees, the usual attorney–client privilege is suspended. Attorneys are not allowed to meet their clients privately, and any information the detainees give their attorneys is considered “contraband information” [54]. The government has instructed the attorneys that there are certain topics, including torture, that they are not to discuss with their clients. One attorney who served as a defense counsel with the Office of Military Commissions observed that, contrary to popular belief, it is the prosecuting attorneys who had the most difficulty with the proceedings because they were “… more likely to find that the prosecution of detainees in the Military Commissions was incompatible with their oath to defend the Constitution.” On the other hand, the defense attorneys, “… were highly motivated, quite vigorous, and indisputably effective in this role because challenging the fundamentally flawed military commissions and the inexcusable treatment of detainees presented no conflict of interest to military counsel dedicated to core American values of due process, humane treatment, justice, and the rule of law” [55]. These are but a few of the more serious concerns about the efficacy of military commissions to deal with terrorism suspects. From a due-process perspective, the military commissions have failed to accord even the most elementary legal protections to the detainees. What is the justification? Several lines of reasoning are used to justify these types of quasi-legal maneuverings. One of the first is that the war on terror requires extreme measures. International terrorists are not typical offenders and should not expect the privileges and protections of the U. S. Constitution when they attack U. S. citizens. As international terrorists, they do not enjoy the protections of other sovereign states that have treaties with the United States. In fact, the detainees are stateless individuals because they reject by their actions all the conventions of orderly society. Another argument is that military commissions are the appropriate place to try international terrorists because their actions are more like military campaigns than traditional street crime. The traditional components of crime such as motive, means, and opportunity are not as crucial to adjudicating acts of terrorism as are concerns such as political ideology, membership in terrorist organizations, and evidence of conspiracy. Finally it can be argued that military commissions are appropriate because sensitive information vital to national security can be protected from the transparent nature of the criminal court. Because terrorism is an ongoing threat to the United States, information that comes out in the commissions must be censored so that enemies of the United States do not benefit from the evidence that is presented. In the hearings dealing with terrorism suspects in Cuba, the alleged mastermind of the September 11 attacks, Khalid Sheikh Mohammed, protested the nature of that captivity. The observers allowed to witness the hearings over closed-circuit television found that: When he [Mohammed] said the word torture, all anyone heard was white noise. The military commissions pipe white noise into the viewing rooms whenever there is a concern that classified information is being revealed. Because the sound coming out of the courtroom is on a 40-second delay and outsiders are behind soundproof glass or watching on monitors, censors have time to block out classified information with static [56]. Fuzzy Justice and the Criminal Court In some ways it can be argued that all justice in the criminal court is fuzzy justice. This is because justice is a contested and negotiated commodity. Although individuals have rights within the U. S. court system, these rights must be asserted with the aid of counsel. In an adversarial system, it is necessary to be vigilant of the state’s obligations to protect society by prosecuting crime and the potential abuses of the government as it delivers justice. A vast body of procedural law has developed to constrain law enforcement and court officials. “Fuzzy justice” alternatives to the court raise several issues and concerns regarding the voluntary and involuntary waiver of traditional legal rights. There may be good reasons to forgo the due-process requirements of the traditional court system. As we have seen, many conflicts are better handled by informal processes that allow individuals to work out their difficulties with each other under the guidance of a trained mediator or ombuds. Disputants can come away with a higher degree of satisfaction when they have the opportunity to provide input into how their cases are decided, are able to confront those they are in conflict with directly, and have their arguments taken seriously. These alternatives to the court that increase victim participation and satisfaction may also be considered as efficient and cost-effective ways of resolving disputes. However, we must remain vigilant about the potentials for frustrating justice when legal rights are held subservient to goals of efficiency and convenience. Summary1. Discuss restorative justice as an alternative to formal court processing.▪Restorative justice is an informal method of resolving disputes that seeks to preserve relationships. Restorative justice programs forgo the adversarial processes of the traditional court system in favor of a less formal way to allow people to resolve conflicts. Restorative justice programs seek to solve the present dispute and address underlying issues.2. Give the advantages and disadvantages in bringing victims and offenders together.▪The advantages of restorative justice processes are that they attempt to repair the harm done to relationships and give the victim the opportunity to address the offender. The disadvantages of restorative justice processes are that victims often do not want contact with those who have harmed them, particularly in cases of violence, and that restorative justice processes do not necessarily guarantee due-process rights.3. Tell how reconciliation can be accomplished in a restorative justice framework.▪Bringing offenders, victims, and other interested parties together can give everyone an opportunity to understand the effects of the offense. By including community members, some of the underlying conditions that lead to offending can be addressed.4. Define ombud.▪An ombud serves as a neutral party within an organization and provides conflict resolution and problem-solving services.5. List and discuss the four principles upon which ombud standards of practice are based.▪Ombud program standards of practice revolve around four principles. These are independence (the ombud should be independent from other entities within the organization); neutrality and impartiality (the ombud should not advocate for the organization or for any of the participants in the dispute and have no interests in the outcome); confidentiality (participants should feel that their conversations are confidential); and informality (conflicts may be addressed without putting individuals on the record).6. Describe the activities that ombuds participate in.▪Ombud’s offices engage in mediation, help disputants identify options for resolution, and help the organization evaluate problematic trends.7. Define military commissions.▪Military commissions are courts used to try violations of the laws of war and other offenses.8. Discuss reasons that military commissions are appropriate for dealing with terrorism. Discuss reasons that they are inappropriate for this task.▪Some reasons that military commissions are appropriate for dealing with terrorism are they protect sensitive information; the United States has a history of using military commissions during war; al Qaeda fighters do not follow the rules of war, so they lose the right to be considered soldiers; and terrorist activities are not like traditional street crime.▪Some reasons that military commissions are inappropriate for dealing with terrorism are that the definition of terrorism is so broad that it could include almost any behavior; military commissions circumvent the principles of due process; terrorism is enough like war that fighters should be accorded Geneva Conventions protections; military commissions flout constitutional values. Questions1. How is restorative justice an alternative to formal court processing?2. What are the advantages and disadvantages in bringing victims and offenders together.3. How can restorative justice achieve reconciliation?4. What is an ombud?5. What are the four principles that inform ombud program standards of practice?6. What do ombud offices do?7. What is a military commission?8. What are the advantages and disadvantages of military commissions? References [1] M Shapiro Courts: a comparative and political analysis, University of Chicago Press, Chicago, IL (1981) [SD-008] [2] DA Harris Justice rationed in the pursuit of efficiency: de novo trials in the criminal courts G Larry Mays, PR Gregware (Eds. ), Courts and justice: a reader (3rd ed. ), Waveland Press, Long Grove, IL (2004), pp. 94–121 [SD-008] [3] CK Dorne Restorative justice in the United States, Pearson, Upper Saddle River, NJ (2008) [SD-008] [4] M Schiff, G Bazemore Dangers and opportunities of restorative community justice: a response to critics G Bazemore, M Schiff (Eds. ), Restorative community justice, Anderson Publishing, Cincinnati, OH (2001), pp. 309–332 [SD-008] [5] New York Times, Delaying justice at Guantánamo, May 8, 2012< www.nytimes.com/2012/05/09/opinion/delaying-justice-at-guantanamo-bay-cuba.html >. [SD-008] [6] D Sullivan, L Tift Restorative justice: healing the foundations of our everyday lives, Willow Tress Press, Monsey, NY (2001) [SD-008] [7] M Braswell, K Wells Correctional treatment and the human spirit: the context of relationship David Polizzi, M Braswell (Eds. ), Transforming corrections: humanistic approaches to corrections and offender treatment, Carolina Academic Press, Durham, NC (2009), pp. 173–196 [SD-008] [8] DW Van Ness, KH Strong Restoring justice, 4Anderson Publishing, Cincinnati, OH (2002) [SD-008] [9] Ibid., 8. [SD-008] [10] N Christie Conflicts and property Br J Criminol, 17 (1) (1977), pp. 1–15 [SD-008] [11] J Kaster The voices of victims: debating the appropriate role of fraud victim allocution under the crime victims’ rights act Minn Law Rev, 94 (5) (2010), pp. 1682–1705 [SD-008] [12] H Zehr Changing lenses: a new focus for crime and justice, Herald Press, Scottdale, PA (1990) [SD-008] [13] L Woods, L Porter Examining the relationship between sexual offenders and their victims: interpersonal differences between stranger and non-stranger sexual offenses J Sex Aggression, 14 (1) (2008), pp. 61–75 [SD-008] [14] R Paternoster, J Deise A heavy thumb on the scale: the effect of victim impact evidence on capital decision making Criminology, 49 (1) (2012), pp. 129–161 [SD-008] [15] SS Beckwith District court mediation programs: a view from the bench Ohio State J Dispute Resolut, 26 (2/3) (2011), pp. 357–361 [SD-008] [16] CJA Beck, C Raghavon Intimate partner abuse screening in custody mediation: the importance of assessing coercive control Fam Court Rev, 48 (3) (2012), pp. 555–565 [SD-008] [17] KB Olsen Family group conferencing and child protection mediation: essential tools for prioritizing family engagement in child welfare cases Fam Court Rev, 47 (1) (2009), pp. 53–68 [SD-008] [18] A Calhoun, W Pelech Responding to young people responsible for harm: a comparative study of restorative and conventional approaches Contemp Justice Rev, 13 (3) (2010), pp. 287–306 [SD-008] [19] Ibid., 8. [SD-008] [20] L Abrams, M Umbreit, A Gordon Young offenders speak about meeting their victims: implications for future programs Crim Justice Rev, 9 (3) (2006), pp. 243–256 [SD-008] [21] RB Coates, M Umbreit, B Vos Restorative justice circles: an exploratory study Contemp Justice Rev, 6 (3) (2003), pp. 265–278 [SD-008] [22] Ibid., 8. [SD-008] [23] A Fulkerson The use of victim impact panels in domestic violence cases: a restorative justice approach Contemp Justice Rev, 4 (3/4) (2001), pp. 355–368 [SD-008] [24] DG Rojek, JE Coverdill, SW Fors The effect of victim impact panels on dui rearrest rates: a five-year follow-up Criminology, 41 (4) (2003), pp. 1319–1340 [SD-008] [25] Ibid., 8. [SD-008] [26] K Badovinac The effects of victim impact panels on attitudes and intentions regarding impaired driving J Alcohol Drug Educ, 39 (3) (1994), pp. 113–118 [SD-008] [27] Ibid., 8. [SD-008] [28] JJ Choi, M Severson What kind of apology is this? The nature of apology in victim offender mediation Child Youth Serv Rev, 31 (7) (2009), pp. 813–820 [SD-008] [29] NJ Blecker Sorry justice: apology in Australian family group conferencing Psychiatr Psychol Law, 18 (1) (2011), pp. 95–116 [SD-008] [30] BR Ruback, GR Ruth, JW Shaffer Assessing the impact of statutory change: a statewide multilevel analysis of restitution orders in Pennsylvania Crime Delinq, 51 (3) (2005), pp. 318–342 [SD-008] [31] Ibid., 8. [SD-008] [32] H Aviram Packer in context: formalism and fairness in the due process model Law Soc Inq, 36 (1) (2011), pp. 237–261 [SD-008] [33] A Khamisa A father’s journey from murder to forgiveness Reclaiming Child Youth, 15 (1) (2006), pp. 15–18 [SD-008] [34] Jaeger-Lane M, Burton L. The night I forgave my daughter’s killer, YES! Magazine, May 27, 2011< www.yesmagazine.org/issues/beyond-prisons/the-night-i-forgave-my-daughters-killer?icl=yesemail_may11&ica=title Night IForgave >. ABCNEWS, Forgiving her daughter’s murderer, January 6, 2006 < abcnews.go.com/2020/story?id=124051&page=1 >. Montana Abolition Coalition, Testimony of Marietta Jaeger lane on behalf of murder victims’ families for human rights and journey of hope, February 7, 2007. Senate Judiciary Committee Hearing, < www.mtabolitionco.org/news/Lane%20Testimony.pdf >. Phillips C, Jaeger Lane M. < www.clairephillips.com/Marietta%20Jaeger%20Lane.htm >. [SD-008] [35] Solotaroff P. Forgiving the murderer, June 24, 2004. United Methodist Church, reprinted from Rolling Stone, < archives.umc.org/interior.asp?mid=5379 >. [SD-008] [36] National Public Radio, Forgiving her son’s killer: not an easy thing, < www.npr.org/2011/05/20/136463363/forgiving-her-sons-killer-not-an-easy-thing >. [SD-008] [37] J Morris Tackling systemic incivility problems: the ombud as change agent J Int Ombud Assoc, 3 (2) (2010), pp. 34–38 [SD-008] [38] International Ombud Association Standards of Practice, < www.ombudsassociation.org/sites/default/files/IOA_Standards_of_Practice_Oct09.pdf >. [SD-008] [39] CL Howard The organizational Ombud: origins, roles, and operations, a legal guide, ABA, Chicago, IL (2010) [SD-008] [40] K Loraleigh A researcher speaks to ombud about workplace bullying J Int Ombud Assoc, 3 (2) (2010), pp. 10–23 [SD-008] [41] LB Hill Bureaucratic injustice, reform, and the Ombud Conference Papers Am Polit Sci Assoc (August 28, 2002), pp. 1–26 [SD-008] [42] A Das The immigration penalties of criminal convictions: resurrecting categorical analysis in immigration law NY Univ Law Rev, 86 (6) (2011), pp. 1669–1760 [SD-008] [43] Military Commissions, The Military Commissions Act of 2009, < www.mc.mil/Portals/0/MCA20Pub20Law200920.pdf >. [SD-008] [44] O Aronson Out of many: military commissions, religious tribunals, and the democratic virtues of court specialization VA J Int Law, 51 (2) (2010), pp. 231–298 [SD-008] [45] Ibid. [SD-008] [46] J Meek People that law forgot Guardian (December 3, 2003) [SD-008] [47] S Linfield War crimes trials, now and then Dissent, 49 (1) (2002), pp. 125–130 [SD-008] [48] JP Crank, PE Gregor Counter-Terrorism after 9/11, 190Lexis Nexis, Cincinnati, OH (2005) [SD-008] [49] Ibid., 193–194. [SD-008] [50] KA Petty Are you there, Geneva? It’s me, Guantánamo Case West Reserve J Int Law, 42 (1/2) (2010), pp. 171–186 [SD-008] [51] J Warrick Ten years later, CIA “Rendition” Program still divides N. C. Town Washington Post (February 9, 2012) < www.washingtonpost.com/world/national-security/ten-years-later-cia-rendition-program-still-divides-nc-town/2012/01/23/g IQAwr AU2Q_story.html > [SD-008] [52] S Grey Ghost plane: the true story of the CIA torture program, St. Martin’s Press, New York, NY (2006) [SD-008] [53] D Green, A Rasmussen, B Rosenfeld Defining torture: a review of 40 years of health science research J Trauma Stress, 23 (4) (2010), pp. 528–531 [SD-008] [54] Amnesty International, Guantanamo, Bagram and illegal U. S. detentions, < www.amnestyusa.org/our-work/issues/security-and-human-rights/guantanamo > [accessed December, 2012]. [SD-008] [55] DJR Frakt The myth of divided loyalties: defending detainees and the constitution in the Guantánamo Military Commissions Case West Reserve J Int Law, 43 (3) (2011), pp. 545–564 [SD-008] [56] Temple-Raston D. Sept. 11 Defendants focus on torture during hearing, NPR, < www.npr.org/2012/05/07/152171198/sept-11-defendants-make-torture-focus-of-hearing > 2012 [accessed May 7, 2012]. [SD-008]Copyright © 2014 Elsevier Inc. All rights reserved.  Business Law - Chapter 1 29 terms Patterson VTBusiness Law - Chapter 1Introduction to Law Learn Flashcards Write Spell Test Match Gravity Advertisement Upgrade to remove ads Like this study set? Create a free account to save it. Create a free account Maybe later Sort Congress passed a law imposing penalties for displaying "indecent" material online where children could see it. If the U. S. Supreme Court subsequently rules that the statute conflicts with the First Amendment of the U. S. Constitution, the statute is void. True Sandra sued her employer, Cape Inc., claiming that she was sexually harassed on the job. This is a criminal lawsuit. False In 1994, the Arizona Supreme Court decided the case of Hernandez v. Arizona Board of Regents and found a duty of care to avoid furnishing alcohol to underage consumers. If in 2008 a Flagstaff, Arizona plaintiff brings a lawsuit against an Arizona university's fraternity for providing alcohol to members under the legal drinking age, the Hernandez v. Arizona Board of Regents case will serve as precedent. True Wilfred was driving too fast for the icy road conditions and hit Sally's car. Sally can sue Wilfred in criminal court. False If Milan asks a court to order Pamela to stop reprinting his copyrighted material, he is seeking a legal, rather than an equitable, remedy. False Congress has the sole responsibility for creating statutory law. False Under the natural law theory of jurisprudence, an unjust law is no law at all. True Common law is a body of cases decided by legislatures. False The Constitution ensures that the states retain all power not given to the national government. True Hasbro, Inc., the trademark owner of "Candy Land," sought a court injunction to prevent Internet Entertainment Group, LTD from using the domain name, "candyland.com." A jury will decide whether Hasbro is entitled to this remedy. False The Occupational Safety and Health Administration promulgated a rule requiring guards for hand-fed circular crosscut table saws. The purpose of the guards is to keep employees clear of any danger zones. This rule is: D. Administrative Law Common law refers to: B. Law made when judges decide cases and then follow those decisions in later cases Hasbro, Inc., the trademark owner of "Candy Land," sought a court injunction to stop Internet Entertainment Group, LTD from using the domain name, "candyland.com." Internet Entertainment Group had established a sexually explicit site at the domain name. An injunction can only be issued by: B. A judge exercising equitable power The three branches of government in the United States are: C. The executive, legislative, and judicial The doctrine of 'stare decisis': C. Makes the law more predictable In 1992, the North Carolina Supreme Court ruled in a case entitled Goodman v. Wenco Foods, Inc., that when a substance in food causes injury to a consumer of the food, it is not a bar to recovery against the seller that the substance was natural to the food. If, in a 2008 case involving a consumer's injury caused by a fish bone in a bowl of fish chowder, the court followed the decision in Goodman v. Wenco Foods, Inc., the court's action in the second case is an example of: A. 'Stare decisis'When the Food and Drug Administration prohibits a certain drug from being marketed in the United States, this is: B. Public law The Minnesota legislature passed a law requiring that employers allow each employee adequate time within each four consecutive hours of work to utilize the nearest convenient restroom. This law is: C. A statute Congress enacted legislation in 1933 to regulate the securities industry and prohibit various forms of fraud with securities. The Securities Exchange Act of 1934 was passed a year later. This law created the Securities and Exchange Commission (SEC) as an independent regulatory entity whose function is to administer the two laws. The SEC has generated rules and regulations to administer these acts. These rules and regulations are: B. Administrative Law Henry David Thoreau felt that war was unjust and therefore refused to pay his taxes when the United States declared war on Mexico. Thoreau felt that there was a higher law than the law of the land. Which theory of jurisprudence was he applying? B. Natural Law The federal judicial branch of the U. S. government: A. Interprets statutes Henry David Thoreau felt that war was unjust and therefore refused to pay his taxes when the United States declared war on Mexico. If Henry David Thoreau's neighbor agreed that war was unjust but paid his taxes because the law required him to pay the tax, the neighbor would be applying the jurisprudence theory of: A. Legal Positivism The United States Supreme Court has the power to: B. Declare an act of Congress unconstitutional The President of the United States: B. Oversees administrative agencies The notion of civil disobedience is founded on what principle? B. Natural law Tony raped Jane in the parking lot of Joe's Brew Pub. The District Attorney's office prosecuted Tony on rape charges. Subsequently, Jane filed a lawsuit against Tony for money damages. Classify each legal action. A. The District Attorney's case was a criminal case; Jane's lawsuit was a civil case Which school of jurisprudence is based on the philosophy that what matters is not what is written as law, but who enforces the law and by what process? C. Legal realism Which of the following would be an example of a civil lawsuit? C. Gretta hit Rita in a bar during happy hour. Rita is now suing for her injuries Curtis filed a lawsuit against Ulhoff for failure to repay $1,000 according to the terms of a promissory note. The trial ended before it began, with the trial judge granting a motion for summary judgment in favor of Curtis. Ulhoff has appealed, and the Supreme Court of Iowa has remanded the case. This means: D. We don't know who wins yet because the case is being returned to the trial court for additional steps  Is an eye for an eye compensation a just punishment? Yes, and I could go deeper. As primitive as it seems, I believe this is more than a just punishment. I believe it is a necessary punishment. IF someone steals from you, cut off their hand. Its an old world value that has been lost because people are too cowardly to draw blood in the name of the law. In the older times, this was law and you see how little crime was because it was so risky. Posted by: Kiba White Warrior Report Post Reply Challenge3I agree with an eye for an eye compensation as a just punishment, manners as our ancestors have taught us to treat others as you wish to be treated. Our ancestors have taught us to treat others as we would like to be treated, as well as the justice system. It is unfair to commit a crime without a consequence. Therefore the term an eye for an eye, if you choose to steal something you will be required to deal with the consequence. It is the only way to teach and learn lessons. Posted by: 5hun Car Report Post Reply3No, an eye for an eye is not just punishment, because we live in a civilized society. We are not barbarians. An eye for an eye punishment has no place in modern society, because we have other effective, less cruel ways of dealing with criminals. We can throw them in prison, make them do community service,hit them in the wallet with fines and penalties or send them to anger management classes. All of those options are effective punishments and treatments. Posted by: labusy Report Post Reply1No, I disagree with the statement, "eye for an eye", because there is much more that needs to be considered before one thinks that irrationally. There are many things that need to be looked into as to why people do certain things. "Eye for an eye" is not only barbaric, but it is irrational. When an act is committed, people should not only consider the motive, but also the background of the person who committed the offense. Fighting violence with violence is never the answer. Posted by: Stella H Report Post Reply1I think than "an eye for an eye" is the oldest and best punishment. An eye for an eye is one of the oldest theories about appropriate criminal punishment, and has remained in our modern sayings, because it resonates with so many people. It really can be the best way to punish someone, because instead of just sitting in jail, they actively learn what they did to someone else, or how they made someone else feel or hurt. Unfortunately, I do not think you can always enact this kind of punishment, because in a situation like murdering a child, or stealing something unique, how can you do the same thing to someone else? But, in situations where it is applicable, I think it can be the best way to teach someone a lesson that they will actually remember. Posted by: lachercheuse Report Post Reply1I completely believe in Hammurabi's "eye for an eye" method. I firmly believe that more people were punished in the same way that the crime was committed, they would think twice before doing it. No one wants to lose their fingers (or even just have their fingers bound) for stealing. No man would want to have his penis tortured for raping a woman. I definitely think more people would think before acting if this was put into place. Posted by: OIi0Iym Pic Report Post Reply0I think an eye for an eye is appropriate because it might teach people how others feel about what they do. If you do something to someone, you may not realize the physical or emotional impact until it's done back to you. After that, you would be able to empathize and will probably be deterred from doing it to anyone again. Posted by: darcyska Report Post Reply0My eye is your eye I hate people who play pranks there so stupid when you see them do things they do don't you wish it would happen to them back but even worse like I hate people like that so much but ima get to my point quick, the reason a eye for an eye should be taken as correct is if someone is going to kill someone they know they will go to jail but if someone kills someone and knows there gonna die then they might rethink it and if not then they know there dying after that murder someone Report Post Reply0An eye for an eye and a tooth for a tooth is an old saying that needs to be revived. I believe in equal and fair punishment. If someone kills someone else their punishment is just to be sent to jail. Also what's the first thought in your mind when someone punches you? It's not, "Okay I forgive you," Most peoples reactions will be to punch that asshole back. If someone does something to you its only fair that you do the same to them. Report Post Reply0An eye for an eye is just The criminal is literally being their own judge and jury, If they are raping and killing and there is enough evidence to prove it was them, why not let the same be done to them, In a way it already happens in prison. If you do something to someone, you may not realize the physical or emotional impact until it's done back to you. No one wants to lose their fingers (or even just have their fingers bound) for stealing. No man would want to have his penis tortured for raping a woman. I definitely think more people would think before acting if this was put into place. Report Post Reply0While sometimes an eye for an eye is a appropriate form of punishment, there are times when the situation is too complicated to make it work. I believe an eye for an eye is not appropriate because the reasons for why the crime was commuted may be too complex. For example, someone with a mental illness can not always control their actions or their logic for why they do what they do. They need medical help. There are too many possible exceptions to every rule, and often times people are incorrectly accused/convicted. This could cause quite a few major legal issues. Posted by: Ni I35Kix Report Post Reply2Getting payback is not what life is about people will make mistakes, but they need other people to help them up. If someone robbed you, it does not make sense to go and rob them just because they committed an act of dishonesty. There is a line of where the person should not be trusted because they stole. It is absurd to say pay back evil with evil. Instead, show them the right way -- the pure way -- and help them out of the hole that they dug themselves. It may sound crazy, but it will help them realize their wrong. Posted by: Mi IYounger Report Post Reply2No. It's not harsh enough. You have some jerk who pokes out my eye for no reason, the absolute least that should happen to him is that he loses an eye too. The absolute least. But we also know he's unstable and a menace to people around him, so we should probably do much much more than that. Posted by: Always More Than You Report Post Reply Challenge1Eye for an eye is unjust and illogical as it is known to lead to cyclical revenge. A quote from one of my favorite songs says it best, "An eye for an eye makes the whole world blind." It was realized by many cultures thousands of years ago the the cycle of revenge continues until revenge is no longer considered a suitable repercussion. This is why justice systems are removed to a degree from the "victim". Additionally, if someone commits a crime, doing the same unto them is logically a crime as well. Posted by: daveyxh Report Post Reply1I do not think that an eye for an eye is a just punishment because all crimes or injustices are not the same. I believe an eye for an eye is not a just punishment because if we were to do that for all crimes it would be a world of revenge, not justice and we would be governed by fear. We will never know the reasons why most people do what they do but some, do it to protect families and property and taking harsh actions in return is not the answer. Sometimes lessons have to be taught, but not to condone the action that was had. Posted by: Willows Erv Report Post Reply0An eye for an eye compensation is not a just punishment because it makes the victim as cruel as the criminal. If the laws were set that made "an eye for an eye" the punishment, the victim would then become the aggressor, and it could change how they interact with the rest of the world. For example, if a man mugged a woman on a city street and he stabbed her during the crime, then by eye for an eye logic, she would not only mug him back, but stab him as well. Once she had stabbed him, a violent, potentially fatal act, it would have the potential to give a taste for violence that could affect other innocent people who were never involved in the original crime. It is better to let the courts punish the offender to protect the victim. Posted by: Bouncy Walter37 Report Post Reply0I don't believe that eye for an eye is a just punishment, because it does not take into account any extenuating circumstances. Eye for an eye is a poor punishment, because it is too simplistic. If a woman is raped, what is the eye for an eye equivalent? Does she get to then rape her rapist? That would not make any sense, nor would it be beneficial for the victim. Posted by: Ch4r Ga I Report Post Reply0Compassion and rehabilitation should rule justice, not vengeance. An eye for an eye attitude tends to perpetuate violence, rather than solve the underlying problems. That attitude tends to fuel most feuds, and almost every historical example of enmity between peoples and nations. Vengeance is human nature, but reacting with compassion and an eye towards problem solving can often do more good in the long run. Posted by: Humdrum Milo83 Report Post Reply0I disagree, mainly for the reason that, in reality, our judicial system is too flawed for this to be just. I would normally agree with eye for an eye punishment, but our current judicial system is extremely flawed. When we give people the death penalty, we eventually come out with new techniques for analyzing evidence, then go back to analyze previous cases, and then realize that we put to death many innocent people. Posted by: Mute Neal88 Report Post Reply0No, because eye for an eye punishment is impractical and immoral. An eye for an eye sounds like perfect justice, but it's really just a silly idea. Most cases don't allow for such a simple matching of damage and penalty. How does one take the eye of a corporation? How does one punish a man for affecting the ability of a woman to conceive and bear children? There is no obvious way to match damage and punishment in such cases. Posted by: Lucia L Report Post Reply0  . Home > Test Bank > SED CE 60584SED CE 60584Subscribers only. The answer may locate at the end of this page. Gottfredson and Hirschi trace the root cause of poor self-control to ______. a. lack of education b. inadequate child-rearing practices c. weak social bonds d. peer associations Answer: View Answer Research has shown that family group conferencing is the least effective form of restoration because it is the only restoration program set entirely in a formal criminal justice setting (i.e., a courtroom). a. True b. False Answer: View Answer The process of becoming stigmatized by crime labels is interactive. Labeling theorists blame the establishment of criminal careers on ______. a. parents b. crime control agencies c. teachers d. the criminals themselves Answer: View Answer Criminologists view amateur shoplifters as people who are most likely to reform if apprehended. a. True b. False Answer: View Answer Most theft offenses are committed by trained professionals who know what they are doing and escape detection. a. True b. False Answer: View Answer Travis Hirschi tested the principal hypotheses of social control theory. While evidence was strong and supportive, what is the most controversial aspect of Hirschi’s conclusions? a. Youths who are strongly attached to parents were less likely to commit crime. b. Youths who were involved in conventional activities were less likely to engage in criminal behavior. c. Youths who maintained weak, distant relationships with people tended toward delinquency. d. Any form of social attachment is beneficial, even to deviant peers and parents. Answer: View Answer Specific deterrence is also called particular deterrence. a. True b. False Answer: View Answer What was the significance of the Mann Act of 1925? a. It prohibited bringing women into the country for the purpose of prostitution. b. It made the possession and distribution of cocaine, a drug previously used as a pain reliever, a federal crime. c. It set the standard for obscenity in cases involving pornography. d. It made prostitution legal in three counties within the state of Nevada. Answer: View Answer Which of the following is a form of computer crime? a. Theft of information b. Corporate espionage c. Manipulation of accounts d. All of the above are computer crimes Answer: View Answer People living in rural areas have a victimization rate almost __________ than that of city dwellers. a. 25 percent higher b. 50 percent higher c. 25 percent lower d. 50 percent lower Answer: View Answer The movement to ban gay marriage in California that led to the passage of Proposition 8 is an example of a/an _____. a. moral crusade. b. religious policy. c. ethical mandate. d. social campaign. Answer: View Answer Fred is a 20-year-old who lives in a large metropolitan city. He graduated high school but decided that he would get a job immediately following high school instead of going to college. He thought making money at that moment was more important than furthering his education. Now, Fred realizes he is stuck at a dead-end job making minimum wage and is tired of working so many hours and making so little money. Fred is thinking about committing various crimes in order to supplement his income. All of the following would be considered offense-specific to burglary that Fred might consider except ______. a. the probability of security devices b. the ease of selling stolen merchandise c. Fred’s immediate need for money d. neighbors who might notice a break-in Answer: View Answer According to institutional anomie theorists, the _________ is both a goal and process to accumulate goods and wealth. a. American Dream b. American Hope c. American Ideal d. American Myth Answer: View Answer Most people commit less crime as they mature. a. True b. False Answer: View Answer Psychological and emotional abuse that involves the spreading of smears, rumors, and private information in order to harm his or her partner. a. Relational aggression b. Recreational aggression c. Acquaintance aggression d. Feticide Answer: View Answer Chicago School sociologists argued that social forces operating in urban areas created a crime-promoting environment; some areas were “natural areas” for crime. a. True b. False Answer: View Answer According to Diana Fishbin, there is an association between _________ and elevated levels of female aggression. a. diet b. divorce c. menstruation d. pregnancy Answer: View Answer The branch of social science that uses the scientific method of the natural sciences and suggests that human behavior is a product of social, biological, or economic forces which one can measure empirically is known as the Classical School of Criminology. a. True b. False Answer: View Answer Failing to provide a child with the care and shelter to which he or she is entitled is called ______. a. neglect b. abuse c. rage d. battery Answer: View Answer Why are personal relationships, including establishing communication and common goals, strained in socially disorganized neighborhoods? a. Because the hostility of long-term residents makes it difficult for new people to move into the neighborhood b. Because residents are constantly moving in and out of the neighborhood c. Because police refuse to organize neighborhood groups d. Because gang formation disrupts families in the neighborhood Answer: View Answer According to the Monitoring the Future survey discussed in the text, the crime problem is _____. a. the same as indicated by the UCR b. the same as indicated by the NCVS c. less than the UCR and NCVS indicate d. greater than the UCR and NCVS indicate Answer: View Answer An evaluation of the Risk-Need-Responsivity (RNR) program, which classifies people on probation, among other things, has been found to cut recidivism rates for high-risk offenders by as much as 20 percent. a. True b. False Answer: View Answer The practice of sending suspected terrorists to foreign prisons that permit torture in the interrogation of suspects is called ______. a. extraordinary rendition b. state compromised rendition c. extraordinary extradition d. state compromised extradition Answer: View Answer Martha is looking to move to a new city to raise her two young children. School quality and crime rates are her two biggest concerns that she will evaluate before deciding on which city to move to. Her employment is flexible in that she works from home. Thus, she is able to work from anywhere in the country. Martha has narrowed her choices to New York, NY in the Northeast, San Francisco, CA in the West, Miami, FL in the South, and Ann Arbor, MI in the Midwest. Based on the research on the ecology of crime, which of these cities would most likely have the highest crime rate? a. New York b. San Francisco c. Miami d. Ann Arbor Answer: View Answer Which category of prostitute is believed to be responsible for the recent upsurge in prostitution? a. Bar girls b. Tooters c. Call girls d. Cyberprostitutes Answer: View Answer Edwin Lemert conducted one of the best-known studies onwhich form of larceny nearly 60 years ago? a. Check fraud b. Shoplifting c. Auto theft d. Credit card theft Answer: View Answer The Clean Water Act of 1972 maintains goals and standards for the United States to ensure water quality and purity. a. True b. False Answer: View Answer Ryan King and Gretchen Sutto examined characteristics of _______________ and rational choice theory and found that these crimes were not merely the product of a disturbed mind, but rather a calculated response to a concrete event whose impact is often fueled by the media. Answer: View Answer The early research of Lombroso and his contemporaries is regarded as scientific fact. a. True b. False Answer: View Answer Building social capital supports conventional behavior and inhibits deviant behavior. a. True b. False Answer: View Answer Victimization risk is influenced by marital status. Which of the following groups has the lowest rate of victimization? a. Widowers and divorced people b. Widows and widowers c. Widows and single people d. Divorced and single people Answer: View Answer The police chief in Anytown, USA, is conducting weekly seminars where the residents of his city can come and learn about crime rates, crime trends, and crime patterns in their city. Every week the seminars seem to become more popular. At the most recent seminar, 200 people attended. They had to move the seminar into the city auditorium. The police chief explains that there are problems with the UCR crime data. What is the biggest potential problem with the validity of UCR crime data? a. Only violent crimes are counted in the UCR data. b. Only property crimes are counted in the UCR data. c. Many serious crimes are not reported to police and therefore are not counted in the UCR. d. The UCR only counts crimes reported by people 18 years of age or older. Answer: View Answer According to Finkelhor and Asigian’s research on typologies of victimization, __________________ refers to the victim’s physical weakness or psychological distress rendering the victim incapable of resisting or deterring crime. Answer: View Answer_________________ are a form of prostitute who spend their time in alcoholic establishments drinking and waiting to be picked up by customers. Answer: View Answer There are different levels or degrees of homicide. Discuss these degrees, using examples from the chapter to illustrate your discussion. Answer: Answers will vary How do religion and belief impact criminality? Answer: Answers will vary______________________ refers to the reassessment of a person’s past to fit a current generalized label. Answer: View Answer A ______________ society is one governed or controlled by men. Answer: View Answer The ___________ is a program that collects data on each reported crime incident as an attempt to redesign the UCR statistics. Answer: View Answer A relatively new criminological technique called __________________, uses multiple advanced computational methods, including artificial intelligence, to analyze large data sets that usually involve one or more sources. Answer: View Answer People grouped according to economic or social class who are characterized by the unequal distribution of wealth, power, and prestige are referred to as a __________________. Answer: View Answer The granting of nonmartial sexual access for remuneration is known as __________________Answer: View Answer__________________ is the taking of goods from retail stores. Answer: View Answer What has been the overwhelming response to terrorism especially in the United States over the last 20 years? Answer: Answers will vary. In reference to blue-collar criminals, offenders who do not define themselves by a criminal role or view themselves as committed to career criminals are called _________________ criminals. Answer: View Answer How do certainty, severity, and speed of punishment impact general deterrence? How does the criminal justice system support or hamper these general deterrence factors? Answer: Answers will vary. Create a fictional character and depict how this individual would become criminal, using attachment theory to explain your rationale. Answer: Answers will vary. Explain how victim impulsivity is associated with victim precipitation. Why does this personality trait contribute to victimization risk? Answer: Answers will vary. The written code that defines crimes and their punishments is ________________. Answer: View Answer Material that violates community standards of morality or decency is said to be __________________Answer: View Answer Amateur forgers who case bad checks because of some financial crisis but have little identification with a criminal subculture are referred to as __________________ forgers. Answer: View Answer Related Essay EDU 56959 Which of the following is not true […]EDUK 44125 Efforts to prevent crime through […]SESP 36006 Late bloomers combine […]SED EM 68302Developmental theories attempt to […]EDUC 44608 The creation of false emails or […]  CCJ 3024 - Chapter 2 25 terms acastror56CCJ 3024 - Chapter 2Learn Flashcards Write Spell Test Match Gravity Advertisement Upgrade to remove ads Sort How is crime defined? Why are some behaviors considered illegal and considered crimes while others remain noncriminal? Consensus View Conflict View Interactionist View Consensus view of crime is the view that great majority of citizens agree that certain behaviors must be outlawed or controlled, and that criminal law is designed to protect citizens from social harm. EX: Set of rules, codified by state authority that expresses the norms, goals, and values of the majority of society. Represents the consensus of public opinion about right and wrong. (Mutual Agreement)Conflict view of crime is the view that criminal law is created and enforced by those who hold political and economic power and is a tool used by the ruling class to control dissatisfied have-not members of society. EX: Drug Laws in work place, The poor robbing the rich Interactionist View of crime is the view that criminal law reflects the preferences and opinions of people who hold social power in the society and use their influences to impose their own values and moral code on the rest of the population. EX: MADD - Drunk Driving UCR - Uniform Crime Reports collected by FBI, involves collection by more than 17,000 police departments regarding, Expressed in different ways: Raw figures of number of crimes reported to police and arrest, crime rates per 100,000, changes in crime rates, clearance rates Part 1 Crimes in UCR are Murder and non-negligent manslaughter Forcible rape Robbery Aggravated assault Burglary Larceny Arson Motor Vehicle theft Part 2 Crimes in UCR are less serious crimes and misdemeanors, excluding traffic violations NIBRS - National Incident-Based Reporting System a form of crime date collection created by the FBI requiring local police agencies to provide at least a brief account of each incident and arrest within 22 crime patterns, including the incident, victim, and offender information. All specific offenses are included in report. INCLUDES EVERYTHING (ATTEMPTED CRIMES ALSO) - INCHOATE OFFENSES TOO. INCLUDES 46 OFFENSESThree Main areas of concern of UCR are Reporting Practices -many victims do not report Law enforcement Practices -reporting a trepass as a burglary Methodological Problems - No federal crimes are reported, reports are voluntary and vary in accuracy and completeness, Not all police submit reports NCVS - The National Crime Victimization Survey - UCR date cannot measure all criminal activity because not all crimes are reported to law enforcement. - Researchers interview household members in a nationally representative sample (42,000 households) - Data is collected regarding frequency, characteristics, and consequences of criminal victimization by a variety of crimes, many of which may not have been reported to law enforcement. NCVS: Advantages and Problems Advantage: Provides estimates of the total amount of annual crimes, not only those reported to police. Helps us understand why crimes are not reported and the criminal event influences (whether police will ever know it occurred) Problems: Overreporting due to victims' misinterpretation of events. EX: A lost wallet may be reported as stolen -Underreporting due to the embarrassment of reporting crime to interviewers, fear of getting in trouble, or forgetting an incident. Self-Report Surveys - Individuals are questioned regarding their own involvement as perpetrators of delinquent or criminal acts, which may or may not have been previously brought to the attention of law enforcement - Usually given anonymously to ensure the responses will remain private and confidential Dark Figure of Crime All crimes that do not come to light The NCVS provides information about - Provides information about victims (age,sex,race,ethnicity,martial status, income, educational level) - Provides information about offenders (sex, race, approximate age, victim-offender relationship) - Provides information about crimes (time and place of occurrence, use of weapons, nature of injury, and economic consequences) (BREAKS INTO THE DARK FIGURE OF CRIME)MTF - Monitoring the Future (Self-Report) One of the most important sources of self report data. Typically involves more than 2,500 high school seniors. Helps measure substance abuse trends among American teens. Validity of Self-Reports - People will not candidly admit illegal acts. - Some may exaggerate their criminal acts, some forget them, or be confused about what is being asked. Uniform Crime Report - UCR (Strengths/Weaknesses) Data is collected from records complied by police departments across the nation, which include crimes reported to police, and arrests -Strength: it measures homicides and arrests and that is a consistent, national sample. -Weaknesses: it omits crimes not reported to police, omits most drug usage, and contains reporting errors National Crime Victimization Survey - NCVS (Strength/Weaknesses) Data is collected from a large national surgery. -Strength: it includes crimes not reported to the police, uses careful sampling techniques, and is a yearly survey. -Weaknesses: it relies on victims' memory and honesty and it omits substance abuse. Self-Report Surveys (Strength/Weaknesses) Data is collected from local surveys. -Strength: they include non reported crimes and substance abuse and that offenders' personal information is included -Weaknesses: they rely on the honesty of offenders and they omit offenders who refuse to or are unable to participate and who may be the most deviant Evaluating Sources of Crime Data UCR, NCVS, and self-reports are the standard sources of data used by criminologist to track trends and patterns in crime rate. - The trends in crime indicated by the various crime data sources indicate similarities and generally agree on the personal characteristics of serious criminals and the location and timing crime - Each source of crime data has its benefits and problems Different types of Crime Patterns The Ecology of Crime, Social Class - Socioeconomic Conditions and Crime, Age and Crime The Ecology of Crime Patterns in crime rate seem to be linked to temporal and ecological factors. Day, Season, and Climate: Most crimes that are reported occur in July and August. (No school, vacation homes) Regional Differences: Large urban areas have the highest violence rates and rural areas have lower crime rates (exceptions are large transient or seasonal population areas) - Most believe that regional differences can be explained by economic differences Social Class, Socio-Economic Conditions and Crime Crime is inherently a lower-class phenomenon. People at lowest rungs have greatest incentive to commit crimes. - Instrumental Crimes: Criminal acts intended to improve the financial or social position of the criminal. (Selling dope) - Expressive Crimes: Criminal acts that serve to vent rage, anger, or frustration. (rape) - UCR indicates that crime rates are higher in inner-city, high-proverty areas - It is unclear whether the relationship between class and crime is due to more crime in these areas or more targeted law enforcement in these areas. Age and Crime - Age is inversely related to criminality - Younger people commit more crime than older people and are arrested at a disproportionate rate Age Crime Curve - stands for what proposition? ... Advertisement Upgrade to remove ads Features Quizlet Live Quizlet Learn Diagrams Flashcards Mobile Help Sign up Help Center Honor Code Community Guidelines Students Teachers About Company Press Jobs Privacy Terms Follow us Language© 2018 Quizlet Inc.  The Criminal Justice System The Criminal Justice System What Is It? System Components How the Criminal Justice Process Works Post-Trial If You Are a Victim What Is It? The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes. 1 The main systems are: State: State criminal justice systems handle crimes committed within their state boundaries. Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state. System Components Most criminal justice systems have five components-law enforcement, prosecution, defense attorneys, courts, and corrections, each playing a key role in the criminal justice process. Law Enforcement: Law enforcement officers take reports for crimes that happen in their areas. Officers investigate crimes and gather and protect evidence. Law enforcement officers may arrest offenders, give testimony during the court process, and conduct follow-up investigations if needed. Prosecution: Prosecutors are lawyers who represent the state or federal government (not the victim) throughout the court process-from the first appearance of the accused in court until the accused is acquitted or sentenced. Prosecutors review the evidence brought to them by law enforcement to decide whether to file charges or drop the case. Prosecutors present evidence in court, question witnesses, and decide (at any point after charges have been filed) whether to negotiate plea bargains with defendants. They have great discretion, or freedom, to make choices about how to prosecute the case. Victims may contact the prosecutor's office to find out which prosecutor is in charge of their case, to inform the prosecutor if the defense attorney has contacted the victim 2, and to seek other information about the case. Defense Attorneys: Defense attorneys defend the accused against the government's case. They are ether hired by the defendant or (for defendants who cannot afford an attorney) they are assigned by the court. While the prosecutor represents the state, the defense attorney represents the defendant. Courts: Courts are run by judges, whose role is to make sure the law is followed and oversee what happens in court. They decide whether to release offenders before the trial. Judges accept or reject plea agreements, oversee trials, and sentence convicted offenders. Corrections: Correction officers supervise convicted offenders when they are in jail, in prison, or in the community on probation or parole. In some communities, corrections officers prepare pre-sentencing reports with extensive background information about the offender to help judges decide sentences. The job of corrections officers is to make sure the facilities that hold offenders are secure and safe. They oversee the day-to-day custody of inmates. They also oversee the release processes for inmates and sometimes notify victims of changes in the offender's status. How the Criminal Justice Process Works Below is a basic outline of the sequence of events in the criminal justice process, beginning when the crime is reported or observed. The process may vary according to the jurisdiction, the seriousness of the crime (felony or misdemeanor), 3 whether the accused is a juvenile or an adult, and other factors. Not every case will include all these steps, and not all cases directly follow this sequence. Many crimes are never prosecuted because they are not reported, because no suspects can be identified, or because the available evidence is not adequate for the prosecutor to build a case. Entry into the System Report: Law enforcement officers receive the crime report from victims, witnesses, or other parties (or witness the crime themselves and make a report). Investigation: Law enforcement investigates the crime. Officers try to identify a suspect and find enough evidence to arrest the suspect they think may be responsible. Arrest or Citation: If they find a suspect and enough evidence, officers may arrest the suspect or issue a citation for the suspect to appear in court at a specific time. This decision depends on the nature of the crime and other factors. If officers do not find a suspect and enough evidence, the case remains open. Prosecution and Pretrial Charges: The prosecutor considers the evidence assembled by the police and decides whether to file written charges (or a complaint) or release the accused without prosecution. First Court Appearance: If the prosecutor decides to file formal charges, the accused will appear in court to be informed of the charges and of his or her rights. The judge decides whether there is enough evidence to hold the accused or release him or her. If the defendant does not have an attorney, the court may appoint one or begin the process of assigning a public defender to represent the defendant. Bail or Bond: At the first court appearance (or at any other point in the process-depending on the jurisdiction) the judge may decide to hold the accused in jail or release him or her on bail, bond, or on his or her"own Recognizance" (OR)," (OR means the defendant promises to return to court for any required proceedings and the judge does not impose bail because the defendant appears not to be a flight risk). To be released on bail, defendants have to hand over cash or other valuables (such as property deeds) to the court as security to guarantee that the defendant will appear at the trial. Defendants may pay bail with cash or bond (an amount put up by a bail bondsman who collects a non-refundable fee from the defendant to pay the bail). The judge will also consider such factors as drug use, residence, employment, and family ties in deciding whether to hold or release the defendant. Grand Jury or Preliminary Hearing: In about one-half of the states, defendants have the right to have their cases heard by a grand jury, which means that a jury of citizens must hear the evidence presented by the prosecutor and decide whether there is enough evidence to indict the accused of the crime. If the grand jury decides there is enough evidence, the grand jury submits to the court an indictment, or written statement of the facts of the offense charged against the accused. In other cases, the accused may have to appear at a preliminary hearing in court, where the judge may hear evidence and the defendant is formally indicted or released. Arraignment: The defendant is brought before the judge to be informed of the charges and his or her rights. The defendant pleads guilty, not guilty, or no contest (accepts the penalty without admitting guilt). If the defendant pleads guilty or no contest, no trial is held, and offender is sentenced then or later. If the defendant pleads not guilty, a date is set for the trial. If a plea agreement is negotiated, no trial is held. Adjudication (Trial Process)Plea Agreements: The majority of cases are resolved by plea agreements rather than trials. A plea agreement means that the defendant has agreed to plead guilty to one or more of the charges in exchange for one of the following: dismissal of one or more changes, a lesser degree of the charged offense, a recommendation for a lenient sentence, not recommending the maximum sentence, or making no recommendation. The law does not require prosecutors to inform victims about plea agreements or seek their approval. Trial: Trials are held before a judge (bench trial) or judge and jury (jury trial), depending on the seriousness of the crime and other factors. The prosecutor and defense attorney present evidence and question witnesses. The judge or jury finds the defendant guilty or not guilty on the original charges or lesser charges. Defendants found not guilty are usually released. If the verdict is guilty, the judge will set a date for sentencing. Post-Trial Sentencing: Victims are allowed to prepare for the judge (and perhaps to read at the sentencing hearing) a victim impact statement that explains how the crime affected them. In deciding on a sentence, the judge has a range of choices, depending on the crime. These choices include restitution (paying the victim for costs related to the crime), fines (paid to the court), probation, jail or prison, or the death penalty. In some cases, the defendant appeals the case, seeking either a new trial or to overturn or change the sentence. Probation or Parole: A judge may suspend a jail or prison sentence and instead place the offender on probation, usually under supervision in the community. Offenders who have served part of their sentences in jail or prison may-under certain conditions-be released on parole, under the supervision of the corrections system or the court. Offenders who violate the conditions of their probation or parole can be sent to jail or prison. If You Are a Victim The criminal justice system can be overwhelming, intimidating, and confusing for anyone who does not work within it every day. As a victim, you will need to know what to expect and have support throughout the process. You will also want to know your rights and the choices you may have to make. 4 You may also need information and guidance to help you stay safe. For example, if you are harassed or stalked by the offender at any point in the criminal justice process, you should immediately report these violations to the police and inform the prosecutor. Also, while the offender is in jail or prison, the corrections staff is generally required to notify you if the offender is released or escapes or if a parole hearing is pending, if you request such notification. Also, most states have automated notification systems that allow registered victims (those who sign up) to check on the status of an offender at any time. Such systems will automatically notify you of an inmate's escape or release. (See www.vinelink.com/vinelink/init Map.do for more information about state notification systems.)1. Readers may find it helpful to consult their local victim assistance program, local prosecutor's office, state attorney general's office, local or state bar association, or local law library for information specific to their own area or jurisdictions.2. Defense attorneys sometimes contact victims about their case. Victims do not have to talk to defense attorneys or their investigators and are encouraged to contact the prosecutor if they have any concerns about such requests.3. Felonies are punishable by more than one year in prison; misdemeanors are punishable by up to one year in jail.4. See www.victimlaw.org for general information about victims' rights. All rights reserved. Copyright © 2008 by the National Center for Victims of Crime. This information may be freely distributed, provided that it is distributed free of charge, reprinted in its entirety, and includes this copyright notice.  Training Units Training Units Unit 13: Making Amends The primary goal of the curriculum is to prevent further victimization by helping offenders become aware of the impact of crime on victims and entire communities. It is important for participants to acknowledge their wrongdoing, confront themselves, and make amends for the harm they have caused. Time Required: 2.5 hours Facilitators are encouraged to provide the opportunity for “the next step.” Lessons What Is ...? This section covers concepts of making amends, forgiveness, and paying restitution and provides definitions of relevant Words To Know. What Is Your Definition of Accountability? Exercise. What Chapter Had the Most Impact Exercise. (20-minute writing activity. )Group Discussion. Participants share thoughts about making changes in their attitudes and behavior. In addition to these sections, this unit includes a choice of several exercises for completing the course. As a final step, have participants take the Pre-/Post-Test again. Unit 13 Additional Exercises: Crime Impact Statement (writing activity)Accountability Letter (participants write a letter to someone they have hurt by their choicesâ€”other than a victim)Community Service (small-group activity)Restitution Payments (participants estimate out-of-pocket expenses suffered by their victims and make a plan for repaying losses)In-Custody Victimizing Behavior (group discussion)Victim Empathy (writing activity)Ripple Effect (group activity)Pre-/Post-Test Objectives Participants show increased awareness of the impact of crime on victims. Participants acknowledge the harm they have done and begin to make amends. UNIT-SPECIFIC DOWNLOADSTo download files, right click on the file and select "save target as. "Training Manuals Facilitator Manual (Unit 13) (PDF, 233 KB)Participant Workbook (Unit 13) (PDF, 116 KB)*PDFs of the full curriculum are in the Presenter's Toolbox. Tools Pre-/Post-Test (PDF, 106 KB)Video clips for the full curriculum are in the Presenter's Toolbox. Need Help Downloading? Important! Read the facilitator's materials available on the right of your screen well before presenting the course to your audience. These materials contain preparation instructions essential to an effective training. (All other unit-specific materials and tools also are available at right. )Create a folder for Victim Impact on your computer and download all the files you will need into that folder rather than using this Web site during the training.  restitution Correct all you're your grammar errors instantly. Try it now.restitution Also found in: Dictionary, Thesaurus, Medical, Encyclopedia, Wikipedia. Related to restitution: rescission Restitution In the context of Criminal Law, state programs under which an offender is required, as a condition of his or her sentence, to repay money or donate services to the victim or society; with respect to maritime law, the restoration of articles lost by jettison, done when the remainder of the cargo hasbeen saved, at the general charge of the owners of the cargo; in the law of torts, or civil wrongs, a measure of damages; in regard to contract law, the restoration of a party injured by a breach of contract to the position that party occupied before she or he entered the contract. The general term restitution describes the act of restoration. The term is used in different areas of the law but carries the same meaning throughout. The basic purpose of restitution is to achieve fairness and prevent the Unjust Enrichment of a party. Restitution is used in contractual situations where one party has conferred a benefit on another party but cannot collect payment because the contract is defective or no contract exists. For instance, assume that a person builds a barn on the property of another person. Assume furtherthat the structure is not erected pursuant to a contract or agreement and that the owner of theproperty on which the barn sits refuses to pay the builder for the barn. Despite the absence of a contract, a court can order the owner to pay the builder the cost of the labor and materials under thedoctrine of restitution. Courts in seventeenth century England first developed the doctrine of restitution as a contractualremedy. The concept migrated to courts in the United States, and it has since expanded beyond itsoriginal contractual roots. Courts now apply restitution in the areas of maritime or admiralty law, criminal law, and torts. In admiralty law restitution may be ordered when a shipping crew must throwgoods overboard to keep the ship afloat. In such a case the owner of the jettisoned goods may gainsome recovery for the goods from the owners of the other cargo under the doctrine of restitution. In criminal law restitution is a regular feature in the sentences of criminal defendants. Restitution in the criminal arena refers to an affirmative performance by the defendant that benefits either thevictim of the crime or the general public. If a victim can be identified, a judge will order the defendant to make restitution to the victim. For example, if a defendant is convicted of stealing a person'sstereo, the defendant may be sentenced to reimburse the victim for the value of the stereo, in addition to punishment such as jail time and monetary fines. Courts try to fashion the restitution of a criminal defendant according to the crime committed. Forexample, a defendant convicted of solicitation of prostitution may be ordered to perform work for a local shelter for battered women as a form of restitution to the general public. In tort law restitution applies to the measure of damages required to restore the plaintiff to theposition he or she held prior to the commission of the tort. For example, if a person is injured by another person, the injured party may collect medical expenses and lost wages as restitutionarydamages. Other civil damages are distinct from restitutionary damages because they are not based on the amount required to restore the injured party to his or her former status. Punitive Damages, for example, are damages assessed against a civil defendant for the purpose of punishing thedefendant's conduct, not to provide restitution. Further readings Knapp, Charles L. 1987. Problems in Contract Law: Cases and Materials. Boston: Little, Brown. Shoben, Elaine W., and William Murray Tabb. 1989. Remedies: Cases and Problems. Westbury,N. Y.: Foundation Press. Cross-references Admiralty and Maritime Law; Sentencing. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.restitutionn. 1) returning to the proper owner property or the monetary value of loss. Sometimes restitution is made part of a judgment in negligence and/or contracts cases. 2) in criminal cases, one of thepenalties imposed is return of stolen goods to the victim or payment to the victim for harm caused. Restitution may be a condition of granting defendant probation or giving him/her a shorter sentencethan normal. Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.restitutionnoun adjustment, amends, atonement, compensation, damages, emolument, expiation, giving back, indemnification, paying back, payment, quittance, reclamation, recompense, recoupment, recovery, reddition, redemption, redress, refund, reimbursement, remitter, remuneration, reparation, replacement, requital, requitement, restoration, return, reversion, satisfaction, settlement Associated concepts: order of restitution, partial restitution, quantum meruit, writ of restitution Foreign phrases: In restitutionibus benignissima interpreeatio facienda est. The most favorableconstruction is to be adopted in restitutions. See also: award, collection, consideration, contribution, damages, disbursement, discharge, expiation, indemnification, indemnity, out of pocket, payment, recompense, recovery, refund, rehabilitation, reimbursement, relief, remedy, remittance, remuneration, rendition, reparation, replacement, requital, satisfaction, trover Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The Mc Graw-Hill Companies, Inc.restitutionthe branch of the law of obligations that deals with the redressing of unjustenrichment subtracted from the plaintiff In a wider sense it also covers restitution in respect of wrongs done to the plaintiff It can be expressed by saying that a defendant must disgorge an unjustenrichment made at the expense of the plaintiff Restitution for unjust enrichment is now a recognized basis of obligation in English law as a result of the decisions of high authority. There is a search for an ‘unjust factor’. In Scotland, in some cases restitution must be made where there hasbeen a transfer for no legal cause (hence the use of ‘unjustified’ in Scotland and other civilianjurisdictions) and it is inequitable for the defender to retain the enrichment. It has been recognized in Canada and Australia for some time. An analytical vocabulary has grown up in the Anglo-Americanworld that makes it easier to analyse problems and find principled solutions: see NON-MATERIALIZATION, FREE ACCEPTANCE, PASSING ON, CHANGE OF POSITION. The formercategorization quasi-contract is now less frequently encountered. Both the English and Scottish legal systems have well-known heads of liability, the most important of the English heads being the action for MONEY HAD AND RECEIVED and in Scotland RECOMPENSE, the CONDICTIO INDEBITI, the CONDICTIO CAUSA DATA CAUSA NON SECUTA and NEGOTIORUM GESTIO. The Scots law is based upon developments in the civil law,but it has taken its own path in many instances. Other obligations like relief, salvage and subrogation can be seen to have restitutionary features. The constructive trust is increasingly being seen as a form of remedial obligation that has the effect of making restitution for unjust enrichment. The term restitution is also used narrowly in Scots law to denote the obligation on a defender to return the pursuer's specific property still in the pursuer'sownership. Collins Dictionary of Law © W. J. Stewart, 2006RESTITUTION, maritime law. The placing back or restoring articles which have been lost by jettison;this is done when the remainder of the cargo has been saved at the general charge of the owners of the cargo; but when the remainder of the goods are afterwards lost, there is not any restitution. Stev. on Av. 1, c. 1, s. 1, art. 1, ii., 8. Vide Recompense. RESTITUTION, practice. The return of something to the owner of it, or to the person entitled to it. 2. After property has been taken into execution, and the judgment has been reversed or setaside, the party against whom the execution was sued out shall have restitution, and this is enforced by a writ of restitution. Cro. Jac. 698; 4 Mod. 161. When the thing levied upon under an execution has not been sold, the thing itself shall be restored; when it has been sold, the price forwhich it is sold is to be restored. Roll. Ab. 778; Bac. Ab. Execution, Q; 1 Al. & S. 425. 3. The phrase restitution of conjugal rights frequently occurs in the ecclesiastical courts. A suitmay there be brought for this purpose whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without sufficient reason; by which the party injuredmay compel the other to return to cohabitation. 1 Bl. Com. 94; 1 Addams, R. 305; 3 Hagg. Eccl. R. 619. A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856. Want to thank TFD for its existence? Tell a friend about us, add a link to this page, or visit the webmaster's page for free fun content . Link to this page:<a href="https://legal-dictionary.thefreedictionary.com/restitution">restitution</a>Facebook Twitter Finally, Farlex brings you all the rules of English grammar, all in one place, explained in simple terms. The Farlex Grammar Bookis available now in paperback and e Book formats.  Aristotle on Corrective Justice The Journal of Ethics September 2014, Volume 18, Issue 3 , pp 187–205 | Cite as Aristotle on Corrective Justice Authors Authors and affiliations Thomas C. Brickhouse Email author Thomas C. Brickhouse1Email author1. Lynchburg College Lynchburg USAArticle First Online: 05 June 2014741Downloads Abstract This paper argues against the view favored by many contemporary scholars that corrective justice in the Nicomachean Ethics is essentially compensatory and in favor of a bifunctional account according to which corrective justice aims at equalizing inequalities of both goods and evils resulting from various interactions between persons. Not only does the account defended in this paper better explain the broad array of examples Aristotle provides than does the standard interpretation, it also better fits Aristotle’s general definition of what is just. In the last section, the paper argues, again against the standard interpretation, that proportional reciprocity, the kind of justice discussed in Nicomachean Ethics V.5, has two forms and is closely linked to corrective justice. Although corrective justice and proportional reciprocity are conceptually distinct and do different work in Aristotle’s political philosophy, instances of proportional reciprocity are instantiated by instances of corrective justice. This linkage, the paper concludes, helps to explain why Aristotle would assign corrective justice such a prominent place in his theory of justice. Keywords Compensatory justice Corrective justice Line analogies Proportional reciprocity Punishment Download article PDFCite article How to cite?. RISPapers Reference Manager Ref Works Zotero. ENWEnd Note. BIBBib Te XJab Ref Mendeley In Nicomachean Ethics (NE), V.4, Aristotle takes up corrective justice (διορθωτικòν δίκαιον), the part of particular justice that is concerned with the rectification of injustices from what he calls “interactions” (συναλλάγματα) between persons. Aristotle never spells out just what interactions are, but he does state that interactions can be voluntary or involuntary ( NE, 1131a1-3, 1131b25-26). Judging from the numerous examples he gives of each ( NE, 1131a1-9), voluntary interactions are exchanges of goods and involuntary interactions are harms done voluntarily to others. 1 Whenever there is an injustice to be corrected, there is an inequality that can be expressed as an advantage of some sort, or “gain” (κέρδος), that has wrongly accrued to one party and a disadvantage of some sort, or “loss” (ζημία), that has been suffered by the other party ( NE, 1132a10-14, 1132b16-18). It falls to a judge (δικαστής, NE, 1132a6-7, 1132a29-32) to rectify the situation. Counting the parties involved as of equal value ( NE, 1132a4-6), the judge imposes a loss (ζημία) on the person who had gained ( NE, 1131a9-10), nullifying the gain and the initial loss and thereby restoring equality ( NE, 1132b16-18). So just how does the imposition of a loss on the person who had gained nullify the injustice and restore equality? An impressive array of scholars have lined up behind the idea that corrective justice is essentially compensatory. For example, Bostock writes: “So the fair way of rectifying the situation is to restore the status quo; the offender should be made to give up his ill-gotten gain, which should be restored to the victim, so that the result is ‘equality’ once more.” 2 Similarly, Young: “…corrective justice seeks to restore equality by taking away the perpetrator’s gain (or its fungible equivalent) and restoring it to the victim.” 3 And Brown: “It is striking that ‘equalizing’ is seen as restoring both parties to equality—i.e., restoring the status quo before the offense…” 4 The same position has recently been endorsed by H. Curzer: “ Rectificatory justice concerns the righting of wrongs. Wrongdoers must be compelled to compensate their victims for losses. The right rule ( orthos logos) for rectificatory justice is to restore things in so far as possible to the pre-injustice state (1132a6-10).” 5 Similar summaries are so common in the contemporary secondary literature that this way of understanding corrective justice deserves to be called the “standard interpretation.” 6It is not difficult to see why so many scholars find this interpretation compelling. Aristotle twice refers to equalizing unequal line segments to help us see how the judge should rectify. At one point he writes, for example,The judge brings about equality, just as if a line had been divided into unequal segments, and that by which the greater exceeds half is taken away and this (τοῦτ’) is added to the shorter segment. When the whole line is equally divided, people say that they have their own (τὸ αὑτοῦ) — when they have what is equal (τὸ ἴσον) 1132a24-29). 7Supporters of the standard interpretation take this to be a simple, straightforward way of understanding what the judge does: he equalizes by taking away what is more than one party should have of something and then returns “this,” the good taken away, to the other party, thereby restoring both to the positions they had before the inequality was created. If so, Aristotle’s theory of correction may be embarrassingly simplistic, but it is undeniably a form of rectifying by compensating the injured party. But even if acceptance of the standard interpretation is widespread, it is not universal. Years ago, J. Burnet scoffed at what even then he said was the “common view,” calling it a “childish doctrine.” 8 Instead of returning the parties to some pre-interaction equality, according to Burnet, corrective justice operates in very different ways depending on whether it is applied to a voluntary or an involuntary interaction. When applied to the former, it demands that the fair value of the goods to be exchanged be determined in advance of the exchange and this provides the standard by which to judge whether what each party is asking for is just. Regarding involuntary interactions, according to Burnet, Aristotle distinguishes between an injury—presumably a material loss of some sort—and an injustice, presumably a harm specified by the law. Corrective justice requires that the wrongdoer suffer a punishment equal to what is the “arithmetic mean” between the actual injury suffered by the victim and the wrong done, which may be more or less serious than the injury. 9So, for Burnet, corrective justice is bifunctional 10; it operates in different ways depending on whether the inequality to be corrected involves a voluntary or an involuntary interaction. Burnet’s reading of V.4, however, never garnered much support. 11 If Burnet is right, Aristotle does not get around to the application of corrective justice to voluntary exchanges until after the introduction of proportional reciprocity in V.5. But that discussion has to do primarily with the way mutual need (χρεία) determines whether an exchange takes place ( NE, 1133a25-31) and so it is hard to see what role a virtue plays in the determination of a fair price. Moreover, in V.4 Aristotle is clear that a party to an exchange of goods is free to get as much as anyone is willing to pay for what she has on offer ( NE, 1132b11-16). Barring fraud or deceit, which would make the interaction involuntary, corrective justice simply is not in the business of determining what is fair prior to a mutual agreement to exchange. In interactions of this sort, when corrective justice is called for, it is applicable only after the interaction, presumably for some failure by one of the parties to meet the terms of the agreement to exchange. Burnet’s view of corrective justice applied to involuntary interactions is also problematic. In the first place, as Hardie points out, there is a difference between injury and wrong, or harm, only in some cases. In other cases, perhaps in most cases, where they are the same, there could be no mean to be discovered. 12 Second, even in those cases where there is a difference between the injury suffered and the wrong committed, it is not clear how these form a continuum on which there is an arithmetic mean. Nor is it clear why such a mean would be what is just. Finally, Burnet bases this interpretation on his reading of 1132a4-5: “The law looks to the difference regarding the harm (πρὸς τοῦ βλαβοῦς τὴν διαφορὰν), treating the parties as equals.” Burnet obviously takes the “difference” to refer to the difference between the between the injury and the wrong. But proponents of the standard interpretation will quickly point out that Aristotle may well mean only that the judge is to ascertain the difference between the victim and the beneficiary of the injustice before and after the injustice because of the wrongful appropriation. 13Kraut has also defended a bifunctional account of corrective justice of a different sort. One function is to produce what is just after involuntary interactions. In these cases, the wrongdoer forfeits his gain by being made to suffer some punishment and, indeed, “the more serious the injury [the wrongdoer] has done, the more he must be made to suffer.” 14 According to Kraut, “…by punishing the guilty party, the jurors restore them to a position of equality. What Aristotle means is that if the city does not provide for the punishment of the guilty party, then in effect the two individuals are no longer being treated by the law as equals.” 15 The equality achieved in these cases, accordingly, is equality before the law. Although Aristotle focuses almost exclusively on rectifying involuntary interactions, Kraut thinks Aristotle recognized that there can be injustices resulting from purely voluntary exchanges of goods, as well. When these must be adjudicated, corrective justice operates in a second way: the judge is required to produce what is just by seeing that the parties involved have the goods they are supposed to. To do so, the judge must first decide whether only one party has received the goods she bargained for. If so, the judge must then see to it that the conditions of the agreement are fulfilled, ordering the one who has not paid, or not paid in full, to provide the other what she is owed. 16So Kraut’s account is also bifunctional. Although it avoids the problems with Burnet’s reading, it too seems not to have generated much support. This is perhaps understandable. In the first place, Aristotle states that “everyone understands even without argument” that what is just can always be construed as “a mean and an equality” (τὸ δίκαιον μέσον τε καὶ ἴσον εἶναι) between the value of the persons involved (οἷς) and their respective shares of something (ἐν οἷς), presumably divisible goods and evils ( NE, 1131a13-20). Thus, contra Kraut, corrective justice does not seek to restore the parties’ status as equals before the law, even though that may be the result. Rather, it restores equality between the people involved and their shares of something, or the value of their shares of different kinds of things. Moreover, Kraut never addresses the standard view and does nothing to explain—or to explain away—the textual evidence that has won over so many prominent scholars. Proponents of the standard interpretation will surely want some explanation of how imposing a punishment makes it the case that “there is no longer either the gain and loss.” Even if we can come up with a sense in which an act of retribution ensures that the offender has not gained from his wrongdoing, it is hardly clear how such a punishment also nullifies what the victim has been made to suffer ( NE, 1132b18-20). Nor it is evident how punishing wrongdoing fits with the uneven lines analogies. How is “taking away” from the longer segment and “adding this to the shorter segment” (τοῦτ’…τῷ ἐλάττοντι τμήματι προσέθεκεν, NE, 1132a27) supposed to be like punishing someone for his wrongdoing? Finally, Kraut thinks that the equality achieved by corrective justice applied after an involuntary interaction is equality before the law and the equality achieved after a voluntary interaction is an equality of goods exchanged. These may be compatible senses of “equality,” but it seems unlikely that Aristotle would hold that corrective justice brings about equality in very different senses, depending on the sort of injustice it is addressing, without bothering to indicate that fact. It seems more likely that the same analysis of rectification—“taking away from the one and adding this to the other”—is meant to apply to both, which of course is precisely what the standard interpretation maintains. 17In spite of my concerns with the bifunctional accounts of Burnet and Kraut, I believe a bifunctional interpretation is more likely to capture Aristotle’s thinking than does the standard interpretation. 18 After developing a number of problems with the standard interpretation, I argue that corrective justice seeks to equalize either goods or evils for the parties involved, depending upon whether the interaction addressed is voluntary or involuntary. Regarding the two uneven line segment analogies, I argue that they are making different but related points and that the first fully supports my understanding of corrective justice and that the second is at least consistent with my interpretation. In the final section, I explain how the bifunctional account I defend here bears importantly on our understanding of “proportional reciprocity” (τὸ ἀντιπεπονθὸς κατ’ ἀναλογίαν), the type of justice Aristotle introduces in V.5 and that is said to “hold exchange communities together” ( NE, 1132b31-33, also pp. 33–34). I will argue that instead of being a third, independent form of particular justice, which is how it is often understood, 19 proportional reciprocity serves as a basic normative principle in Aristotle’s political scheme and that it too consists of two forms, each one corresponding to one of the two ways I am claiming corrective justice achieves equality. I argue that whenever corrective justice produces an equality, whether of goods or of evils, it is thereby bringing about one of the two forms of proportional reciprocity and, as a consequence, strengthens the bonds that “hold the community together.” In light of the fundamental importance Aristotle assigns to proportional reciprocity, corrective justice is shown to play a more important role in securing the stability of the political community than has been generally appreciated. Problems with the Standard Interpretation Two Kinds of Gain and Loss Corrective Justice and Proportional Reciprocity Conclusion Footnotes Notes References Copyright information  Shared Flashcard Set Shared Flashcard Set Details Title Chapter 3 Criminal Law Description 14 True/False and 44 Multiple Choice Total Cards 58Subject Criminal Justice Level Undergraduate 1Created 02/05/2014Click here to study/print these flashcards . Create your own flash cards! Sign up here . Additional Criminal Justice Flashcards Cards Term True Definition Harm occurs in any crime, although not all harms are crimes. Term True Definition Causation refers to the fact that the concurrence of a guilty mind and a criminal act may produce or cause harm. Term True Definition The principle of recognizing previous decisions as precedents to guide future deliberations is called stare decisis. Term True Definition A necessary first feature of any crime is some act in violation of the law. Term True Definition A tort is a wrongful act, damage, or injury not involving a breach of contract. Term True Definition Because the effects and taste of alcohol are so widely known in our society, the defense of involuntary intoxication due to alcohol consumption can be difficult to demonstrate. Term True Definition Espionage is the “gathering, transmitting, or losing” of information related to the national defense in such a manner that the information becomes available to enemies of the United States and may be used to their advantage. Term False Definition An offense that has been completed is called an an inchoate offense. Term False Definition Typically, civil suits seek punishment, not compensation. Term True Definition Civil law governs relationships between and among people, businesses and other organizations, and agencies of government. Term True Definition Common law originates from usage and custom rather than from written statutes. Term True Definition A felony is a criminal offense punishable by death or by incarceration in a prison facility for at least one year. Term True Definition Actus reus means “guilty act.”Term True Definition Corpus delicti literally means “the body of the crime.”Terma. criminal law Definition The assumption that criminal acts injure not just individuals, but society as a whole is fundamental to which of the following laws?a. criminal lawb. administrative lawc. civil lawd. procedural law Terma. common law Definition Which of the following refers to a traditional body of unwritten historical precedents created from everyday social customs, rules, and practices?a. common lawb. statutory lawc. law of the landd. case law Termrule of law Definition What is the maxim that an orderly society must be governed by established principles known as? Termadministrative law Definition Which type of law refers to the body of regulations that the government creates to control the activities of industries, businesses, and individuals? Termadministrative law Definition Which part of the law specifies the methods to be used in enforcing substantive law? Termd. robbery Definition Which of the following violations is NOT a misdemeanor?a. disturbing the peaceb. being disorderly in publicc. simple assaultd. robbery Termb. petty theft Definition Which of the following would NOT be categorized as a felony?a. murderb. petty theftc. raped. robbery Termb. motive for the crime Definition Which of the following is NOT an element of crime?a. concurrence of act and intentb. motive for the crimec. criminal actd. culpable mental state Termopportunity Definition Our legal system generally recognizes all of the following broad categories of defenses except ________. Termpenal law Definition In its written form, the criminal law is also known as ________. Termd. espionage Definition Which of the following terms refers to gathering, transmitting, or losing information related to the national defense in such a manner that the information becomes available to enemies of the United States?a. treasonb. inchoatec. conspiraciesd. espionage Termd. actus reus Definition Which of the following terms mean “guilty act”?a. collateral estoppelb. mens reac. corpus delictid. actus reus Terma. consent Definition Which of the following falls under the category of justification?a. consentb. duressc. insanityd. mistake Termsubstantive criminal law Definition Murder, rape, and robbery all fall under what branch of modern law? Termd. eyewitness identification Definition Which of the following is NOT an example of procedural defense?a. police fraudb. prosecutorial misconductc. double jeopardyd. eyewitness identification Termb. entrapment Definition Which of the following refers to improper or illegal inducement to crime by enforcement agents?a. police fraudb. entrapmentc. collateral estoppeld. prosecutorial misconduct Termadministrative law Definition Tax laws, building codes, and health codes are examples of what type of law? Termb. mens rea Definition Which of the following elements of crime means “guilty mind”?a. actus reusb. mens reac. corpus delictid. stare decisis Terminsanity Definition A woman is accused of murdering her brother. She claims that she stabbed her brother to release the evil spirits within his body. The excuse defense that would most likely be used at her trial is ________. Termb. duress Definition Which of the following is an excuse defense?a. consentb. duressc. necessityd. double jeopardy Termc. double jeopardy Definition Which of the following is a procedural defense?a. diminished capacityb. involuntary intoxicationc. double jeopardyd. mental incompetence Terma. statutory law Definition Which type of law is also known as the “law on the books”?a. statutory lawb. natural lawc. procedural lawd. administrative law Termseek compensation Definition The main objective of a civil lawsuit is to ________. Term Jurisprudence Definition________ is the philosophy of law. Termadministrative law Definition Which type of law covers practices in the areas of customs, immigration, and product safety? Termstare decisis Definition The principle of recognizing previous decisions as precedents to guide future deliberations is called ________. Term Misdemeanors; offenses; felonies Definition________ are generally more serious than ________, but less serious than ________. Termtreason Definition Which crime best describes an attempt to overthrow the government of the society of which one is a member? Terminchoate Definition What term describes an offense not yet completed? Termknowingly`Definition Mens rea is most clearly present when a person acts ________. Termself-defense Definition Which type of a defense is used when a defense attorney claims that the defendant’s actions were necessary to ensure his or her safety? Termincompetent to stand trial Definition When the defendant is incapable of understanding the nature of charges and proceedings, he will be declared ________. Term Ford v. Wainwright Definition Which Supreme Court case states that prisoners who become insane while incarcerated cannot be executed? Term Sixth Definition Which constitutional amendment guarantees the right to a speedy trial? Termex post facto Definition The Constitution prohibits the enactment of ________ laws, which make acts committed before the laws in question were passed punishable as crimes. Termcriminal law Definition The body of rules and regulations that define and specify the nature of and punishments for offenses of a public nature for wrongs committed against the state or society is called ________. Termprecedent Definition The legal principle that ensures that previous judicial decisions are authoritatively considered and incorporated into future cases is called ________. Termfelony Definition A criminal offense that is punishable by death or by incarceration in a prison facility for at least one year is called a (n) ________. Termb. reasonable force Definition Which of the following is the degree of force that is appropriate in a given situation and that is not excessive?a. self-defenseb. reasonable forcec. alter ego ruled. deadly force Termb. purposeful Definition An activity that increases the risk of harm is called _______ behavior.a. knowingb. purposefulc. negligentd. reckless Termmotive Definition A person’s reason for committing a crime is a (n) ________. Termstrict liability offense Definition Bob runs a stop sign. He didn’t see the sign and he had no intention of breaking the law. He is guilty of a (n) ________. Termattendant circumstances Definition The facts surrounding an event are known as ________. Termc. alter ego rule Definition Which of the following rules states that a person can only defend a third party under circumstances and only to the degree that the third party could act?a. M’Naghten Ruleb. retreat rulec. alter ego ruled. Durham rule  Sentencing Theory - Backgrounder Sentencing Theory - Backgrounder Overview Backgrounder Teaching Resources Share Page Sentencing Theory Backgrounder By: Kristin Gardner and Owen James1. INTRODUCTIONThe Criminal Code [1] in Canada covers an extremely wide range of offences, and the individuals who are convicted of committing these crimes are equally diverse. It follows that judges should consider many factors when they impose a sentence, whether the sentence is a fine, probation, jail time, or any other sentence that the Criminal Code authorizes a judge to make. [2]There are various theories behind how to come up with an appropriate sentence. Some of the theories still relevant today were formulated by philosophers several centuries ago, and there are even theories with roots dating as far back as the Bible (note: “an eye for an eye”). Section 718 of the Criminal Code sets out the purpose of sentencing and objectives for a judge to consider when sentencing offenders convicted of crimes in Canada. In addition, there are other sentencing principles in ss. 718.1 and 718.2 that must be considered with the general purpose. These principles and purposes illustrate the different theories behind sentencing, and one of the roles of a judge is to balance these competing theories to come up with an appropriate sentence.2. SECTION 718Section 718 of the Criminal Code states the general purpose of sentencing, and the theories behind sentencing are represented in the objectives that are listed for a judge to consider when applying this purpose. This section states the purpose of sentencing as follows:718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. So the purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” and to do this, a judge should consider several objectives. The theory behind each of these objectives will now be discussed. A. Denunciation The theory behind denunciation as an objective of sentencing is to express society’s disapproval of the crime that was committed. The crimes in the Criminal Code reflect the behaviours that our society disapproves of and that society has deemed do not accord with our value system. As such, the theory is less about placing blame on the particular offender and more about defining the values and moral code that we expect people in society to adhere to. This theory is likely the basis of having mandatory minimum sentences for certain offences. For example, the mandatory sentence for murder is life imprisonment, and there is no regard for the individual, such as Robert Latimer, for whom the minimum sentence might not be appropriate. B. Deterrence The underlying assumption with deterrence is that the threat or example of punishment will discourage people from committing crime. Generally the principle is thought to be that if you increase the severity of the punishment, you will reduce the crime rate. However, there is now considerable research that disputes this idea, especially in regards to jail sentences. The Sentencing Commission found that there is no evidence of a deterrent effect from increasing the severity of the sentence, but instead accepted that any deterrent effect comes from the entire process rather than a particular sentence imposed. [3] The efficacy of this objective in sentencing is therefore questionable. There are two levels of deterrence to consider: general deterrence and specific deterrence. General deterrence refers to the attempt to discourage society at large (potential offenders) from committing criminal offences, by using examples of heavy sentences to show the consequences of committing a particular crime. The theory of general deterrence is that people are afraid of being punished, and the greater the punishment, the less likely a person will commit a crime, due to that fear. However, a person is unlikely to decide to engage in criminal activity based solely on the punishment that could result. It ignores a person’s upbringing, morals, and education. In fact, it is more likely that the certainty of being convicted will have an impact on deterring crime, rather than the severity of the sentence. If a person is sure that he or she will be caught and punished for the crime, the person is less likely to do it regardless of how severe the punishment is. Specific deterrence refers to the attempt to discourage a particular offender from repeating a crime. The theory is that people convicted of a crime will balance the pros and cons of committing that crime, and the more severe the punishment, the more the balance will shift toward obeying the law. One of the problems with this theory is that the punishment is strongly connected to the particular offence, so a heavier punishment for one crime will not necessarily be successful in deterring a person from committing a different type of crime. This theory is strongly focused on the individual offender and attempting to predict his future behaviour by looking at factors such as past criminal record, attitude, motivation, and the likelihood of reformation and rehabilitation. C. Separation from Society This theory is based on the simple idea that a person who is in jail is incapable of committing crime in the community for as long as he or she is locked away from the community. This measure should only be taken with people who cannot be deterred or reformed in the community, since the wording of the provision is that it should be applied only “where necessary.” This theory is reflected in the provisions of the Criminal Code , which allow some offenders to be designated as Dangerous Offenders and to be sentenced to indeterminate periods of incarceration. [4] The death penalty is the ultimate in separation from society, though that sentence was abolished from the Criminal Code in Canada in 1976. However, it might be interesting to know that the homicide rates in Canada have steadily decreased since the abolition of this sentence. What does it say about the theory of general deterrence when the most severe punishment possible does not seem to have affected the rate of that crime? These first three objectives are what judges traditionally have relied upon when imposing a sentence that includes jail time. However, in the 1990s the government began to recognize that Canada had a problem with over-incarcerating people who committed crime and it was more noticeable in certain populations such as Aboriginal Canadians. In response, the following three objectives were added to the considerations a judge should make when applying the purpose of sentencing. The objectives of rehabilitation, reparation, and promoting a sense of responsibility are aimed at reducing the use of prison as a sanction and bringing aspects of restorative justice to sentencing. D. Rehabilitation This objective of sentencing has been subject to waves of popularity over the years. Essentially, rehabilitation is the ideal goal of sentencing because all offenders cannot be incarcerated indeterminately. So successful rehabilitation to make sure an offender does not commit crimes in the future is the best option to protect the public. It is interesting that rehabilitation used to be seen as a goal that could be best achieved through measures such as educational or vocational programs in prison. However, there is no evidence to support the notion that imprisonment itself will successfully rehabilitate an offender. In fact, in the case of R. v. Gladue, [5] the Supreme Court of Canada reviewed the literature and agreed that incarceration is generally ineffective at rehabilitating or deterring offenders. Instead, the courts have concluded that a conditional sentence, which is a jail sentence that is actually served in the community, will be more effective than sending a person to jail, when considering the objective of rehabilitation. [6]So, while programming in jail is still seen as valuable, it is now recognized that incarceration itself is more likely to impede rehabilitation, and keeping people out of prison is more conducive to achieving the goal of rehabilitation. The focus of this theory, like specific deterrence, is the individual offender. This could explain why this theory has experienced periods of unpopularity – what works for one offender might not work for another, which makes it difficult for judges to know what sentence to impose. Now that the tendency is to fashion a sentence promoting rehabilitation in the community, there is a great deal of discretion on the part of judges, and the ability to be more creative in crafting these sentences. E. Reparation The idea behind reparation is to put the victim and the community back in the position they were in before the offence was committed. While this concept was prevalent in ancient times, and is certainly seen in many Aboriginal cultures, it is a relatively recent addition to the purposes of sentencing in modern Canadian criminal law. Given that it is so new, there are some constraints on judges who are considering this option in crafting a sentence. However, one can see this principle at work in the restitution provisions of the Criminal Code. [7]F. Promoting a Sense of Responsibility The theory behind this objective of sentencing is that encouraging an offender to acknowledge the harms done to the victims and to the community will reduce the likelihood of the offender committing crimes in the future. A sentence that includes community service, or speaking publicly about the unfortunate consequences of the offender’s conduct, would take this objective into account. So with the addition of these last three objectives, the focus has moved away from locking criminals in jail and throwing away the key, and toward trying to find a balance between protecting the community and working with the individual offender to craft a sentence that will help prevent him from committing future crimes. This balancing act is continued with the other principles of sentencing that judges are obliged to consider, and that will be discussed below.3. SECTION 718.1Section 718.1 of the Criminal Code states the fundamental principle of sentencing as follows:718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This principle is a retributive concept and unlike the objectives considered in the purpose of sentencing that focus on the prospects of future behaviour, this principle focuses on the offender’s past actions. Retribution considers what the offender actually physically did and is based on the notion that a sanction should be imposed only when the offender committed the offence with a morally culpable state of mind. So when conduct is an accident or has an excuse such that you cannot find the offender at fault, punishment is limited or unnecessary. Essentially, the idea behind this principle is that the sentence must be in proportion both to the crime committed and the circumstances (moral culpability) of the offender. This goes back to the Biblical suggestion of punishment being “an eye for an eye”, keeping in mind that it is not only the conduct that is considered, but also the state of mind of the individual offender: he or she had to mean what he or she did. While the idea of “just desserts” is often connected to this principle, it is important to distinguish retribution from revenge or vengeance. It is one thing to assert that a particular conduct is deserving of punishment, but the purpose behind retribution is to restrain the punishment to ensure it is just and appropriate, rather than arbitrary or excessive. In fact, a sentence that is grossly disproportionate to the offence may violate the right against cruel and unusual punishment in s. 12 of the Charter of Rights and Freedoms. [8]To assist the judge in determining a just and appropriate sentence that is in proportion to the offence committed, the Criminal Code also outlines other factors to consider in sentencing. These factors are contained in s. 718.2 and some of them will be discussed in the following sections.4. SPECIAL CONSIDERATIONSCanadian sentencing laws recognize that some categories of people in society are different than others. This section considers how the Criminal Code and Youth Criminal Justice Act [9] tailor sentencing principles to meet the needs of Aboriginals and youth respectively. A. Aboriginal Sentencing Section 718.2 (e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders. [10]One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. [11] For example, in 1997, Aboriginal people constituted close to 3 percent of the population of Canada, yet amounted to 12 percent of all federal inmates. [12]To deal with the overrepresentation of Aboriginal people in prison, s. 718.2 (e) directs judges to undertake the sentencing of Aboriginal offenders differently. First, the sentencing judge should consider “the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts”. [13] Some of these background factors include the low incomes, high unemployment, lack of opportunities, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation that lead Aboriginals to have a higher incidence of crime and incarceration. [14] Systemic factors include the widespread discrimination that Aboriginals experience both in, and outside, penal institutions. [15]Second, the sentencing judge should consider “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”. [16] This is because the traditional sentencing ideals of deterrence, separation, and denunciation do not accord with the understanding of sentencing held by Aboriginal offenders and their community. Most traditional Aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. Restorative justice is an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to a crime’s occurrence. Restorative justice determines a particular sanction by considering the needs of the victims, and the community, as well as the offender. An example of this can be seen in circle sentencing. In a circle sentencing, the judge, crown counsel, defence lawyer, victim, offender, police and community members discuss the crime. [17] In this sense, the community participates in resolving the conflict. Those involved sit in a circle to break down the formality that can characterize a courtroom sentencing hearing. An emphasis is placed on healing and consensus building among all who are affected by the crime. B. Youth Sentencing The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system. It includes a separate sentencing regime because the needs and situations of youth are different from those of adults. Section 38 states the principles and purposes of youth sentencing:38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles: (a)the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b)the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c)the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d)all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (e)subject to paragraph (c), the sentence must (i)be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii)be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii)promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. Some of the principles of sentencing that have already been discussed are more evident in s. 38 (2) that others. For example, many of the principles listed in s. 38 (2) deal with proportionality and rehabilitation. On the other hand, separation from society is discouraged, as is seen in s. 38 (2) (d). The Youth Criminal Justice Act strives to rehabilitate youth because, as young offenders, they are often coming into contact with the criminal justice system for the first time. It is important to intervene and address the issues that caused these individuals to break the law to ensure that they do not commit other crimes in the future. [1] R. S. C. 1985, c. C-46. [2] Provisions relating to Sentencing are found in Part XXIII of the Criminal Code. [3] Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Supply and Services Canada, 1987). [4] Provisions relating to Dangerous Offenders are found in Part XXIV of the Criminal Code. [5] [1999] 1 S. C. R. 688 at. [6] R. v. Proulx, [2000] 1 S. C. R. 61. [7] Provisions relating to Restitution are found in s. 738 of the Criminal Code. [8] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U. K.), 1982, c. 11. [9] S. C. 2002, c. 1 [10] R. v. Gladue, [1999] 1 S. C. R. 688, at para 37 [11] Ibid. at para 50 [12] Ibid. at para 58 [13] Ibid. at para 66 [14] Ibid. at para 67 [15] Ibid. at para 68 [16] Ibid. at para 66 [17] Curt T. Griffiths and Simon N. Verdun-Jones, Canadian Criminal Justice 2 nd ed., (Toronto: Harcourt Brace and Company, 1994)Overview Backgrounder Teaching Resources Share Page  Juvenile Justice Midterm 110 terms Morgan Huss Juvenile Justice Midterm Learn Flashcards Write Spell Test Match Gravity Advertisement Upgrade to remove ads Sort Juvenile Justice System The system of agencies that is designed to handle juvenile offendersparens patriae A legal doctrine in which the state plays the role of a parent Jurisdiction The authority granted by law to hear a case Delinquency Any behavior that is prohibited by the juvenile law of state Status Offense An act of delinquency committed by a juvenile that would not be considered a crime by an adult Juvenile An individual who falls within a specific age range and is subject subject to the jurisdiction of the juvenile court Criminal Justice System The system of agencies that is designed to manage adult offenders Maximum age of juvenile court jurisdiction The upper age limit for which the juvenile court may hear a case Minimum age of juvenile court jurisdiction The lower age limit for which the juvenile court may hear a case Diversion A procedure by which a juvenile is removed from the juvenile justice process and provide with treatment services Intake The procedure by which juvenile court staff decide whether to process further in court, handle the case informally, or dismiss the case Victim Restitution A sanction by which a juvenile offender pays the victim for the harm done Community Service A sanction requiring a juvenile offender to perform a predetermined number of hours of volunteer work Informal Probation A process by which a juvenile agrees to meet certain requirements in exchange for dismissing a case Waiver to adult court The process through which a juvenile court relinquishes jurisdiction over the juvenile offender and the case is processed in adult court Adjudication Decision by a juvenile court judge that a juvenile committed the delinquent act Assumptions Ideas and beliefs that serve as the foundation for theories, programs, and policies. In juvenile justice, these assumptions consist of what people believe about the causes of juvenile delinquency, what we should about juvenile delinquency, and how the juvenile justice system should function Chattel The legal term for property. In the past, juveniles were viewed as property in the eyes of the law Orphanages, Workhouses, Training Schools, and Apprenticeships An informal system of public and private institutions that were designed to take in wayward children. Their goal was to take care of children whose parents were unable or unwilling to fulfill their responsibilities. These institutions attempted to raise children to become productive members of society Involuntary Solitude The practice of selling children into service to a business person or wealthy person. In exchange for their money, parents would essentially give up all rights to their children Puritans A religious group in early America who believed that through hard work, religion, and education a person could get closer to God. These ideals served as the foundation of early institutions of juvenile justice in the United States Walnut Street Jail The first jail in the United States that separated inmates and sought to reform their behavior rather than just punishing them. Opened in 1790 in Philadelphia, Pennsylvania, it was also the first correctional facility to separate women and children from adult male inmates Traditional Agrarian Values The ideas and beliefs shared by those who worked the land and espoused Puritan and Quaker values. The idea was that the city was a source of many juvenile "evil ways," and the best way to change these youths was to remove them from the city and place them in remote rural locations Houses of Refuge Early institutions specifically designed for juveniles in the United States. These facilities would take in and care for dependent, neglected, and delinquent childrenin loco parentis The legal concept of allowing the state to "act in place of the parents." This gives the state the legal right to take away parental custody of children when it is in the best interest of the child Ex Parte Crouse significance The first court case in the Unites States that declared the concept of parens patriae constitutional Grassroots Movement A movement that starts with the general public and not in the political arena Child Savers The group of progressive reformers who, in the late 1800s and early 1900s, were responsible for the creation of the juvenile justice system in the United States Illinois Juvenile Court Act of 1899 The law that established the first separate juvenile court in the United States Determinate Sentence A sentence that has a fixed number of years to serve that is associated with more punitive goals that rehabilitative one. The indeterminate sentence is a hallmark of the juvenile justice system. The idea was that in order to rehabilitate juveniles, you could not specify the amount of time it would take to cure them Balanced Juvenile Justice and Crime Prevention Act of 1996 A law that passed by Congress that embraces the punitive and accountability assumptions advocated in the late 1970s and 1980s and continue into today. This act is reflective of the fundamental changes in assumptions about juveniles and juvenile justicemens rea Literally translated means "guilty mind." In the juvenile justice system it was traditionally assumed that juveniles could not form the same level of intent to commit a crime that adults could The juvenile Justice and Delinquency Prevention Act of 1974 The law that limits the discretion of the juvenile justice system in dealing with status offenders. JJDP introduces more uniformity and fairness into the system Waiver to Adult Court Jurisdictional Age Limit The age limit when a juvenile court no longer has jurisdiction over a juvenile offender, usually between ages 19 and 21Judicial Waiver A type of waiver to adult court in which a juvenile court judges makes the decision to waive a juvenile to adult court Discretional Juvenile Waiver A type of judicial waiver that involves the prosecutor filing a petition with a juvenile court requesting that the juvenile court waive a juvenile to adult court Waiver Hearing A hearing held in juvenile court in which a prosecutor and defense attorney may present evidence on whether or not the juvenile should be waived to adult court Kent Criteria -The factors established by the United States Supreme Court in Kent v. United States that a juvenile court judge should take into consideration when deciding whether or not to waive a juvenile to adult court -Right to a hearing where evidence is presented as to why the juvenile shouldn't be waived to adult court -Right to counsel as waiver hearings -Right to access any reports and records used by the court in deciding a waiver -Right to a statement issued by the judge justifying the waiver to adult court Mandatory Judicial Waiver A type of judicial waiver in which a juvenile court judge must waive a juvenile to adult court if the juvenile court judge finds probable cause that the juvenile committed the offense Presumption Waiver A type of judicial waiver in which the defense bears the burden of proof and must justify to the judge why the juvenile should not be waived Legislative Waiver A type of waiver to adult court in which a juvenile is automatically sent to adult court because of the type of offense that was committed Statutory Exclusion A type of legislation waiver that excludes certain offenses, usually violent crimes, from the jurisdiction"Once and adult, always an adult" Law A type of legislative waiver that mandates that all offenses a juvenile commits after having been waived to adult court and convicted will also be handled in adultcourt Prosecutorial Waiver A type of waiver to adult court that occurs when there is concurrent jurisdiction between juvenile and adult courts and the prosecutor has the option of filing charges against the juvenile offender in court Punishment Gap The discovery that juveniles waived to adult court for the first time are usually given leniency accorded to first-time adult offenders Blended Sentencing Involves the imposition of juvenile and/or adult correctional sanctions for serious and violent juvenile offenders who have been processed in either juvenile or adult court Juvenile-Exclusive Blend A type of blended sentence in which the case is processed in juvenile court; and, once the case is adjudicated, a juvenile offender may receive a sentence in either the juvenile or adult correctional system Juvenile-Inclusive Blend A type of blended sentence in which the case is processed in juvenile court; and, once the case is adjudicated, a juvenile offender may receive a sentence in both the juvenile and adult correctional systems Juvenile-Contiguous Blend A type of blended sentence in which the case is processed in juvenile court, and once the case is adjudicated, a judge can impose a sentence on the juvenile offender that can exceed the jurisdictional age limit of the juvenile corrections agency Criminal-Exclusive Blend A type of blended sentence in which the case is processed in adult court, and once convicted, the juvenile offender may receive a sentence in either the juvenile or adult correctional system Criminal-Inclusive Blend A type of blended sentence in which the case is processed on adult court, and, once convicted, the juvenile offender may receive a sentence in both the juvenile and adult correctional systems Straight Adult Incarceration The practice of housing juveniles convicted in adult court in the general adult prison popiulation Segregated Incarceration The practice of housing juveniles convicted in adult court in a separate prison facility for younger offenders, usually between the ages of 18-25In Re Michael D -Michael D was an accomplice to a rape. -He was committed to the California Youth Authority - The appeals court affirmed the commitment to wardship. They did this because although, they want to use less restrictive means, the court appointed psychologist suggested that Michael D was beyond parental control and questioned whether his parents could be strict enough with him. The minor also admitted to dealing with substance abuse. The court stated that because of his substance abuse and his negative attitude and lack of remorse, he needs to be in a facility with a strict structure, and they felt he was a threat to society. In Re Edwin R -In April, the minor was among a group of people who fatally stabbed a man. They were taken into questioned at the precinct before being moved to the Youth House until their release in December of the same year. Two years pass, where pretrial motions and hearing took place, and the case is ready to go to trial. -The defense argues that the petition should be dismissed because the minor was held in a facility for over half a year and spent two more years dealing with pretrial. -The minor's attorney argues that the court should only find him "delinquent" if they feel he requires supervision, treatment, and confinement. Committing one delinquent act does not mean the minor needs confinement. They argue the petition should be dropped if they are just going to dismiss it at the sentencing hearing because he doesn't need confinement. -This case takes place in Family Court and the Family Court's objective was to rehabilitate the minor and provide treatment. Juvenile cased should be handled civilly not criminally. -Edwin R was arrested and charged as an adult and is in prison, but the other boys appeared to have made dramatic changes in their lives for the better. They no longer show anti-social behavior and are taking their education seriously. -The petitions were dismissed. "Juvenile" as a new concept -Philip Aries- "Centuries of Childhood: A Social History of Family Life" -Early conceptions of "childhood"- sociological construct -Before 1400- High infant mortality rates: families didn't bend until they knew the child would survive -First semi-modern conception of "childhood"- when infant mortality rates declines, people vied child as "play-thing" -Second conception of childhood- Family views child as potential adult -Puritanism- children take hold of evil- leads to potential abuse -Adolescence-1800- working/lower class families -Industrial Era- ages 11-14-last ones hired, first ones fired Criticism of Aries -Very present centered -Looking at yesterday through today's eyes -didn't research personal writings because only nobles wrote Child Abuse and Neglect handout Child abandonment and infanticide was widely practiced in earlier centuries. The father usually had the say in what happened to the child. Many thought of this as a religious practice, and that a child sacrifice would bring good health. Christians and Jews often helped place an unwanted child in a loving home Philosophy of the Juvenile Court handout Julian Mack- Determining who the child is and how they have become the kind of person they are rather than what they have done wrong. Make sure the juvenile knows the court can help them be a better person Walter Beckham- Juvenile hearings should take place in the judges warm, inviting chambers -Judge should speak and act in a friendly demeanor and not too technically -Allow the juvenile to state his side of the story -Compliment the child and don't grill them on the stand -Don't preach... Explain. -Allow parents to offer a plan. -Carefully and politely explain your decision to the child and parents and what will happen and where the child will go -Treat lawyers with respect Marcum v Ferrell Marcum was testifying in a sexual assault case where she was the victim. In her testimony she admitted to a capital crime and was sent away to a juvenile facility. She was never allowed to request a trial jury or utilize many other rights. While the court she was in did have jurisdiction over her crime, she was never brought forward by a law officer for a trial. She was released.5 Factors in the Societal Recognition of "Juvenile Delinquency" 1. Traditional means of dealing with bad kids -Binding out- to send a child to live with another family or on a farm and have them work to earn their keep- lead to lots of runaways -Corporal and Capital Punishment- juveniles became exempt from capital punishment Transportation-Put child on boat and send them to America or Australia 2. Urbanization- The idea that it brings juveniles closer together- during the transition from farm life to urban life, families weren't as close- lots of homeless children 3. Increased movable goods- provided more movable propers- because of this crimes weren't as violent- easy to steal 4. Population Growth- Young male juvenile crimes increased 5. Societies establish JJUS systems- created a formal system to deal with offenders"Juvenile Delinquent" First usage- "Urban property crime committed by poor young people"Early assumptions about juvenile delinquents They were malleable and good people should intervene to prevent them from becoming delinquent. To be delinquent was not to be criminal, but rather to fail to do what is required of you. State v. Mary Dougherty -Mary Dougherty was about 13 and the eldest of her siblings. She lived with them and her father. She normally talked a lot. Her father went missing for about 4 days so a neighbor came to check on him. He found the father's dead body under the floor boards and a bloody axe by the house. Mary showed no emotion to finding her father dead. -Mary Dougherty was taken into custody for the murder of her father. While in custody she did not speak at all. Her eyes appeared to be half closed at all times. She had to be forced to eat. -The court found her mute by the visitation of God and entered a not guilty plea for her. -She was found not guilty in court because they believed she could not understand how to form intent. -The day after being found not guilty, she suddenly was able to talk again and smiled brightly. -She got away with murder Infancy Defense The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an "infant" are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility -Not understanding intent -Not liable Post Hoc Justification If you are able to make up stories after you get in trouble, you are more likely to get punished Physical Custody Child lives in your home Legal Custody You make major decisions for the child In Re Gault -Gault was on probation for another crime when he was accused of making lewd phone calls to a neighbor. He was picked up by the police when he was home alone and there was no effort to inform his family where he was. When his mother found out where he was an officer told her there would be a hearing the following day in juvenile court. -At the hearing, Gault was not allowed to cross examine, there was no transcript of the hearing, he was self- incriminated, was offered no right to counsel or to appeal, and no notice of the hearing -Gault was found guilty and had to pay $50 or imprisonment for 2 months. -Gault appealed claiming his 14th amendment Due Process laws were violated. -The court's idea was that institutionalization was "clinical" not "punitive" and originally juveniles were not entitled to the same rights as adults -loose procedures and crowded court calendars allowed juveniles to miss some of their rights -Supreme Court reversed decision stating that juveniles should have the right to Due Process -Dissenting argument- Allowing juveniles Due Process rights makes it a criminal court not a civil court which is what is wanted Graham v. Florida -When Graham was 16, he and friends robbed a BBQ joint. Graham pleaded guilt under a plea deal. He said this was his last time getting in trouble and he was going to make it to the NFL, so he got 3 years probation -Less than six months later, 34 days short of his 18th birthday, Graham was involved in a home invasion robbery and was caught after fleeing. He admitted to multiple robberies before that night. -Graham had violated his probation and the minimum was 5 years in prison and the max was life in prison. The state recommended Graham get 45 years. -The judge hounded Graham for not changing his life around when he was given a big opportunity to do so. he said because of his growing criminal record he felt there was nothing else he could do and sentenced him to life in prison. In Florida there is no chance for Parole. -Graham argued cruel and unusual punishment as the punishment was disproportionate to the crime (years imprisoned). The 8th amendment says the punishment can't be GROSSLY disproportionate. -Some argued that because juveniles have less culpability, they don't deserve a harsh crime, and that he still had time to change his ways because he was so young. -Also rarely is this sentence handed out to non-homicidal crimes. -They argued to take Graham's age into consideration with the seriousness of the crime and realize how many years he will spend in prison with no reason to turn his life around. -The Supreme court reversed it and says the Constitution does not allow life imprisonment without some chance of release. Miller v. Alabama -Miller, age 14, and a friend killed a man by beating him with a baseball bat and burning his trailer while he was is in it. He was charged as an adult for capital murder. He was sentenced to life in prison with no parole. -He appealed saying life imprisonment with no parole for a juvenile is cruel and unusual punishment. In a previous case, the Supreme court of Arkansas affirmed the sentence of life in prison with no parole for 14 year old boys. -The U. S. Supreme court reversed both Alabama and Arkansas decisions. Stating that life imprisonment without parole for a juvenile is a violation of the 8th amendment. -While it would not be a violation if they were adults, that sentence is disproportionate for juveniles. Ropper v. Simmons -Simmons, age 17, and a buddy had tied an old woman up and tossed her over a bridge, planning to rob her. He was sentenced the death. He appealed it all the way up to the Missouri Supreme Court. -The U. S. Supreme Court had just ruled that the death penalty against the mentally handicapped violated the cruel and unusual punishment amendment (8th). There was also a ruling years before that made said it was not unconstitutional to euthanize minors. This decision was made based on the majority of American's public opinion that it was not cruel and unusual. -The Missouri Supreme court ruled that bacause of evolving opinions, American's do believe it is now unconstitutional. -The state appealed this to the Supreme court arguing that appeals to Supreme Court cases based on evolving opinions would be dangerous for the future. -The Supreme Court decided that because of the evolving American opinion, applying the death penalty to juveniles was cruel and unusual. They also cited an overwhelming international disapproval of it. -The punishment was disproportionate to minors. In the Interest of E. B. -E. B. was a juvenile that violated the state law of being "habitually and without justification truant from school." Because of this he was found an unruly child. -E. B. 's lawyer moved to dismiss the petition because the terms "habitually" and "without justification" are too vague. He argued that the state needed to prove that there was no justification for the absences and that 6 1/2 absences was not habitual. -E. B. said the terms were too vague to fully understand and that violates his 14th amendment- "No man is criminally responsible for conduct which he could not reasonably understand" -The court stated that they found the argument unconvincing. -They had used the terms numerous times before without any difficulty. -In previous cases they ruled that the terms were not too vague. -EB argued that oversleeping wasn't willful truancy. The courts said it doesn't matter why you weren't in school. You weren't excused, so you were truant. -The court affirmed the sdistric court's holding that E. B. was an unruly child. In Re Darlene C -Darlene, age 16, was found in Family Court to be a runaway child. She was ordered to stay in a girl's home and if she ran away again she would be held in contempt. Two days later she ran away again, and they held her in contempt. The judge noted she was a repeat status offender/runaway. -Legislature has mandated that status offenders not be placed in a detention center, but the court ruled because of her repeat runaways, she is delinquent. -The question is if the juvenile has a disposition as a status offender after they have committed criminal contempt by disobeying a court order. -The Appellant Supreme Court ruled that the court has discretion over the status offender to declare her delinquent -The court acknowledged the legislator's concern with placing status offenders in with serious juvenile delinquents, but Darlene had runaway 14 times, even from homes she asked to be placed in. -She needs a secure environment to keep her from running away again. -The court should only use this discretion with contemptors when a contempt order is in place, the juvenile has notice of it and time to obey, and that they are able to obey, and when they willfully disobey it. -The court sentenced Darlene to a secure facility for six months with credit for time served, and will not label her a delinquent, but a repeat status offender De Shaney v. Winnebago -Deshaney, age 4, was comatose and mentally handicapped from long-term abuse by his father. Social Services took varying steps to help the child because of multiple reports of abuse. -Social Services never removed the child from his father's care. -De Shaney's mother sued the Social Services department for depriving her son of "liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment's Due Process Clause, by failing to intervene to protect him against his father's violence." -Does a state's failure to protect an individual against private violence constitute a violation of the Due Process Clause of the Fourteenth Amendment? -The Supreme Court ruled no. There is no protection for private actors if the state did not create those harms. -The clause forbids the state to deprive individuals of life, liberty, and property. But it cannot impose obligation on the state to ensure those harms don't come from other means. Snyder -Cynthia, age 16, lived with her parents, but their relationship grew hostel. There was poor communication, and her parents were very strict, forbidding her to smoke, date, or participate in extracurriculars. Cynthia rebelled and their was mental abuse to all parties - Cynthia's dad tried to help by placing Cynthia in the Youth Service Center. Cynthia tried to avoid returning home by claiming she was a dependent child as defined by the state- a child with no parents or guardian- a child whose home is unfit for a child based on abuse, neglect, or cruelty. -Cynthia's court appointed lawyer became her temporary guardian and the court ruled that the claims that her parents were unfit were untrue and released her to the custody of her parents. -After more fights, Cynthia sought help from the Youth Advocates, who placed her back in the Youth Service Center. The person in charge of intake filed a petition alleging Cynthia incorrigible (beyond the power of parents of legal guardian) -A judge found her incorrigible and the family had to attend a one week counseling session which determined Cynthia should be placed in a foster home. -The question is whether there are enough facts to prove Cynthia incorrigible -The court affirmed the Juvenile Court's decision, citing the 2 times Cynthia filed petitions to be removed from the home, her refusal to obey her parents, the hostel environment in the home, and the counselor's opinion. -Cynthia is incorrigible. Kent -Kent was on probation from crimes he committed at age 14. A social service file was collected for him that contained his mental and physical stability and how he was doing in school and at home. -At age 16, Kent's fingerprints were found at a house that was burglarized and woman was raped. Kent was questioned for two days. It is unclear when his mother was notified, but she retained an attorney by the second day. He eventually confessed toto multiple rape/burglary offenses. he was in custody for a week without arraignment or probable cause. -Kent's attorney said he would oppose a transfer to adult court because he was probably legally insane. The attorney requested a transfer, to see the social service file, and to have a hearing to see if Kent was fit to stand trial. -The court never responded to the requests. -Without a hearing the court found Kent fit to transfer to adult court where he was indicted on multiple charges of rape and burglary. -The juvenile court never said how they found Kent to be fit to stand trial. Kent asked the adult court to reconsider the waiver. They said they did a full investigation and would not dig any further. -The adult court denied the request and found Kent guilty on the burglary counts and sentenced him to 30-90 years in prison. O'Connell v. Turner -O'Connell was being detained and placed into a group home because he was poor. -His father claimed they couldn't be taken away when he didn't commit a crime -The court said you can't punish a juvenile for misfortunes that he was born into. -It violated the 14th amendment -The statute is vague and it violate parental rights Ex Parte Crouse -Mary Ann Crouse's mother petitioned to get her daughter in the House of Refuge because she could no longer control her, so Crouse was committed. Crouse's father petitioned for her releasee stating that the commitment violated her rights because there was no hearing. -The court said that it did not violate her rights because it was acting in parens patriae. If the parents cannot control, educate, and protect the girl, then it's the court's job to. Crouse compared to O'Connell Crouse uses parens patriae to act for the child because the parents no longer can. In O'Connell the courts rule that the parents have rights to their children and can demonstrate them without getting the child taken away.1899 Illinois Juvenile Court Act; Key provisions of the act 1. Distinguish between neglected and delinquent juveniles. 2. Special Legal and social procedures were developed to govern the adjudication and disposition of juvenile matters. 3. Children were to be separated from adults in courts and institutional programs. 4. Established a system of probation to assist the courts. The court said the juvenile gets the worst of both worlds in Kent case "that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. "Common Law Age Distinctions Under 7- Immune to criminal liability 7-14- Not old enough to form intent-Court must prove you knew what your were doing and you recognize the consequences of your actions 14 & up- treated the same as adults First uses of "Juvenile Delinquency" Lower class kids stealing Infancy Infancy-Historically this meant under 21 years, but statutes adopted in almost all states end minority and infancy at 18. An "infant" cannot file a lawsuit without a "guardian ad litem" (one purpose guardian) acting for him/her, in most states cannot marry without parental permission, and cannot enter into a contract that is enforceable during his/her minority Competency The legal fitness or ability of a witness to be heard on the trial of a cause. Insanity mental illness causing the juvenile to be unfit for trial Society for the Prevention of Pauperism -A group that helped deal with the abandoned and homeless adults and children. They made a separate prison for juvenile, but used it as a school for instruction rather than punishment -They created the House of Refuge to eliminate poverty on the streets -Paupers- poor kids -problems-how to deal with young criminals -taught humans were evil and had to be taught to be good Binding Out Sending your kid to live with someone else and have them work to earn their keep Anthony Platt Argues that the reforms and corrective measures were simply a means to control the poor and retrain them to work in the industrial factories Disposition The sanction imposed on a juvenile who has been adjudicated in juvenile court -A sentence in adult court Petition A document that states the allegations against the individual and requests a juvenile court to adjudicate the individual -Indictment in adult court Bifuricated This type of juvenile court exists when the adjudication and dispositional hearings are held seperate Guardian ad litem A person the court appoints to represent the best interests of a child in a divorce or parental rights and responsibilities case. Offender v. Offense based system Offender- take a look at the offender and keep in best interest of the child Offense- Look at the crime and the severity and look out for the best interest of public safety Traditional Model (Crouse and Marcum) 1899-1960s -First model -First juvenile Justice system -The court helps you know right from wrong -The system cared about what was in the best interest of the child Assumptions of the Traditional Model -A juvenile's culpability was lower than an adults -Juveniles were intellectually, socially, and morally under developed compared to adults -The state should be proactive in juvenile's lives -Due Process was unimportant- juvenile's rights were shelter and food -Didn't keep any records -Prevention of future delinquency through treatment and rehabilitation -Parental rights- Custody and care of the child is held at the sufferance of the state Concerns with parens patriae Basically enforcing a moral code against people who are poor. Poor kids went to reformatories, everyone else went home. It tried catching kids before they were bad. Due Process Model (In Re Gault) 1960s-1980s -Changed because of the conflict over best interest of the child or of society -Children were no longer property Assumptions of the Due Process Model -Less culpable than adults-stop treating them as adults- -tried to deinstitutionalize juveniles -Less mature than adults -Due Process was a big deal -Act as a parent ONLY when necessary -Less discretion for the court -Kept records, but could be better -Protecting children's rights and rehab the children Punitive Model 19802-Present Forces that brought about the Punitive Model -Belief that there was an increase in violent crime -Not sharing information between jurisdictions was causing harm -Weren't paying attention to repeat offenders -Increase in gangs and drug use -Increase in female criminals Assumptions of the Punitive Model -State's role is to protect society from criminals -Uniform Due Process- Kids get the same treatment as other kids -Severely limited discretion- kids were falling through the cracks -Let communities know when a juvenile has committed a wrong doing. Failure to disclose this information leads to kids falling through the cracks -Goals to prevent future delinquency through punishment, incapacitation, deterrence, and holding juveniles accountable Super Predator Theory The population was booming and these new kids were going to be vicious criminals with no morals. It never happened. New laws were made for no reason. Factors in Intake -Did they commit a crime? -Does the court have jurisdiction? -Is there sufficient evidence? -Seriousness of the offense -Past criminal record -Age and attitude -Are there services to help the juvenile? Who Intakes Changes by jurisdiction -Probation officers, JDC officer, prosecutor In Re CCH Charlie keeps saying he wants to Kill Bill but shows no motivation to do it -arrested -held him for 66 days -Supreme Court overturns because child isn't a threat Tinker v. Des Moines Arrested by school officer for talking to teacher about her sending him to office "In our system, fear is not enough to overcome the first amendment"Matter of TGE Girl caught eating chocolate egg in store arrested and charged as delinquent and 2nd degree burglary-felony -probation -Supreme Court overturns because of lack of evidence Assumptions of the Traditional Model ... 