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CPNN Administrator
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Posted: Oct. 07 2013,17:13 |
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The following is continued from the article Restorative Justice in Brazil.
Professor Howard Zehr has taught us that, the greater the pain, the greater the restorative potential the case will have. And it is in that painful environment that Restorative Justice has flourished among us, like a lotus flower that blooms from the mud. We face a tragic reality to which we must respond with wisdom and enlightenment.
The first texts on Restorative Justice in Brazil appeared in 1999. They were disseminated throughout the country by the Children and Youth Magistrates, Prosecutors and Public Defenders Brazilian Association.
In 2005, Restorative Justice was officially introduced in Brazil THROUGH a partnership between our Ministry of Justice and UNDP which made three pilot projects possible. All of them led by judges and having their own Courts as the basis to implement the practices.
I was responsible for one of those projects which took place in Porto Alegre, capital city of the State of Rio Grande do Sul, the southernmost State in Brazil, bordering Uruguay and Argentina. That Project is named "Justice for the 21st Century" and took on the responsibility for testing and disseminating Restorative Justice practices in the resolution of conflicts and violence involving children and adolescents. It is an initiative of the Rio Grande do Sul Judges Association and of the Magistrates' School with the support from our State Court of Justice.
The fact that we are Judges who volunteered for the project, with the support of our official institutions, gives us much credibility and makes the articulation with other institutions easier. At present it has made it easier for the Restorative Justice process to be absorbed by the Justice System institutions themselves.
The Magistrates' School has been our headquarters for the Restorative Justice courses. Since 2005 we have trained over four thousand people, RJ leaders and facilitators. Many of them are ordinary citizens without much formal education who are now studying about Justice at the same school where new Judges are prepared. The certificates issued by the Magistrates' school empower and value these citizens from different backgrounds as equals.
Along this process, we counted on a University as our partner who was responsible for the monitoring and evaluation of the experience.
In different occasions we also counted on UNESCO as well as on our National Human Rights Secretary, that provided us with the technical and financial support.
The articulation between international agencies, government agencies and the Justice System institutions were decisive to leverage the pilot projects. And they became a reference for the progress of RJ in the country.
In these few years in Brazil the restorative butterfly has shown a great potential in promoting avalanches of change.
The main ones are those related to the legislative sphere and to a strong process of institutional absorption. I must confess I feared that absorption. But I have seen that it can occur without compromising the integrity of the concepts when it comes from the bottom up, in relation to the hierarchies and to the legislative process, and from inside out, in relation to the transference of power and to the democratization of the relationship between the system and the communities.
Since January 2012 we have a new law for Juvenile Justice, which contains provisions that can legitimate and leverage Restorative Justice. That new Law establishes the principle of "the exceptional nature of the judicial intervention and the enforcement of those measures and instead favoring collectively generated solutions, a principle that associates the diversionary procedures to restorative practices, as the preferred means.
We also have a principle of primacy, where the law establishes "the primacy of practices that are restorative and meet the victims' interests".
And there is a proposition, that goes even further because it gives us orientation for the building, in practical terms, of a true Juvenile Restorative Justice system. It has to do with the provision that establishes an essentially restorative concept of accountability as one of the three goals of enforcing the penalties applied to youth offenders.
Our law for juveniles states that those measures have the objective of promoting the disapproval of the behavior of the adolescent and supporting his or her social integration. That is more or less traditional. More or less, because the insertion of that concept of disapproval, which has to do with the legal concept of behavioral crime disapproval, generated a decade of passionate debates around the legal concept of the measures.
For us, the understanding that the penalties imposed on youth are a form of penal constriction, although they have a pedagogical intention, it comes as a condition for the success of the proposed restorative practices. In case that is not clear: first, we cannot ensure the guaranties of the due legal process. Secondly, we will not be able to apply a doctrine rooted in the criticism to the retributive penal system, as is the case of Restorative Justice.
Maybe because we lack an intermediary term, many among us still support that the measures should have the promotion of social integration as their sole objective. But that means defending an incomplete and permissive social control model, as illustrated by the social discipline windows of Ted Wachtell and Paul McCold.
That is why the most relevant innovation of our law, the part projecting towards the future, is about the objective of promoting "the adolescents' accountability regarding the consequences of the harm performed, promoting reparation as much as possible". A clear principle of active accountability.
It will be around those three goals disapproval, social integration and accountability that an individualized plan for sentence enforcement will be structured, establishing the goals the adolescent should reach. Thus, all the orientation to youth offenders should aim at this restorative accountability concept. Consequently the whole sysem operation should be submitted to restorative lenses.
Besides this National Law of 2012, since 2010 we have had a norm from the National Council of Justice which requires that all Courts in the country create Judicial centers for Mediation and Conciliation working for civil and family proceedings. In 2013, that norm was altered and now criminal proceedings can be officially sent to that center provided restorative practices are applied.
I presently work in Caxias do Sul, the second biggest city in our State, with a population of around 500,000 (five hundred thousand) people. Besides being the Juvenile Court Judge I am also the Coordinator of one of those Judicial Centers for Conflict Resolution.
In our city, our Court of Justice has authorized a new pilot project, in collboration with the local City Hall. With that experience we will finally go from localized testing to enter a new unprecedented phase: the institutionalization and incorporation of Restorative Justice in the scope of public policies both in the judiciary and in the municipal spheres.
This new pilot project provides an intertwinement of the judiciary policy of collectively generated solutions with a municipal public policy of restorative pacification. We have been creating a very complex institutional engineering. The project is anchored in four institutions: the judiciary, the City Hall, an University and a private foundation.
Our goal is creating a services structure which won't absorb all the demands, but which will use those demands to show alternatives and to strengthen local communities. We have a Central Unit responsible for the management and technical coordination, and three Restorative Pacification Centers. One Center for conflicts which have turned into judicial proceedings. Another Center will be a diversionary alternative for situations involving children and adolescents. And a third Center to attend to neighborhood and family conflicts as well as issues of interest for the local community.
Regarding the methodologies, between 2005 and 2010 we worked with Non-Violent Communication, based on Marshall Rosenberg theory. From 2010 on we have been working with Peacemaking Circles. That methodology has really enraptured us and has been widely applied. We had successive trainings with Kay Pranis in 2010 and 2012, and now in 2013 she is in Brazil again. This year we will also have a training based in the Wagga Wagga model with Jean Schmitz, our partner in this meeting. We want to test conferences facilitated by police officers in charge of assisting schools and police officers doing community policing. We have also been training facilitators who work with Health, Social Services and Education as well as independent volunteers. They will be applying variations of the Peacemaking Circles in their own work and in the communities.
Because besides doing circles for crime and offenses we have also been using them for several different conflict situations. I'm going to give you some examples:
Circles to avoid families going through difficulties losing their children's guardianship.
Circles to help families get the guardianship back for their children in foster care.
Circles to hear the wishes of the children about a decision in a proceeding they are involved in.
Circles to help adopting families welcome their adopted child, particularly when the child is older.
Circles to strengthen family ties and create cohesion in families in supporting recovery for drug-addicts with serious addiction.
Circles to elaborate the plans for youth fulfillment of correctional measures in a participative way.
Circles to deal with rivalries between adolescents in detention centers.
Circles to reintegrate young people leaving the detention centers.
Our experience is built on certain points I would like to emphasize.
The main thing is we have to think about the process to diffuse Restorative justice involving several dimensions.
Regarding the understanding of the process, we have a pragmatic dimension in relation to resolution of cases and pacification of conflicts, of helping people facing difficult situations. For those we have a very effective potential.
A second dimension refers to the potential those ideas have to promote critical reflections and leverage movements of social change, opening ways to build a culture of peace. We can start from the concrete, doing what Braithwaite calls "transforming personal troubles intro public issues". That is a political potential to be stimulated.
But there is a third dimension. One that we seldom talk about. That third dimension helps to explain the contagious power these ideas have. It shows when someone takes part in a restorative meeting, or when that person takes part in social movements inspired by Restorative Justice. It is about awakening a level of awareness which has not been present in the academic and political world in the last centuries. The restorative meetings promote uncommon opportunities to access the collective dimensions of human intelligence, to experience an ethical rationality that goes beyond standards of traditional rationality because it is rooted in the sensitive hemisphere of the brain. That is a spiritual potential that can mean hope for a new humanity.
Regarding the articulation of advances, I would like to point out our concern in making sure the philosophical content of Restorative Justice may resonate in favor of a wide process of organizational and cultural changes which encompass the structure of the judiciary power, the dynamics of public policies and the communities political capacity always from an experience of those new approaches in the conflict resolution practice and the stories we can tell after them.
Now let's put all that into movement in an integrated way. If we act with the understanding of our operational potential, but also with our political and our spiritual potential, and having strategies to propose in order to change the judiciary world, the public policy world and the community world, what is not evident in this process is the opportunity to be founding a new stage in the civilizing process.
We must be aware of that every time we sit in circles to make justice.
Summarizing, my testimony is about the potential that the formal justice system has to induce dislodgings of the power axis that works over social control, promoting institutional changes which favor the creation of a systemic restorative architecture.
Forgive me if this account has taken a witness tone. We want to advance from concept to realization, and I have a pragmatic state of mind. Besides talking about my country, I wanted to bring a little of my own practice. I learned that with the Russian poet Chekhov: "if you want be universal, sing your village". I am not a great singer, but I hope I have conveyed my village in a good way.
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