Restorative Justice for Historical Harms
Alan Murdock
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My friend Ian Marder posted a request for input on a recently proposed restorative justice project. He wrote:
"REQUEST FOR ADVICE/IDEAS - I have been contacted by a project manager who shall remain anonymous. They are developing a pilot in which they would work with their local police to pilot a short-term amensty for historic offences, allowing offenders to avoid prosecution if they make amends to their victims through a restorative process. Any thoughts, ideas, suggestions, criticisms, comments, devil's advocate-playing, potential safeguards, marketing ideas, etc. would be much appreciated - especially if you have knowledge of amnesties in other contexts (weapons, tax evasion, war crimes, etc.)"
Here are some thoughts:
The South African Truth and Reconciliation Commission comes to mind. Some of the critiques levied were that the program was a trade - amnesty for "truth," and thus was transactional rather than authentic. Broad swaths of offenses were not pursued even when only nominal parties were making apology and narrating the story.
One might ask - is this a one for one trade between a victim and offender? If the offender has transgressed against multiple victims does apology to one suffice for the collection of offenses within one category? Does apology and "turning over a new leaf" wipe out all prior major and minor offenses by the offender? If the offender includes offenses not part of the initial case are they invalidated in the court system, even if they would have preempted the case from RJ in the first place? If the testimony of one offender implicates others can the offender be compelled into further testimony once the short-term amnesty is complete? What does short-term amnesty mean, and what are its implications for the concept of preparation and consent of victims and offenders? (i.e. does short term amnesty mean cases must be heard within a particular time frame, or cases must start within a timeframe but may be ongoing for years or more, or does it mean amnesty will be granted for ten years based upon the RJ process, but then may be brought to court if the case is unresolved.)
Historic wrongs also often refer to harms done in prior generations but where current behaviors suggest patterns and attitudes have been handed down to the present day. If we are considering cases from 100 years or more ago, such as slavery, or the mass grave pictured at top, what is the outcome that is being sought? Will storytelling be sufficient, or should governmental or businesses that benefitted from a pattern of harm commitment to a program of reparations before the outset of a project? I can see concerns and issues with either approach.
Who gets to say the standards for amnesty have been met?
These are some of the questions I would clarify within a project prior to outset.
?? Driving Systemic Change | Lived Experience Leadership | Human Rights & Mental Health Reform ??
8 年How is justice in any way a part of a process where behaviours/injustices/horrors still occur. A naive thought
Associate Professor in Criminology at Maynooth University School of Law and Criminology
8 年Thanks a lot for this, Alan! Please let me know if you have any further thoughts or if anyone else comments on this with some ideas/thought/criticisms/advice. I am collating everything everyone says in order to present it all back to the project manager in question. It is true that this is very much just an idea with no boundaries or determined aspects as of yet. I am struggling with how it would interact with the criminal law, and if there is some opportunity cost as well (i.e. so complex that the resources would be best spent elsewhere). Could perhaps be more useful to focus these resources on neighboruhood conflicts, for example. Thanks again!