Archbishop Desmond Tutu expresses in the following simple yet elegant phrase the philosophies inherent in restorative justice, “…true reconciliation exposes the awfulness, the abuse, the hurt, and the truth…”. The frank exposure of emotional, physical and psychological injury may, however, adversely impact the victim(s) or alleged perpetrator in the short term. While restorative justice can be a risky undertaking, “only an honest confrontation with reality can bring real healing”. In the criminal justice system today in the United States, “real healing” seems to be a secondary principle; priority is given to proving the innocence or guilt of the accused in a trial conducted by a judge with the services of lawyers and the jury. The main stakeholders,
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For instance, New Zealand exercises family group conferencing and victim-offender mediation, Native Americans utilize circle sentencing, South Africa conducts conferences, and Japan carries out shaming ceremonies. Despite the differences in models of restorative justice, there are core elements and values that characterize the concept. John Braithwaite, who has written about and researched extensively restorative justice, delineates its core values as “healing rather than hurting, moral learning, community participation and community caring, respectful dialogue, forgiveness, responsibility, apology and making amends.” He hypothesizes that the process works best with “a specter of punishment in the background, but never threatened in the foreground,” illustrating that restorative justice alone might not be sufficient with all offenders, victims, or …show more content…
Constitution. Critics of restorative justice assert that restorative justice is unconstitutional, as it violates the U.S. Constitution’s Fifth Amendment, Sixth Amendment, and Fourteenth Amendment. The Fifth Amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”, which is extended also to the states by the Fourteenth Amendment to ensure due process. The Sixth Amendment provides that the accused must be afforded the right to representation by counsel and a trial by jury. Restorative justice critics fear that restorative processes infringe upon the constitutional rights of citizens by leading to self-incrimination, breaches in confidentiality, and double jeopardy in addition to the fact that there is no counsel for the accused or a jury to try him or her, as guaranteed by the Sixth Amendment. However, one only has to look to the Pacific to find ways that the United States can constitutionally incorporate restorative justice into its criminal justice
For instance, New Zealand exercises family group conferencing and victim-offender mediation, Native Americans utilize circle sentencing, South Africa conducts conferences, and Japan carries out shaming ceremonies. Despite the differences in models of restorative justice, there are core elements and values that characterize the concept. John Braithwaite, who has written about and researched extensively restorative justice, delineates its core values as “healing rather than hurting, moral learning, community participation and community caring, respectful dialogue, forgiveness, responsibility, apology and making amends.” He hypothesizes that the process works best with “a specter of punishment in the background, but never threatened in the foreground,” illustrating that restorative justice alone might not be sufficient with all offenders, victims, or …show more content…
Constitution. Critics of restorative justice assert that restorative justice is unconstitutional, as it violates the U.S. Constitution’s Fifth Amendment, Sixth Amendment, and Fourteenth Amendment. The Fifth Amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”, which is extended also to the states by the Fourteenth Amendment to ensure due process. The Sixth Amendment provides that the accused must be afforded the right to representation by counsel and a trial by jury. Restorative justice critics fear that restorative processes infringe upon the constitutional rights of citizens by leading to self-incrimination, breaches in confidentiality, and double jeopardy in addition to the fact that there is no counsel for the accused or a jury to try him or her, as guaranteed by the Sixth Amendment. However, one only has to look to the Pacific to find ways that the United States can constitutionally incorporate restorative justice into its criminal justice