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By Marlyce Nuzum

Comments can be sent to mnuzum@hotmail.com

This review of legislation was done as part of Bureau of Juvenile Justice's Balanced and Restorative Justice Initiative in Michigan

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This review is not intended to be a complete or comprehensive analysis of restorative justice legislation, but a work in progress. This article reviews legislation from 29 states that either addresses restorative justice directly or articulates its philosophy. Dimensions of interest included: (1) Identification of restorative language or phrases, (2) Scope (general to highly specific) (3) Emphasis/focus (exploration, funding, program authorization, systemic change, (4) Location (is it in one statute or located in several areas of legislation).

Emphasis and wording within statutes and codes varies widely. Some legislation emphasizes the balanced approach while others focus on restorative justice values, with or without the balanced approach. In other words, the focus may be on defining the mission and implementation or it may be on infusing and restructuring the justice system itself to reflect restorative justice values and practices. Examples include:

Pennsylvania S6301 (1995): This act demonstrates a juvenile justice system guided by a balanced and restorative philosophy:

"…the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care, and rehabilitation that provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community."

Alaska HB47: Sec. 47.12.010: Restorative Community Justice Study (7-1-99)

This legislation promotes a balanced approach but also incorporates key restorative justice principles – restoration of the community and the victim, participation of the community in the juvenile justice process.

"…promote a balanced juvenile justice system in the state to protect the community, impose accountability for violations of law, and equip juvenile offenders with the skills needed to live responsibly and productively."

Key restorative justice principles are stated directly including:

Making the juvenile justice system more open, accessible, and accountable to the public

Ensure that victims, witnesses, parents, guardians, juvenile offenders and all other interested parties are treated with dignity, respect, courtesy, and sensitivity throughout all legal proceedings

Divert juveniles from the formal juvenile justice process through early intervention as warranted when consistent with the protection of the public

Ensure that victims and witnesses of crimes committed by juveniles are afforded the same rights as victims and witnesses of crimes committed by adults

Encourage and provide opportunities for local communities and groups to play an active role in the juvenile justice process in ways that are culturally relevant

Restoration of the community and the victim.

California: Welfare and Institutions Code, Section 1700

This code uses restorative justice terminology but does not mention the balanced approach and is focused on systemic change. It does incorporate key restorative justice principles of restoration for victims and communities.

"…to protect society from the consequences of criminal activity and to that purpose community restoration, victim restoration and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses."

Some pieces of legislation never use the term, ‘restorative justice’ directly, however the general terminology and principles are incorporated. Some common restorative justice language found in several documents includes the following:

Holding juvenile offenders accountable for their offenses

Involving victims and the community in the juvenile justice process

Obligating the offender to pay restitution to the victim

Securing safer communities

Equip juvenile offenders with the skills needed to live responsibly and productively.

Examples include:

Montana: Title 4, Ch. 5, 41-5-102: Montana Youth Court Act (1997)

The purpose clause includes restorative justice language and values

"…to prevent and reduce youth delinquency through a system that does not seek retribution but provides:

immediate, consistent, enforceable, and avoidable consequences

a program of supervision , care, rehabilitation, detention, competency development and community protection for youth

in appropriate cases, restitution

Nebraska: LB 594 (1999)

This bill requires the juvenile justice system to promote prevention efforts that are community-based and involve all sectors of the community. Included in the goals of the juvenile justice system are

Holding juveniles accountable for their unlawful acts

Stressing the offender’s responsibility to victims and the community

Recognizing the importance of education for juveniles in the juvenile justice system

Emphasizing parental involvement and accountability

Utah: Utah Code Section 78-3a-102: Establishment of Juvenile Court (1998 and amended in 1997 General Session)

The purpose clause incorporates some restorative justice terminology and principles

"Promote public safety and individual accountability by the imposition of appropriate sanctions on persons who have committed acts in violation of the law; orders appropriate measures to promote guidance and control as an aid in the prevention of future unlawful conduct and the development of responsible citizenship."

78-3a-118 addresses disposition options including:

Repair, replacement or otherwise make restitution for damage or loss caused by the minor’s wrongful act, including costs of treatment

The court may through its probation department encourage the development of employment or work programs to enable minors to fulfill their restitution obligations

Compensatory community service

Other restorative justice legislation addresses a specific social need or purpose. Examples include:

Hawaii: House Resolution No. 11 (2000): Relating to Restorative Justice

A brief review of restorative justice philosophy and values included. Restorative justice is specifically identified as a method to address recidivism and prison overcrowding.

"Resolution is that the philosophy of restorative justice should be incorporated into criminal justice thinking and that the practice of restorative justice should be incorporated into current methods of incarceration in order to more specifically address the problems facing our criminal justice system, namely, prison overcrowding and recidivism.

Legislation may also authorize funding for the development and/or implementations of restorative justice programming. Examples include:

Colorado: H1156:

The Department of Public Safety is authorized to use funds or grants to provide restorative justice programs. Restorative justice terminology is apparent in the intent clause of this bill:

"…protect, restore and improve public safety by creating a juvenile justice system that sanctions juveniles and…in certain cases will also provide the opportunity to bring together affected victims, the community and juvenile offenders for restorative purposes."

New Mexico: House Bill 219 (Effective 7-1-2000)

Appropriations are made for the purpose of providing an array of services to children at risk of being referred or children referred to the Juvenile Justice Division of the Children, Youth and Families Department. The stated intent is that,

"…a balanced and restorative juvenile justice system be premised upon the guiding principles of community protection, accountability and competency development."

Wisconsin: Assembly Bill 533 (1999)

This bill authorizes the creation of three district attorney positions to engage in restorative justice planning and implementation in three designated counties and they are also to act as resources for other counties in the development and operation of restorative justice programming.

Some legislation restructures or redirects the juvenile justice system by including in its goals the values of restorative justice in whole or in part. Examples include:

Alaska: HB47 (1999): Restorative Community Justice Study

The Department of Corrections is directed to study the principles of restorative community justice and produce a plan for implementing these principles in Alaska. The seven ‘core values’ of restorative justice are listed and the DOC is instructed to:

Examine restorative community approach

Review and assess the state’s criminal justice policy as it relates to restorative community approach

Identify programs and practices that don’t fit within the parameters of restorative community justice

Develop a plan to apply restorative community justice approach to the state’s criminal justice system.

Idaho: H0032 (1999): Juvenile Offenders, Placement Options

This bill amends and adds to existing law to provide options to the Department of Juvenile Corrections for the placement of juvenile offenders committed to its custody. It allows the Department to provide a continuum of services including community nonresidential placements of juvenile offenders.

The intent clause uses specific restorative justice language:

"it is the policy of the state of Idaho that the juvenile corrections system will be based on the following principles: accountability, community protection; and competency development…the court shall impose a sentence that will protect the community, hold the juvenile accountable for his actions, and assist the juvenile in developing skills to become a contributing member of a diverse community."

A specific framework for the operation of the Department of Juvenile Corrections is set forth:

Provide humane, disciplined confinement to a juvenile offender who presents a danger to the community

Provide a continuum of services to other juvenile offenders including, but not limited to community nonresidential placements consistent with the balanced approach to juvenile justice.

Strengthen opportunities for the juvenile offender’s development of competency and life skills by expanding the juvenile’s access to applicable programs and community resources

Hold juvenile offenders accountable for delinquent behavior through such means as victim restitution, community service programs and the sharing of correction costs

Invoke the participation of the juvenile offender’s parent or legal guardian in assisting the juvenile to recognize and accept responsibility for his delinquent or other antisocial behavior

Develop efficient and effective juvenile correctional programs within the framework of professional correctional standards, legislative intent and available resources.

Provide for a diversity of innovative and effective programs through research on delinquent behavior and the continuous evaluation of correctional programs

Assist counties in developing meaningful programs for juveniles who have come into the juvenile corrections system but who have not been committed to the custody of the department of juvenile corrections.

Provide programs to increase public awareness of the mission of the juvenile corrections system and encourage public participation in developing an effective juvenile corrections system designed to aid in reducing juvenile crime in this state.

Develop and maintain a statewide juvenile offender information system.

It appears that restorative justice values and principles are most often found in the purpose/intent clauses of juvenile justice legislation, in the defining of goals for the juvenile justice system and specific programs, and in sections of bills which identify sentencing options and/or victims rights. Legislation flows on a continuum from very general, such as an intent clause, to highly specific, such as specific frameworks, sentencing options or program parameters.

A point of interest is that several of these states have also enacted legislation which is reflective of the ‘get tough on crime’ movement within the juvenile justice system – lowering the waiver age, increasing the number of waiveable offenses, and mandatory waivers. It may be that restorative justice legislation acts to keep youth out of the adult loop through early intervention options and community involvement.

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